Rennalls v Tettey, 2021 ABQB 1

Court of Queen’s Bench of Alberta Citation: Rennalls v Tettey, 2021 ABQB 1 Date: 20210104 Docket: 1901 00374 Registry: Calgary Between: Teliesha Rennalls Plaintiff - and - Korku Tettey, Rick Hanson, Roger Chaffin, and Paul Wagman Defendants _______________________________________________________ Decision of the Honourable Mr. Justice N.E. Devlin _______________________________________________________ I. Overview [ 1 ] Teliesha Rennalls has sued the Calgary Police Service for negligent handling of her sexual assault complaint.

Despite determining that there were reasonable and probable grounds to charge the alleged perpetrator, Korku Tettey, the police failed to arrest him for almost four-and-a-half years after the assault, resulting in the ultimate demise of the prosecution. [ 2 ] The learned Master in Chambers held that the facts of this case are sufficiently novel to permit the claim to proceed to trial, notwithstanding that police generally do not owe a personal duty of care in tort to the victims of crime. CPS appeals that decision and asks this Court to strike the claim on the basis that it has no reasonable prospect of success.

II. Facts [ 3 ] On May 9, 2009, Ms. Rennalls [“Rennalls”] called the Calgary Police Service [“CPS”] and reported that Mr. Tettey [“Tettey”] had just sexually assaulted her at his home in Northeast Calgary. Rennalls told police that she had gone to Tettey’s residence in the early hours after a house party, fallen asleep, and been awakened by him performing non-consensual intercourse.

After the assault, Tettey remonstrated with her not to go to the police, but she did. [ 4 ] Officers interviewed Rennalls and transported her to a hospital where they arranged for a sexual assault examination to be conducted by a physician. [ 5 ] The case then fell into unexplained dormancy. CPS obtained a warrant for Tettey’s arrest in December 2010, 18 months after the complaint. That warrant was not executed for another three years, despite Tettey continuing to live at the address where the crime is said to have occurred.

During the intervening years, while the warrant was outstanding, CPS officers attended at Tettey’s home in response to a call for service, but failed to arrest him. [ 6 ] Tettey was finally arrested and brought before the court in January of 2014. His trial was scheduled in Provincial Court in May of 2015. That trial date was subsequently adjourned to December of 2015. Rennalls attended on that date and was told that a new trial date would be set sometime in February of 2016, as Tettey had re-elected to be tried in the Court of Queen’s Bench.

Rennalls heard nothing further from the CPS or the Crown regarding the trial. [ 7 ] On January 20, 2017, the Crown stayed the charges against Tettey, citing the delay by the CPS in advancing the case as the reason for ending the prosecution. III. The Civil Proceedings [ 8 ] In January of 2019, Rennalls filed a Statement of Claim against Tettey for assault and against various CPS defendants for negligence. She also sued the CPS for assault and battery in respect of the sexual assault examination.

This latter claim was based on the allegation that she was induced to undergo an intrusive medical procedure at the CPS’ behest when it had no real intention of acting on the results. [ 9 ] Tettey has filed a Statement of Defence denying the sexual assault. The CPS defendants have not filed a Statement of Defence. Rather, they brought an application to strike the Statement of Claim pursuant to Rule 3.68(2)(

b) on the basis that it discloses no cause of action. [ 10 ] In thoughtful reasons, reported at 2019 ABQB 927 , Master Prowse permitted the claim for negligence to proceed. He considered the body of jurisprudence that has limited the right of victims and their families to sue police for investigation-related negligence and concluded that it did not govern in the circumstances.

He distinguished this line of authority on the basis that Rennalls’ claim involved injuries which took place after the alleged crime, including the invasive medical examination, and most importantly, that the claim did not involve negligence in the investigation but rather the failure to execute a warrant in a timely fashion. [ 11 ] On the basis of these points of distinction, the Master concluded that Rennalls’ claim was novel and should be permitted to proceed for the reasons articulated by the Supreme Court of Canada in R v Imperial Tobacco Canada Ltd , 2011 SCC 42 at para 21 [ Imperial Tobacco ] and cited by this Court in Rudichuk v Genesis Land Development Corp , 2019 ABQB 132 at para 9 : [T]he Supreme Court of Canada has held that it is not determinative that the law has not yet recognized a particular claim and a court should be generous and err on the side of permitting a novel, but arguable claim to proceed to trial. [ 12 ] The Master struck out the claim for assault and battery.

Rennalls does not appeal that determination. CPS appeals the decision permitting the claim in negligence to proceed. IV. The Law Standard of review [ 13 ] The appeal of a Master’s decision is governed by Rule 6.14. The standard of review is correctness and the hearing before this Court is conducted de novo : Bahcheli v Yorkton Securities Inc , 2012 ABCA 166 at paras 3 , 17, 30. Effectively, I am asked to decide the substantive issue afresh.

Application to strike [ 14 ] Applications to strike are brought under Rule 3.68(2)(b), which allows this Court to terminate a claim if the “commencement document or pleading discloses no reasonable claim or defence to a claim.” [ 15 ] Applications to strike are governed by the principles and test articulated by the Supreme Court in Imperial Tobacco at paragraphs 17–22 ; O’Connor Associates Environmental Inc v MEC OP LLC , 2014 ABCA 140 at para 16 [ O’Connor ].

A court must only strike an action if “it is plain and obvious that the plaintiff’s claim cannot succeed”, assuming the facts pled in the Statement of Claim are true: Pro-Sys Consultants Ltd v Microsoft Corporation , 2013 SCC 57 at para 63 . [ 16 ] The power to terminate a claim at this very preliminary stage should be applied with care. As the Supreme Court instructs, “[a]ctions that yesterday were deemed hopeless may tomorrow succeed... [t]he approach must be generous and err on the side of

permitting a novel but arguable claim to proceed to trial”: Imperial Tobacco at para 21. Claims should not be dismissed simply becausethey are novel: Hunt v Carey Canada Inc, (SCC), [1990] 2 SCR 959 at 980 [Hunt] [17] However, the mere presence of novelty does not dictate that a claim must be permitted to proceed to trial. As the Court ofAppeal cautioned in O’Connor at paragraph 16: In determining whether a novel claim has a “reasonable prospect” of success, many factors must be examined. The clarity of the factualpleadings is important.

The existence of case law discussing the same or similar causes of action is relevant.

As noted in ImperialTobacco, the courts must be careful not to inhibit the development of the common law by applying too strict a test to novel claims.However, the courts must resist the temptation to send every case to trial, even if some legal analysis is needed to determine if a claimhas any reasonable prospect of success: Kripps v Touche Ross & Co (1992), (BCCA), 94 DLR (4th) 284 at 309, 69BCLR (2d) 62 (CA). [18] With these principles in mind, I turn to examining whether Rennalls’ claim in negligence should be struck or permitted toproceed to trial.

The parties’ positions [19] CPS argues that the law bars suits for negligent investigation by victims or their families and that shades of nuance on thefacts underlying the action are insufficient to make such a claim “novel” or afford it a chance of success. Rennalls counters that her claimis materially distinct from those in which no cause of action has been found because she is not complaining about negligence in any facetof the investigation.

Rather, she alleges that the police undid the results of their own investigation by failing to bring Tettey before thecourts even after a judicial officer had ordered them to do so. She argues that the nature of the dilatory conduct, together with theevolving role of sexual assault complainants in the criminal justice system, make her claim novel and not obviously bound to fail. Determining whether a claim is novel or bound to fail [20] Many novel claims in tort have been brought against the police over the years.

The correct approach to evaluating theseclaims was described by McLachlin CJC in Hill v Hamilton-Wentworth (Regional Municipality) Police Services Board, 2007 SCC 41at paragraph 27 [Hill]: If a new relationship is alleged to attract liability of the police in negligence in a future case, it will be necessary to engage in afresh Anns analysis, sensitive to the different considerations which might obtain when police interact with persons other than suspectsthat they are investigating.

Such an approach will also ensure that the law of tort is developed in a manner that is sensitive to the benefitsof recognizing liability in novel situations where appropriate, but at the same time, sufficiently incremental and gradual to maintain areasonable degree of certainty in the law. [21] The starting point to determine whether one individual owes another a private law duty of care such that they can be sued fornegligent conduct is the Cooper-Anns test, derived from the well-known cases of Anns v Merton London Borough Council, 1977UKHL 4, and Cooper v Hobart, 2001 SCC 79; Williams v.

Canada (AG) (2009), 2009 ONCA 378, leave ref’d [2009] SCCA No 298, atpara 13. The Supreme Court of Canada applied the Cooper-Anns test in the context of suits against the police in Odhavji Estate vWoodhouse, 2003 SCC 69 [“Odhavji”], laying out the correct approach at para 46: First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationshipof proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to causedamage to the latter — in which case a prima facie duty of care arises.

Secondly, if the first question is answered affirmatively, it isnecessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the classof person to whom it is owed or the damages to which a breach of it may give rise. [22] The plaintiff has the ultimate legal burden of establishing the duty of care, but once a prima facie duty has been established,the evidentiary burden of considering the policy considerations shifts to the defendant: Childs v Desormeaux, 2006 SCC 18 at para 13.

Does the state of the law make a Cooper-Anns analysis unnecessary? [23] Under the Cooper-Anns test, the first question is whether the duty of care the plaintiff says has been breached has alreadybeen recognized by law: Wellington v. Ontario, 2011 ONCA 274 [“Wellington”] at para 16. Rennalls acknowledges that it has not. CPSgoes further and argues that the existing jurisprudence has categorically rejected the duty of care Rennalls advances.

Therefore, it isnecessary to begin by assessing the impact of the existing law on Rennalls’ claim. [24] There is no question that police officers are under a duty to do their jobs properly, both under statute and at common law. Forinstance, the Police Act, RSA 2000, c P-17 states at section 38(1): “[e]very police officer… has the authority, responsibility and duty (a)to perform all duties that are necessary to carry out the police officer’s functions as a peace officer… and (

b) to execute all warrants andperform all related duties and services.” [25] Further, the classic case of Dedman v The Queen, (SCC), [1985] 2 SCR 2 at para 14, outlines the commonlaw duties of police. These include the preservation of the peace, the prevention of crime, and the protection of life and property. Othercase law has required police officers to investigate the commission of crimes and apprehend offenders under their duty of “enforcementof laws”: R v Custer, (SK CA), [1984] SJ No 438 (CA) at para 26. [26] Critically, however, those duties are owed to society at large, not to individual citizens.

As the Ontario Court of Appeal statedin Wellington at para 20: While the police owe a duty of care to a particular suspect under investigation (see Hill and Beckstead), and to warn a narrow anddistinct group of potential victims of a specific threat (see Jane Doe), there is now a long list of decisions rejecting the proposition that

the police owe victims of crime and their families a private law duty of care in relation to the investigation of alleged crimes. [27] This list of decisions includes the leading case of Norris v Gatien (2001), (ON CA), 56 OR (3d) 441 (CA)[“Norris”], where an Ontario Provincial Police [“OPP”] officer struck and killed a cyclist while driving an OPP vehicle. The deceasedcyclist’s family sued the investigating officer of the local police service for negligent investigation into the OPP officer’s conduct.

On amotion to strike the plaintiff’s claim against the investigating officer, the Ontario Court of Appeal laid out the governing legal principlesat para 18: [T]he plaintiffs had no legal interest in the investigation or prosecution of [the OPP officer]; that investigation and prosecution werematters of public law and public interest. Nor had the plaintiffs any legal interest in the disciplinary proceedings taken against [the OPPofficer]. Had [the OPP officer] been convicted on either or both charges, the plaintiffs, or some of them, may have derived some personalsatisfaction from that conviction.

That satisfaction, however, would have been a purely personal matter; it would have no reality in law.Nor did the failure to reach that verdict have any consequence for the appellants sounding in damages. [28] The Court of Appeal accordingly held that the claim was correctly struck for disclosing no reasonable cause of action.

InWellington, it re-stated and affirmed this general rule that police do not owe a duty of care to the victims of the crimes they investigate.There, a man was shot dead by a police officer, and the Special Investigation Unit of the Ontario Ministry of the Attorney General[“SIU”] was called in to investigate. The deceased’s family sued the SIU on the basis that their investigation into the shooting wasnegligent.

In a unanimous decision authored by Sharpe JA, the Court held that the plaintiffs “had no legal interest in the investigation orprosecution of [the OPP officer]: that investigation and prosecution were matters of public law and public interest” (Wellington at para18). [29] In Wellington, the Court concluded that it could determine whether there is any possibility that a duty of care could be foundto exist on the pleadings alone, citing Edwards v Law Society of Upper Canada, 2001 SCC 80, Syl Apps Secure Treatment Centre vBD, 2007 SCC 38, Williams v Ontario, 2009 ONCA 378, Eliopoulos Estate v Ontario (Minister of Heath and Long Term Care), (ON SCDC), [2005] OJ No 2225 (SCJ (Div Ct), Attis v Canada (Health), 2008 ONCA 660. [30] The ability of aggrieved complainants to sue police in negligence for the conduct of investigations was again brought beforethe Ontario Court of Appeal in Goldman v Weinberg, 2019 ONCA 224.

The motion judge’s dismissal of the claim by way of

summaryjudgment was itself summarily upheld on the authority of Norris and Wellington. CPS contends that this line of cases closes the door toclaims of negligent investigation in all forms. [31] British Columbia also has a line of authority striking claims for negligent investigation by police officers. In Thompson vWebber, 2010 BCCA 308, a father reported to the police that his daughters were being physically disciplined by their mother. He allegedthat, due to a subsequent negligent investigation, the children became estranged from him and consequently suffered foreseeablepsychological harm.

The Court of Appeal upheld the striking of the claim on the basis that the plaintiff did not have a relationship ofsufficient proximity with the police to create a private duty of care. [32] A claim of negligent investigation was similarly struck out in Callan v Cooke, 2012 BCSC 1589. There, the plaintiff allegedthat the Royal Canadian Mounted Police had been negligent in investigating assaults by one of its members in his capacity as a hockeycoach.

In striking out those portions of the claim relating to negligent investigation, the British Columbia Supreme Court held at para 68: absent limited exceptions, the police… do not generally owe a private duty of care to victims or potential victims with regards to theirinvestigations. They owe a duty to the public to carry out proper criminal investigations. [33] In the same vein, a claim that police had negligently investigated allegations of Charter infringements during their handling ofa domestic dispute was held to disclose no cause of action in Allen v New Westminster (City), 2017 BCSC 1329.

In coming to thisconclusion, Ehrcke J cited para 48 of John v Peel Regional Police, 2016 ONSC 2016: “the relationship between the investigator andvictims is not sufficiently proximate to give rise to a duty of care to the individual. The duty is to the public in general.” [34] Further appellate authority that no private law duties are owed by police to the victims of crimes they are investigating isfound in Jones v The Attorney General of Canada (Royal Canadian Mounted Police) et al, 2018 NBCA 86.

There, the New BrunswickCourt of Appeal upheld the decision to strike pleadings alleging that the police were negligent in investigating a complaint of a sexualassault.

The Court followed the jurisprudence in Ontario and British Columbia, and agreed with the motion judge’s conclusions that thecomplainant-police relationship lacked the legal proximity to impose a duty of care. [35] The litany of cases in which individuals affected by alleged crimes have failed in their attempts to establish an individual dutyof care by allegedly negligent police also include: • Connelly v Toronto Police Services Board, 2017 ONSC 3408. Parents claimed that the police were negligent in investigatingtheir son’s death and ruling it a suicide after he fell from a ten-story apartment building.

Relying on Norris and Wellington, the OntarioSuperior Court of Justice held that the claim of negligent investigation was not novel and should be struck. • Project 360 Investments Limited (Sound Emporium Nightclub) v Toronto Police Services Board, (ON SC),[2009] OJ No 2473 (SCJ). The owners of a nightclub attempted to sue police for failing to prevent (or warn of) a shooting at theirpremises by a known criminal, which caused them significant commercial harm.

The Ontario Superior Court of Justice struck out theclaim on the basis that there was insufficient proximity to ground a duty of care because police were not aware of any link between thegunman and the businesses prior to the night of the shooting. • Albatal v Canada (Royal Mounted Police), 2016 FC 371. The Federal Court dismissed an application for mandamus compellingthe police to investigate a complaint of corruption in the Canadian embassy in Berlin, Germany. The police concluded that no crimes hadbeen committed and exercised their discretion in not opening an investigation.

The Court held that police owe no private duties in regardsto their decision to investigate or whether reasonable and probable grounds exist that a crime has occurred: see also Clemens v Canada,[1995] OJ No 1094 (Gen Div).

• Burnett v Moir, 2011 BCSC 1469 [Burnett]. A man brutally assaulted in a bar claimed that officers failed to properly police thelocation or preserve and gather evidence of his assault. The Court found that there was an insufficient relationship of proximity betweenthe victim and the police to support a finding of negligence, highlighting that criminal investigations do not serve private interests:Burnett at 443. Alberta authority finding no private law duties to complainants [36] In Leung v Kilgour, 2004 ABQB 408, a self-represented plaintiff sued a variety of parties, including the police.

Shespecifically alleged that the law enforcement defendants were negligent in failing to lay charges after she complained of being assaultedat a political candidate’s campaign office. The claim was struck by Rowbotham J (as she then was) on the basis that police are affordedwide discretion in fulfilling their investigative duties and did not owe the plaintiff any private duties in how they did this part of theirwork.

Moreover, the Court held, at para 11, that the police do not owe a duty “not to be apathetic”.[1] [37] Kilgour applied the earlier decision of Master Funduk in Petryshyn v Alberta (Minister of Justice and Attorney General),2003 ABQB 86 [“Petryshyn”].

In that case, the Master adopted and applied Norris and held that police discretion is not limited towhether charges are laid, but also includes what charges are laid, and that no cause of action in tort arises from such decisions: The Plaintiff’s ultimate dissatisfaction is that her landlord was not charged with assault and the outcome of the charges that were laid.But she was not victimized by that. Complainants do not decide whether charges should be laid and if so what they should be. Second,complainants do not run the prosecution of a criminal proceeding.

That is Crown counsel’s responsibility and there was a provincialCrown prosecutor. Third, complainants do not decide if an accused is guilty. That is solely a function for the court. (at para 10) [38] Alberta authority is thus consistent with decisions across the country rejecting negligent investigation claims brought bycomplainants. Conclusion on the existing state of the law [39] It is well settled that police officers generally do not owe a duty of care to complainants or people impacted by the allegedcrimes they are called upon to investigate.

The public duty of officers to conduct themselves conscientiously does not translate intopersonal duties of care to the individuals most directly touched by any particular crime. As the Nova Scotia Court of Appeal stated inWalsh Estate v Coady Estate, 2016 NSCA 60, at para 60 [“Walsh”]: Unlike private citizens, police have statutory and common law duties that require them to take positive steps. But to found a private dutyof care, the circumstances must transcend a police officer’s obligations to the general public.

Something more is needed to establish aprivate duty of care. [emphasis added] [40] The claim Rennalls advances does not, therefore, fall into any established category of relationship where a duty of care hasbeen found to exist. If her claim has a reasonable prospect of success, this must be found in a fresh application of the Cooper-Anns test. [41] Before turning to the analysis for a novel duty of care, I must consider whether the existing jurisprudence so thoroughlyforecloses her claim as to make a fresh duty of care analysis unnecessary. I find that it does not.

The delict of the police in this case doesnot align squarely with any of the negligent investigation claims that have been categorically rejected. As the learned Master rightlynoted, a common theme that runs through those cases is that the alleged negligence occurred in the exercise of discretionary powers. Inthe present case, however, the decision to investigate, the investigative steps themselves, the assessment as to whether reasonable andprobable grounds to charge existed, and the determination that a charge was in the public interest were all complete before the allegednegligence occurred.

It was only after the charge was sworn, and a warrant issued directing police to bring Tettey before the courts forthe prosecutorial process to begin, that the police are said to have acted negligently. [42] This factual landscape is sufficiently distinct from the existing jurisprudence to warrant a full Cooper-Anns analysis. V.

Application of the Cooper-Anns Analysis [43] Before embarking on the Cooper-Anns analysis, it bears repeating that, on a motion to strike, the Court is not determiningwhether a duty of care has been proven on the facts as pled, but whether it is plain and obvious that the plaintiff will be unable toestablish one at trial: Jane Doe v Toronto (Metropolitan) Commissioners of Police, (ON SC), [1990] OJ No 1584(Div Ct) at para 76 [Jane Doe], per Moldaver J (as he then was). [44] The first stage of the Cooper-Anns test examines two interrelated questions: (

i) was the harm that occurred a reasonablyforeseeable consequence of the defendant’s actions, and (ii) do the parties have a sufficiently proximate relationship for a duty of care toarise? The concept of proximity, in turn, refers to the nature of the relationship between the people in question: Odhavji at paras 48-49.The practical impact of these requirements was described in Odhavji at paragraph 50: ...the essential purpose of the inquiry is to evaluate the nature of that relationship in order to determine whether it is just and fair toimpose a duty of care on the defendant.

The factors that are relevant to this inquiry depend on the circumstances of the case....

Examplesof factors that might be relevant to the inquiry include the expectations of the parties, representations, reliance and the nature of theproperty or interest involved. [45] The Court must therefore consider whether the police ought reasonably to have foreseen that failing to execute the warrantwould harm Rennalls, as the complainant in the case they were neglecting, and examine the broader nature of the relationship between asexual assault complainant and the police. [46] First, however, it is necessary to define with greater precision the exact type and scope of “harm” that is at issue.

Defining the “harm” in question [47] If Rennalls establishes everything she has pled, there is no question she has suffered a great deal of harm. By far, the worst ofthis would be the sexual assault Tettey is said to have committed against her. But that harm is not attributable to the subsequentlackadaisical approach of the police. Equally, Rennalls may be aggrieved and distressed that Tettey will never face criminal convictionor sanctions for his alleged crime.

This frustration also does not translate into a legal interest in a specific criminal outcome: Petryshyn atpara 10. [48] Not ‘getting justice’ is not a form of harm compensable in tort. That is not to underestimate the importance of a sense ofjustice being done. Our collective experience in the criminal justice system confirms that societal recognition of wrongs can play asignificant role in the psychological and emotional healing following traumatic events.

Individuals victimized by crime undoubtedly havea profound human interest in the outcome of the criminal process: R v Jordan, 2016 SCC 27 at paras 2 and 23. [49] The criminal law is not, however, a device of individual vindication or retribution. It exists to uphold the law for the commongood, not to settle individual scores: see R v M(CA), (SCC), [1996] 1 SCR 500 at 557–558. Consequently, victims andtheir families do not have a special legal interest in the investigation, prosecution, or punishment of the crimes that have impacted them:Norris at para 18.

As the Supreme Court held in Odhavji, at para 40: Individual citizens might desire a thorough investigation, or even that the investigation result in a certain outcome, but they are notentitled to compensation in the absence of a thorough investigation or if the desired outcome fails to materialize. [50] Therefore, Rennalls’ understandable aggrievement that her criminal complaint will never get its day in Court does notconstitute a compensable loss, and thus cannot be the “harm” that police must have foreseen to owe her a duty of care. [51] The foreseeable harm must lie in the direct impact on Rennalls’ mental health of the wanton disregard the CPS displayedtowards her claim of having been sexually assaulted, not in the consequential failure of the criminal justice process to reach her desiredresult on the merits of the case.

I am satisfied that, while this would be a narrow and discrete type of injury, this sort of harm could befound at trial on the facts as pled. This harm may, as the Master held, include any trauma resulting from the sexual assault examinationconducted at CPS’ behest, which their subsequent inactions rendered unnecessary. [52] I am guided in this conclusion by the findings of the Supreme Court in Odhavji. In that case, the family of a man fatally shotby police in the aftermath of a robbery sued the involved officers.

Those defendants had obstructed the SIU’s investigation of theshooting by failing to remain segregated, refusing to attend interviews on the same day as the shooting, and refusing to provide shiftnotes, on-duty clothing, and blood samples in a timely manner. All of the things the subject-officers failed or refused to do weremandated upon them by the relevant regulations and standing orders of their force. [53] In addition to a claim for misfeasance in public office, the plaintiffs in Odhavji sought to hold the Chief of Police liable innegligence for failing to prevent his officers’ misfeasance.

This led the Supreme Court to conduct a Cooper-Anns analysis, including aconsideration of whether there had been compensable harm. The Court’s treatment of this issue at paras 40-41 is apposite here: ...the plaintiffs also allege that they have suffered physically, psychologically and emotionally, in the form of mental distress, anger,depression and anxiety as a direct result of the defendant officers’ failure to cooperate with the SIU. Although courts have been cautious in protecting an individual’s right to psychiatric well-being, compensation for damages of this kind isnot foreign to tort law.

As the law currently stands, that the appellant has suffered grief or emotional distress is insufficient. Nevertheless,it is well established that compensation for psychiatric damages is available in instances in which the plaintiff suffers from a “visible andprovable illness” or “recognizable physical or psychopathological harm”: see for example Guay v. Sun Publishing Co., (SCC), [1953] 2 S.C.R. 216, and Frame v. Smith, (SCC), [1987] 2 S.C.R. 99.

Consequently, even if the plaintiffs couldprove that they had suffered psychiatric damage, in the form of anxiety or depression, they still would have to prove both that it wascaused by the alleged misconduct and that it was of sufficient magnitude to warrant compensation. But the causation and magnitude ofpsychiatric damage are matters to be determined at trial.

At the pleadings stage, it is sufficient that the statement of claim alleges that theplaintiffs have suffered mental distress, anger, depression and anxiety as a consequence of the alleged misconduct. [emphasis added] [54] It may be challenging for the plaintiff to quantify the harm she has suffered because of the failure to act of her case afterreasonable and probable grounds were confirmed and disaggregate it from the harm caused by the sexual assault and her general sense ofinjustice. Those harms may commingle, but they are not co-extensive.

The proof and quantification of harm, however, is a task for trial.It is neither plain nor obvious that the plaintiff will be unsuccessful in showing that what the police were obligated, but failed to docaused her direct mental injury. Therefore, I find that the pleadings disclose compensable harm, sufficient to support a cause of action ifthe other elements of a duty of care are established. Foreseeability of harm [55] The issue of foreseeability is easily dealt with.

Where the aftermath of serious crimes is the operative milieu, it is foreseeablethat those affected will suffer psychological distress if the criminal justice process goes awry.

The words of Moldaver J in R v KJM,2019 SCC 55 at para 38, poignantly summarize the psychological stakes for justice system participants, and definitively answer thequestion of foreseeability in this case: Police officers ought to know that delays in the criminal justice process cause psychological and emotional harm to victims of crime.Further, police officers are aware that excessive delays in executing an arrest warrant is often fatal for the prosecution of those offences.It should be within the reasonable contemplation of police officers that the resulting inability to participate in the judicial process as aresult of the failure to execute an arrest warrant would cause psychological and emotional harm to victims of crime. [emphasis added] [56] To be clear, frustration, offense, grief, or any other form of general dissatisfaction with police investigative conduct is notactionable, and foresight of such unhappiness with their work does not vest the police with a duty of care.

The level of mental harm

needed to establish an action in tort for negligence is high. The foreseeability of psychological distress does not equate to a plaintiff proving “ true ‘damage’ qualifying as mental injury, which is ‘serious and prolonged’ and rises above the ordinary emotional disturbances that will occasionally afflict any member of civil society”: Saadati v Moorhead , 2017 SCC 28 at para 19 . [ 57 ] Proof of an injury meeting the threshold for compensability is, however, an issue for trial.

The Supreme Court’s decision in Odhavji , at para 54 , is again dispositive of this issue: Although it is to be expected that an inadequate investigation would distress or anger the close relatives of Mr. Odhavji, it is less obvious that this distress or anger would rise to the level of compensable psychiatric harm. Nevertheless, I do not think it “plain and obvious” that such harm is an unforeseeable consequence of the defendant officers’ failure to cooperate with the investigation.

The task might be a difficult one, but the appellants should not be deprived of the opportunity to prove that the complained of harm is a reasonably foreseeable consequence of a truncated or otherwise inadequate investigation into the shooting incident. It is reasonably foreseeable that the officers’ failure to cooperate with the SIU investigation would harm the appellants.

As the Chief was responsible for ensuring that the officers cooperated with the SIU investigation, it is reasonably foreseeable that the Chief’s failure to do so would also harm the appellants . [emphasis added] [ 58 ] The disregard of sexual assault claims, and the impact of police nullification of the experience of women who report these crimes, is equally capable of generating a compensable psychological injury.

It is too late in the day for police or any other actor in the criminal justice system to say otherwise. [ 59 ] For all of these reasons, I conclude that the relationship between Rennalls and the CPS described in the Statement of Claim could permit her to establish foreseeable harm arising from CPS’ inexplicably protracted failure to execute the warrant for Tettey’s arrest. Proximity [ 60 ] The real nub of the issue is proximity. Canadian courts have unanimously held that the relationship between complainants and the police is incompatible with the imposition of a duty of care.

The police must remain objective and unfettered in their discretion when investigating crime, making it unjust at a broad societal level to impose a duty of care in the circumstances: Edwards v Law Society of Upper Canada , 2001 SCC 80 at para 9 . The question in this case, therefore, is whether there is anything different about the present case that would justify a different result on the question of proximity. [ 61 ] The plaintiff posits that two features of her case establish the requisite proximity to police that victims in general do not have.

The first is that the police default in this case was a failure to take a mandatory, non-discretionary step. The dilatory conduct occurred after the investigation was complete, reasonable and probable grounds to believe a crime was committed had been determined, and a decision to charge in the public interest had been made. At this stage the police’s discretionary charging decision was transformed into a judicial command to arrest when the warrant was issued.

The second factor she points to as justifying a fresh look at the bounds of private law duties in this context is the evolving status of victims in the criminal justice system, exemplified by the emerging provision of specific legal rights for sexual assault complainants. [ 62 ] Whether these factors could give rise to a relationship of proximity is informed by the instances in which Courts have identified private duties of care between police and the public.

The common law in Canada has recognized three discrete scenarios in which the police may be held liable in tort to individuals who their investigations impact. These are: (

i) negligence harming the suspect; (ii) failure to prevent crime against specifically foreseeable victims (or group of potential victims); and (iii) misfeasance in public office during investigations. Each of these realms are instructive as to whether a relationship of proximity could be established on the facts in this case. Negligent investigation of suspects [ 63 ] The most prominent exception to the general rule of police immunity to private suits for negligent investigation has emerged in favour of the suspects being investigated.

In Hill , the plaintiff sued police for negligent investigation of the crimes they had charged him with, leading to his initial conviction and ultimate exoneration after an appeal and re-trial. The Supreme Court of Canada found that police owe a duty of care to suspects and that a tort for negligent investigation exists in Canada. In arriving at this conclusion, the Supreme Court of Canada focussed on the critical personal interests at stake, namely physical liberty and reputation: Hill at paras 33-34 . [ 64 ] The suspect-investigator relationship is not analogous to that between victims and investigators.

Police scrutinize, question, surveil, and accuse a suspect in a direct and personal manner distinct from even the most intrusive examination of a complainant. The potential consequences of that intense attention – namely a charge and potential conviction – have no equal in the relationship between police and complainants or their families. [ 65 ] Moreover, the existence of a duty of care to suspects militates against finding a countervailing duty to complainants.

Imposing dual private duties of care, in favour of both sides of a criminal investigation, would burden police with constant concern over which private liability they should attend to. This situation is analogous to that of child welfare authorities, who owe duties of care to the children they may apprehend but not the parents they may be taken from: CHS v Alberta (Director of Child Welfare) , 2010 ABCA 15 at paras 27-28 ; LC v Alberta , 2010 ABCA 14 at para 13 .

In this respect, the principles underlying the Supreme Court’s finding of a proximate relationship and duty of care in Hill does not assist the plaintiff. [ 66 ] Rather, Hill is useful to the limited extent that the Supreme Court rejected a blanket immunity from private duties of care in the execution of core policing functions. Also, subsequent experience with Hill demonstrates that fears of a floodgates effect were overstated. The standard of care towards suspects incorporates the significant investigative discretion police must be afforded: McCullough v Hamilton Police Services Board , 2016 ONSC 2638 .

As a result, there have been few reported cases advancing this tort. Failure to protect specifically foreseeable victims

[67] A second line of authority has opened the possibility of police owing a duty of care to victims whose vulnerability issufficiently specific and known to police to distinguish them from the public at large.

This body of jurisprudence has developed from thewatershed Jane Doe litigation before the Ontario Courts: Jane Doe v Toronto (Metropolitan) Commissioners of Police, (ON SC), [1989] OJ No 471 (SCJ); affm’d (ON SC), [1990] OJ No 1584 (Div Ct); leave ref’d (ON CA), [1991] OJ No 3673 (CA); (ON SC), [1998] OJ No 2681 (SCJ) [“Jane Doe”]. [68] Jane Doe arose from the police response to a serial sexual offender operating in Toronto in the 1980s. Jane Doe was one ofhis victims.

At the time she was assaulted, police already knew that the offender was active in a specific geographic area, attackingwomen who lived in second and third floor apartments. They also knew that he would most likely attack again around the 24th or 25th ofthe month.

Despite this specific foresight, the investigators decided not to issue any warning to the circle of likely victims, professing aneed to avoid alerting the perpetrator to their level of knowledge about his modus operandi. [69] Jane Doe sued the police in tort, alleging that they failed in their duty to protect her and other potential victims from thisknown criminal. She further claimed that the reason the officers did not want to warn the public was because they believed that womenliving in the area would become hysterical and scare off the offender.

As such, Jane Doe also advanced a claim for an infringement ofher rights under ss 7 and 15 of the Charter. [70] An unsuccessful motion to strike the claim was appealed as far as the Ontario Court of Appeal. The matter was permitted toproceed. In the Divisional Court, Moldaver J (as he then was) emphasized that the police are generally immune from suit from victims ofcrime (at para 14), but have a duty to warn of foreseeable risks (para 21). [71] At trial, Jane Doe proved her case.

The trial judge found that a private law duty of care had been established and that thepolice “failed utterly” in fulfilling this duty. She was also satisfied that the police had acted on discriminatory grounds in choosing theirnegligent course of action. [72] The result in Jane Doe is not uncontroversial.

In Hill, the Supreme Court commented in obiter, at para 27: “Jane Doe is alower court decision and that debate continues over the content and scope of the ratio in that case.” This has led the Ontario DivisionalCourt to note: “there is considerable debate about the ‘content and scope’ of Jane Doe such that the law surrounding the duty of careowed by police to potential victims of crime is by no means settled”: Patrong v Banks, 2016 ONSC 4200 at para 35. [73] Nevertheless, a limited class of attempts to hold police liable for breaching their duty to protect have proceeded.

The Courtshave, insisted that plaintiffs establish a unique relationship with the police vis-à-vis the criminal activity in question: Burnett v Moir,2011 BCSC 1469 at para 405. Plaintiffs have met this bar in a few instances. [74] In Gilchrist v Levin, 2016 ABQB 474 [Gilchrist], two complainants approached CPS claiming that Dr. Levin had sexuallyassaulted them in the course of his psychiatric practice. CPS investigated the complaints but determined that no charges should be laid.Gilchrist was subsequently sexually assaulted by Dr. Levin and sued him.

On a motion to add CPS as a defendant, Master Prowsepermitted CPS to be brought into the suit on the basis that Gilchrist’s claim that they had failed to protect him through their earlier,allegedly negligent investigation, was not bound to fail. [75] In another case arising from the same series of events, however, Langston J granted

summary judgment in favour of thepolice. He held that the two complaints CPS had determined to be “unfounded” did not create a basis to identify or warn a “largelyundefined” group of potential victims: RVB v Levin, 2018 ABQB 887 at para 28. Respectfully, I would not follow this result, as it ispremised on the assumption that the earlier police investigations were sound in their conclusion that the initial complaints about Dr.Levin were unfounded. That investigative conclusion is one of the very acts of negligence the plaintiffs alleged, making the resultingdismissal of the claim circular.

Moreover, I respectfully disagree that the pool of an abusive doctor’s patients is either too large orundefined for police to take prophylactic steps in an appropriate case. [76] A more helpful application of the Jane Doe exception is found in McClements v Pike, 2012 YKSC 84 [McClements]. In thatcase, the plaintiff called the police because her daughter had started a fire at the plaintiff’s residence and told the fire chief that shewould burn down the residence when the authorities left. They left without arresting the plaintiff’s daughter and she burned the housedown, as she said she would.

The plaintiff in McClements argued that a duty of care could be found to exist in cases where a potentialvictim brings themselves to the attention of police by raising fears of victimization. [77] On a motion to strike, Gower J found that a novel duty of care could potentially arise on the facts, concluding: “I am notsatisfied that it is absolutely beyond doubt that the plaintiff will not be able to establish that the defendants owed her a private duty ofcare to conduct a diligent investigation into her initial arson complaint”: McClements at para 80.

While the Court arguably overstatedthe threshold to be met by the defendants, the result is intuitively correct. [78] Suits by victims of crime against the police have also been permitted to proceed in cases where the offender had beenidentified in the midst of recently ongoing criminal activity. In Castle et al v Her Majesty The Queen in Right of Ontario, 2014 ONSC3610 [Castle], one Jesse-James Low was stabbed by his friend Raymond Reid, who had a history of violent behaviour and was onprobation. Reid had already assaulted Low twice before.

On the day in question, Reid became intoxicated and assaulted a group ofyouths while at a fair. The police arrested him and observed his intoxication. Instead of keeping him in custody, however, police tookReid back to his father’s house, where Low also lived. A dispute ensued and Reid fatally stabbed Low. Low’s family brought a claimagainst the police on the basis that they had breached their duty of care to protect Low when they released Reid from custody. [79] In the context of a motion to strike, Lederman J found that it was not plain and obvious that foreseeability and proximity couldnot be established.

Further, he found that the floodgates argument advanced by the defendants was not sufficiently compelling, as theclass of persons with claims could be restricted by their special relationship of proximity.

In the end, Lederman J found that the defendantdid not meet its burden to establish that the claim should be struck, and permitted the matter to proceed to trial: Castle at paras 45 and 51. [80] Even more recently, the Nova Scotia Court of Appeal permitted the family of a deceased motorist to sue police who failed toapprehend the impaired driver (Coady) who killed the deceased in what they alleged was a preventable crash: Walsh. RCMP had been

alerted to Coady’s dangerous driving, had investigated him in his vehicle, and permitted him to drive on. On appeal from a failedsummary judgment motion, the Court of Appeal found it necessary to conduct a fresh Cooper-Anns analysis and concluded that it wasnot plain and obvious that the police did not owe a duty to the other motorists Coady endangered after their encounter with him. Thematter was permitted to proceed to trial. [81] Two key features emerge from the ‘failure to protect’ line of cases.

First, these decisions demonstrate that proximity is morelikely to be found as the impugned action/inaction of the police moves away from investigative discretion and towards protectiveobligation. Second, in each of these cases, the police had reasonable and probable grounds to believe crimes had been committed andresponded with inaction. Once these elements are present, victims whose injuries were foreseeable have been able to establish arguablecauses of action.

Misfeasance in public office [82] Moving outside the realm of negligence, the Supreme Court has recognized the intentional tort of misfeasance in public officeas a pathway for those aggrieved with police conduct of investigations to seek redress. In Odhavji, the family of a man shot by police inthe aftermath of a robbery sued involved officers who obstructed the SIU’s work. [83] As the defendants’ defaults constituted breaches of lawful directions given to them in their role as police officers, the familyframed their claim as one of intentional wrongdoing.

The defendants’ motion to strike the claim was appealed to the Supreme Court ofCanada. The high Court found that the action for misfeasance against the police officers, as well as an action in negligence against theChief of Police for permitting this misfeasance, should be allowed to proceed. [84] The Supreme Court held that the tort of misfeasance in office was not limited to the positive misuse of power, but could alsoencompass a failure to carry out tasks and perform actions required of the office holder, so long as the tort feasor knew his or her conductwas likely to harm others: Odhavji at paras 26-27.

Iacobucci J summed up the scope of the tort in these terms at para 30: ...there is no principled reason, in my view, why a public officer who wilfully injures a member of the public throughintentional abuse of a statutory power would be liable, but not a public officer who wilfully injures a member of the public through anintentional excess of power or a deliberate failure to discharge a statutory duty.

In each instance, the alleged misconduct is equallyinconsistent with the obligation of a public officer not to intentionally injure a member of the public through deliberate and unlawfulconduct in the exercise of public functions. [original emphasis] [85] More importantly for Rennalls, the Supreme Court also permitted the Odhavji family to sue the Chief of Police in negligencefor failing to ensure that his officers complied with their statutory duties.

In applying the Cooper-Anns test, the Supreme Court found thatthere was sufficient proximity between the Chief and the deceased’s family, making the following observations at para 58: Under s. 41(1)(b), the Chief is under a freestanding statutory obligation to ensure that the members of the force carry out their duties inaccordance with the provisions of the Police Services Act and the needs of the community.

This includes an obligation to ensure thatmembers of the police force do not injure members of the public through misconduct in the exercise of police functions. [emphasisadded] [86] While Odhavji insisted on wilful wrongdoing before liability of any sort will be imposed, it establishes that police inaction inthe face of a defined obligation is capable of attracting private law liability, including negligence, relating to that default. Theseprinciples assist the plaintiff’s claim, as inaction in the fact face of a determined investigative outcome and judicial direction to arrest areat the heart of her claim.

The legal interest of complainants in the judicial process [87] Criminal prosecution in the common law came into being as a private form of litigation between the complainant and theaccused: see generally James Fitzjames Stephen, A History of the Criminal Law of England, Vol 1 (London, MacMillan and Co, 1883) at245; Peter Burns, “Private Prosecutions in Canada: The Law and a Proposal for Change” [1975] 21 McGill LJ 269 at 271ff.

However, asthe criminal law evolved into a codified form of state enforcement, victims of crime came to be hermetically isolated from the legal rightto prosecute: SNC-Lavalin Group Inc v Canada (Public Prosecution Service), 2019 FC 282 at para 84. Their interests in criminaloutcomes are now generally seen as purely personal: Norris at paras 17-19. [88] This trend, however, has reversed slightly in recent years, most notably in the case of sexual assault.

Owing to increasingsocial awareness of the severity, prevalence, and highly gendered nature of this crime, Parliament has enacted a series of Criminal Codeprovisions providing sexual assault complainants with special legal rights and protections: see R v Arcand, 2010 ABCA 363; R vFreisen, 2020 SCC 9; R v Goldfinch, 2019 SCC 38 at para 37; Canada, Library of Parliament, “Legislative

Summary of Bill C-51: AnAct to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act”, by LyneCasavant et al, Publication No 42-1-C51-E (Ottawa: Library of Parliament, 1 October 2018), s 2.2.3.2. [89] These developments were driven by a broad societal concern that sexual assault complainants were not being accorded fulland equal protection of the law at any stage in the criminal justice system: R v Kapustinsky, 2020 ABQB 611 at para 27.

For example,L'Heureux-Dubé J observed in R v Osolin, (SCC), [1993] 4 SCR 595 at 628: One of the most powerful disincentives to reporting sexual assaults is women's fear of further victimization at the hands of the criminaljustice system; as I discussed in Seaboyer, supra, at p. 650, almost half of unreported incidents may be traced to this perception on thepart of sexual assault victims.

With good reason, women have come to believe that their reports will not be taken seriously by police andthat the trial process itself will be yet another experience of trauma. [emphasis added] [90] Indeed, as MacFarland J noted in Jane Doe: “although the [police] say they took the crime of sexual assault seriously in1985–86, I must conclude, on the evidence before me, that they did not.” Parliament’s repeated legislative interventions in the law ofsexual assault has been designed to answer these concerns and ensure that complainants are respected and their rights and interests given

regard in the criminal process. [91] Most significantly, with the enactment of Bill C-51 in 2018, complainants’ statutory rights crossed the rubicon into legalparticipation at trial. Specifically, sexual assault complainants now have the right to appear through counsel and make submissions onadmissibility hearings regarding prior sexual activity, in addition to hearings on the production of personal records: Criminal Code ss276(2), 278.94(3).

These provisions represent the only instance in Canadian criminal law where the complainant is a full legal participantin argument on a substantive issue at trial. [92] While the wisdom and utility of involving alleged victims of crime in the prosecutorial process as legal parties is a subject forfruitful academic research and debate, it is clear that the law is evolving in that direction, by the dictate of Parliament.

It is entirelyconceivable that this trend will find a reflection in the development of private law obligations of justice system participants as well. [93] On a parallel track, the increasing awareness that the criminal justice system must better address the impact of crimes onvictims resulted in the enactment of the Canadian Victims Bill of Rights, SC 2015, c 15, s 2 [Victims Bill of Rights]. The

preamble to thislegislation stated that it was being enacted in response to the following concerns: Whereas crime has a harmful impact on victims and on society; Whereas victims of crime and their families deserve to be treated with courtesy, compassion and respect, including respect for theirdignity; Whereas it is important that victims’ rights be considered throughout the criminal justice system. [94] The Victims Bill of Rights provides rights for victims before, during, and after the prosecutorial process, including: • the right to information about: the criminal justice system and the role of victims in it, the services and programs available to them,and their right to file a complaint for an infringement or denial of any of their rights under the statute; the investigation into the crime andthe location of the criminal proceedings and their outcome; and the offender or accused, including in relation to their release; • the right to protection, including protection of their privacy and identity and the right to request testimonial aids; • the right to participation, including to have their views heard and to provide a victim impact statement; • the right to seek restitution and enforcement of such an order; and • the right to make complaints about their treatment in the process. [95] Notably. the Victims Bill of Rights expressly includes the investigative phase in its definition of the criminal justice system: s5. [96] While none of these legislative developments define or expand the private law rights of complainants in tort, they nonethelessreflect a growing recognition that complainants are important stakeholders whose interests must be respected.

The law of tort, in turn,expressly contemplates that our society’s understanding and conception of public and private relationships evolve over time and that thelegal recourses available at common law should evolve in tandem with the changing needs of society: Hunt at 990-91; Jones v Tsige,2012 ONCA 32 at para 65. [97] Therefore, to the extent that broad trends in the law are relevant to defining the proximity of a relationship in tort, the law hasmoved to recognize that failures of the criminal justice system can both impact and injure complainants to a significant degree.

The principles of proximity applied [98] By the time CPS is alleged to have dropped the ball on Rennalls’ case, they had: (

i) subjected her to a physically invasiveevidence-gathering procedure; (ii) determined that her complaint of being sexually assaulted was well-founded – at least to the level ofreasonable and probable grounds; (iii) decided that a charge was in the public interest; (iv) had their grounds judicially confirmed; and(

v) been directed by that same judicial officer to arrest Tettey and bring him before the Court. The discretionary investigative andcharging steps had been completed. The requirement for investigative objectivity had been served. [99] These factors militate in favour of finding proximity. Indeed, if Tettey had threatened or re-assaulted Rennalls before beingarrested and put under conditions of release, she would find herself similarly situated to the plaintiffs in McClements, Walsh, andGilchrist. The only distinction in this case is that the police are alleged to have caused the harm directly themselves.

That can hardlyplace them in a better position in regards to a duty of care. [100] The police are afforded considerable operational latitude to decide when and how to execute warrants and what resources todevote in the pursuit of wanted individuals whose whereabouts is unknown. However, the idea that the police may indefinitely andunjustifiably avoid carrying out Court Orders – which is what warrants are – without attracting any liability for harm proximate to theirfailure to do so, is unappealing.

For instance, this Court routinely directs the police to serve Emergency Protection Orders, and similardevices of urgent restraint, issued in favour of victims of domestic violence and others at immediate risk.

I cannot accept that such Ordersare incapable of giving rise to a duty of care between the police and the individuals the Court has directed them to assist in protecting. [101] I am mindful that in Gustavsen v Calgary (City) (1996), (AB KB), 43 Alta LR (3d) 13 (QB), a casepredating most of the relevant developments in the law of police negligence, the learned Master appears to have rejected the idea that thebeneficiary of a restraining order can sue the police for failure to enforce that order. That case was narrowly decided on the basis that itwas unclear whether the conditions requisite to arrest had been met.

It is thus distinguishable from the present case as it appears to haveinvolved an element of enforcement discretion, which is absent from the execution of an arrest warrant. Were Gustavsen to be read more

broadly as precluding a duty of care arising from the obligation to serve or enforce a Court Order, I would find it to be wrongly decidedand decline to follow it. [102] Rather, I find that the facts pled by Rennalls more closely resemble the situation in Odhavji. In both instances, the police wereunder defined and explicit legal obligations to do certain things as requirements of their office. In both they failed to do so, and in both theChief of Police failed to adequately sueprvise compliance with these obligations. Rennalls has not pled that CPS officers advertentlychose not to execute the warrant in her case.

However, the crass obviousness of the police default, and the near total absence of aconceivable explanation for that default, bring her case much closer to a situation of intentional misfeasance than to a discretionary errorin investigative judgement. To be clear, I am not finding that the police acted intentionally in this case.

The foregoing is simply toobserve that the facts before the Court bear greater similarity to those in Odhavji, where a duty of care in negligence was found to bearguable, than those in which a duty to investigate carefully has been rejected. [103] The Ontario Court of Appeal went to some pain in Wellington to emphasize that Odhavji did not permit a suit for negligentinvestigation, but only for negligence in relation to intentional misfeasance in office: Wellington at paras 22-28. There is no doubt thatOdhavji was not intended to create liability where no willful wrongdoing is found.

However, where the allegedly wrongful policeconduct moves away from mistakes in discretionary investigative steps and more towards the failure to execute defined obligations, theSupreme Court’s decision to permit a suit against the Chief of Police for negligent supervision of his officers takes on greatersignificance. That very much describes the facts pled in this case. [104] For these reasons, I agree with the learned Master that it is not plain and obvious that Rennalls’ claim will fail for lack ofsufficient proximity.

Policy considerations [105] The second stage of the Cooper-Anns test examines public policy concerns that may arise from recognizing a duty of care. Evenwhere foreseeability and proximity are made out, a proposed duty of care may be rejected in law on policy grounds: Walsh at paras 75-77. In this case, there is a strong policy component to the rule that unsatisfied victims cannot complain about negligent policeinvestigations. The police and Crown prosecutors need to be able to do their jobs independently.

This is essential to the properfunctioning of the justice system: Henco Industries Ltd v Haudenosaunee Six Nations Confederacy Council, (ONCA), [2006] OJ No 4790 (CA) at paras 113-114. [106] The counterpoint to the imperative that police take sexual assault complaints seriously is the requirement that they investigatethose allegations objectively. Police must not be incentivized to ‘charge and let the courts sort it out’ for fear of criticism or civilconsequence if they do their work diligently and conclude that a charge should not be laid.

Sound policy dictates that the criminalcomplaints of those with the resources to sue police civilly, or credibly threaten to do so, not receive different or preferential treatment.This is true for every alleged crime. [107] Moreover, there is a real and justified concern that permitting aggrieved complainants to sue police and prosecutors for failedinvestigations and charges would create a large duplication of litigation and consume scarce and valuable law enforcement resources.

Ido not doubt the validity of these concerns, which have found expression in the strong rule against general liability for negligentinvestigations. [108] I am satisfied, however, that none of these pressing policy concerns manifest in this case. First, no complaint about anydiscretionary decision or investigative step is advanced. Second, it is a rare case indeed where the police do not follow though on theirown investigative outcomes and charge-decisions. For the same reason, I am satisfied that the duty of care Rennalls proposes will notobviously fail on floodgates concerns.

Judicial experience following Hill, Jane Doe, and Odhavji suggests that none of these incrementalexpansions of police liability in tort have occasioned waves of litigation. Indeed, claims under these heads of liability remain rare, andcases successfully prosecuted at trial even rarer. Therefore, I am not satisfied that Rennalls’ claim is bound to fail on policyconsiderations. VI. Conclusion [109] The principles protecting police investigative discretion from private law obligations to complainants do not preclude finding aduty of care in this case.

This is not a claim of negligent investigative in the normal sense. On the facts as pled, CPS sabotaged its own,judicially confirmed investigative outcome, in a straightforward but serious criminal case, through a baffling level of negligence. Assuch, the facts pled have more in common with the Jane Doe and Odhavji lines of authority than the classic investigative negligenceclaims brought in cases like Wellington and Kilgour. [110] It is not plain and obvious that this claim will fail at trial.

The appeal is dismissed and the learned Master’s denial of the CPSdefendants’ motion to strike is affirmed. [111] Finally, I would be remiss if I did not acknowledge the outstanding advocacy of counsel on this matter – Mr. Milczarek forthoughtfully seeking to advance the law and Ms. Gallo for her exemplary defence of a factually unattractive brief. Heard on the 18th day of August, 2020. Dated at the City of Calgary, Alberta this 4th day of January 2021.

N.E. Devlin J.C.Q.B.A. Appearances: Pawel J. Milczarek Sitar & Milczarek for the Plaintiff Danielle T. Gallo City of Calgary for the CPS Defendants