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Manish Odhavji
Decision:
Cops can be sued
Julian
Falconer
- Public officials
more exposed to litigation under ruling
- Supreme
Court decision in fatal shooting by Toronto police targets abuse
of office
By KIRK MAKIN, JUSTICE
REPORTER, Dec. 6, 2003
The Supreme Court of Canada
allowed a lawsuit arising from a police shooting to proceed yesterday,
ushering in a new era of litigation against public officials
accused of abusing their office.
The suit was launched against
Toronto Police Services by the parents and brother of Manish
Odhavji, who was slain by police during a botched bank robbery
in 1997.
The ramifications of the 9-0
ruling go far beyond the Odhavji lawsuit, opening a door for
citizens and public-interest groups to sue public officials for
all manner of shortcomings under the legal umbrella of "malicious
abuse of public office."
It is expected to spawn the
use of civil litigation by those hoping to change public policy
-- a tactic U.S. activists have favoured for decades to further
causes such as civil rights, affirmative action and access to
medical procedures.
Mr. Odhavji, 22, was killed
Sept. 26, 1997, when police swooped in on a carefully planned
bank heist, scattering the robbers. Mr. Odhavji, who was unarmed,
fled in a car. When it was stopped, he began to run and was shot
and killed.
Police officers at the scene
refused to provide their notes or speak to Special Investigations
Unit investigators, leaving a fog of doubt about what happened.
Using a centuries-old tort (or cause of legal action) that has
been revived in Commonwealth courts over the past couple of decades,
the Odhavji family sued them for abuse of public office. They
also sued former police chief David Boothby for negligent supervision
of his officers.
"The family is elated,"
lawyer Julian Falconer said in an interview yesterday. "The
point of this lengthy process was to hold police officers accountable
for corrupt practices in relations to the SIU investigation.
That action for abuse will proceed.
"The Odhavji family will
find out why this investigation went off the rails. The legacy
of the Odhavji family is they have ensured that public officials
remain accountable for excesses and abuse."
As evidence of the broad social
interest in the case, the Supreme Court heard arguments from
groups ranging from the Canadian Civil Liberties Association
and the Mental Health Legal Committee to the Association in Defence
of the Wrongly Convicted.
Henceforth, governments will
have to take careful notice of warnings that they may be contravening
the law, lest they go ahead and later be found liable for damages.
However, Mr. Justice Frank
Iacobucci cautioned that it isn't enough for a plaintiff simply
to show that a public officer made a decision that had adverse
effects for somebody, since that would unnecessarily hog-tie
government policy.
"In order for the conduct
to fall within the scope of the tort, the officer must deliberately
engage in conduct that he or she knows to be inconsistent with
the obligations of the office," he specified. To succeed
at trial, Judge Iacobucci said, the plaintiffs will have to show
"deliberate, unlawful conduct in the exercise of public
functions," as well as an awareness by police that their
conduct was unlawful and likely to injure the plaintiff.
The Odhavji family is claiming
about $8.5-million. They allege that they have suffered mental
distress, anger, depression and anxiety.
Mr. Falconer told the Supreme
Court that an earlier Ontario Court of Appeal ruling against
Pramod and Bharti Odhavji and their other son, Rahul, had given
"blanket immunity" to any official who deliberately
breaks the law -- from the prime minister to a tax collector.
He said it would permit public officials to disobey lawful orders,
knowingly make a false statement, destroy records or accept a
bribe.
Police and government lawyers
had countered that if the Odhavji lawsuit were allowed to proceed,
it could cost taxpayers a fortune.
"To impose potential liability
would lead to numerous claims alleging that police failed to
apprehend a criminal as soon as they should have," said
lawyers for the Ontario Ministry of the Attorney-General. "This
would have a detrimental effect on the conduct of police investigations."
The Court did strike a claim
for negligence against the Metropolitan Toronto Police Services
Board and the province yesterday. It said, basically, that neither
was sufficiently involved in the day-to-day affairs of the police
to be targets of the Odhavji lawsuit.
© 2003 Bell Globemedia
Interactive Inc. All Rights Reserved.
Police can be sued, Supreme
Court rules
By KIRK MAKIN, Globe
and Mail, Dec. 5, 2003
The Supreme Court of Canada
has opened the door to a lawsuit against police by the family
of a Toronto man slain by police.
The ruling Friday means that
the family of Manish Odhavji can sue for abuse of public office.
At the same time, it ushered in an era in which citizens and
public interest groups can sue public officials for all manner
of shortcomings using the civil tort of "malicious abuse
of public office."
Social reformers may now be
able to use civil litigation to change public policy, a tactic
U.S. activists have favoured for decades in furthering causes
such as civil rights, affirmative action and access to medical
procedures.
Mr. Odhavji, 22, was killed
on Sept. 26, 1997, when police swooped in on a carefully planned
bank heist, sending the robbers scattering. Mr. Odhavji, who
was unarmed, fled in a car. When it was stopped, he began to
run and was shot and killed.
Police at the scene that day
refused to provide their notes or speak to Special Investigations
Unit investigators, leaving a dense fog of doubt about what actually
took place. The Odhavji family sued for abuse of public office
and negligent supervision by senior police managers.
"The family is elated,"
lawyer Julian Falconer said moments after the ruling. "The
main point of this lengthy process was to hold police officers
accountable for corrupt practices in relations to the SIU investigation.
That action for abuse will proceed. The Odhavji family will find
out why this investigation went off the rails.
"The legacy of the Odhavji
family is they have ensured that public officials remain accountable
for excesses and abuse," Mr. Falconer said.
The family is seeking vindication
and a claim for $8.5-million. Their statement of claim alleged
that the trauma caused them to suffer mental distress, anger,
depression and anxiety. They sued the officers and the chief
of Police, and to actions for negligence against the chief, the
Metropolitan Toronto Police Services Board and the province of
Ontario.
While it allowed the lawsuit
to proceed against the police officers, the court struck from
the statement of claim actions for negligence against the police
board and the province.
"The circumstances of
this case raise a prima facie duty of care owed by the Chief
to the plaintiffs," the court said. It said the failure
of the police to co-operate with the Special Investigations Unit
could be seen to have harmed the plaintiffs.
As the chief was responsible
for ensuring that co-operation, it is reasonably foreseeable
that his failure to do so would harm the plaintiffs.
"The failure of a public
officer to perform a statutory duty can constitute misfeasance
in a public office," the court said. It said that to succeed,
the plaintiffs will need to show "deliberate, unlawful conduct
in the exercise of public functions" and an awareness that
the conduct was unlawful and likely to injure the plaintiff.
The failure of police to co-operate
with an investigation into the shooting, and the allegation that
the chief deliberately failed to segregate the officers after
the shooting, if proved, would satisfy the requirements the plaintiffs
are required to show, the court said.
It struck from the claim several
technical allegations involving the manner in which police notes
and other evidence were assembled.
The court also noted that should
the case proceed to trial, the plaintiffs will have to prove
that the alleged misconduct by police "caused anxiety or
depression of sufficient magnitude to warrant compensation."
The court said that police
board and the province are not "under a private law duty
to ensure that police officers, as a matter of general practice,
co-operate with the SIU. There is no close causal connection
between the misconduct alleged against the board and the alleged
harm.
"The board does not supervise
officers and is not involved in their day-to-day conduct."
It said that courts "should
be loath to interfere with the board's broad discretion to determine
what objectives and priorities to pursue or what policies to
enact. "
The province is "too far
removed from the day-to-day conduct of members of the force and
the Solicitor-General is not under a statutory obligation to
ensure that police officers co-operate with the SIU," it
added.
Earlier, a 2-1 majority of
the Ontario Court of Appeal accepted police arguments that the
family was technically precluded from suing because they were
alleging the abuse of a legal duty, not a broad police power.
Equally devastating for the Odhavjis, the court awarded costs
against the family.
Mr. Falconer and co-counsel
Richard Macklin argued that the adverse ruling in the Ontario
Court of Appeal gave "blanket immunity" to any official
who deliberately breaks the law, from the prime minister to a
tax collector.
They said it would permit public
officials to disobey lawful orders, knowingly make a false statement,
destroy records or accept a bribe.
Police and government lawyers
had insisted, however, that allowing the Odhavji lawsuit could
end up costing taxpayers a fortune.
"To impose potential liability
would lead to numerous claims alleging that police failed to
apprehend a criminal as soon as they should have," a brief
to the Supreme Court on behalf of the Ontario Ministry of the
Attorney-General said.
"This would have a detrimental
effect on the conduct of police."
SUPREME COURT OF CANADA
- APPEAL HEARD
OTTAWA, 17/2/03. THE
SUPREME COURT OF CANADA ANNOUNCED
TODAY THAT THE FOLLOWING APPEAL
WAS HEARD ON FEBRUARY 17, 2003.
SOURCE: SUPREME
COURT OF CANADA (613) 995-4330
THE ESTATE OF MANISH ODHAVJI
, DECEASED, ET AL. v. DETECTIVE MARTIN WOODHOUSE, ET AL.
(Ont.) (Civil) (By Leave) (28425)
RESERVED
28425 The Estate
of Manish Odhavji et al v. Martin Woodhouse et al and
Metropolitan TORONTO Chief of Police David Boothby v. The Estate
of Manish Odhavji et al.
Torts - Civil Procedure - Costs
- Tort of breach of public duty or misfeasance in a public office
- Tort of negligent supervision - Whether majority of the Court
of Appeal narrowed the test for the tort of abuse of public office
- Whether case law conflicts with respect to tort of abuse of
public office - Definition and application of tort of abuse
of public office to the facts - Whether Court of Appeal adopted
overly restrictive view of tort of negligent supervision
- Definition and application of tort of negligent supervision
to the facts - Whether the Court of Appeal erred in ordering
costs.
The facts set out by the motions
judge below indicate that in 1997 following a bank robbery, police
officers, including Officers Woodhouse and Gerrits, stopped and
surrounded a car. Mr. Manish Odhavji fled the vehicle,
unarmed, and was shot twice. He died a short time later
in hospital from the gunshot wounds. Almost immediately
after the officers discharged their firearms, the Special Investigations
Unit (SIU) was notified and an investigation was commenced with
Officers Woodhouse and Gerrits under investigation. The
SIU made a number of requests to Officers Woodhouse and Gerrits
and the other officers who witnessed the events, including requests
for same-day questioning, pre-questioning segregation, surrender
of shift-notes and on-duty clothing, blood sampling, and medical
releases allowing investigators to speak to treating physicians.
Compliance was not forthcoming.
The Appellants, who are the
Estate of Manish Odhavji , his parents and his brother, commenced
an action in the Superior Court of Ontario. Day J. of the
Superior Court struck out the claims against Officers Woodhouse
and Gerrits of public duty and misfeasance in public office and
granted the Appellants leave to amend their claim to plead misfeasance
framed in malice; struck out the claim against the Police Chief
for misfeasance in public office, but not the claim against him
for negligent supervision in respect of the investigation; and
struck out the claim for negligent supervision against the Police
Services Board but not the one against the Province of Ontario.
He did not interfere with the claim against the Board for the
negligence of its employees pursuant to s. 50(1) of the Police
Services Act.
The Appellants appealed to
the Court of Appeal for Ontario. The Respondents obtained
leave to appeal to the Divisional Court but the Court of Appeal
ordered the Respondents' appeals transferred to the Court of
Appeal. A majority of the Court of Appeal struck out the claim
against Officers Woodhouse and Gerrits for misfeasance in public
office; upheld the decision to dismiss the claim of misfeasance
against Chief Boothby; upheld the decision to allow the claim
against Chief Boothby for negligent supervision to proceed; upheld
the claim against the Board with respect to s. 50; upheld the
decision to strike the claim against the Board of negligent supervision;
and struck out the claim of negligent supervision against the
Province.
Origin of the case: Ontario
File No.: 28425
Judgment of the Court of Appeal: December
15, 2000
Counsel: Julian
N. Falconer/ Richard Macklin for the Appellants
Kevin A. McGivney/Cheryl Woodin
for the Respondents Woodhouse and Gerrits
Ansuya Pachai for the Respondents
Chief of Police and Police Services Board
John P. Zarudny/Troy Harrison/James
Kendik for the Respondent Attorney General for Ontario
Parents of man shot in
holdup press bid to bring Toronto officers to account
By KIRK MAKIN, Globe
and Mail, Feb. 17, 2003
JUSTICE REPORTER -- Manish
Odhavji's parents never claimed their bank-robbing son was a
saint, but they would still like the Toronto Police to pay for
putting a bullet in his back.
Police at the scene the day
Mr. Odhavji was killed refused to provide their notes or speak
to internal investigators, leaving a dense fog of doubt about
what actually took place.
More than five years later,
the Supreme Court of Canada will hear an appeal of an Ontario
ruling that shot down their lawsuit.
While the family's stake in
the case is plain -- vindication and a claim for $8.5-million
-- the larger picture involves the right of individuals to sue
public officials for malicious abuse of their office.
If the Supreme Court chooses
to open the door to these lawsuits, it would allow social reformers
to use civil litigation to change public policy, a tactic U.S.
activists have favoured for decades in furthering causes such
as civil rights, affirmative action and access to medical procedures.
If the court instead restricts
the right to sue, it could give state officials a blank cheque
to commit wrongful acts.
"State accountability
lies at the heart of democracy," said Julian Falconer, a
lawyer for the Odhavji family. "Losing this would send a
message to the public that officials can knowingly sabotage a
homicide investigation, yet not be held accountable for it. It's
just sad that the Odhavji family must bear the burden of ensuring
that accountability."
Mr. Odhavji, 22, was killed
on Sept. 26, 1997, when police swooped in on a carefully planned
bank heist, sending the robbers scattering. Mr. Odhavji, who
was unarmed, fled in a car. When it was stopped, he began to
run and was shot and killed.
After the officers refused
to co-operate with a Special Intelligence Unit investigation,
the Odhavji family sued for abuse of public office and negligent
supervision by senior police managers.
"The level of non-co-operation
in this case was absurd," Mr. Falconer said in an interview.
A 2-1 majority of the Ontario
Court of Appeal accepted police arguments that the family was
technically precluded from suing because they were alleging the
abuse of a legal duty, not a broad police power.
Equally devastating for the
Odhavjis, not to mention others who mount future test cases,
the Court awarded costs against the family.
Mr. Falconer said the entire
ruling set back a promising strain of law that began with the
landmark 1959 case of Roncarelli vs. Duplessis, where a Jehovah's
Witness sued the premier of Quebec for maliciously abusing his
authority.
Mr. Falconer and co-counsel
Richard Macklin argue in their Supreme Court brief that the ruling
gives "blanket immunity" to any official who deliberately
breaks the law, from the prime minister to a tax collector.
They say it would permit public
officials to disobey lawful orders, knowingly make a false statement,
destroy records or accept a bribe.
Police and government lawyers
insist that allowing the Odhavji lawsuit could end up costing
taxpayers a fortune.
"To impose potential liability
would lead to numerous claims alleging that police failed to
apprehend a criminal as soon as they should have," says
a brief on behalf of the Ontario Ministry of the Attorney-General.
"This would have a detrimental
effect on the conduct of police investigations."
© 2003 Bell Globemedia
Interactive Inc. All Rights Reserved.
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Truth can never be
told so as to be understood, and not be believ'd. William Blake, The Proverbs of Hell
