



COURT OF APPEAL FOR ONTARIO

CITATION: Kassian Estate v. Canada (Attorney General), 2015
    ONCA 544

DATE: 20150722

DOCKET: C59819, C59820, C59849

Hoy A.C.J.O, Sharpe and Benotto JJ.A.

BETWEEN

The Estate of Edward Kassian, Deceased, By Its
Administrator, Michael E. Kassian, The Estate of Eileen
Kassian, Deceased, By Its Administrator, Michael E.
Kassian, Michael E. Kassian, Kathleen E. Kassian and
Evan M. Kassian By Their Litigation Guardian, Michael
E. Kassian, Douglas E. Kassian, Alycia L. Kassian,
Andrew D. Kassian and Sylvia K. Bayle

Plaintiffs/Respondents (Respondents)

and

The Attorney General of Canada, The Akwesasne
    Police
Services Board, The Mohawk Council of Akwesasne,
Her
Majesty the Queen in Right of Ontario as Represented By
The Minister of Community Safety and Correctional
Services
, The Estate of Dany Gionet By Its Litigation
Administrator, Peter Hagen, Constable Michael Biron and
Sergeant Kenneth Chaussi and
The Attorney General of
Quebec

Defendants/Appellants (
Appellants
)

Lise Favreau and Sunil Mathai, for Her Majesty the Queen
    in Right of Ontario

Mathieu Verner and Sylvie Labbé, for the Attorney
    General of Quebec

Sharon Johnston and Orlagh OKelly, for the Attorney
    General of Canada

William J. Sammon and Amanda Estabrooks, for the
    respondents

Heard: June 23 and 24, 2015

On appeal from the order of the Divisional Court
    (Justices J.M. Wilson and M.T. Linhares de Sousa, Justice J.A. Thorburn
    dissenting), dated June 2, 2014, with reasons reported at 2014 ONSC 844.

ENDORSEMENT

[1]

On November 14, 2008, Edward and Eileen Kassian, both 77 years old, were
    driving through Cornwall Island where Mohawk land straddles the provinces of
    Ontario and Quebec and borders New York State. While stopped at a stop sign,
    they were struck by a driver who was being pursued at high speed by the
    Akwesasne Mohawk Police Service (the AMPS). They were killed instantly  as
    was the driver. Their estate and family members brought an action against the
    AMPS and others including the Attorneys General of Ontario, Quebec and Canada.
    The allegation against Ontario and Quebec was based on vicarious liability for
    the negligent actions of the officers involved in the high speed chase.

[2]

Ontario and Quebec brought a motion for summary judgment seeking
    dismissal of the action against them. The respondents also brought a motion to amend
    their pleadings by: (1) adding a claim for direct negligence against Ontario,
    Quebec and Canada on the basis that they had failed to implement
    recommendations in an Audit Report prepared in 1991 in connection with the AMPS
    and (2) alleging that the police cruisers used by officers of the AMPS were
    beneficially owned by Ontario, Quebec and Canada.

[3]

The motions judge dismissed the summary judgment motion of Ontario and
    Quebec and allowed the amendments to the claim in part. The decisions were upheld
    by the majority of the Divisional Court. Ontario, Quebec and Canada appealed
    with leave of this Court. For the reasons that follow, we allow the appeal.

Claims against Ontario and Quebec for vicarious liability 
    Summary Judgment Motions

[4]

The respondents claim against Ontario and Quebec for vicarious
    liability is based upon a quadripartite agreement (the Agreement) between the
    Mohawk Council of Akwesasne, Ontario, Quebec and Canada. The Agreement provided
    for the funding of a policing service in Akwesasne. The preamble to the Agreement
    provides that the Mohawks of Akwesasne shall have an autonomous and
    independent policing service and that such service shall be provided by the
    AMPS in keeping with the needs of the public safety aspirations of the Mohawks
    of Akwesasne.

[5]

Article 6 of the Agreement is entitled Autonomy and Independence of
    AMPS and provides that:

The Chief of Police and AMPO [Akwesasne Mohawk Police Officers]
    are employed by the Council. However, with respect of police operations and
    investigations, the Chief of Police and AMPO shall act independently and free
    from any type of interference and in that respect, they cannot receive any
    direct or indirect instructions from the Council, its employees or any other
    entirety created or established by Council.

[6]

Article 15 of the Agreement mandates the establishment of a Liaison
    Committee to monitor the implementation of the Agreement, review issues of
    mutual concern, resolve through discussion any disputes that may arise, and
    make recommendations relating to the implementation of the Agreement.  However,
    no Liaison Committee was ever set up.

[7]

Article 21.2 of the Agreement provides that nothing in the agreement is
    to be construed as conferring on the personnel employed as a result of the
    agreement, the status of employee, officer, or agent of Ontario or Quebec or
    the status of a person acting in partnership or joint venture with Ontario or
    Quebec.

[8]

The respondents allege that the terms of the Agreement created a
    partnership or enterprise between Ontario, Quebec and the Mohawk Council of
    Akwesasne to conduct policing on the First Nations territory. As such, their
    position is that Ontario and Quebec are vicariously liable for the actions of the
    officers who conducted the high speed chase.

[9]

The decision of the motions judge, upheld by the Divisional Court, was
    that a trial was required to determine the nature of the relationship created
    by the Agreement. The admitted error of the motions judge in articulating the
    test for summary judgment was not directly in issue in this court.

[10]

In
    our view, the majority of the Divisional Court erred in the application of the
    law of vicarious liability to the facts of this case. On a correct application
    of the law of vicarious liability, there is no genuine issue for trial in this
    case.

[11]

The
    law of vicarious liability was articulated by the Supreme Court of Canada in
K.L.B.
    v. British Columbia,
2003 SCC 51, [2003] 2 S.C.R. 403.  At para. 18, the
    court explained that liability is imposed on the theory that the person may
    properly be held responsible where the risks inherent in his or her enterprise
    materialize and cause harm, provided that the liability is both fair and
    useful. The court held, at para. 19, that to succeed in a claim for vicarious
    liability, a plaintiff must establish that:

1)

The relationship
    between the tortfeasor and the person against whom liability is sought is
    sufficiently close to make a claim for vicarious liability appropriate; and

2)

The tort is
    sufficiently connected to the tortfeasors assigned tasks that the tort can be
    regarded as a materialization of the risks created by the enterprise.

[12]

An
    important factual consideration includes the degree of control exercised by the
    person or organization sought to be held liable and the tortfeasor:
K.L.B.
,
    at para. 22. In
K.L.B.
, the court considered whether the relationship
    between the province of British Columbia and foster parents was sufficiently
    close to impose vicarious liability on the province for the negligent actions
    of the foster parents. The court found that the day-to-day control of the
    affairs of foster children made the foster parents sufficiently independent
    from the province so there was no basis for vicarious liability. This
    conclusion was arrived at even though governments provided instruction,
    training, periodic monitoring and funding.

[13]

By
    contrast, where the control is at the day-to-day level, as it was in
Blackwater
    v. Plint
, 2005 SCC 58, [2005] S.C.R. 3, vicarious liability will be imposed.
    There, the United Church of Canada was found vicariously liable for its employees
    who abused children in a residential school. The Church was involved in all
    aspects of the operation and management and religious education of the
    students.

[14]

We
    agree with the approach taken by the dissenting judge to determine the nature
    of the relationship between the AMPS and the governments. She examined the
    terms of the Agreement and concluded that it did not create a relationship that
    is sufficiently proximate between Ontario, Quebec and the police officers to
    justify the imposition of vicarious liability. Ontario and Quebec were too
    remote from the tortfeasors to be acting on their behalf. The tort cannot
    reasonably be regarded as a materialization of risks inherent in the enterprises
    of Ontario and Quebec. The terms of the Agreement make this clear. In
    particular, the Agreement provides that:

·

the AMPS is autonomous and independent;

·

the provinces are not in a partnership with the AMPS;

·

the Akwesasne Mohawk Police Officers and their Chief are employed
    by the Council;

·

the AMPS Chief is responsible for the operation and administration
    of the police service;

·

the Chief of police shall be free of any interference;

·

the governments are not required to provide training to the AMPO;
    and

·

the Liaison Committee has only consulting and recommendation
    duties, but no power or control over the AMPS.

[15]

Since
    the terms of the Agreement do not create a relationship that is sufficiently
    close or controlling to justify the imposition of vicarious liability, there is
    no genuine issue requiring a trial. We therefore allow the appeal on this ground.

Amendment of Pleading

[16]

Many
    years before the Agreement was signed, an audit was conducted with respect to
    the police procedures and practices of the AMPS. The resulting report of 1991
    identified a number of problems with management procedures and officer training.
    The reports recommendations included that the police be placed under tutelage
    to develop and implement appropriate management policies and procedures.

[17]

The
    respondents sought to amend their claim to allege that the audit called for
    corrective intervention to ensure police standards were met, and that the
    failure on the part of the governments to do so constituted direct negligence,
    which caused or contributed to the deaths of the Kassians. The proposed claim was
    framed as follows:

The Plaintiffs state that the institutional Defendants through
    their services and agents were negligent by failing to implement the regular
    audits that were recommended in the 1991 audit report, which negligence caused
    or contribute to the deaths of Edward and Eileen Kassian as the deficiencies
    that were noted in the 1991 audit were evident and reflected in the conduct of
    the Akwesasnse police officers on the 14th of November 2008.

[18]

The
    motions judge and the majority of the Divisional Court held that a trial was
    necessary to resolve this issue. (This was the test used by the motions judge. The
    Divisional Court noted that she had conflated the test for summary judgment
    with that for striking a pleading, but held that she nonetheless was correct to
    conclude that a trial was necessary.)

[19]

We
    agree with the analysis of the dissenting judge. After considering the
    applicable jurisprudence (
Cooper v. Hobart
,

2001 SCC 79,
    [2001] 3 S.C.R. 537), she concluded that the governments were too far removed
    from the day-to-day conduct of the officers of the AMPS to owe a private law duty
    of care to particular individuals. The harm to the respondents was not
    reasonably foreseeable and the relationship between the governments and the
    AMPS was not sufficiently close to impose a duty of care.

[20]

The
    audit was conducted in 1991, years before the Agreement was signed. Although
    the audit identified problems with the AMPS, no mention was made of high speed
    chase protocols. The governments were not required to conduct audits, train,
    hire or supervise the officers. The audit did not impose a duty on third
    parties. In particular, there was no duty imposed to persons driving through
    the land seventeen years later.

[21]

Although
    the defendant governments are under a general duty to ensure adequate and effective
    police services in Akwesasne, and have some broad general powers in furtherance
    thereof, we agree with the dissenting judge that these broad powers and duties
    to the public at large do not give rise to private law duties of care to
    particular individuals.

[22]

We
    also agree with the dissenting judge that claims alleging negligence against
    public authorities should be examined at the pleading stage to determine
    whether there is any possibility a duty of care can be found to exist. Since no
    duty of care is owed in the present case, the claim cannot succeed.

[23]

Likewise,
    as it is apparent from the Agreement that there is no factual basis for the
    allegation that the police cruisers are beneficially owned by Ontario, Quebec
    and Canada, this bald allegation should not have been allowed.

[24]

The
    appeals of Ontario and Quebec are allowed and the action against them is dismissed.

[25]

Canadas
    appeal from the Divisional courts dismissal of its appeal from the motion to
    amend is also allowed.  Canadas request to deny the impugned amendments to
    paragraphs 23, 24 and 33.1 to 33.8 of the Statement of Claim is granted.

[26]

In
    accordance with the parties resolution of costs, the appellants are entitled
    to costs of the appeal fixed at $25,000 and to costs of the Divisional Court
    appeal fixed at $20,000. All costs are inclusive of disbursements and HST.

Alexandra Hoy A.C.J.O.

Robert J. Sharpe J.A.

M.L. Benotto J.A.


