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Court of Appeal finds trial judge needed expert evidence to determine police negligence claim

$1.6 million judgment against Thunder Bay Police overturned
|Written By Alex Robinson

The Ontario Court of Appeal has ruled a trial judge should have considered expert evidence in determining standard of care in a negligence claim against the police.

The court overturned a $1.6-million judgment against the Thunder Bay Police Services Board and officer Frank Barclay that had been awarded to Ricardo Mercuri and his business, Central Auto Parts.

Kirk Boggs said rejection of expert evidence raised the standard of care from reasonable and probable grounds to a requirement to prove guilt.

Mercuri brought a negligence claim against the police after he and his business were the subject of a 1997 investigation into stolen vehicles and auto parts. Mercuri was charged, but later found not guilty after a number of charges were withdrawn.

The trial judge in Mercuri’s civil lawsuit, Justice Helen Pierce, found the Thunder Bay police did not meet the standard of care in their investigation, but the Court of Appeal ruled Pierce had erred by rejecting expert evidence in her determination.

“This was a technical, complicated investigation, and the reasons the trial judge gave for considering the police conduct to be clearly egregious are flawed,” Justice Russell Juriansz said in the decision.

The trial judge, Justice Helen Pierce, found the police had not met the standard of care in their investigation for a number of reasons, including a determination that they had “failed to understand the purpose or the scope of the Criminal Code or the case law relevant to their investigation.”

Pierce rejected opinion evidence of an expert — a witness called by the plaintiff — who testified the police had reasonable and probable grounds to arrest Mercuri, saying the evidence was unreliable.

Kirk Boggs, a lawyer with Lerners LLP who represented the police on the appeal, says Pierce’s rejection of expert evidence raised the standard of care from reasonable and probable grounds to a requirement to prove guilt.

“When you’re evaluating a case like this, where there’s an allegation of negligent investigation, the court really requires expert evidence to help understand what the standard of care is in the circumstances of this case and whether the police officers met it,” he says.

The Court of Appeal agreed and found Pierce erred in finding the police had not met the standard of care without expert evidence.

“There are two exceptions to the general rule that expert evidence is required,” Juriansz said. “Neither exception applies here.”

The court said Pierce erred by considering whether the police could prove Mercuri knew the auto parts in question were stolen rather than whether they had reasonable and probable grounds.

“This is an important distinction,” Boggs says. “The role of the police is to investigate and assess whether there are reasonable and probable grounds for an arrest based on the information available at the time. They are not required to prove the accused’s guilt in order to be acting reasonable. That is the role of the Crown and judges.”

Joanna Nairn, of Pape Barristers Professional Corporation, who was one of the lawyers representing Mercuri, says that up until this point, it has been up to trial judges to determine whether they thought expert evidence was necessary to establish standard of care.

“In this case, we don’t feel that kind of deference was given,” she says.

“I think it’s difficult going forward for trial counsel and trial judges to know how much leeway trial judges have to make those determinations and how vulnerable they will be on appeal,” she says.

Sean Dewart, of Dewart Gleason LLP, says the case is very disappointing for “anyone who feels that police accountability should be enhanced, as opposed to being reduced further.” 

“The obiter concerning the need for experts decreases access to justice without adding any value to the process,” says Dewart, who was not involved in the case, but has been lead counsel in significant cases against police services.

“If the police need expert evidence to establish that they had reasonable grounds for laying charges, they did not have reasonable grounds, in at least 99 per cent of the charges that they bring to court.”

While the court set aside the $1.6 million judgment, it upheld an award of $70,000 for the loss of property improperly stored by the police.


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