FACTS
On September 7, 2018, members of the Kingston Police Service (“Kingston Police”) arrested Donald Rivard and his girlfriend and charged them with drug trafficking following a traffic stop. Ultimately, the criminal charges against Mr. Rivard were stayed on the basis that his Charter rights were violated during and after arrest, and the force used by the arresting officers was unreasonable and caused Mr. Rivard “grievous physical and psychological harm” which was “so egregious that it would be offensive to society’s sense of justice to move forward with a trial”.
Mr. Rivard filed a civil claim against the officers who arrested him, as well as the Chief of the Kingston Police (the “Chief”) and the Kingston Police Services Board (the “Board”). Mr. Rivard claimed $9 million in damages for pain and suffering, future loss of income, breach of his Charter rights, and punitive damages.
The Chief and the Board applied to the divisional court to dismiss the claim on the basis it failed to disclose a reasonable cause of action against them. However, in 2022, the divisional court dismissed their applications. The Chief and the Board appealed.
ON APPEAL
Claim against the Chief
Mr. Rivard alleged the Chief owed him a duty of care to ensure the officers involved in his arrest were properly trained and supervised in respect of their duties. Mr. Rivard alleged the Chief was negligent in supervising the officers, which foreseeably caused his injuries. Among other particulars, Mr. Rivard alleged the Chief:
- knew, or ought to have known, that the officers were insufficiently trained, including in conflict resolution and de-escalation techniques;
- knew, or ought to have known, the officers did not have the appropriate level of competence or skill to enforce the law appropriately;
- failed to ensure the officers complied with standards;
- failed to maintain appropriate supervision and control; and
- failed to ensure the officers carried out their duties in accordance with the Police Services Act.
The Court held that, in general, police chiefs are not vicariously liable for the acts of their officers in the course of employment and are not responsible for policy decisions within the purview of the police board. However, police chiefs are responsible for the day-to-day operation of the police force by virtue of s. 41(1)(a) and (b) of the Ontario Police Services Act, which includes the following duties:
- ensuring that members of the police force carry out their duties in accordance with the [Police Services Act]… in a manner that reflects the needs of the community, and that discipline is maintained in the police force; and
- administering the police force and overseeing its operation in accordance with the objectives, priorities and policies established by the board.
Given these duties, the Court concluded that allegations by Mr. Rivard fell within the parameters of a private law duty of care in the context of a claim for negligent supervision, as described by the Supreme Court in Odhavji Estate v. Woodhouse, 2003 SCC 69 [Odhavji]. Therefore, the Court upheld the divisional court’s order and concluded that it was open to Mr. Rivard to pursue a claim in negligence against the Chief. However, while the Court allowed the claim to proceed, it did not decide the ultimate issue of liability. Rather, the Court simply held that assuming the facts and allegations pleaded by Mr. Rivard were true, those allegations could establish a reasonable cause of action against the Chief, to be determined at trial.
Claim against the Board
Mr. Rivard alleged the Board was also directly liable to him for failing to discharge its statutory obligation to provide adequate and effective police services and failing to address systemic racism within the police service, as well as the excessive use of force in the detention of visible minorities. Mr. Rivard further alleged that members of Kingston Police were “sheltered” from discipline by systemic policy which created a systemic problem of abuse against the public, including Mr. Rivard.
The Court held that Mr. Rivard’s pleading did not disclose a reasonable cause of action against the Board. Pursuant to s. 31(1) of the Police Services Act, the Board is broadly responsible for “the provision of adequate and effective police services in the municipality”. The Board’s duties include directing and appointing the Chief and monitoring the Chief’s performance. Relying on Odhavji, the Court agreed that the Board does not supervise individual members of the police force. Rather, the Board supervises the Chief, who in turn supervises the members. Unlike the Chief, the Board is not involved in day‑to‑day conduct of the force, which substantially weakens the nexus between the board and members of the public injured as a result of police misconduct.
Further, the Court concluded that the Board’s mandate, as established by the Police Services Act, limited the circumstances in which it could be liable for officer misconduct. The Court opined that to establish liability, a plaintiff would have to allege, and prove, “that there was a particular problem, for example an endemic excessive use of force against visible minorities, which it was required to address to discharge its statutory obligation to provide adequate and effective police services” (para. 59). However, in all cases, as cautioned by the Supreme Court of Canada in Odhavji, courts will be “loath to interfere” with the board’s broad discretion to determine what objectives and priorities to pursue, or what policies to enact in pursuit of those objectives.
In this case, Mr. Rivard failed to plead sufficient material facts to support a claim against the Board. The Court held that while Mr. Rivard alleged the Board failed to address systemic abuse against visible minorities, he failed to plead any material facts that could ground the claim, such as other instances of police brutality, abuse, or assaultive behavior by members of Kingston Police prior to his arrest. Therefore, aside from the Board’s vicarious liability for torts committed by the individual officers in the course of duty, the Court concluded that Mr. Rivard’s claim failed to disclose a reasonable cause of action against the Board.
Takeaways
British Columbia’s Police Act is substantially similar to Ontario’s Police Services Act. In British Columbia, Chief Constables have general supervision and command over the department pursuant to s. 34(1) of the Police Act. Therefore, the Rivard decision would likely inform how a BC court would consider liability of a municipal chief for negligent supervision of officers. The Odhavji decision is still the leading authority on this issue. Municipal chiefs may be liable in negligence for failure to train and/or supervise individual officers, so long as the plaintiff pleads (and later proves) sufficient facts to ground a prima facie private law duty of care. Namely, that the damages alleged are a reasonably foreseeable and direct consequence of the chief’s negligent supervision.
Similarly, the mandate of police boards in British Columbia is substantially similar to those in Ontario. BC’s Police Act requires municipal police boards to establish a police department, appoint a chief constable, and determine the priorities, goals and objectives of the department in consultation with the chief. The police board supervises the chief, who in turn supervises the members. The board does not have day-to-day supervision of the officers. While the Rivard decision suggests it is possible for a member of the public to bring a negligence claim against a board for officer misconduct, the Court was clear that the pleading would have to allege a specific problem the board was statutorily required to address, and that the individual’s injuries were the direct and reasonably foreseeable consequences of the board’s negligent failure to do so. Ultimately, such a claim would be very difficult to establish in light of the Supreme Court of Canada’s decision in Odhavji, which held that police boards have significant discretion to determine what objectives and priorities to pursue and what policies to enact, and that courts should be extremely reluctant to interfere with that exercise of discretion.
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