An Ontario judge has dismissed a $5.4-million negligence claim brought by a lawyer against the Brantford Police Services Board.
Superior Court Justice Gerald Taylor, however, found Richardson’s investigation did not fall below the standard of a reasonable police officer at the time of the investigation. Lawyers say the decision serves as a reminder of the high threshold that must be met to bring a successful negligence claim against police.
“It’s still such an uphill battle for a plaintiff to bring such an action,” says Devon Ryerse, a lawyer with Agro Zaffiro LLP, who represented the police in the case.
Painter was charged in 1992 with fraud, obtaining credit by fraud, perjury and obstructing justice. But the proceedings were dropped after it became clear at a preliminary hearing that the information charging Painter had never been sworn.
The charges came from allegations that Michael Lewicki, a former client of Painter’s, made after the two were involved in an unsuccessful business venture together in the 1980s. After the venture fell apart and years of litigation between the two ensued, Lewicki, who died in 2006, made a complaint to the Law Society of Upper Canada and the police claiming Painter had charged him a criminal interest rate.
Once the proceedings were dropped, Painter decided to bring a lawsuit against the police.
Lawrence Greenspon, a certified specialist in both criminal defence and civil litigation, says negligence cases against the police are very difficult cases right from the start.
“The vast majority of police officers are doing a very tough job and doing it well,” says Greenspon, who was not involved in the case.
“But there are some that are not doing their job well and civil action is the only realistic remedy for people who have been wronged by police negligence or excess force.”
Painter submitted that the impact of the criminal charges had an immediate impact on his practice, leading to it closing down in 1994. He claimed damages for the loss of income from his law practice and loss of other investments, as he has not practised law since the 1990s.
Painter is now listed in the law society’s directory of lawyers as “administratively suspended.”
While Painter blamed the failure of his practice on the criminal charges, Taylor found the firm was already “in shambles” by 1991, before the charges were brought.
“I accept that a lawyer who is charged criminally will face some adverse consequences affecting his professional reputation,” Taylor wrote in the decision. “However, once the prosecution was terminated, Ernest Painter could have continued practicing and explained to former and future clients that although he had been charged he had never been convicted.”
Taylor confirmed that the standard of care in such investigations is not perfection and that a reasonable officer, judged in the circumstances at the time the decision was made, can make mistakes without breaching the standard of care. The judge found that the investigation was appropriate based on the available evidence and that no evidence had been fabricated or withheld in order to convince the Crown to lay charges.
Stuart Zacharias, a lawyer who has defended police in negligence claims, says the decision emphasizes the importance of the fact that the Crown reviewed and approved the charges and went ahead with the preliminary enquiry.
“Let’s not forget that the police are just one set of actors in the criminal justice system,” says Zacharias, a partner with Lerners LLP, who was not involved in the Painter case.
Zacharias says the decision reaffirms that the standard in such cases is not one of perfection viewed in hindsight. Lawyers say that the court has to consider the information available at the time of the investigation, as well as what was considered acceptable investigative conduct at that time.
“By no means was the investigation perfect, [but] the takeaway point is that the investigation is assessed based on the time the investigation occurred,” says Richard MacGregor, one of the lawyers who represented the police in Painter.
“You’re looking at police officers from the time of the investigation, not now [and] today’s standards.”
In his decision, Taylor described Painter as someone who sees himself as a victim when things do not turn out the way he hopes and that he “views his world through his own prism.”
Taylor also noted in the decision that Richardson “was not found not guilty after trial” and that the proceedings were dropped because the charging information had not been properly sworn.
“In my view, that is very different than a finding that Ernest Painter committed no criminal offences and was completely innocent of the charges which were brought against him,” the judge wrote.
Bruce Hillyer and Stephen Abraham, who represented Painter in the claim, did not respond to a request for comment.