Gilchrist v Levin, 2016 ABQB 474

Court of Queen’s Bench of Alberta Citation: Gilchrist v Levin, 2016 ABQB 474 Date: 20160826 Docket: 1101 01326 Registry: Calgary Between: George Stuart Gilchrist and Her Majesty the Queen In Right of Alberta Plaintiffs - and - Dr. Aubrey Levin Defendant Corrected judgment: A corrigendum was issued on August 30, 2016; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of J.T.

Prowse , Master in Chambers _______________________________________________________ [ 1 ] The plaintiff George Gilchrist (“Mr. Gilchrist”) brings this claim alleging that he was sexually assaulted by the defendant Dr. Aubrey Levin (“Dr. Levin”) on March 26, 2009. [ 2 ] Initially Dr. Levin was the only defendant. Mr. Gilchrist then added as further defendants Alberta Health Services, as the owner and operator of the Peter Lougheed Centre, and the College of Physicians and Surgeons of Alberta. [ 3 ] Mr.

Gilchrist now applies to add as a defendant the Chief of Police of the Calgary Police Service (“CPS”). [ 4 ] For the reasons which follow I allow Mr. Gilchrist’s application to add CPS as a defendant. The only potential reason for not allowing the application would be a finding that any argument that a private duty of care is owed by CPS to Mr. Gilchrist is hopeless. In

my view the issue of whether a private duty of care exists should not be decided at this stage of the proceedings. A chronology of the facts [5] On July 18, 2001 CPS received a complaint of sexual assault against Dr. Levin. That complaint was investigated by two CPSofficers who concluded that, as the complainant had asked Dr. Levin to examine his penis and Dr. Levin indicated that he had performedthat examination for medical reasons, no charges should be laid. [6] On February 18, 2008 CPS received another complaint of sexual assault against Dr. Levin. The complainant had attendedDr.

Levin's office for treatment of erectile dysfunction. During the course of a physical examination, the complainant indicated that Dr.Levin had masturbated him for several minutes. That complaint was investigated by two CPS officers who concluded that thecomplainant lacked credibility given the complainant’s request to obtain a Viagra prescription from the doctor, which request wasdenied. [7] Mr. Gilchrist alleges that he was sexually assaulted by Dr. Levin on March 26, 2009. [8] Counsel for Mr. Gilchrist notes the following similarities between these three complaints against Dr. Levin: i.

The accused was the same; ii. The victim was a psychiatric patient of Dr. Levin; iii. The sexual assault occurred while Dr. Levin was seeing the psychiatric patients in the course of practising psychiatry; iv. The sexual assault occurred at the Peter Lougheed Centre Hospital; v. Each victim was a male; vi. Each victim was young, age 20 - 22; vii. Each sexual assault involved fondling of the penis of the victim by Dr. Levin. [9] In March of 2010, one of Dr. Levin's patients came forward with video evidence of a sexual assault. At that time, Dr. Levinwas arrested and charged with sexual assault.

Eventually he was convicted of three counts of sexual assault. [10] The allegations against the CPS are that it failed to properly investigate and charge Dr. Levin following the first twocomplaints, which would have prevented an encounter with Mr. Gilchrist on March 26, 2009. The test to be applied when an amendment is sought [11] CPS resists the proposed amendment on the grounds that the cause of action it asserts against the CPS is hopeless. That is oneof the grounds to resist an amendment application recognized in Attila Dogan Construction and Installation Co.

Inc. v AMECAmericas Ltd., 2014 ABCA 74, at para 25. [12] CPS did not attempt to argue, given its filing of an affidavit and the cross-examination of its deponent, that a less stringent testthan hopelessness might be applied as was indicated in Goodswimmer v Canada (Attorney General), 2016 ABQB 384, at para 580. Is the proposed action against CPS hopeless ? [13] CPS argues that the proposed action against it is hopeless because, during its investigation of the two earlier complaints, CPSdid not owe a private duty of care to Mr.

Gilchrist. [14] Unless a private duty of care exists, no cause of action for negligence arises against the CPS. As stated by Esher M.R. in LeLivre v Gould, [1893] 1 Q.B. 491 (Eng.C.A.) 491 at 497: A man is entitled to be as negligent as he pleases toward the whole world if he owes no duty to them. [15] Typically, public authorities do not owe a private duty of care to members of the public. A list of authorities supporting thatproposition can be found in Project 360 Investments Ltd. v Toronto Police Services Board, (ON SC), 2009CarswellOnt 3418, [2009] O.J.

No. 2473 at para.16. [16] CPS acknowledges that the case law, including Project 360, recognizes exceptions to this general rule. [17] In limited circumstances a private duty of care may be owed by the police to members of the public. [18] Case law recognizes a private duty of care involving the police in at least three circumstances: (

i) a private duty of care is owed to a suspect of a police investigation once he or she has been singled out as the target of theinvestigation (see Hill v Hamilton-Wentworth (Regional Municipality) Police Services Board, 2007 SCC 41); (ii) a private duty of care is owed to a potential victim who brings himself or herself to the attention of the police by raisingfears about becoming victimized (see McClements v Pike, 2012 YKSC 84);

(iii) a private duty of care is owed to a member of a specific, identifiable class of victims known to the police (see Jane Doe vMetropolitan Toronto (Municipality) Commissioners of Police, (1998) (ON SC), 39 O.R. (3d) 487, and Patrong vBanks et al, 2016 ONSC 4200, 2016 CarswellOnt 11544). [19] CPS says that, of these three situations, only category (iii) could apply to Mr. Gilchrist, but that when you examine the caselaw, category (iii) does not encompass the situation here, as: (

i) there was no clear existing criminal behaviour or threat of criminal behaviour at the time the police were doing theirinvestigation, and (ii) the only means of protecting victims would be to arrest and charge the potential perpetrator. The “Anns/Cooper” test [20] The Supreme Court of Canada considered the circumstances in which a public body should be held to owe a private duty ofcare in Cooper v Hobart, 2001 CarswellBC 2503, 2001 SCC 79.

There the Court rejected the concept of a private duty of care beingowed by the Registrar of Mortgage Brokers under British Columbia legislation in favour of investors who had lost funds invested with amortgage broker. [21] In its companion decision, Edwards v Law Society of Upper Canada, 2001 CarswellOnt 3963, 2001 SCC 80, the Courtdecided that the Law Society did not owe a duty of care to persons who had deposited money in a solicitor's trust account as participantsin a business promotion rather than as clients. [22] Those decisions comment on the test established by the House of Lords decision in Anns v Merton London BoroughCouncil, [1978] A.C. 728, [1977] 2 All E.R. 492 (U.K.

H.L.) where the issue was whether a local council owed a private duty of care toparties suffering loss when a building’s foundation, that the council did not have inspected, failed. [23] The test resulting from the foregoing cases is known as the Anns/Cooper test and consists of two steps: (

i) the court must determine whether the existence of a private duty of care is decided in existing cases or in situationsanalogous to existing cases. (ii) If the answer to (

i) is no, then the court must consider the situation ab initio and determine whether a duty of care should berecognized based on: (

i) foreseeability and proximity, and (ii) residual policy considerations Step one - has the existence of a private duty of care in favour of Mr. Gilchrist been determined by existing case law? [24] In my view, the existence of a private duty of care in favour of Mr.

Gilchrist has not been determined in existing cases and thesituation is not analogous to existing cases. [25] The circumstances in this case are unique and call for different policy considerations from those arising under the existingcase law. [26] The two unique circumstances in this case are the lack of existence of clear criminal behaviour and the lack of the ability toprotect potential victims short of laying charges. I will now comment on those two circumstances. (

i) Lack of clear criminal behaviour or threat of criminal behaviour [27] In Jane Doe, supra, there was clearly existing criminal behaviour, which was a threat to an identifiable group of potentialvictims. A serial rapist was breaking into second or third floor apartments in a specific neighbourhood of Toronto. [28] Jane Doe became the fifth known victim of the rapist. She successfully brought a claim against the Toronto police allegingnegligent investigation and failure to warn. The Court found that a private duty of care existed and stated in paragraph 165 of thedecision: The evidence establishes that Det. Sgt.

Cameron clearly had linked the four rapes which preceded [Jane Doe's] by the early days ofAugust in 1986 and he and Det. Sgt. Derry knew that the rapist would continue to attack women until he was stopped. They knew therapist was attacking single white women living alone in second and third floor apartments with balconies in the Church/Wellesley area ofthe City of Toronto. [29] In Patrong, supra, the offender was a violent gang member who was known to be planning drive-by shootings targeting aspecific area of Toronto known to be frequented by members of a rival gang.

The plaintiff was mistaken for a member of that rival gang.The Court found that a private duty of care existed in favour of the plaintiff. [30] In Jane Doe and Patrong the fact that crimes were being attempted was acknowledged, whereas in the case before me, thepolice in responding to the 2001 and 2008 complaints against Dr. Levin were involved in the process of trying to determine whether therewere grounds for concluding that crimes had been committed.

CPS was not investigating in a situation where it was clear that violentcrimes had been committed or were about to be committed. [31] As a result, this case law does not directly or by analogy establish a private duty of care in favour of Mr. Gilchrist.

(ii) Lack of ability to protect short of arresting and charging [ 32 ] In Jane Doe , there were steps which the police which could have taken to protect potential victims short of arresting the culprit. As stated at paragraph 135 of the decision: I am satisfied on the evidence that a meaningful warning could and should have been given to the women who were at particular risk. That warning could have been by way of a canvass of their apartments, by a media blitz — by holding widely publicized public meetings or any one or combination of these methods.

Such warning should have alerted the particular women at risk, and advised them of suggested precautions they might take to protect themselves. The defence experts, with the exception of Mr. Piers, agreed that a warning could have been given without compromising the investigation on the facts of the case. [ 33 ] Likewise, in the Patrong case, the plaintiff could have been protected short of the police arresting and charging the shooter, who was under a conditional sentence and a recognizance that prohibited him from entering the neighbourhood in question. [ 34 ] In Patrong the shooter was under surveillance.

A group of senior officers within the Toronto Police Service assigned to review important investigations met with the investigating officer and decided that the shooter should be arrested immediately if he entered the neighbourhood. Unfortunately, as the investigating officer disagreed with this decision, he neglected to so inform the surveillance team. [ 35 ] When the shooter got into a car with another male and drove into the neighbourhood, he was not arrested for breach of the recognizance.

He shot the plaintiff a few minutes later. [ 36 ] The police could have protected potential victims in the Patrong case by enforcing the existing conditional sentence and recognizance. The police did not have to establish reasonable and probable grounds to charge the shooter. They could simply have arrested him for venturing into the subject neighbourhood contrary to the terms of his recognizance. [ 37 ] In the case at hand there was no way for the CPS to protect Mr. Gilchrist short of arresting and charging Dr. Levin. The police could hardly have waited around Dr.

Levin’s office in the Peter Lougheed Centre to warn young male patients of the possibility of sexual assault. [ 38 ] In effect, Mr. Gilchrist’s claim is based on a failure of the CPS to investigate and charge Dr. Levin so as to prevent the assault on him. As Mr. Gilchrist’s written argument says: Had the Calgary Police Service properly investigated the 2 prior complaints there likely would have been charges laid against the Defendant Levin and thus preventing any encounter with the Plaintiff on March 26, 2009.

Conclusion regarding the first step in the Anns/Cooper test [ 39 ] The current case law does not provide sufficient guidance regarding the existence of a private duty of care owed by the CPS to Mr. Gilchrist, where: (

i) it is uncertain whether there had been criminal behaviour or threat of criminal behaviour, and/or (ii) there were no steps which CPS could have taken to protect Mr. Gilchrist short of arresting and charging Dr. Levin. [ 40 ] Accordingly, we move to the second step of the Anns/Cooper analysis and consider whether a private duty of care should be recognized based on the issues of (

a) forseeabiltiy and proximity and (

b) residual policy concerns. Step 2(a) - forseeability and proximity [ 41 ] This topic is discussed in Canada (Attorney General) v Walsh , 2016 CarswellNS 631, 2016 NSCA 60 at paras 54 through 73.

The case considered whether the police owed a private duty of care to a plaintiff injured by a driver who, the plaintiff argues, should have been removed from the road by police. [ 42 ] In that case the Court made the following observations regarding foreseeability and proximity: - the challenge which arises is containing a potentially indefinite form of liability - generally there is no proximity between the police and members of the public as police owe their duties to the public as a whole and not specific members of the public - generally speaking, the Donoghue v Stevenson analysis concerns the prevention of harm, not the imposition of duties requiring positive conduct - foreseeability alone is not enough to find a duty.

It is a necessary but not always sufficient condition of such a finding. – forseeability is a low threshold, which is why it may be an inadequate basis for imposing a duty and consequent liability. As we have seen, a plaintiff must also establish proximity. [ 43 ] The Court noted that, where public authorities are defendants, statutes setting out the duties of the public authority are often used to contextualize a proximity analysis. [ 44 ] While the Police Act , RSA 2000, c P-17, does not expressly purport to create duties of care, it does contemplate the existence of such duties.

It contains provisions making the Chief of Police and municipal employers of police vicariously liable for damages awarded against police officers in civil proceedings.

[ 45 ] The Police Act does not purport to provide statutory immunity from civil liability for police officers, in the way that the Law Society Act provided immunity for benchers and officials of the Law Society, as discussed in Edwards , supra , or in the way that the Registrar under the Mortgage Brokers Act , R.S.B.C. 1966, c.313 was statutorily exempt from liability as discussed in Cooper , supra . [ 46 ] The necessity for also establishing a relationship of proximity as part of a private duty of care was discussed in the Jane Doe decision as follows: For the most part, the police are free to go about their task of detecting and apprehending criminals without fear of being sued by individual members of society who have been victimized.

The reason for this is simple. While the police owe certain duties to the public at large, they cannot be expected to owe a private law duty of care to every member of society who might be at risk. Foreseeability of risk alone is not sufficient to impose a private law duty of care. See Hill v Chief Constable of West Yorkshire , [1988] 2 All E.R. 238 (H.L.) . To establish a private law duty of care, foreseeability of risk must co-exist with a special relationship of proximity... [ 47 ] CPS argues against a finding of proximity.

It argues that the court would be opening up the right of civil litigation to a relatively boundless class of potential claims. As CPS stated: The Supreme Court in Hill , supra , canvassed several policy arguments that could be made vis a vis the activities of police services. One of them, the potential for a flood of litigation, would appear to be relevant to the case at bar. If a duty is recognized between a police service and unknown, potential future victims of a perpetrator, that would open up a large class of potential claimants.

In Hill , the Supreme Court ruled that recognizing a duty to the specific, individual target of a police investigation would not open a floodgate of litigation because “particularized suspects represent a limited category of potential claimants". If a duty is found to be owed to unknown, potential future victims, that class is much more expansive. Theoretically, anyone who is not the first victim of any perpetrator would have a claim.

In the words of Lord Keith from the House of Lords cited by Justice MacDonnell [in Project 360 , supra ]: "All householders are potential victims of a habitual burglar, and all females those of an habitual rapist." [ 48 ] In response to this ‘unlimited liability’ submission, I note that Mr. Gilchrist was a member of a limited class of potential victims i.e. young male patients of Dr.

Levin. [ 49 ] Contrast this with the situation in Project 360 , supra , where a known gang member with a history of violence was under surveillance by police, who learned that he was intending to enter a nightclub on the evening in question carrying a firearm concealed on his person. He ultimately shot a patron and the owner of the nightclub sued the police for damages suffered to its business as a result.

The gang member did not have a relationship with the plaintiff. [ 50 ] If a private duty of care was owed to the plaintiff in Project 360 , the implication would be that the police would have to follow the gang member around and warn the owners and occupants of every premises that he entered. The pool of potential victims was limitless. [ 51 ] In the case at hand, we are dealing with a narrow group of potential victims, being young male patients of Dr. Levin. Therefore, my conclusion is that Mr.

Gilchrist has an arguable case that he is owed a private duty of care based on the first part of step two of the Anns/Cooper test, namely, foreseeability and proximity. Step 2(b) - residual policy considerations [ 52 ] The question which arises is whether there are policy reasons for not recognizing a duty of care owed to victims of crime such as Mr. Gilchrist? [ 53 ] In my view there is a residual policy consideration which needs to be considered in determining whether a private duty of care should be recognized.

That policy consideration is the possible adverse impact that potential liability might have in pressuring police to lay charges when they might not otherwise do so. [ 54 ] In Hill v Hamilton-Wentworth (Regional Municipality) Police Services Board , 2007 CarswellOnt 6265, 2007 CarswellOnt 6266, 2007 SCC 41 , [2007] 3 S.C.R. 129, at para. 20 , the Supreme Court of Canada considered, inter alia , whether public policy considerations should prevent the recognition of a private duty of care owed by the police to potential accused persons (as opposed to potential victims such as Gilchrist). [ 55 ] It was argued that recognizing a private duty of care to accused persons would offend public policy by creating a chilling effect on police investigations.

In other words, police might be reluctant to investigate and charge someone for fear of civil liability if the charges were later dismissed and it was alleged that the investigation was negligent. [ 56 ] This argument against recognizing a private duty of care, based on this potential chilling effect, was rejected in Hill . [ 57 ] In the case which I am considering, the public policy argument is to the opposite effect. [ 58 ] Will the potential of civil claims from future victims of crime interfere with the exercise of discretion by police in deciding whether to lay charges?

Will police be under pressure, from possible litigation by potential victims, to lay charges in situations where they would otherwise have decided that there was not sufficient evidence, leading to unwarranted charges against innocent citizens? [ 59 ] If the law were as asserted by Mr. Gilchrist, the police in carrying out their public duty to protect the public would be on the knife edge between two related private duties of care, as follows:

- if they arrest a suspect without reasonable and probable cause, they would be exposed to civil claims by the accused. - if they failed to arrest a suspect where reasonable and probable cause existed, they would be exposed to civil claims by victims of crime who were injured by the accused after the accused could have been arrested. [ 60 ] The issue of whether a private duty of care towards victims would interfere with the discretion of police to arrest was referred to briefly in Castle v Ontario , 2014 CarswellOnt 8428, 2014 ONSC 3610 , where counsel for the police argued: ... that police need to be able to exercise their discretion to release an individual, especially to a responsible family member.

Otherwise, the police would be required to arrest and take into custody many more individuals. This public policy argument seemed to be subsumed by the issue of proximity in the ruling in that case. When should the Court consider residual policy issues? [ 61 ] The issue which arises is whether this residual policy analysis should be conducted at this stage of the proceedings, an application to amend pleadings to add the police, or at a later stage (such as

summary judgment or trial) where more evidence is available? [ 62 ] When the Supreme Court of Canada in Hill , supra , dealt with residual policy considerations in determining whether a private duty of care should be recognized as being owed by the police to individuals who have been singled out as the target of a police investigation, the Court had reference to empirical evidence, as described in paragraph 57 of its decision. [ 63 ] In my view the important question of whether a private duty of care should be recognized in this case should be decided at a stage of the proceedings where the parties have the opportunity to bring forward appropriate evidence, not at this stage of the proceedings where the evidentiary record is not fulsome.

Conclusion [ 64 ] I am unable to conclude at this stage that Mr. Gilchrist’s proposed amendment is hopeless based on an absence of a private duty of care. Accordingly he should be given leave to amend his pleadings as proposed, so as to name the CPS as a defendant. This decision does not preclude the CPS from applying for

summary dismissal in the future if it believes it can bring forward appropriate evidence in support of such an application. [ 65 ] If the parties cannot agree on costs of this application they may approach me for a ruling in that regard. Heard on the 25 th day of July, 2016. Dated at the City of Calgary, Alberta this 26 th day of August, 2016. J.T. Prowse M.C.C.Q.B.A. Appearances: Edward Tawkin Tawkin Law Offices for the plaintiff Colleen Sinclair City of Calgary Law Department

for the proposed defendant Chief of Police _______________________________________________________ Corrigendum of the Reasons for Judgment of J.T. Prowse J.T. Prowse, Master in Chambers _______________________________________________________ Dated at the City of Calgary, Alberta this 26 th day of July, 2016, has been changed to Dated at the City of Calgary, Alberta this 26 th day of August, 2016.