There would be no prima facie duty of care owed by Crown Attorneys to police officers

Ontario civil | Torts | Negligence | Duty and standard of care

Plaintiff police officers arrested two accused, who claimed that they were assaulted in course of arrest. Proceedings against one accused were stayed and on appeal, proceedings against other accused were also stayed and court made statements critical of officers. Officers claimed that Crown attorneys improperly did not put forth information that would have contradicted claim of assault, and brought action for misfeasance in public office and negligence against Attorney General of Ontario. In course of claim to strike proceedings, hearing was held on whether causes of action were reasonable, with result that claim in negligence was dismissed. Motions judge found that claim was novel and that Crown attorneys did not have complete immunity from civil liability outside of malicious prosecution and intentional non-disclosure. Motions judge conducted Anns/Cooper analysis and found it was not plain and obvious that there would be no prima facie duty of care owed by Crown Attorneys to police officers, but that policy reasons existed not to expand duty of care in current cases. Officers appealed. Appeal dismissed. Motions judge erred in finding that existing case law was not dispositive of tenability of officers’ claim in negligence. Issue of Crown immunity in negligence claims by police officers had been squarely determined by jurisprudence. It was not necessary for motions judge to have conducted analysis under Anns/Cooper to determine whether duty of care should have been recognized. On straightforward application of Crown immunity jurisprudence, it was plain and obvious that officers’ claim in negligence had to fail.

Clark v. Ontario (Attorney General) (2019), 2019 CarswellOnt 5941, 2019 ONCA 311, P. Lauwers J.A., Grant Huscroft J.A., and G.T. Trotter J.A. (Ont. C.A.); affirmed (2017), 2017 CarswellOnt 67, 2017 ONSC 43, Stinson J. (Ont. S.C.J.). (Ont. C.A.); affirmed (2017), 2017 CarswellOnt 9706, 2017 ONSC 3683, Stinson J. (Ont. S.C.J.).

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