Barrister and Solicitor
Legal Writing and Research
Torts - Negligent Investigation
Torts - Standard of Care - Evidence
495793 Ontario Ltd. (Central Auto Parts) v. Barclay (Ont CA, 2016)
In this negligent investigation tort case the Court of Appeal discusses the standard of care applicable to professional negligence, and in particular the need for expert evidence on the content of the standard of care:
 For the reasons that follow, I conclude that the trial judge erred by deciding the content of the standard of care without expert evidence. There are two exceptions to the general rule that expert evidence is required. Neither exception applies here. Without such evidence, there was no basis for determining the appropriate content of the standard of care of a reasonable Thunder Bay police officer conducting a specialized investigation into stolen auto parts, and consequently no basis upon which the trial judge could find that the standard had been breached.
 Moreover, as she proceeded, the trial judge committed the additional errors discussed below. With the exception of the parties’ agreement as to damages for loss of and damage to seized property, the trial judge should have dismissed the respondents’ action.
(1) The Lack of Expert Evidence on Standard of Care
(a) The Standard of Care
 The appropriate standard of care for the tort of negligent investigation was established by the Supreme Court of Canada in Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41 (CanLII),  3 S.C.R. 129. The “flexible overarching standard” is that of “a reasonable police officer in similar circumstances”: Hill, at para. 68. As explained by the Chief Justice, at para. 73:
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 conduct of a reasonable police officer may vary depending on the stage of the investigation and the legal considerations. In laying charges, the standard is informed by the legal requirement of reasonable and probable grounds to believe the suspect is guilty: Hill, at para. 55.
 The Supreme Court of Canada in R. v. Storrey, 1990 CanLII 125 (SCC),  1 S.C.R. 241, at pp. 250-251, defined the concept of reasonable and probable grounds as requiring an arresting officer to subjectively have reasonable and probable grounds on which to base the arrest. It must also be justifiable from an objective point of view but need not demonstrate anything more. See also: R. v. Feeney, 1997 CanLII 342 (SCC),  2 S.C.R. 13, at para. 24. In other words, “a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds” to make an arrest: R. v. Storrey, at p. 251.
 The police are not required to establish a prima facie case for conviction before making an arrest: R. v. Storrey, at p. 251; Wong v. Toronto Police Services Board, 2009 CanLII 66385 (ON SC), 2009 CanLII 66385, 2009 CarswellOnt 7412 (S.C.), at para. 54; Gioris v. Toronto Police Services Board, 2012 ONSC 6396 (CanLII), 2012 CarswellOnt 15071, at paras. 68-70. As explained by Thorburn J. in Wong, at para. 61:
The determination as to whether reasonable grounds exist is based upon an analysis of the circumstances apparent to the officer at the time of the arrest and not based upon what the officer or anyone else learned later. Reasonable grounds still exist where the information relied upon changes at a future date or otherwise turns out to be inaccurate. The requirement is that the information be reliable at the time the decision was made to arrest the accused. The function of police is to investigate incidents which might be criminal, make a conscientious and informed decision as to whether charges should be laid and present the full facts to the prosecutor: Wong, at para. 56. Although this requires, to some extent, the weighing of evidence in the course of investigation, police are not required to evaluate the evidence to a legal standard or make legal judgments. That is the task of prosecutors, defence lawyers and judges: Hill, at para. 50.
 Nor is a police officer required to exhaust all possible routes of investigation or inquiry, interview all potential witnesses prior to arrest, or to obtain the suspect’s version of events or otherwise establish there is no valid defence before being able to form reasonable and probable grounds: Kellman v. Iverson, 2012 ONSC 3244 (CanLII),  O.J. No. 2529, at para. 16; Wong, at para. 59.
(b) The General Rule is that Expert Evidence is required
 The general rule is that the content of the standard of care of a professional, such as a police officer, will require expert evidence: Meady v. Greyhound Canada Transportation Corp., 2015 ONCA 6 (CanLII), 329 O.A.C. 173, at paras. 34-35; Krawchuk v. Scherbak, 2011 ONCA 352 (CanLII), 106 O.R. (3d) 598, at para. 130, leave to appeal to S.C.C. refused,  S.C.C.A. No. 319; Bergen v. Guliker, 2015 BCCA 283 (CanLII), 75 B.C.L.R. (5th) 351, at paras. 114-131; Camaso Estate v. Saanich (District), 2013 BCCA 6 (CanLII), at paras. 71-72, leave to appeal to S.C.C. refused,  S.C.C.A. No. 92.
 As Smith J.A. explained on behalf of the Court of Appeal for British Colombia in Bergen v. Guliker, at para. 131:
While there are cases in which the breach of the standard of care will be apparent without expert evidence, typically when a suit is brought for professional negligence it is customary (and generally necessary), for there to be expert evidence on the standard of care. As the analysis in Hill makes clear, police officers are professionals and their conduct should be assessed in the same way that other professional negligence claims are evaluated. [Citations omitted.] Strathy C.J.O. in Meady explained that that general rule is subject to the exception for “nontechnical matters or those of which an ordinary person may be expected to have knowledge”. See also Krawchuk, at para. 133.
 Whether expert evidence as to the standard of care of a police officer is required turns on the nature of the issues and the facts of each case, with particular regard to the specialized or technical nature of the circumstances, and whether a trier of fact can rely on its own knowledge and experience to determine the appropriate standard of care and whether it is met.
 Epstein J.A., on behalf of this court in Krawchuk, identified two exceptions to the general rule that it is not possible to determine professional negligence without the benefit of expert evidence. The first, as mentioned above, is in nontechnical matters within the knowledge and experience of the ordinary person. The second is where the impugned actions are so egregious that it is obvious that the defendant’s conduct has fallen short of the standard of care without even knowing precisely the parameters of the standard of care. Epstein J.A. explained, at para. 135, that “this second exception involves circumstances where negligence can be determined without first identifying the parameters of the standard of care rather than identifying a standard of care without the assistance of expert evidence.”
 Several appellate cases have considered the application of the general rule and its exceptions.
 In Meady, this court deferred to the trial judge’s decision that he did not require expert evidence to determine the professional standard of care and dismissed the appeal. Meady was an action in negligence against two OPP officers and their employer by a number of passengers and the driver of a Greyhound bus. The bus crashed after a man, with whom the police had contact before boarding, grabbed the steering wheel. The trial judge held that the proposed police expert was not properly qualified and that, in any event, expert police evidence was unnecessary. The issue of appropriate police training, policies, investigation techniques and interaction with the public fell within the understanding of the trier of fact. The only live issue was whether crisis management should have been employed, and the training document to which the proposed expert referred was before the trial judge. The Chief Justice observed, at para. 47, that “[t]he exercise of police powers of investigation, arrest and detention and police interactions with the public falling short of coercion, are part of the daily diet of judges of the Superior Court.” Expert evidence was not required to understand or apply the standards set out in those materials or to assess whether the officers had properly applied their training.
 The Court of Appeal for British Columbia in Bergen allowed an appeal by the province from a judgment finding it 20% liable for a collision following a police pursuit. The court found that the determination of whether the standard of care was breached, following commencement of the police pursuit in question, required expert evidence on how a reasonable police officer would have gone about apprehending a mentally unstable and suicidal individual in the circumstances without causing harm to others. The court held that the proffered expert evidence was properly ruled inadmissible by the trial judge, but as a result, there was no basis for determining the appropriate standard of care and no basis upon which the judge could make key findings of fact related to whether a breach of the standard of care occurred. The court concluded that the trial judge had erred. In the absence of expert evidence, the judge could not have determined the content of the standard of care and could not adjudicate the claim.
 In Camaso Estate, the trial judge had found that expert evidence was required in a police negligence case in which the officer fatally shot the respondent’s husband. The Court of Appeal for British Columbia allowed the appeal because the trial judge did not refer to the expert evidence but rather imposed his own standard of care without any evidentiary basis.
 In Roy v. British Columbia (Attorney General), 2005 BCCA 88 (CanLII), 251 D.L.R. (4th) 233, leave to appeal to S.C.C. refused,  S.C.C.A. 188, the death of an individual from extreme intoxication while in custody was at issue. On appeal, the majority of the court concluded that the trial judge erred by finding that the officers did not perform any adequate assessment or investigation into Mr. Roy’s state of consciousness or consider whether his significantly reduced level of awareness might require medical examination, in the absence of evidence of what a competent police officer would do in the circumstances. The issue related to matters beyond common experience and it was not a matter of a “non-technical nature or of which an ordinary person may be expected to have knowledge” and as such, expert evidence on the standard of care was necessary.
 In those police negligence cases in which the judge has proceeded without expert evidence, the case has been straight forward in nature: see Russell v. York Police Services Board, 2011 ONSC 4619 (CanLII); Lawrence v. Peel Regional Police Force, 2009 CanLII 19934 (ON SC); Wong.