TR v KT, 2019 ABQB 927

Court of Queen’s Bench of Alberta Citation: TR v KT, 2019 ABQB 927 Date: 20191204 Docket: 1901 00374 Registry: Calgary Between: TR Plaintiff - and - KT et al Defendants _______________________________________________________ Reasons for Judgment of J.T.Prowse , Master in Chambers _______________________________________________________ [ 1 ] The plaintiff TR alleges that she was sexually assaulted by the defendant KT. [ 2 ] KT was charged with sexual assault but the charge was ultimately stayed due to delay in prosecution.

The primary component of the delay arose because KT was not arrested for over 3 years after the arrest warrant was issued, notwithstanding that his address remained unchanged. [ 3 ] The decision to stay the charges was made pursuant to the Supreme Court of Canada decision in R v Jordan , 2016 SCC 27 , 2016 CarswellBC 1865. [ 4 ] In this civil proceeding TR sues KT for damages for sexual assault. She also sues the investigating detective and the chief of police.

I will refer to the latter two defendants collectively as “CPS”, short for Calgary Police Service. [ 5 ] CPS applies to strike the statement of claim against it pursuant to Rule 3.68 on the basis that it discloses no reasonable claim.

[6] For the reasons which follow I am striking only that portion of the statement of claim which alleges assault and batteryagainst the CPS defendants.

Basis for TR’s claim [7] TR alleges that the criminal charges against KT were stayed due to the negligence of the CPS in not diligently pursuing thearrest of KT, and she seeks damages in that regard. [8] She alleges, amongst other things, that she underwent what turned out to be an unnecessary and intrusive physicalexamination at the Sheldon Chumir Centre, and suffered psychological injuries due to the emotional trauma upon hearing that thecharges against KT had been stayed. [9] She also alleges assault and battery against the CPS defendants. [10] I will first deal with the claim against CPS in negligence. [11] The approach to be taken, and the onus on CPS, is set out in Rudichuk v Genesis Land Development Corp, 2019 ABQB 132,2019 CarswellAlta 336 as follows: 8.

Rule 3.68(1)(

a) and (2)(

b) provide that all or part of a claim may be struck out where it "discloses no reasonable claim". Asestablished by the Supreme Court of Canada, it is accepted that a court should only strike a claim if it is plain and obvious that thepleading discloses no reasonable cause of action: Hunt v T&N plc, (SCC), [1990] 2 S.C.R. 959 (S.C.C.), and Knight vImperial Tobacco Canada Ltd, 2011 SCC 42 (S.C.C.).

It is only if a claim has no reasonable prospect of success, then it should bestruck, and so long as the plaintiff has some chance of success and the claim is arguable, then the Court should allow the matter toproceed to trial: Hunt at 989; Imperial Tobacco at para 17. 9.

Further, the Supreme Court of Canada has held that it is not determinative that the law has not yet recognized a particular claim anda court should be generous and err on the side of permitting a novel, but arguable claim to proceed to trial: Imperial Tobacco at para 21.Thus, the statement of claim should be struck "only if it is clear that in law the case cannot succeed, based on principles directlyapplicable to the case as set out in the pleadings": Anger v Berkshire Investment Group Inc, (ON CA), [2001] O.J.No. 379 (Ont. C.A.) at para 15. 10.

When applying this test, the Court may examine a number of factors, including the clarity of the factual pleadings and theexistence of case law discussing similar causes of action: NEP Canada ULC v. MEC OP LLC, 2014 ABCA 140 (Alta. C.A.) at para 16.However, the parties may not submit new evidence on this application: Rule 3.68(3). In considering the claim, the court must assumethat the facts as pleaded are true: Hunt at 980.

Finally, the defendant bears the burden of proof on this application, and the onus to meetis "extremely high": Alberta Adolescent Recovery Centre v Canadian Broadcasting Corp, 2012 ABQB 48 (Alta. Q.B.) at para 29. (emphasis added) [12] Civil claims brought by private citizens against public bodies, including the police, typically fail on the basis that the publicbody does not owe a private duty of care to the injured party. See Project 360 Investments Ltd v Toronto Police Services Board, (ON SC), [2009] O.J.

No. 24, 2009 CarswellOnt 3418, at paragraph 16. [13] There are narrow exceptions where claims against police are involved. I list those exceptions in Gilchrist v Levin, 2016ABQB 474, 2016 CarswellAlta 1596, as follows: (

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 (S.C.C.)]; (ii) a private duty of care is owed to a potential victim who brings himself or herself to the attention of the police by raising fears aboutbecoming victimized [see McClements v Pike, 2012 YKSC 84 (Y.T.

S.C.)]; (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 (Ont. Gen. Div.),and Patrong v Banks, 2016 ONSC 4200, 2016 CarswellOnt 11544 (Ont. Div.

Ct.)]. [14] The type of claim which TR has asserted does not fall under any of these three exceptions to the general rule. [15] Should another exception to the general rule be allowed for the type of claim being advanced by TR? [16] In my view, TR’s claim should proceed to trial unless the CPS defendants show that case law already exists which shows thatTR’s claim is untenable. [17] Another way of expressing the same concept is this: can the CPS defendants show that TR’s claim is not a ‘novel’ claimbecause it is a type of claim that existing case law already shows cannot be maintained? [18] Many criminal cases have been stayed.

Are there existing decisions in related civil cases which have decided that a victim ofone of the crimes in these cases has no cause of action against police and/or prosecutors where their careless conduct allegedly led to thedelay resulting in the stay or dismissal? [19] CPS cites Norris v Gatien, (ON CA), 151 O.A.C. 394, 2001 CarswellOnt 4006, where an individual waskilled when the bicycle he was riding was struck by a car. The driver of the car was prosecuted for impaired driving causing death andoperating a motor vehicle with a blood alcohol concentration exceeding .08.

The driver was acquitted and the family of the deceasedbrought a derivative action under Ontario’s Family Law Act which allow members of a deceased’s family to bring an action for damages

where the deceased, if not killed, would have been able to bring a claim for damages. [ 20 ] In my view, the claim of TR differs from the Norris case because TR’s claim: – is not a derivative case – involves injuries which took place after the sexual assault had occurred, in the nature of the invasive medical examination – does not involve negligence in the investigation, but rather in failing to execute a warrant for arrest in a timely fashion [ 21 ] CPS cites Wellington v Ontario , 2011 ONCA 274 , 2011 CarswellOnt 2334, where a 15 year old driving a vehicle being pursued by police was shot and killed by the police.

The family of the deceased sued the Special Investigation Unit alleging that, due to its careless investigation, criminal charges were not laid.

This is clearly different from the TR’s case where charges were laid. [ 22 ] CPS cites Connelly v Toronto (Police Services Board) , 2018 ONCA 368 , 2018 CarswellOnt 5686, but the reported decision does not contain sufficient facts to compare it to TR’s action. [ 23 ] CPS cites Leung v Kilgour , 2004 ABQB 408 , 2004 CarswellAlta 715, affirmed 2006 ABCA 32 , 2006 CarswellAlta 32, but again that was a case of police failing to lay charges, not a case where charges were laid and then dismissed due to failure to execute an arrest warrant. [ 24 ] CPS cites RVB v Levin , 2018 ABQB 887 , 2018 CarswellAlta 2448, but that is a case dealing with exception (iii) mentioned above, namely whether a private duty of care is owed to a member of a specific, identifiable class of victims known to the police.

The assertion in that case was that the failure of the police contributed to the offense being committed. That is not the type of claim being asserted by TR. [ 25 ] CPS has not provided me with case law showing that claims such as TR’s claim are untenable. Since the cases cited to me by CPS deal with different circumstances, my conclusion is that TR’s claim is a novel claim. [ 26 ] Following the guidance provided in Rudichuk I will allow TR’s novel claim in negligence to proceed to trial.

Assault and Battery [ 27 ] CPS argues, in the alternative, that if TR’s claim is not struck in full, then that part of her claim for assault and battery against the CPS should be struck. I agree. [ 28 ] Here are the full allegations made against the CPS for assault and battery: TR was injured as a direct result of the assault and battery by the CPS officers ..., particulars of which include the following: a. one or more CPS members requested that a sexual assault kit be performed and samples be collected from the vaginal area of TR; b.

TR consented to this intrusive procedure on the understanding that this was necessary for the police prosecution of KT; and c. the CPS officers fraudulently obtained the consent of TR to perform this intrusive procedure, since they had no intention of using the results for the prosecution of KT; or d. in the alternative, the CPS officers negligently obtained the consent of TR to perform this intrusive procedure, since they failed to use the results for the prosecution of KT. [ 29 ] Elsewhere in the statement of claim it is indicated that the CPS detective in charge of the investigation decided that it was not necessary to send the sexual assault kit for DNA testing. [ 30 ] Common sense indicates that the decision not to send the kit for DNA testing may well be because the detective concluded that the identity of KT would not be an issue at trial.

It certainly was not an issue in deciding to press charges, as charges were laid. [ 31 ] Common sense also dictates that the CPS officers who accompanied TR to the Sheldon Chumir Centre would not at that time have known that a decision would be made later to not send the kit for testing. [ 32 ] TR may complain that the observations made in the two previous paragraphs do not arise from the wording of the statement of claim, but it is only facts alleged in a statement of claim which are to be taken as true on a rule 3.68 application, not conclusions. [ 33 ] As stated by the Federal Court of Appeal in Merchant Law Group v Canada Revenue Agency, 2010 FCA 184 , 405 N.R. 160 (F.C.A.) at paras 34 and 35 : I agree with the Federal Court's observation ... that paragraph 12 of the amended statement of claim "contains a set of conclusions, but does not provide any material facts for the conclusions." When pleading bad faith or abuse of power, it is not enough to assert, baldly, conclusory phrases such as "deliberately or negligently," "callous disregard," or "by fraud and theft did steal" [ 34 ] Upon what facts does TR rely to conclude that the CPS officers who took TR to the Sheldon Chumir Centre “had no intention of using the results for the prosecution of KT”? [ 35 ] Upon what facts does TR rely to conclude that the CPS officers who took her to the Sheldon Chumir Centre officers ‘negligently’ obtained her consent ‘since they failed to use the results for the prosecution of KT’.

This allegation seemly calls for the CPS officers to speculate that a DNA test might not be needed for a prosecution, and to then, based on that speculation, not request that a

rape kit be obtained. [ 36 ] It is hardly in the interest of sexual assault victims generally to seek to impose liability on the police for obtaining sexual assault kits, as opposed to not obtaining sexual assault kits. [ 37 ] In my view, insufficient facts (as opposed to conclusions) are pleaded to support the claim against the CPS for assault and battery, and accordingly I am striking those allegations from the statement of claim. Conclusion [ 38 ] The only portions of the statement of claim that I am striking pursuant to rule 3.68 are those relating to the claim of assault and battery against the CPS. Costs [ 39 ] If the parties are unable to agree on a costs outcome they may

schedule a further hearing to make submissions in that regard. Heard on the 17 th day of October, 2019. Dated at the City of Calgary, Alberta this 4 th day of December, 2019. J.T.Prowse M.C.C.Q.B.A. Appearances: Pawel J. Milczarek Sitar & Milczarek for the plaintiff Danielle T. Gallo City of Calgary Law and Legislative Services for the CPS defendants