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Lawyer wins but timing is off

|Written By By Kirsten McMahon

The tort of negligent investigation can be expanded to traffic violations, ruled a Brampton Small Claims Court judge in an unusual case involving a plaintiff lawyer.

The unusual case began in March 2003, when lawyer Frank Calandra bumped his 1997 Porsche into the car in front of him. Photo by Paul Lawrence
The unusual case began in March 2003, when lawyer Frank Calandra bumped his 1997 Porsche into the car in front of him. Photo by Paul Lawrence

However, lawyer Frank Calandra may have won the battle but he lost the war, as his claim was filed 21 days too late and was not within the limitations period of the Public Authorities Protection Act. But, he tells Law Times, it wasn't so much about recovering his costs as it was about making a point.

"Negligent investigation is negligent investigation wherever it occurs. Why should the police be held to a lesser standard than anyone else in society? The police should held at least the same standard or a higher standard because they have a position of power," he says. "The police have the resources and the training, they should do a proper investigation of things and they're toying with people's liberty."

It all started in March 2003 when Calandra, late for a mediation, stopped at a traffic light on a slippery and snowy day. He sneezed, leading to his 1997 Porsche bumping into the 1982 Mercury in front of him.

Calandra claimed he got out of his car, checked on Mohammed Baksh — the driver of the Mercury — and ascertained there were no injuries or extensive damages. He gave Baksh his business card, said he'd pay for any damage, and continued on his way.

Baksh reported the accident to police and Const. Singh contacted Calandra, and after much telephone tag charged him with careless driving, estimating the damages at $500.

The careless driving case collapsed in September 2003 and the charge was withdrawn. Baksh had failed to show but his passenger did and couldn't recall Calandra nor where the accident occurred and had not seen Calandra's car approaching.

Calandra said he just wanted a written apology from the officer or the Peel Regional Police, but when they refused he sued them in Small Claims Court.

While Deputy Judge Brian King was concerned that allowing this type of case might open the floodgates for others charged with traffic investigations, he found that according to 2005's Hill v. Hamilton-Wentworth Police Services Board the duty of care to investigate exists in Ontario and Quebec.

King found Singh's evidence to be totally unsatisfactory and found her testimony to be discredited.

"So we virtually have a non-accident, coupled with a discredited officer's testimony, missing papers from her notebook, no reference to a cell phone in her notes, failure of Baksh to attend and support the prosecution, the loss of Baksh's written statement, failure of Baksh to appear at this trial and testify that he had any injuries or damages or as to even what he saw, from which I drew an adverse inference," wrote King, "and, finally, the most damning testimony of all when Const. Singh said, 'My conclusion was that Baksh told me — from what he told me, the charge was laid. I didn't conduct my own investigation [emphasis King's].' I have to find the constable performed a negligent investigation."

This is the first time this tort has been applied outside the criminal realm, according to Calandra, who says the ruling stands as an affirmation of that tort.

A finding of careless driving means six demerit points and costly insurance bills, he says — a situation that would greatly affect a low-income individual who might rely on a car for work purposes.

Calandra was seeking $5,514 in legal costs to defend the Highway Traffic Act charge but King dismissed the costs because the claim was filed 21 days after the limitation period had ended.

"I lost the limitations. The Limitations Act changed three months after my charge was dismissed. I think it's probably right. It's me not looking after my own interests because I'm too busy looking after my clients. It didn't really matter," Calandra says. "What was important to me was to establish that there was a negligent investigation. In my view, the judge made a very good decision. I have a great deal of respect for him and I accept his limitation decision.

"I didn't do this for money. I did this to show that this is wrong and to get some sort of reported case out there that says it's wrong."

In an interesting twist, Baksh managed to collect $35,000 in accident benefits from his insurer.

Calandra was considering appealing King's judgment on the limitations period but has decided there has been enough time and energy spent on "virtually a non-accident."

 "It's a complete, flippant attitude," he says. "Today it's traffic court and tomorrow it's criminal court. If that's the standard of investigation we allow the police to get away with, who's to say they're not doing the same with a murder trial or with anything else?"

Counsel for Singh and the Peel Regional Police Services Board, Ann Dinnert, did not return Law Times' calls.

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