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TORTS BY THE CROWN - Immunity - When available - Negligence

Wednesday, May 29, 2019 @ 6:59 AM  


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Appeal by the plaintiff police officers from the striking of their negligence claim. Appeal by the Attorney General from the order allowing the officers’ misfeasance in public office claim to proceed and dismissing their application to strike on limitation grounds. Maharaj and Singh alleged the officers assaulted them during their arrests for armed robbery in 2009. Charges against the men were stayed in 2011 and 2013 because of the assault allegations. In 2015, police investigations concluded the allegations could not be substantiated. In 2015, the officers served notice on the Attorney General of their intention to commence an action, which they commenced in 2016. The officers claimed damages for emotional harm and damage to their reputations arising from the prosecution of Maharaj and Singh. They alleged the Crown failed to adequately investigate assault allegations Maharaj and Singh made against them and failed to call testimony from the officers to refute the allegations. The Attorney General did not file a statement of defence.

HELD: Appeals dismissed. The motion judge did not err in dismissing the motion to strike the action as time barred, in striking the negligence claim and in allowing the officers’ misfeasance claim to proceed. The Attorney General could not seek the dismissal of the claim on the basis it was time barred as it did not specifically plead a limitation defence. The Attorney General was attempting to use Rule 21.01(1)(a) of the Rules of Civil Procedure for a purpose for which it was not designed. It was plain and obvious that the negligence claim could not succeed as the existing jurisprudence determined negligence claims were within the scope of Crown immunity in the context of criminal prosecutions. There were no valid policy considerations to justify the possibility of civil claims by the police against the Crown for negligence. The motion judge correctly found the officers adequately pleaded misfeasance in public office and that Crown attorneys were not immune from civil liability for misfeasance in public office.

Clark v. Ontario (Attorney General), [2019] O.J. No. 2027, Ontario Court of Appeal, P.D. Lauwers, G. Huscroft and G.T. Trotter JJ.A., April 18, 2019. Digest No. TLD-May272019005