



COURT OF APPEAL FOR ONTARIO

CITATION: Nissen v. Durham Regional Police Services Board,
    2017 ONCA 10 DATE: 20170109

DOCKET: C60205

Sharpe, Pepall and van Rensburg JJ.A.

BETWEEN

Chad Nissen, Margaret Stack, both personally and
    as litigation guardians of Christian Nissen and Morgan Nissen

Plaintiffs (Respondents)

and

Durham Regional Police Services Board, James
    Liepsig, Mark Price, Al Sirizzotti, Sean Fitzgerald
, John Doe or Jane Doe,
    Brenda Cowie, Isabel Pargana, Her Majesty the Queen in Right of Ontario

Defendants
(Appellants)

Roger Horst, Rafal Szymanski and Lisa Bruni, for the
    appellants

Margaret A. Hoy, for the respondents

Heard: November 29, 2016

On appeal from the judgment of Justice Douglas Gray of
    the Superior Court of Justice, dated February 26, 2015, with reasons reported
    at 2015 ONSC 1268.

Sharpe J.A.:

[1]

The central issue on this appeal is: what are the required elements for
    a claim for damages against the police for breach of a promise of
    confidentiality made to a citizen reporting criminal wrongdoing?

[2]

Margaret Stack, respondent in this appeal, was awarded damages against
    the appellants, the Durham Regional Police Services Board and certain named
    officers (the Police), for what was pleaded as breach of informer privilege.
    Ms. Stack went to the Police to tell them that she had learned that P.E., the
    teenaged son of her neighbours, had broken into another neighbours house and
    stolen some guns. Ms. Stack asserted that she had asked the Police and been
    promised by them that her identity and the fact that she had reported the theft
    of the guns would be treated as confidential. Unbeknownst to Ms. Stack, the
    Police videotaped her interview. P.E. and his brother S.E. were charged. A
    recording of Ms. Stacks interview was included in the disclosure provided to
    P.E. and S.E. in the criminal proceedings. Ms. Stack was subsequently subjected
    to threatening and harassing conduct by the parents of P.E. and S.E. Ms. Stack
    and her family were so distressed by this conduct that they sold their home and
    moved to another community. As a result of these events, Ms. Stack has felt
    hopeless, depressed, anxious and fearful. She has been diagnosed as having
    post-traumatic stress disorder.

[3]

The Police denied that Ms. Stack was promised confidentiality or that
    she enjoyed the status of a confidential informant.

[4]

Following a 10 day trial, the trial judge gave detailed reasons in which
    he found that the Police had promised Ms. Stack confidentiality and that Ms.
    Stack, her husband and her children were entitled to substantial damages.

[5]

Before this court, the Police argue that the trial judge erred in
    finding that they promised Ms. Stack confidentiality, that the elements
    necessary for a claim of damages for breach of informer privilege were not made
    out, and that the damages awarded were excessive.

[6]

For the following reasons, I would dismiss the appeal.

FACTS

[7]

Ms. Stack lived with her husband Chad Nissen and their two children on a
    quiet street in Whitby. They had invested considerable time and money on
    improving their home, and they enjoyed good relationships with their
    neighbours.

[8]

Ms. Stack sometimes asked P.E., the teenaged son of one of her
    neighbours, to babysit her children. One day when Ms. Stack asked the child of
    another neighbour to babysit, P.E. became angry. Ms. Stack was disturbed by
    what she regarded as his irrational and frightening behaviour. Ms. Stack
    subsequently learned from another neighbour that P.E. had broken into the neighbours
    home, stolen guns, and with his brother S.E. taken the guns to school and
    threatened students.

[9]

Ms. Stack decided that she should inform the police but she did not wish
    to have her name associated with any investigation. A friend offered to call a
    police officer he knew without identifying Ms. Stack. She subsequently received
    a call from Officer Liepsig of the Durham Regional Police, who wanted to talk
    to her immediately. She was upset that her friend had disclosed her name, but
    the friend explained that Officer Liepsig had insisted. She called Officer
    Liepsig who offered to come to her home. She told him no, that she felt unsafe
    as the people they were going to talk about lived across the street. In her
    evidence, Ms. Stack insisted that she emphasized to Officer Liepsig that she
    did not wish to be identified, that she was frightened of P.E. and S.E., and
    that the Officer promised her over the telephone that her identity would not be
    disclosed. She said that Officer Liepsig told her that if she came to the
    police station to discuss the matter he would keep her identity secret, and
    that she would remain totally anonymous.

[10]

Ms. Stack testified that she was given further assurances of
    confidentiality when she attended at the station. Officer Liepsig asked her if
    he could take some notes but did not disclose to her that the interview was
    being recorded on videotape. At the end of the interview, Ms. Stack asked
    Officer Liepsig not to let anyone know about their conversation. The videotape
    confirms that he replied: [T]his is between you and I. Of course, I have to
    keep records of this for ourselves...That stuff does not get disclosed. It is
    not made available to the public. You dont have to worry about that. Ms.
    Stack testified that before leaving the station she again asked to be reassured
    that no one would know she had made her report, and that again Officer Liepsig
    told her that it was impossible, even if a request was made under freedom of
    information legislation. Ms. Stack acknowledged in cross-examination that
    Officer Liepsig never used the term confidential informer.

[11]

Officer Liepsig testified that he did not recall Ms. Stack expressing
    any concerns about confidentiality or anonymity, and denied that he gave her
    any assurances. He stated that if there had been any assurances of
    confidentiality, he would not have met Ms. Stack at the police station and he
    would not have recorded her statement. Officer Liepsig explained the Durham
    Regional Police Criminal Informant and Agent Management Directive (the
    Directive), and testified that he had not followed the steps required to make
    Ms. Stack a confidential informant within the meaning of the Directive. Officer
    Liepsig testified that he considered Ms. Stack to be a regular witness, not a
    confidential informer.

[12]

Within a few days of Ms. Stacks police interview, P.E. and S.E. were
    arrested. Soon after Officer Liepsig was reassigned, and the task of preparing
    the Crown brief was assigned to other officers who were unaware that Ms. Stack
    had been given any assurance of confidentiality. Ms. Stack later learned that
    her identity and her videotaped interview were included in the Crowns
    disclosure to P.E. and S.E.s defense counsel. This disclosure provoked an
    angry reaction from P.E. and S.E.s parents, Mr. and Mrs. E. Ms. Stack
    testified that Mr. E. drove his truck at her causing her to leap from the
    sidewalk onto the grass behind a tree to avoid being hit by the truck. He then
    sped away, spinning his wheels so that gravel from the road was propelled
    towards her.

[13]

Ms. Stack immediately called Officer Liepsig to report the incident and
    express her concern that a mistake had been made and her identity disclosed,
    but he did not return her call. Mr. Nissen spoke to Mr. E., who expressed his anger
    and intention to pay Ms. Stack back for having gone to the police. Mr. Nissen
    also complained to the Police about Mr. E.s conduct. A police officer, who had
    not himself spoken with Mr. Nissen, responded by calling Mr. E. to caution him
    not to contact or tamper with witnesses, and to not say anything that might be
    interpreted as a theat. The Police did not report back to Mr. Nissen.

[14]

Ms. Stack and Mr. Nissen testified that following the truck incident,
    Mr. and Mrs. E. subjected them to on-going harassment. They would come to their
    living room window, driveway or to the front step of their house and glare over
    at the Stack-Nissen home in a threatening manner. There were also other
    incidents. P.E. arranged to have a young girl run through Ms. Stacks back yard
    screaming and waving her arms. On other occasions, Mr. E. clucked and behaved
    like a chicken towards Mr. Nissen and Ms. Stack. The harassment became
    unbearable and ultimately, Ms. Stack and Mr. Nissen decided to sell their home
    and move.

[15]

Ms. Stack complained of feeling hopeless and depressed following these
    events, and she has been diagnosed with post-traumatic stress disorder.
    Evidence of the significant change in her behaviour and enjoyment of life was
    provided by her family, friends and Dr. Silver, a psychiatrist who had examined
    her for the purposes of this case.

TRIAL JUDGMENT

[16]

The trial judge found as a fact that Officer Liepsig had promised Ms.
    Stack anonymity and confidentiality. He noted that Officer Liepsig denied
    giving any such assurances, but observed that Officer Liepsigs notes about his
    interaction with Ms. Stack were sparse. The trial judge stated, at para. 289:

I think it is highly unlikely that the discussion about
    anonymity at the end of the interview was the first time the subject was
    raised. In context, I think it is unlikely that the issue would have been
    raised for the first time in such a casual way at the end of the interview. It
    is more likely, in my view, that that discussion was the culmination of an
    earlier discussion about anonymity. Otherwise, there was no context and the
    discussion, coming out of the blue, would be unusual. If anonymity was promised
    before Ms. Stack came to the police station, it is difficult to think of any
    reason for doing it except as a means to persuade her to come to the station
    and tell what she knew.

[17]

The trial judge noted that Ms. Stacks concern for confidentiality was
    confirmed by her friend who had made the initial call to Officer Liepsig, and
    by her complaint to Officer Liepsig immediately upon learning that her identity
    had been disclosed. He noted that Officer Liepsig did not deny receiving that
    message, nor having failed to respond. Mr. Nissen also corroborated Ms. Stacks
    concern about confidentiality. The Police did not refute his evidence that he
    went to the station to complain about the disclosure, and that an officer had apologized
    to him and said that the disclosure was unacceptable.

[18]

The trial judge noted that the fact that the Police did not follow their
    policy regarding confidential informants suggested that Officer Liepsig had not
    intended to grant Ms. Stack informer status. However, Officer Liepsig had
    failed to make that clear to Ms. Stack. The trial judge concluded, at para.
    298:

On a balance of probabilities, I hold that Officer Liepsig
    promised Ms. Stack that her identity would be preserved, and not disclosed, if
    she came to the police station and provided information about suspected
    criminal activity. He did not qualify that promise in any way. Thus, both
    expressly and by implication Ms. Stack became entitled to informer privilege,
    that is, she was entitled to have her anonymity preserved with respect to her
    involvement in conveying information to the police.

[19]

The trial judge found that the police owed a common law duty not to
    disclose the identity of an informer, and that  even if the duty was not
    absolute, reasonable care had not been taken in the circumstances of this case.

[20]

He reviewed the law relating to informer privilege is detail and
    concluded, at para. 280:

[I]nformer privilege arises if information is provided to the
    police in exchange for a promise of confidentiality.  Mere expectation of
    confidentiality is not enough. There must be a promise, either express or implied,
    that confidentiality will be maintained. Where the privilege properly arises,
    anonymity must be observed absolutely, save only where innocence is at stake.
    The purpose of the privilege is two-fold: to encourage citizens to report
    suspected criminal activity; and to protect informers from retribution.
    Formality is not required. All that is required is a promise of confidentiality
    in exchange for information. While policies and procedures exist with respect
    to informer privilege, they do not themselves create it.

[21]

The trial judge rejected the claim for damages arising from the sale of
    the Whitby home and purchase of the new home, as no expert evidence was called
    as to loss of value. He also rejected a claim for
Charter
damages, and
    the claims Ms. Stack and Mr. Nissen had asserted for lost income or lost
    opportunity.

[22]

The trial judge did, however, award Ms. Stack general damages for
    emotional and psychological injury. That claim was supported by her own
    evidence, that of her family and friends, and that of Dr. Silver, who had
    diagnosed her with post-traumatic stress disorder, an opinion that was not contradicted
    by the expert retained by the Police. The trial judge found that the
    psychological injury Ms. Stack had suffered rose above the level of ordinary
    upset or anxiety, and was therefore compensable at law. The trial judge found
    that the failure of the Police to act after they learned of Mr. E.s harassing
    behaviour, other than the one brief telephone conversation, was an aggravating
    factor. He rejected the claim for punitive damages and fixed the general
    damages in the amount of $345,000. The trial judge also awarded
Family Law
    Act,
R.S.O. 1990, c.
F.3,
    damages for loss of guidance, care and companionship, in the amount of $65,000
    to Mr. Nissen, and $25,000 to each child.

ISSUES

[23]

The appellants raise the following issues on appeal:

1.

Did the trial judge err in finding that Ms. Stack was promised
    confidentiality?

2.

Did the trial judge err in finding that Ms. Stack established the
    necessary elements for a claim for damages?

3.

Were the damages awarded excessive?

ANALYSIS

1. Did the trial judge err
    in finding that the Ms. Stack was promised confidentiality?

[24]

The Police argue that the trial judge made a palpable and overriding
    error in finding that Ms. Stack was promised confidentiality. They argue that
    it would make no sense for Officer Liepsig to ask Ms. Stack to come to the
    police station for an interview if she were being treated as a confidential
    informant.

[25]

We did not call upon counsel for the respondent to address this
    submission in oral argument, as it is without merit. The trial judge thoroughly
    reviewed the evidence of Ms. Stack, Officer Liepsig and other witnesses and
    clearly explained the basis for his finding. He considered and rejected the
    very point raised by the Police on this appeal, namely, that Officer Liepsig
    would not have conducted the interview at the police station if he considered
    Ms. Stack to be a confidential informant. The trial judges finding that
    Officer Liepsig did promise Ms. Stack confidentiality and anonymity was based
    upon his assessment of her credibility and reliability as a witness. His
    finding was supported by the conversation between Ms. Stack and Officer Liepsig
    at the conclusion of the videotaped statement and by other evidence, including
    that given by other police officers. It attracts deference in this court, and I
    see no basis upon which we could interfere.

2. Did the trial judge err
    in finding that Ms. Stack established the necessary elements for a claim for damages?

[26]

We were not referred to any case in which damages for breach of informer
    privilege had been awarded. However, in
Bisaillon v. Keable
, [1983] 2
    S.C.R. 60, Beetz J. stated, at p. 96, that although there was no precedent on
    the point, he would have no difficulty in finding that an action for damages for
    such a breach would lie. On this appeal, the Police do not dispute that
    proposition.

[27]

However, the Police do argue that the trial judge erred by finding that
    a plaintiff only need prove that the police made a promise of confidentiality
    in exchange for information in order to establish the privilege. They submit
    that the elements for a civil claim for damages for breach of a promise of
    confidentiality by the police will not lie without proof of two other elements,
    namely, (1) that the information provided must be difficult or impossible to
    obtain; and (2) that the informer must be likely to suffer harm or danger if
    his or her identity is disclosed. They also submit that the claim cannot be
    sustained as the Directive relating to confidential informers was not followed.

[28]

In support of the first proposition, the Police rely on the following
    passage from the judgment of the Supreme Court of Canada in
R. v. Basi
,
    2009 SCC 52, [2009] 3 S.C.R. 389, at para. 36:

The privilege arises where a police officer, in the course of
    an investigation, guarantees protection and confidentiality to a prospective
    informer in exchange for useful information that would otherwise be difficult
    or impossible to obtain. In appropriate circumstances, a bargain of this sort
    has long been accepted as an indispensable tool in the detection, prevention
    and prosecution of crime.

[29]

In support of the second proposition, they rely on
R. v. Scott
,
    [1990] 3 S.C.R. 979, at para. 31, where Cory J. stated: Whatever their
    motives, the position of informers is always precarious and their role is
    fraught with danger.

[30]

The Police submit that as the information Ms. Stack provided was readily
    available to the police from other sources, that as they had no reason to
    suspect that she would be in any danger should her identity be revealed and
    that as they did not follow policy and procedures for creating confidential
    informer privilege, Ms. Stack has failed to make out the necessary elements for
    her claim.

[31]

I disagree with the Police submission that the trial judge erred with
    respect to the necessary elements for this claim.

[32]

In my view, this case can and should be decided as a civil claim for
    damages for breach of confidence. The fundamental point is that, on the
    findings of the trial judge, Officer Liepsig made a promise of confidentiality
    and anonymity to Ms. Stack in exchange for the information she provided. The trial
    judge found that the promise was breached and Ms. Stack suffered damages as a
    result. Those findings bring this case squarely within the long-recognized
    cause of action for breach of confidence, and Ms. Stack is accordingly entitled
    to recover on that basis.

[33]

While other considerations may come into play in a criminal case where
    the prosecution is resisting disclosure of the identity of a confidential
    informer to an accused, this is a civil case between the police and an
    individual who was promised confidentiality. That promise gave rise to a common
    law and equitable right entitling Ms. Stack to have her identity kept
    confidential. Her right was not contingent upon other ways the Police may have
    had to get the information she provided, or on what the Police thought about
    the danger she faced.

[34]

Difficulty in obtaining the information and fear of harm to the witness may
    well be the rationales underlying the doctrine of informer privilege in
    criminal law, but I am not persuaded that they are necessary elements to
    sustain the privilege, even in a criminal case. There is no suggestion to that
    effect in the lengthy discussion of the doctrine in Hubbard, Magotiaux and
    Duncan,
The Law of Privilege in Canada
, loose-leaf
(Aurora: Canada Law Book, 2006, looseleaf).
    For the purposes of this appeal, I need go no further than saying that there is
    no reason to qualify the right to sue for breach of confidence by adding additional
    elements necessary to establish a civil claim for damages. To do so would put
    the citizen interacting with the police in an impossible situation. Ms. Stack
    had no way of determining whether the Police could obtain from another source the
    information she was offering. Nor did she have any way of gauging what the
    Police considered to be the risk of harm she faced should her identity be
    disclosed. She explained her fear of harm to Officer Liepsig, and that fear ultimately
    proved to be well-founded. She was entitled to rely on Officer Liepsigs
    promise of confidentiality in exchange for her cooperation in giving him the
    information she had.

[35]

It is, of course, for the police to decide whether or not to make a
    promise of confidentiality. In making that decision, they will no doubt make an
    assessment of the value of the information the witness may have to offer,
    whether they can get the information through other means, and the danger the
    witness may face if his or her identity is revealed. If the police tell the
    witness that they will not reveal his or her identity or involvement in order
    to get information, they should keep their promise, or face the ordinary
    consequences of violating the assurance they have given. If the police decide
    that the witness does not deserve or warrant the requested assurance of confidentiality
    and anonymity, they should clearly say so and refuse to give the witness the
    requested assurance. That would allow the witness to decide whether to
    nonetheless give the information and accept the risk of disclosure. Simply put,
    a citizen in Ms. Stacks situation should be able to rely upon what the police
    tell her.

[36]

Nor do I accept the submission that because the Police did not follow
    their own Directive for confidential informers, Ms. Stacks civil claim for
    damages is defeated. While I accept that Officer Liepsig may have thought that
    Ms. Stack was not a confidential informer within the meaning of the Directive,
    I fail to see how that can affect her right to claim for breach of confidence.
    Her claim rests upon the promise of confidentiality that Officer Liepsig made,
    and the exchange of information that followed as a result. She had no way of
    determining whether she fit within the terms of the Directive, and it would be
    obviously unfair to deny her claim on the basis of a Directive that had never
    been explained or brought to her attention.

3. Were the damages awarded
    excessive?

[37]

The Police submit that the damages awarded by the trial judge were
    excessive. They submit that the trial judge made three errors: (1) he assessed
    Ms. Stacks damages with reference to awards made in cases that are not
    analogous; (2) he failed to consider the fact that Ms. Stack had already
    suffered psychological harm before her identity was disclosed; and (3) he erred
    in awarding aggravated damages.

Analogous cases

[38]

The trial judge observed, at para. 366, that it was difficult to fix a
    reasonable amount for the damages Ms. Stack and her family had suffered. He
    found that the effect on Ms. Stack had been severe, that her life had been
    irretrievably altered, and he was satisfied by the evidence of Dr. Silver
    that it is unlikely that she will ever be the same as she was before these
    incidents.

[39]

In argument, the trial judge raised the issue of whether the cap on
    personal injury damages applied to damages for psychological injury. Ms.
    Stacks counsel cited two Supreme Court of Canada decisions in which damages
    for psychological injury were claimed:
Cinar Corporation v. Robinson
,
    2013 SCC 73, [2013] 3 S.C.R. 1168, and
Young v. Bella
, 2006 SCC 3,
    [2006] 1 S.C.R. 108. In both those cases, the Supreme Court held that the cap
    did not apply and awarded damages for psychological injury of $400,000 in
Cinar
and $430,000 in
Young
. The trial judge stated that the damages in this
    case were not as severe as the damages in these two decisions, that something
    less would be appropriate, and awarded $345,000. As that amount was below the
    cap, the issue of whether the cap applies did not have to be decided.

[40]

The Police submit that that the trial judge placed too much reliance on
Cinar
and
Young
,

as
    the harm suffered by the plaintiffs in both
Cinar
and
Young
involved
    more than just psychological injury.
Cinar
involved a violation of
    copyright, and
Young
was a defamation case involving injury to
    reputation.

[41]

I am not persuaded by this submission.

[42]

First, the trial judge explicitly recognized that the harm suffered in
    this case was less than that suffered in
Cinar
and
Young
.

[43]

Second, in
Cinar
, the damage award consisted of several
    components, including a compensatory award of over $600,000 for pecuniary loss
    and over $1.7 million in disgorgement of profits, both awards for the copyright
    infringement, and $500,000 in punitive damages. An additional $400,000 was
    awarded for psychological injury. The award for psychological injury was a
    discrete award in addition to the damages awarded for the breach of copyright.
    While the Supreme Court agreed that the damages for psychological injury were
    analogous to those claimed by the victim of defamation, it is clear that the
    award was not for loss of reputation. See para. 108: The product of Robinsons
    artistic exertions was taken from him and the integrity of his personal
    creative process was violated, causing deep psychological suffering. I do not
    see why an award for psychological harm resulting from a copyright infringement
    could not shed some light on an award for a similar harm arising under a
    different cause of action.

[44]

Third, while
Young
was pleaded as both a defamation and
    negligence action, the claim for defamation was struck and the action proceeded
    as one for negligence. The psychological injury complained of was not unlike
    that suffered by Ms. Stack. I do not agree that the fact that a similar harm was
    caused by a different wrongful act makes
Young
so different in quality
    that the trial judge erred in using it as a reference point when assessing
    damages in this case.

[45]

The trial judge was faced with what he properly recognized to be a
    difficult task. On the evidence, he found that Ms. Stack had suffered a severe psychological
    injury that had radically affected her outlook and enjoyment of life. Her
    friends and her family testified that she was a different person since the
    injury, and she presented unchallenged expert evidence that she had suffered
    from post-traumatic stress disorder that was difficult to treat and likely to
    be permanent. While I view the damages awarded by the trial judge to be very
    generous, I am not persuaded that his reasons reveal any error of law or
    principle that would justify appellate intervention.

Pre-existing condition

[46]

Dr. Silver testified that Ms. Stacks post-traumatic stress disorder was
    the product of a series of events, including being upset over P.E.s anger
    concerning the babysitting assignment, the breakdown of her relationship with
    P.E., learning that P.E. and his brother had stolen guns and taken them to
    school to threaten fellow students, and finally the disclosure of her identity
    as the person who had gone to the police and the resulting threatening and
    harassing behaviour of Mr. and Mrs. E. The Police submit that the trial judge
    failed to consider the evidence that Ms. Stacks post-traumatic stress disorder
    was the product of a series of events. They submit that this shows that Ms.
    Stack is a crumbling skull plaintiff, and that the general and
Family Law
    Act
damages should be reduced by 10 to 20% on account of the fact that she
    had already experienced some anxiety and distress before her identity was
    revealed, and before Mr. and Mrs. E. started their campaign of threats and
    harassment.

[47]

I am not persuaded by this submission.

[48]

In her closing submissions at trial, counsel for the Police made brief
    reference to the fact that Ms. Stack was upset by earlier events, but did not
    advance the submission made before us that Ms. Stack should be treated as a
    crumbling skull plaintiff.

[49]

In any event, at para. 255 of his reasons the trial judge asked himself
    the following question:

In a case such as this, where psychological injuries are
    alleged, the question is, as a result of pre-existing conditions, was there a
    material risk that the plaintiff would have developed her current problems
    notwithstanding the defendants conduct?

[50]

At para. 341, he made the following finding in answer to that question:

Had Ms. Stacks identity not been disclosed, she and her
    family, in all likelihood, would still be living in their dream home on their
    quiet street in Whitby. Retribution at the hands of the [E.s] would not have
    occurred. Ms. Stack would not have suffered post-traumatic stress disorder, the
    symptoms of which still plague her today. She and her family would not have
    sold their home and moved to a strange community. Her family would not have
    suffered along with her.

[51]

In my view, it was open to the trial judge to conclude that the
    psychological harm Ms. Stack suffered could fairly be entirely attributed to
    the disclosure of her identity, which in turn led to the retributive conduct of
    Mr. and Mrs. E. The disclosure and the threats and harassment that followed
    were the key events that pushed Ms. Stack and her family to the point where
    they felt they had to move from the neighbourhood, and that caused her severe
    mental distress. The trial judge was entitled to award damages accordingly

Aggravated damages

[52]

The Police submit that the trial judge erred in awarding aggravated
    damages without making a finding of reprehensible or outrageous conduct.

[53]

The trial judge rejected the claim for punitive damages. He found, at
    para. 374:

[T]his is not one of those exceptional cases that requires an
    award of punitive damages for malicious, oppressive and high-handed misconduct
    that offends the courts sense of decency The conduct of the defendants does
    not remotely approach that standard. [citation omitted]

[54]

He did, however, note that a damages award must take into account
    aggravating features, which he described, at para. 367:

First, as noted, the police did nothing whatsoever to preserve
    Ms. Stacks anonymity. Second, once they became aware of the harassing
    behaviour by [Mr. E] they did almost nothing about it. Apart from one brief
    conversation with [Mr. E.], in which it is doubtful that the importance of the
    problem was impressed on [Mr. E.], the police did nothing. There was no
    evidence of any follow-up with [Mr. E.]. Indeed, somewhat inexplicably, no one
    even followed up with Mr. Nissen or Ms. Stack to advise them that [Mr. E.] had
    been spoken to.

[55]

I am not persuaded by the Police argument that this passage reveals an
    error of law. Aggravated damages aim not at punishing wrongful behaviour, but
    at compensating the injured plaintiff for the full extent of the plaintiffs
    loss. Very often, aggravation of the plaintiffs loss will be caused by
    outrageous or reprehensible conduct, as it is that quality of the defendants
    conduct that causes additional distress or humiliation that calls for
    compensation not captured by a purely conventional award. I am not persuaded,
    however, that a trial judge can only take aggravating features into account
    where there has been outrageous or reprehensible conduct. I agree with the
    observation made by this court in
Weingerl v. Seo
(2005), 256 D.L.R.
    (4th) 1, at para. 70 that post-incident conduct which aggravates the harm to
    the victim may also be taken into account.

[56]

I agree with the Police that the first factor mentioned by the trial
    judge, failure to protect Ms. Stacks anonymity, was not aggravating. However,
    I agree with the respondents that it was open to the trial judge to find that
    the failure of the Police to take any meaningful steps to protect Ms. Stack and
    her family from the harm they were suffering as a result of the wrongful
    disclosure of her identity did aggravate the damages she suffered. The Police
    had promised Ms. Stack confidentiality in order to gain her cooperation. Their
    duty to her did not cease once they broke that promise. The promise they made
    as police officers included a duty to protect Ms. Stack from the consequences
    of wrongful disclosure.

[57]

The Police failed to carry out that duty. When Mr. Nissen complained to
    the Police that Mr. E. had driven his truck at Ms. Stack and that Mr. and Mrs.
    E. were leering at them in a threatening manner, the response of the Police was
    to have an officer who had not himself spoken with Ms. Stack or Mr. Nissen call
    Mr. E. to tell him that he should not communicate or interfere with witnesses.
    The officer charged with calling Mr. E. was not told about the truck incident
    or the threatening behaviour, and did not caution Mr. E. in that regard. Following
    this brief conversation, the Police did not call Ms. Stack or her husband to
    reassure them that they had spoken to Mr. E. In my view, the trial judge did
    not err by taking this conduct into account when determining the damages to
    which Ms. Stack and her family were entitled.

DISPOSITION

[58]

For these reasons I would dismiss the appeal with costs to the
    respondents fixed in the amount agreed to by the parties, namely, $40,000,
    inclusive of disbursements and taxes.

Released: January 9, 2017

Robert J. Sharpe
    J.A.

I agree S.E. Pepall
    J.A.

I agree K. van
    Rensburg J.A.


