The Ontario Superior Court of Justice in Patrong v. Banks et al. recently struck out a Statement of Claim in an action alleging negligence and misfeasance in public office against police on the basis that they failed to prevent shootings. The Court found that the police owed no private law duty of care to the plaintiff, and accordingly, the claims for negligence and breach of Charter rights were struck. The Court also struck the claim for misfeasance in public office.

The plaintiff was the victim of a drive-by shooting. The shooter had been well known to the police for some time as posing a danger and having the intention to shoot at young black males he thought were part of a gang operating in an area of Toronto. As a result of the shooting, the plaintiff brought an action in negligence against the police, alleging that the police owed him a private law duty of care to guard against the foreseeable harm of the plaintiff being shot. The plaintiff also alleged breach of section 7 of the Charter and misfeasance in public office. The police brought a motion to strike the Statement of Claim and successfully argued that it was plain and obvious that the claim disclosed no reasonable cause of action and had no reasonable prospect of success.

In dismissing the negligence claim, the Court considered whether there was a private law duty of care on the facts alleged by the plaintiff, and concluded that there was not. Although the police had knowledge of the shooter, they did not have any special knowledge which would establish the relationship of proximity between the police and the plaintiff which is necessary to find a private law duty of care. The Statement of Claim only showed that the plaintiff was a member of a large unidentifiable class of foreseeable victims, and the police had no way of knowing who the shooter would perceive to be a member of the specific gang. Furthermore, all residents of the area where the shooting occurred were at risk of foreseeable harm and not the plaintiff in particular. The Statement of Claim did not show how the plaintiff had any greater need for police protection from the shooter than any other resident of the area, and accordingly it would not have been reasonable for the police to be more mindful of the plaintiff’s safety than that of anyone else.

The Court also noted that the Police Services Act does not create a private law duty of care to specific individuals, but rather to the public as a whole.

With respect to the claim that the police breached the plaintiff’s right to life, liberty and security of the person by not preventing the shooting, the Court stated that the Charter does not impose a positive obligation on the police to prevent Charter breaches by other people. Additionally, the Court accepted the argument that a successful section 7 challenge would have required a finding that a private law duty of care existed, which was not found in this case.

Regarding the claim for misfeasance in public office, as the Statement of Claim contained no allegations that the police’s conduct was unlawful or that the police intended to injure the plaintiff, it too had no reasonable prospect of success.

Significance of the Decision

The plaintiff in this case was attempting to compare himself to the plaintiff in Jane Doe v. Toronto Police. This decision demonstrates that the scope of police liability to victims of crime is limited, and Jane Doe v. Toronto Police will not be easily expanded.

Author

Kathryn Shani 
KShani@blg.com
416.367.6033

Expertise

Insurance and Tort Liability
Municipal Liability