



COURT OF APPEAL FOR ONTARIO

CITATION: Connelly v. Toronto (Police Services Board), 2018
    ONCA 368

DATE: 20180416

DOCKET: C63991

MacFarland, LaForme and Epstein JJ.A.

BETWEEN

John Connelly and Gloria Connelly

Plaintiffs (Appellants)

and

Toronto Police Services Board

Defendant (Respondent)

Cameron Fiske and David Cassin, for the appellants

Fred Fischer and Alison Mintoff, for the respondent

Heard: April 10, 2018

On appeal from the judgment of Justice Kenneth G. Hood of
    the Superior Court of Justice, dated June 6, 2016.

REASONS FOR DECISION

[1]

Pursuant to Rule 21 the motion judge struck out the appellants claim,
    without leave to amend, on the basis that it did not disclose a reasonable
    cause of action. The motion judge found it was plain and obvious that the
    Toronto Police Services Board (TPSB) owed no duty of care to the appellants.
    Indeed, except for the issue we briefly discuss below, the motion judge
    addressed each of the submissions the appellants repeat on this appeal.

[2]

At the outset, counsel for the appellants accepted that our panel of
    three judges is precluded from reconsidering this courts decision in
Wellington
    v. Ontario
, 2011 ONCA 274. Instead, they argue that
Wellington
should be distinguished because the facts in the appellants case are uniquely
    different. Counsel, however, concedes that if
Wellington
cannot be
    distinguished, the appeal should be dismissed.

[3]

Counsel for the appellants argue that
Wellington
is
    distinguishable from this case for two reasons: (i) the appellants do not have
    the rights to certain remedies for victims of crimes identified at para. 53 of
Wellington
;
    and (ii) they were actively assisting the police in association with them in the
    conduct of the investigation. We disagree; these factual differences do not
    convert the public duty of the police to investigate crime into a private duty
    owed to the appellants.

[4]

At para. 53 in
Wellington
, the court merely made closing
obiter
    dicta
comments to illustrate that concerned family members of victims of
    crime often have rights to certain remedies. As that court concluded in that
    paragraph, Refusing to recognize the existence of a private law duty of care
    in relation to police investigations does not leave the families of victims or
    these respondents without appropriate and viable legal recourse.

[5]

Regarding the appellants claim in connection with their assisting the
    police; this consists of their providing reasons to the police for their desired
    outcome of the investigation. It does not create any special relationship with
    the police that converts the duty of care the police owe to the public into a
    private duty of care to the appellants.

[6]

Turning to the substance of the appeal, further to the concession by
    counsel for the appellants, we concur entirely with the motion judges reasons
    for his decision. That is,
Wellington
provides a full answer to the
    appellants appeal. As the motion judge held at para. 10 of his reasons:

[W]hile the police owe a duty of care to suspects and to a
    narrow and distinct group of potential victims of a specific threat, the police
    do not owe victims of crime and their families a private law duty of care in
    relation to the investigation of alleged crimes:
Wellington
, at para.
    20. Nor does a parents desire for a thorough police investigation give rise to
    a relationship of proximity sufficient to ground an action for damages in tort:
Wellington
, at para. 33. It is clear that the duty being put forward
    in this case is not novel. It has already been excluded.

[7]

Despite the appellants attempts to characterize their claim as novel,
    their claim of negligence against the police is not. The law is clear; the
    police do not owe them a duty of care as the family members of a victim of a
    potential crime. As the motion judge correctly concluded, it is a category that
    has already been considered and rejected: see
Hill v. Hamilton-Wentworth
    (Regional Municipality) Police Services Board,
2007 SCC 41 at paras. 27
    and 45.

[8]

The appeal is dismissed. Costs of the
    appeal are awarded to the respondent in the agreed upon amount $5,000 inclusive
    of disbursements and HST.

J. MacFarland J.A.

H.S. LaForme J.A.

Gloria Epstein J.A.


