R. v. R.E.M., 2013 ONSC 4039

CITATION : Olszewski v. Ottawa (Police Services Board) , 2013 ONSC 4039 DIVISIONAL COURT FILE NO.: 12-1845 DATE: 2013/06/12 SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT RE: Lisa Olszewski, Plaintiff (Appellant) AND John Doe Officer 1, John Doe Officer 2, and the Ottawa Police Services Board, Defendants (Respondents) BEFORE: Valin, MacDougall and Rady JJ.

COUNSEL: Kellie Stewart, for the Plaintiff (Appellant) Geoffrey Cantello, for the Defendants (Respondents) HEARD: June 10, 2013 ENDORSEMENT [ 1 ] The appellant appeals from the decision of Power J. who dismissed her claim against the respondents for damages for trespass, intentional infliction of mental suffering and malfeasance in public office. [ 2 ] The claim arose after officers with the Ottawa Police Services Board shot and killed the appellant’s beloved pit bull terriers in the course of the execution of a warrant to arrest Trevor Provost for an assault he had allegedly committed on the appellant some several months earlier.

Mr. Provost was well known to Ottawa police and had a reputation for being violent, difficult to arrest and a “high risk escape artist”. [ 3 ] The appellant submits that the trial judge erred in his assessment of the police officers’ evidence because he failed to address inconsistencies in their testimony on important issues.

She says his reasons for judgment do not explain why he preferred the evidence of the police officers over that of the appellant and her friend. [ 4 ] She also submits that the trial judge erred in placing on her an onus to demonstrate what steps the police could have taken to ensure the dogs’ safety. [ 5 ] Finally, she submits that the trial judge erred in failing to find a causal connection between the police’s actions and her psychological injury. [ 6 ] The trial judge’s reasons of 149 paragraphs contain a thorough review of the testimony of the witnesses. [ 7 ] We are not persuaded that the trial judge erred in his assessment of credibility.

A trial judge is not always obliged to comment on why the evidence of one witness is preferred over another. (See F.H. v. McDougall , 2008 SCC 53 , [2008] 3 S.C.R. 41; R. v. R.E.M. , 2008 SCC 51 , [2008] 3 S.C.R. 3.) As noted by Chief Justice McLachlin in the R. v.

R.E.M decision, “…assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization”. [ 8 ] Further, the trial judge was entitled to draw an inference on the evidence before him that a male had been in the townhouse and he must have escaped. [ 9 ] We do not agree that the trial judge imposed a burden on the appellant to show what steps the police could have taken to protect her animals. He noted that the Immediate Action Team had discussed the use of various devices to deal with the dogs but reasonably did not pursue them.

He considered that this was a high risk situation and it was reasonable to place human safety over that of the dogs. In the circumstances, the trial judge was reluctant to second guess the decisions made by police when they encountered two agitated and aggressive animals which they reasonably believed had been trained as attack dogs. There is no palpable and overriding error in his decision. [ 10 ] The trial judge provisionally assessed damages but declined to make a finding of causation and foreseeability given his conclusion that there was no liability for the tort of intentional infliction of mental suffering.

He concluded that the officers did not intend to cause the appellant harm. He also concluded that the elements of misfeasance in public office were not made out on the evidence. These conclusions are supported on the evidence and it was open to him to decline to make findings of causation given his conclusion on liability. [ 11 ] In the circumstances of this case, we award the respondent modest costs of the appeal fixed at $3500.

Mr. Justice G. Valin Mr. Justice B. MacDougall Madam Justice H. Rady Date: June 12, 2013 CITATION : Olszewski v. Ottawa (Police Services Board) , 2013 ONSC 4039 DIVISIONAL COURT FILE NO.: 12-1845 DATE: 2013/06/12 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT RE: Lisa Olszewski, Plaintiff (Appellant) AND John Doe Officer 1, John Doe Officer 2, and the Ottawa Police Services Board, Defendants (Respondents) BEFORE: Valin, MacDougall and Rady JJ. COUNSEL: Kellie Stewart, for the Plaintiff (Appellant) Geoffrey Cantello, for the Defendants (Respondents) ENDORSEMENT By the Court Released: June 12, 2013