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Professional Responsibility - Regulated occupations - Occupations - Police officers - Duties

Thursday, September 15, 2016 @ 8:00 PM  


Appeal by the RCMP from a decision dismissing its motion for summary judgment to dismiss the action against them. The action arose out of a fatal motor vehicle accident in which the driver, Coady, collided with a tanker driven by the respondent Walsh. Both drivers were killed in the accident. The respondents alleged that the RCMP knew or should have known that Coady was impaired and not fit to drive or that his vehicle was mechanically unsound and unsafe to drive. On the day of the accident, Coady was observed to be mentally or physically impaired and driving dangerously. His dangerous driving was reported to the RCMP. An officer approached Coady in his vehicle, but then allowed Coady to drive away. The RCMP argued that the motions judge erred in law in concluding that the pleadings disclosed a cause of action against them and in improperly applying the Anns/Cooper test. The motions judge concluded that the case fell within the recognized class of cases involving a public authority’s negligent failure to act within established policies when it was foreseeable that the failure to do so might result in physical harm to a member of the community who was in geographic proximity.

HELD: Appeal dismissed. It was not plain and obvious that the RCMP did not owe a duty to the respondents on the pleadings. Harm to the respondents was foreseeable. The locating of Coady and RCMP interaction with him established potential proximity between them and the plaintiffs. Whether a duty of care arose in fact in all the circumstances was a triable issue. As the case law had not clearly established that a private law duty of care was owed by police to members of the public in the position of the plaintiffs in this case, a full Anns/Cooper analysis should have been performed. Assuming, however, as pleaded, that the RCMP knew or should have known that Coady or his vehicle were not safe to be on the road, it was reasonable to foresee that users of the road in proximity to Coady might be injured in an accident caused by the compromised state of Coady or his truck which the police did nothing to prevent Coady from driving. Coady was the link connecting the RCMP with the respondents. There might be residual policy considerations that would negate a prima facie duty of care which would be better addressed at trial or on a motion that permitted evidence.