Canada: Court Of Appeal Affirms Substantial Damages In Police Liability Case For Breaching Confidentiality

In February 2015, the Superior Court of Justice awarded substantial damages against the Durham Regional Police Services Board ("Police") for releasing the identity of an alleged confidential informant. That decision was recently upheld by the Ontario Court of Appeal in Nissen v. Durham Regional Police Services Board, 2017 ONCA 10 ("Nissen").

The Plaintiff learned that the teenaged son of one of her neighbours had broken into a neighbour's home with his brother and stolen some guns. The Plaintiff attended at the police station to report this information on the condition that her identity and reporting of the theft remain confidential. Unbeknownst to the Plaintiff, the interview was recorded by the Police. Soon after, the young men were charged. During the criminal proceedings, the recording of the Plaintiff's interview was disclosed to defence counsel. This information infuriated the accuseds' parents, who subsequently threatened and harassed the Plaintiff. As a result of these events, the Plaintiff had to sell her house and was diagnosed with post-traumatic stress disorder.

Although disputed by the Police, the trial judge found that the Plaintiff was promised anonymity and confidentiality. Therefore, in law, the Police owed a common law duty not to disclose the identity of the Plaintiff which it breached by failing to maintain confidentiality. The Plaintiff was awarded general damages in the amount of $345,000. Of note, the trial judge found that the failure of the Police to act after learning of the harassing behaviour by the accuseds' parents was an aggravating factor in assessing damages. The Plaintiff's husband and two children were awarded damages for loss of guidance, care and companionship in the amount of $65,000 and $25,000 (each) respectively. The Police appealed and raised three issues.

First, the Police argued that the trial judge made a palpable and overriding error in finding that the Plaintiff was promised confidentiality. The Court of Appeal rejected this argument and stated that the trial judge's finding — which attracts deference — was based on his assessment of the Plaintiff's credibility and reliability as a witness and supported by other corroborating evidence.

Second, the Police contended that a civil claim for damages for breach of a promise of confidentiality by police requires more than a finding that there was a promise which was breached and led to damages. They argued that the alleged informant must also show that the information provided be difficult or impossible to obtain and that the informer must be likely to suffer harm or danger if his/her identity is disclosed. They also argued that the formal requirements set out in the Durham Police's Criminal Informant Directive ("Directive") to classify an individual as an informant were not followed and the claim must therefore fail. The Court of Appeal disagreed and found the case was properly decided as a civil claim for damages for breach of confidence. The Plaintiff was promised confidentiality which gave rise to a common law and equitable right entitling her to have that promise kept. It was a right that was not contingent on the level of difficulty in obtaining the information provided or what dangers she may later face. Nor should her claim be dismissed because the Directive was not followed. Although the Police may have thought that the Plaintiff was not an informant on that basis, it does not affect the Plaintiff's claim for breach of confidence.

Third, the Police argued that the damages awarded were excessive on the basis that the trial judge placed too much emphasis on non-analogous cases, failed to consider the Plaintiff's pre-existing psychological conditions and erroneously awarded aggravated damages when there was no finding of "reprehensible or outrageous conduct". These arguments were all rejected. The Court of Appeal stated that while the damages awarded were very generous, they did not reveal any error of law or principle that required appellate justification. Specifically, the case law relied upon was not so different in quality that it could not be used as a reference point in assessing damages. The Court also found that the trial judge had considered the Plaintiff's pre-existing conditions and was still open to find that the psychological harm suffered was entirely attributable to the disclosure of her identity and the subsequent harassment by the accuseds' parents. Lastly, the Court disagreed that a trial judge can only take into account aggravating features where there has been a finding of reprehensible or outrageous conduct. Aggravated damages aim not at punishing wrongful behaviour (which is the role of punitive damages) but at fully compensating the loss suffered.

This decision reinforces the obligation to maintain the confidentiality of people who provide information to police on a confidential basis, and establishes that substantial damages can be recovered in the event of a breach.

About BLG

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions