Spencer v. Canada (Attorney General), 2010 NSSC 446

SUPREME COURT OF NOVA SCOTIA Citation: Spencer v. Canada (Attorney General), 2010 NSSC 446 Date: 20101208 Docket: Hfx. No. 257053 Registry: Halifax Between: Pamela Spencer, Adrian George Spencer, Austin Leslie Spencer, Amelia Ruth Spencer an infant by her litigation guardian Ruth Elder Kell Plaintiffs v. The Attorney General of Canada, Constable Lise Hamel, Constable Michael Bracken, Constable Michael MacAlpine, Corporal James Christensen Defendants Judge: The Honourable Justice Arthur W.D. Pickup.

Heard: November 4, 2010, in Halifax, Nova Scotia Final Written November 15, 2010 for the Plaintiffs Submissions: November 5, 2010 for the Defendants Written Decision: December 8, 2010 Counsel: Anthony M. Brunt, for the Plaintiffs Jessica Harris and Susan Inglis, for the Defendants By the Court :

[ 1 ] This is an application for

summary judgement by the defendant, the Attorney General of Canada. [ 2 ] On April 1, 2002 Pamela Spencer reported to the RCMP that her husband, Bruce Spencer, had assaulted her. Officers attended at their residence. Mr. Spencer was arrested for assault and held overnight at the Lower Sackville detention centre. On April 2, 2002 Mr. Spencer was released from custody and driven to the family home by Constable Lise Hamel, who did not remain on the scene. Mr. Spencer, shortly thereafter, set fire to the family home and was arrested and charged with arson.

On May 3, 2002 he was convicted of assault, setting fire to the family home and unlawfully transporting firearms. [ 3 ] The plaintiffs allege that the RCMP told her that they would accompany Mr. Spencer to the family home to obtain his personal belongings after his release from jail. Instead, they allege that the RCMP dropped off Mr. Spencer and left. Shortly thereafter they say Mr. Spencer burned down the family home. As a result, it was this direct promise by RCMP officers and, their failure to deliver, that caused the damage that they allege. [ 4 ] The Attorney General says that Ms.

Spencer is attempting to obtain damages from the Attorney General for the loss of her home, whereas it was her husband, Bruce Spencer, who burned down the home and she should be proceeding against him. [ 5 ] On May 24, 2006 the plaintiffs commenced an action claiming negligence, negligent misrepresentation, breach of fiduciary duty, damages for pain and suffering and loss of the family home and its contents. They raised a further claim based on the personal liability of the named RCMP officers in submissions on this

summary judgment application. While the Attorney General had no prior notice of this claim, they have consented to including this issue in the

summary judgment application. Both parties were given an opportunity to provide further written submissions on this issue. [ 6 ] The Attorney General seeks

summary judgment on the causes of action in negligence, negligent misrepresentation and the personal liability of the named RCMP officers. The plaintiffs have withdrawn their claim of breach of fiduciary duty. The Law : [ 7 ] The Attorney General seeks

summary judgment on the evidence pursuant to Rule 13.04. Civil Procedure Rule 13.04 reads:

Summary judgment on evidence 13.04

(1) A judge who is satisfied that evidence, or the lack of evidence, shows that a statement of claim or defence fails to raise a genuine issue for trial must grant

summary judgment.

(2) The judge may grant judgment for the plaintiff, dismiss the proceeding, allow a claim, dismiss a claim, or dismiss a defence.

(3) On a motion for

summary judgment on evidence, the pleadings serve only to indicate the laws and facts in issue, and the question of a genuine issue for trial depends on the evidence presented.

(4) A party who wishes to contest the motion must provide evidence in favour of the party’s claim or defence by affidavit filed by the contesting party, affidavit filed by another party, cross-examination, or other means permitted by a judge.

(5) A judge hearing a motion for

summary judgment on evidence may determine a question of law, if the only genuine issue for trial is a question of law.

(6) The motion may be made after pleadings close. [ 8 ] The principles to be applied to

summary judgment have been discussed and commented on in numerous cases, both in this court and the Court of Appeal. Justice Bryson (as he then was) in ACG Flat Glass North America Ltd. v. CCP Atlantic Specialty Products Inc. (2010), 2010 NSSC 108 (CanLII) , 289 N.S.R. (2d) 290 (S.C.) , [2010] N.S.J. No. 140 , listed four propositions that are appropriate in determining whether or not

summary judgment should be granted. He said, at para. 13:

(1) The plaintiff must show that, on uncontroverted facts, it is entitled, as a matter of law, to succeed; that is to say, that there is no fact material to the cause of action that is in issue;

(2) The burden then shifts to the defendant to show evidence that the defence has a real prospect of success; that is to say that there is a genuine issue of fact material to the claim or defence, that must be decided before the case can be determined on its merits;

(3) The responding party must put "its best foot forward" or risk losing. This requires more than a simple assertion, but requires evidence, [ United Gulf Developments Ltd. v. Iskandar, 2004 NSCA 35 ];

(4) If material facts are not in dispute, the court has an obligation to apply the law to those facts and decide the matter. [ 9 ] A defendant can also obtain

summary judgment. Cromwell, J. A. of the Court of Appeal (as he then was) in Cherubini Metal Works Limited v. Nova Scotia (Attorney General) (2007), 2007 NSCA 38 (CanLII) , 253 N.S.R. (2d) 144 (C.A.) , [2007] N.S.J. No. 134 , referring to the Supreme Court of Canada decision in Guarantee Co. of North America v. Gordon Capital Corp. , 1999 CanLII 664 (SCC) , [1999] 3 S.C.R. 423 , said at para. 8 :

Summary judgment is appropriate when a defendant shows that there is no genuine issue of material fact requiring a trial and a responding plaintiff fails to show that its claim is one with a real chance of success... [ 10 ] The Attorney General says that there are no material facts in dispute and the plaintiffs have no real chance of success at trial on their claims. No Genuine Issue of Material Fact : [ 11 ] Rule 13.04(3) must be considered in determining whether there is a genuine issue of material fact:

Summary judgment on evidence ...

(3) On a motion for

summary judgment on evidence, the pleadings serve only to indicate the laws and facts in issue, and the question of a genuine issue for trial depends on the evidence presented. [ 12 ] The Attorney General says that the following are material facts: 1. The Plaintiffs are residents of Wellington, Nova Scotia.

2. The Attorney General of Canada represents the Defendants and the individuals named are employed as members of the Royal Canadian Mounted Police (RCMP). 3. On April 1,2002 the Plaintiff, Pamela Spencer, was assaulted by her husband, Bruce Spencer at their home. Immediately thereafter, Pamela Spencer called the RCMP. 4. Constables Lise Hamel, Michael Bracken and Michael Hochold responded and Constable Hochold arrested Bruce Spencer and took him to the Lower Sackville RCMP detachment. 5.

Constable Lise Hamel and Constable Bracken took statements from Pamela Spencer during which time they stated that when Bruce Spencer was released he would be escorted back to their residence to retrieve his belongings and would not be left unattended. 6. On April 2, 2002 Constable Michael MacAlpine called Pamela Spencer to review Bruce Spencer’s release conditions. During that conversation Constable MacAlpine made inappropriate remarks and showed an inappropriate attitude and disregard for her daughter’s safety. 7.

On April 2, 2002 shift supervisor Corporal James Christensen assigned Constable Hamel to escort Bruce Spencer to the family home and leave him there unattended. After Bruce Spencer was dropped off by Constable Hamel he took his daughter to her grandmother’s house and set fire to the house, destroying it and all its contents. Pamela Spencer was subsequently informed that Bruce Spencer had burnt down the house. [ 13 ] The plaintiffs have not submitted any affidavit evidence.

The Attorney General has submitted affidavits of Monique Lefebvre, a legal assistant, with the Federal Department of Justice and Corporal James Christensen, a corporal with Royal Canadian Mounted Police. Counsel for the plaintiffs cross-examined Corporal Christensen on his affidavit. [ 14 ] Counsel for the plaintiffs agree that there are no material facts in issue and have agreed that the material facts are as listed by the Attorney General.

I will apply the law respecting negligence, negligent misrepresentation and the personal liability of police officers to these material facts and the evidence before me to determine whether the plaintiffs’ claim is one with a real chance of success. Real Chance of Success at Trial : [ 15 ] As there are no material facts in issue, the burden shifts to the plaintiffs to show that their claim is one with a real chance of success. They must put “their best foot forward” or risk losing.

The plaintiffs have not submitted any affidavit evidence, but they have cross-examined Corporal Christensen on his affidavit. [ 16 ] In MacNeil v. Bethune (2006), 2006 NSCA 21 (CanLII) , 241 N.S.R. (2d) 1 , [2006] N.S.J. No. 62 , Roscoe, J.A. commented on the second step of the

summary judgment test at para. 33: ... at the second step of the test, there is an evidential burden on the responding party to put its best foot forward or risk losing. I agree with the statement in [ Marco Ltd. V. Newfoundland Processing Ltd. (1995), 1995 CanLII 10495 (NL SC) , 130 Nfld & P.E.I.R. 317 1995 CarswellNfld 134 (Nfld T.D.)]: If the applying party satisfies the threshold test for the application of the rule by putting forward an evidentiary basis for his or her position, the responding party then has an evidentiary burden to demonstrate that there is a genuine issue for trial.

This cannot be accomplished by showing an issue raised by the pleadings. The argument on a Rule 17A application takes place at a level below the pleadings within the forums of evidence and legal argument. The responding party must therefore "put his best foot forward" since failure to do so may lead the court to conclude that there is in fact no genuine issue for trial.

The responding party should therefore set out in affidavits, or answers given on interrogatories or oral discoveries, an evidentiary foundation for his or her case so that the court can see that there is a genuine issue of fact or law that is joined and has to be resolved before the court can make an ultimate determination on the merits.

[ 17 ] In Papaschase Indian Band No. 136 v. Canada (Attorney General) 2008 SCC 14 , [2008] S.C.J. No. 14 , the Supreme Court of Canada held at para. 19: ... A

summary judgment motion cannot be defeated by vague references to what may be adduced in the future, if the matter is allowed to proceed. To accept that proposition would be to undermine the rationale of the rule. A motion for

summary judgment must be judged on the basis of the pleadings and materials actually before the judge, not on suppositions about what might be pleaded or proved in the future. ... [ 18 ] The trial judge defined “real chance of success” in Eikelenboom et al v. Holstein Canada , 2003 NSSC 241 , [2003] N.S.J. No. 479 , as follows at para. 10: ... A "real" chance of success is not to be expressed in percentages. It does not mean that the plaintiffs are likely to succeed at trial or have a better than 50/50 chance of success.

At trial, plaintiffs have the onus of establishing their claim on the balance of probabilities. A real chance of success means the possibility of their success is not illusory or unrealistic. It is no more than saying they could succeed and the determination of whether they will or not should be left for the trial. The trial judge will have to examine all the surrounding circumstances. That is not the role of a chambers judge on a

summary judgment application. [ 19 ] The trial judge’s decision was reversed on appeal ( 2004 NSCA 103 ), but the Court of Appeal did not appear to disagree with this statement of the law. [ 20 ] Have the plaintiffs shown that the claim is one with a real chance of success? [ 21 ] To determine whether the plaintiffs have met their burden it is necessary to examine each of the allegations of negligence, negligent misrepresentation and individual liability of the RCMP officers in the context of the agreed material facts, the evidence and the applicable legal principles.

Negligence: [ 22 ] The first claim by the plaintiffs is in negligence against the RCMP. In order to succeed the plaintiffs must prove that there was a duty of care owed to them, there was a breach of that duty and they suffered damages. [ 23 ] The contention by the plaintiffs is that the RCMP were negligent by failing to remain at the family home with Bruce Spencer while he collected his belongings as they said they would do.

They were negligent by failing in their duty to protect the plaintiffs and their property. [ 24 ] The Attorney General says that the RCMP do not owe a duty of care to victims of crime; that if there was a duty it was not breached, that the RCMP did not cause the loss and, in the alternative, that if there was a loss, the plaintiffs contributed to it by not maintaining adequate fire insurance coverage. Do the RCMP Owe a Duty of Care to Victims of Crime?: [ 25 ] The first question to determine is whether the RCMP owe a duty of care to victims of crime.

[ 26 ] The leading authority on the determination of a duty of care is the so-called “ Anns test”, described in Anns v. Merton London Borough Council (1977), [1978] A.C. 728 (U.K.H.L.) , which was reviewed in Cooper v. Hobart, [2001] 3 S.C.R. 537 , 2001 SCC 79 . The issue in that case was whether a “statutory regulator owed a private law duty of care to members of the investing public for (alleged) negligence in failing to properly oversee the conduct of an investment company licensed by the regulator”. The court set out the following

summary of the law respecting duty of care at para. 30: In brief compass, we suggest that at this stage in the evolution of the law, both in Canada and abroad, the Anns analysis is best understood as follows. At the first stage of the Anns test, two questions arise: (1) was the harm that occurred the reasonably foreseeable consequence of the defendant's act? and (2) are there reasons, notwithstanding the proximity between the parties established in the first part of this test, that tort liability should not be recognized here?

The proximity analysis involved at the first stage of the Anns test focuses on factors arising from the relationship between the plaintiff and the defendant. These factors include questions of policy, in the broad sense of that word. If foreseeability and proximity are established at the first stage, a prima facie duty of care arises. At the second stage of the Anns test, the question still remains whether there are residual policy considerations outside the relationship of the parties that may negative the imposition of a duty of care. It may be ... that such considerations will not often prevail.

However, we think it useful expressly to ask, before imposing a new duty of care, whether despite foreseeability and proximity of relationship, there are other policy reasons why the duty should not be imposed. [ 27 ] In Cooper , the Supreme Court of Canada has confirmed the two-stage approach in Anns to determine whether a duty of care should be imposed. Therefore, at the first stage of the Anns test two questions arise:

a) Was the harm that occurred the reasonably foreseeable consequence of the defendants’ act?

b) Are there reasons notwithstanding the proximity between the parties established in the first part of this test, that tort liability should not be recognized? [ 28 ] In Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 , [2008] 2 S.C.J. No. 27 , the Supreme Court of Canada held at para. 16: ... the law of tort imposes an obligation to compensate for any harm done on the basis of reasonable foresight, not as insurance. The law of negligence seeks to impose a result that is fair to both plaintiffs and defendants, and that is socially useful.

In this quest, it draws the line for compensability of damage, not at perfection, but at reasonable foreseeability. ... [ 29 ] If foreseeability and proximity are established at this stage a prima facie duty of care arises, and then at the second stage of the test the question is whether there are residual policy considerations outside the relationship of the parties that may negate the imposition of a duty. Foreseeability: [ 30 ] The Attorney General says that the RCMP could not reasonably foresee that Bruce Spencer would burn down the family home upon his release.

They say that the evidence indicates that even Bruce Spencer’s spouse, Pamela Spencer, did not foresee these events. For support for this proposition they say Pamela Spencer’s discovery evidence and statements show she admits Mr. Spencer’s behaviour was unpredictable but she never expected that he would burn the family home. [ 31 ] Attached to the affidavit of Corporal Christensen is a statement given by Ms. Spencer on April 1, 2002. After indicating that her husband had not been arrested for domestic assault previously, the following exchange occurred: Q. Do you want Bruce, your husband, be charged for assault?

A. Probably not because it will be more problems.

Q. Do you want him out of the house? A. At least for today. ... Q. How did Bruce push you? A. He was pushing his hands on my shoulders and pushing me down. ... Q. Do you have any firearm in the house? A. 5 - 6, they are all secured, the other officer checked them. Q. Do you want us to seize the firearms? A. No, his whole attitude about the firearms are very good. He treat (sic) them with respect. I don’t think would use them against me or our sons. ... [ 32 ] This statement would have been available to the police at the time that Mr. Spencer was arrested and released.

There is no mention in the statement about Ms. Spencer being concerned as to property damage. [ 33 ] According to the testimony of Corporal Christensen on cross-examination, Ms. Spencer was called by one of the constables to discuss Mr. Spencer’s release conditions. One of the conditions that was imposed, as a result of this conversation, was that Mr. Spencer was not to have any contact with Ms. Spencer. [ 34 ] Also attached to Corporal Christensen’s affidavit was the statement of the Spencer’s son, Adrian Spencer. He indicated that his father had violent outbursts but normally not physical ones.

He said that his father never threatened to use guns. There was no mention of any threat to the home or other personal property other than his father’s threat to kill the family dog which had bit him during the assault on Ms. Spencer. [ 35 ] The Attorney General brings forth other evidence to support their position that the RCMP could not reasonably foresee that Bruce Spencer would burn down the home on his release. For instance, in her victim impact statement given on sentencing, Ms.

Spencer noted the monetary loss arising from the burning of the home, and said: If I had had the slightest thought that he would have been so vindictive, I never would have reported the assault... [ 36 ] Additionally, Ms. Spencer’s discovery transcript includes the following exchange at p. 106, line 8: Q. Okay. But at that time, were you thinking that he would burn the house?

A. I never really thought he would burn the house. I mean, I suppose anybody who’s a victim of crime never really thinks that something that drastic is going to happen. [ 37 ] Further at para. 24, in discussing vindictive action by her husband, she said: A. But I never expected him to burn the whole thing. I expected some kind of vindictive action, more so directed against me or just, you know, vandalism within the house or outside. [ 38 ] The Attorney General says that nobody could reasonably foresee that Mr. Spencer would burn down the house, but it would be foreseeable that Mr. Spencer would assault Ms.

Spencer. [ 39 ] Corporal Christensen admitted on cross-examination that he could not recall whether he read the statement of Pamela Spencer but he did say he was informed it was a minor assault and that Mr. Spencer had been arrested. He agreed that domestic violence must be taken very seriously, however, based on his experience, the incident of April 1, 2002 would be considered a low-level, minor assault. He testified that he had been involved with numerous domestic assaults over his 30 year police career. He said that in this case Mr.

Spencer had been arrested and placed in jail overnight as a cooling off period. He said Mr. Spencer had no recent criminal record, nor any record of domestic assault. Officers spoke with Ms. Spencer as to the release conditions and Mr. Spencer was released on an undertaking, one provision of which would have been to not have any contact with Ms. Spencer. [ 40 ] Counsel for Ms. Spencer questioned Corporal Christensen’s decision to release Mr. Spencer. Corporal Christensen said he followed all policy guidelines when he did so, especially since the information that he had was that it was a low-level assault and Mr.

Spencer had undertaken not to contact Ms. Spencer. [ 41 ] The plaintiffs say that there was reasonable forseeability as to the damages caused by Bruce Spence when the RCMP released him from custody. They say that that forseeability is found in the reasonable expectation which society places on the ability of the RCMP to independently and properly assess the risk potential of an offender for release after an incident of domestic violence.

They say that the specific task here was release and it is not unreasonable to expect that the RCMP would function in such task at a high level of confidence and be legally held to that expected level of duty. [ 42 ] With respect, all of the evidence that the RCMP had on the day of Mr. Spencer’s release related to the domestic assault allegations. There was no evidence before them to suggest property damage. What would be expected would be a physical confrontation with Ms. Spencer, and the RCMP took action to deal with that in consultation with Ms.

Spencer. [ 43 ] On all of the evidence, I am not satisfied that it would be reasonably foreseeable that Bruce Spencer would burn down the family home upon his release. On the first part of Anns test , I am not satisfied that the plaintiffs have a real chance of success, that is, there is no real chance of success in establishing that a duty of care existed. However, in the event I am wrong in this determination, I will go on to determine whether or not there is proximity between the parties. Proximity: [ 44 ] The next issue deals with proximity.

The court must focus on the relationship between the plaintiffs and the RCMP. In Cooper , supra, the Supreme Court of Canada discussed proximity at length, concluding at para. 36, with the following comment on the established categories of proximity: What then are the categories in which proximity has been recognized? First, of course, is the situation where the defendant's act foreseeably causes physical harm to the plaintiff or the plaintiff's property. This has been extended to nervous shock ... . Yet other categories are liability for negligent misstatement ... and misfeasance in public office.

A duty to warn of the risk of danger has been recognized ... . Again, a municipality has been held to owe a duty to prospective purchasers of real estate to inspect housing developments without negligence ... . Similarly, governmental authorities who have undertaken a policy of road maintenance have been

held to owe a duty of care to execute the maintenance in a non-negligent manner ... Relational economic loss (related to a contract's performance) may give rise to a tort duty of care in certain situations, as where the claimant has a possessory or proprietary interest in the property, the general average cases, and cases where the relationship between the claimant and the property owner constitutes a joint venture ... .

When a case falls within one of these situations or an analogous one and reasonable foreseeability is established, a prima facie duty of care may be posited. [ 45 ] The Attorney General says the plaintiffs have not provided any basis to suggest that the relationship between the RCMP and the plaintiffs is within an established category of proximity or analogous to one. They say that the starting point for an analysis in relation to whether a duty between the RCMP and the plaintiffs ought to be recognized is in the legislation under which the RCMP operate.

In the case of actions of a statutory authority, Abella, J. held in Syl Apps Treatment Centre (D.B.) v. Children’s aid Society of Halton (Region), 2007 SCC 38 , [2007] S.C.J. No. 38 at para. 27 : When the relationship occurs in the context of a statutory scheme, the governing statute is a relevant context for assessing the sufficiency of the proximity between the parties .... As this Court said in [ Edwards v.

Law Society of Upper Canada , [2001] 3 S.C.R. 562, 2001 SCC 80 ]: “Factors giving rise to proximity must be grounded in the governing statute when there is one” (para. 9). [ 46 ] The relevant legislation under which the RCMP Act is the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10. [ 47 ]

Section 18 of the Royal Canadian Mounted Police Act provides as follows: 18. It is the duty of members who are peace officers, subject to the orders of the Commissioner, (

a) to perform all duties that are assigned to peace officers in relation to the preservation of the peace, the prevention of crime and of offences against the laws of Canada and the laws in force in any province in which they may be employed, and the apprehension of criminals and offenders and others who may be lawfully taken into custody; (

b) to execute all warrants, and perform all duties and services in relation thereto, that may, under this Act or the laws of Canada or the laws in force in any province, be lawfully executed and performed by peace officers; (

c) to perform all duties that may be lawfully performed by peace officers in relation to the escort and conveyance of convicts and other persons in custody to or from any courts, places of punishment or confinement, asylums or other places; and (

d) to perform such other duties and functions as are prescribed by the Governor in Council or the Commissioner. [ 48 ] The Attorney General says that from a review of this legislation it is clear that the duty of a police officer is to protect the public as a whole, and that it does not contemplate a duty to protect an individual’s property or a duty to a specific individual. [ 49 ] In Syl Apps, supra, the court stated, at para. 28: Where an alleged duty of care is found to conflict with an overarching statutory or public duty, this may constitute a compelling policy reason for refusing to find proximity ...

Such a conflict exists where the imposition of the proposed duty of care would prevent the defendant from effectively discharging its statutory duties. In Cooper , for example, a duty to individual investors on the part of the Registrar of Mortgage Brokers was rejected because it was found to "potentially conflict with the Registrar's overarching duty to the public" (para. 44).

Similarly, in Edwards a private law duty of care on the part of the Law Society to the victim of a dishonest lawyer was rejected at the proximity stage since "[d]ecisions made by the Law Society require the exercise of legislatively delegated discretion and involve pursuing a myriad of objectives consistent with public rather than private law duties" (para. 14). In both cases, the serious negative policy consequences of these conflicting duties were found to justify denying a finding of proximity.

[ 50 ] The Attorney General says there is no proximity because of this public duty which would conflict should a duty of care be found to victims of crime. [ 51 ] The plaintiffs say that this case falls within the categories of cases in which proximity has already been recognized by the courts. They refer to Neilsen v. Kamloops, 1984 CanLII 21 (SCC) , [1984] 2 S.C.R. 2 , where the court found a duty of care by a municipality to prospective purchasers of real estate to inspect housing developments without negligence, and Just v.

British Columbia , 1989 CanLII 16 (SCC) , [1989] 2 S.C.R. 1228 , where the court found a duty of care on government authorities who had undertaken a policy of road maintenance, finding that they were required to do so in a non-negligent manner.

As a result, the plaintiffs says the RCMP owe the requisite duty “where they have undertaken the responsibility to non-negligently administer their own operational decisions in their broad criminal jurisdiction”. [ 52 ] With respect, I do not agree that these cases would support the plaintiffs’ position that proximity, in these circumstances, has been recognized by the court. [ 53 ] Moreover, in Project 360 Investments Ltd. v. Toronto Police Services Board, 2009 CanLII 36380 (ON SC) , 2009 CarswellOnt 3418 (Ont. Sup. Ct. J.) , [2009] O.J.

No. 2473 , the court held that police do not owe a duty to individual victims, MacDonnell J. said, at para. 19: In my opinion, it is manifest from the statement of the principles governing the delivery of police services set forth in s. 1 of the PSA, the duties of police officers set forth in s. 42(1), and the common law powers and duties incorporated by s. 42(3), that the duty of the police is to the public as a whole and not to specific individuals. To paraphrase language used by the Supreme Court of Canada in Edwards v. Law Society of Upper Canada , supra , and borrowed by the Court of Appeal in [ Williams v.

Canada (Attorney General ) , 2009 ONCA 378 ] in fulfilling their duties the police are required to act in the general public interest and to balance "a myriad of competing interests the nature of which are inconsistent with the imposition of a private law duty of care". [ 54 ] The plaintiffs say that the RCMP were the only organization or person to whom they could turn for support and protection and that this created a very clear proximity between the RCMP and victims of crime.

The plaintiffs’ counsel concludes by saying that the foreseeable criteria has been met and that the RCMP would fall within one of the judicially recognized categories of proximity. [ 55 ] The Attorney General says there is no case law that would support a duty of care by police officers to victims of crime. In Hill v. Hamilton-Wentworth (Regional Municipality) Police Services Board, 2007 SCC 41 , [2007] S.C.J. No. 41 , the Supreme Court of Canada recognized a duty of care between a police officer and a suspect they are investigating.

However, the court made it clear that it was not determining a duty of care in the case of other relationships. McLachlin, C.J.C. said, for the majority, at para. 27: Before moving on to the analysis of proximity in depth, it is worth pausing to state explicitly that this judgment is concerned only with a very particular relationship - the relationship between a police officer and a particularized suspect that he is investigating.

There are particular considerations relevant to proximity and policy applicable to this relationship, including: the reasonable expectations of a party being investigated by the police, the seriousness of the interests at stake for the suspect, the legal duties owed by police to suspects under their governing statutes and the Charter and the importance of balancing the need for police to be able to investigate effectively with the protection of the fundamental rights of a suspect or accused person.

It might well be that both the considerations informing the analysis of both proximity and policy would be different in the context of other relationships involving the police, for example, the relationship between the police and a victim, ... [ 56 ] I am satisfied after reviewing the Royal Canadian Mounted Police Act that the primary purpose of this legislation is to impose a duty on the RCMP to protect the public.

I am not satisfied that the courts have recognized a relationship of proximity between the RCMP and victims of crime, nor am I prepared to implement such a duty of care in this case. [ 57 ] Moreover, the Attorney General submits that there is a compelling policy reason to refuse to find proximity where an alleged duty of care would conflict with the discharge of statutory or public duty. To impose such a duty between the RCMP and victims of crime would inhibit the RCMP’s ability to effectively discharge their statutory duties to the public.

The police are required to balance the liberty of the accused and the protection of the public. The Attorney General says these competing interests are inconsistent with the imposition of a private law duty of care to individual victims of crime.

[ 58 ] In

summary, I am not satisfied that the harm that the plaintiffs experienced was the reasonable, foreseeable consequence of the RCMP’s actions. Further, I am not satisfied that there is proximity between the RCMP and the plaintiffs. That is, there is no proximity between the RCMP and victims of crime. Therefore, I am not satisfied that the plaintiffs have a real chance of success on this issue. [ 59 ] In the event that I am wrong in this determination that no duty of care exists, I will assume that such a duty of care exists and go on to determine the standard of care and whether it was breached by the RCMP.

Assuming there was a Duty of Care, was the Standard of Care Breached by the RCMP? : [ 60 ] Assuming a duty of care does exist, it is necessary to determine the standard of care applicable and then determine whether the plaintiffs have met their burden of showing that this standard of care was breached. [ 61 ] I am satisfied the standard of a reasonable police officer in like circumstances is appropriate.

In Hill , supra, McLachlin C.J.C. said, at para. 73: ...The standard of care is not breached because a police officer exercises his or her discretion in a manner other than that deemed optimal by the reviewing court. A number of choices may be open to a police officer investigating a crime, all of which may fall within the range of reasonableness. So long as discretion is exercised within this range, the standard of care is not breached. The standard is not perfection, or even the optimum, judged from the vantage of hindsight.

It is that of a reasonable officer, judged in the circumstances prevailing at the time the decision was made - circumstances that may include urgency and deficiencies of information. The law of negligence does not require perfection of professionals; nor does it guarantee desired results ....

Rather, it accepts that police officers, like other professionals, may make minor errors or errors in judgment which cause unfortunate results, without breaching the standard of care... [ 62 ] The Attorney General has tendered the operational manual policy on domestic violence, the RCMP divisional operation manual policy on family violence and the directive from the Minister of Justice regarding spousal/partner violence. The plaintiffs assert these policies set out the expectation regarding the RCMP’s conduct in matters of domestic violence.

They say there is a very high expectation placed on the conduct of RCMP officers in dealing with domestic/spousal violence incidents. They say the RCMP failed to give proper consideration to these guidelines and directives, and failed to reasonably achieve the basic expectation of these policies and guidelines which set out the paramount and overriding concern for the safety of the victims in this type of incident.

They say that failure breaches the RCMP’s duty as expressed in the stated policies, guidelines and directives. [ 63 ] The Attorney General says that the RCMP followed all of the policies on domestic violence. Mr. Spencer was arrested, removed from the home, kept overnight in lockup and released the next day on an undertaking. Ms. Spencer was advised of Mr. Spencer’s release. The Attorney General says that at the time of Mr. Spencer’s release, the RCMP knew of Mr. Spencer’s criminal record which was not lengthy or recent and that his previous arrests were unrelated to his family or their property.

The plaintiffs had not advised the RCMP that they thought he would destroy the home and, in fact, I am satisfied that the RCMP knew that comments from Pamela Spencer at the time of incident were to the effect that Mr. Spencer wanted to retain the family home in his impending divorce. [ 64 ] The Attorney General submits that even if the RCMP advised Ms. Spencer that they would remain with Mr.

Spencer while he collected his belongings, their release of Bruce Spencer was reasonable and did not breach the requisite of standard of care for reasonable police officers in like circumstances. [ 65 ] Corporal Christensen on cross-examination testified that he followed all policy guidelines, that he put a high value on and took domestic violence calls seriously and, in this case, based on his experience, he concluded he was dealing with a low-level domestic assault. There was no concern about firearms. Mr. Spencer was jailed and he was able to cool off overnight. He was released on conditions not to contact Ms.

Spencer and had no information that Ms. Spencer was concerned for her property. He testified that he followed all policy directives in releasing Mr. Spencer. [ 66 ] I am satisfied that the RCMP officers did not breach the standard of care and their actions were that of reasonable police officers judged in the circumstances at the time and, as a result, the plaintiffs have no real chance of success at trial on this issue.

[ 67 ] Having so determined, it is not necessary to determine whether the RCMP’s conduct caused the damage. Negligent Misrepresentation : [ 68 ] The plaintiffs claim negligent misrepresentation. They say that they relied on the RCMP because Ms. Spencer was advised that an officer would remain with Mr. Spencer when he collected his belongings from the home, and allege that they suffered damages as a result of that negligence. [ 69 ] In Queen v.

Cognos Inc. , 1993 CanLII 146 (SCC) , [1993] 1 S.C.R. 87 , 1993 CarswellOnt 801 , the Supreme Court of Canada set out five elements that a plaintiff must establish to be successful in a claim for negligent misrepresentation. Iacobucci, J. referred to the analysis from Medley Byrne & Co. v.

Meller & Porters Ltd. , [1964] A.C. 465 (H.L.) , and set out the following elements for a successful Medley Byrne claim, at para. 33: ... 1) there must be a duty of care based on a "special relationship" between the representor and the representee; (2) the representation in question must be untrue, inaccurate, or misleading; (3) the representor must have acted negligently in making said misrepresentation; (4) the representee must have relied, in a reasonable manner, on said negligent misrepresentation; and (5) the reliance must have been detrimental to the representee in the sense that damages resulted... [ 70 ] The first issue to determine is whether there is a duty of care. [ 71 ] The plaintiffs say that there is a special relationship between the parties upon which a duty of care is appropriately found.

They say this is a situation where the RCMP officers created an express obligation and duty of care to the Spencers when they assured the plaintiff, Pamela Spencer, that Bruce Spencer would not be left unsupervised in the home after his release. They say these allegations were not given to the public at large but rather to a specific individual, Pamela Spencer. [ 72 ] The plaintiffs argue that the assurance that the police would accompany Mr.

Spencer to and from the home created the so- called “special relationship” to give rise to the duty of care. [ 73 ] The Attorney General acknowledges that negligent misrepresentation is a recognized category of proximity. However, it submits that foreseeability is still required for a duty of care to be recognized. In this case, it is argued that there was no foreseeability and, therefore, no duty of care. The Attorney General points to the following exchange at Tab J of the Lefebvre affidavit at pp. 153 -154: MR. BRUNT: How are the RCMP responsible for this? MRS.

SPENCER: They did not do what they told me they were going to do. They left me with the understanding that when he got out of jail he would be taken home, get his things out of the house, whatever he needed, and he would not be allowed to return to his property. Somebody would stay with him while he got his things and take him off the property. They did not do that. BY MS. INGLIS: And if they had done that, your house would not have burned down? MR. BRUNT: Well ... MRS. SPENCER: I’m not a mind reader. I don’t know.

[ 74 ] The Attorney General says that if Ms. Spencer could not foresee that her husband was going to burn down the house, the RCMP could not be expected to do so. [ 75 ] Further the Attorney General says Mr. Spencer had no criminal history related to property damage, and Ms. Spencer’s statement to the police the night of the assault indicated that Mr. Spencer wanted to keep the family home pending a division of matrimonial property. As a result, the Attorney General maintains that none of the evidence available supports the conclusion that Mr.

Spencer’s destruction of the family home was a reasonably, foreseeable consequence of the RCMP not escorting him while he was at the family home on the day he was released. [ 76 ] I agree with the argument of the Attorney General and find there is no duty of care between the RCMP and the plaintiffs.

Therefore, the plaintiffs have not met their burden or proving that their claim of negligent misrepresentation is one with a real chance of success. [ 77 ] Having so determined, it is not necessary that I go on to determine whether the plaintiffs have satisfied the other elements to establish their claims for negligent misrepresentation.

Personal Liability of the Named RCMP Officers: [ 78 ] The plaintiffs say that there is a genuine, arguable and triable issue regarding the personal liability of the named RCMP members. [ 79 ] The plaintiffs seek to have RCMP members, Constable Lise Hamel, Constable Michael Bracken, Constable Michael MacAlpine and Corporal James Christensen held personally liable. [ 80 ] The Attorney General says that s. 3(

b) of the Crown Liability and Proceedings Act provides that the Crown is vicariously liable for torts committed by a servant of the Crown.

Section 10 provides that the Crown can only be liable in tort if a Crown servant can be found to be personally liable. [ 81 ] The Attorney General says that the only improper conduct alleged against these members was within the scope of their employment as Crown servants and, therefore, it is indistinguishable from the duty of care owed by the RCMP. Thus the Attorney General argues if there is no duty of care owed by the RCMP then there is no duty of care owed by individual members. [ 82 ] I agree.

In the case of the RCMP, I find that there is no duty of care owed by these individual members who are acting within their scope of employment. Moreover, even if I were to find a duty of care, I am not satisfied they breached the standard of care in the circumstances for the reasons stated earlier. [ 83 ] The fact that the RCMP told Ms. Spencer that they would accompany her husband to and from the family home and, failed to do so, was unfortunate. Under the circumstances it is understandable why the plaintiffs would be upset and embark on the action that she has undertaken.

However, in these circumstances it is necessary that the law be applied to the facts before me and, regrettably for the plaintiffs, I see no basis to conclude that on any of these claims there is a real chance of success. [ 84 ] The Attorney General’s application for

summary judgment on the causes of action in negligence, negligent misrepresentation and the personal liability of the individual RCMP officers is granted. [ 85 ] Considering the plaintiffs’ circumstances, I decline to award costs to the Attorney General.

Pickup, J.