Case information

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Torts — Negligence — Duty of care — Negligent investigation — Motion to strike statement of claim as disclosing no reasonable cause of action — Whether it is plain and obvious that the action cannot succeed — Whether a duty of care exists — Whether the proximity requirement to establish a private law duty of care has been satisfied — Whether it is plain and obvious that families of victims of homicide should not have the right to maintain actions against public investigators who negligently investigate the homicides — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 21.01(1)(b) — Police Services Act, R.S.O. 1990, c. P.15, s. 113.

The applicants are the mother, sister and estate of Duane Robinson, who was fatally shot by police in June 2006. An investigation into the shooting was conducted by the Special Investigations Unit (“SIU”). At the conclusion of the investigation, no charges were laid against the officers involved. The applicants brought an action against the respondents, alleging that the SIU was negligent in the conduct of its investigation. The respondents brought a motion to strike the statement of claim on the grounds that it disclosed no reasonable cause of action. The motion judge dismissed the motion to strike, holding that it was not plain and obvious that the action could not succeed. She was of the view that the applicants’ claim was a novel claim that should not be determined without the benefit of a full evidentiary record. The Divisional Court upheld the decision of the motion judge, the majority of the Court agreeing that a final determination as to the viability of this novel cause of action should be based on a full record. The Court of Appeal unanimously allowed the appeal and dismissed the action, concluding that the applicants had failed to establish a required element of negligence, the duty of care, and that this was not a case where trial was required to resolve the issue.