In a decision released this week - Nissen v. Durham Regional Police Services Board, 2017 ONCA 10 - the Court of
Appeal for Ontario upheld a trial decision which awarded a woman substantial damages for "emotional and psychological injury" against the Durham Police Force for what
she pleaded was “breach of informer privilege”.
The plaintiff lived with her husband and two children on a
quiet street in Whitby, Ontario. On occasion, the plaintiff asked the
teenaged son of one of her neighbours to babysit her children. One day
when the plaintiff asked another neighbour to babysit, her usual babysitter
became angry. The plaintiff was disturbed by what she regarded as his
irrational and frightening behaviour. The plaintiff subsequently learned
from another neighbour that the babysitter had broken into the neighbour’s
home, stolen guns, and with his brother had taken the guns to school and
threatened students.
The plaintiff decided that she would inform the police but
did not wish to have her name associated with any investigation. She was
put in touch with Officer Liepsig of the Durham Regional Police. Officer
Liepsig offered to come to her home. The plaintiff told him that she felt
unsafe as the people that they were going to talk about lived across the
street. The plaintiff emphasized to Officer Liepsig that she did not wish
to be identified because she was frightened of the babysitter and his
brother. Officer Liepsig promised her that her identity would not be
disclosed. The officer told her that if she came to the police station to
discuss the matter he would keep her identity secret and she would remain
totally anonymous.
The plaintiff was given further assurances of
confidentiality when she attended at the police station. Officer Liepsig took
notes but did not disclose to the plaintiff that the interview was being
recorded on videotape.
After the interview, the babysitter and his brother were
arrested. Officer Liepsig was reassigned and the task of preparing the
Crown brief was assigned to other officers who were unaware that the plaintiff
had been given any assurance of confidentiality. The plaintiff later
learned that her identity and her videotaped interview had been included in the
Crown’s disclosure to the accused’s lawyers. This disclosure provoked an
angry reaction from the parents of the accused. The plaintiff testified
that the father of the accused drove his truck at her causing her to leap from
the sidewalk and onto the grass behind a tree to avoid being hit by the
truck.
The plaintiff immediately called Officer Liepsig to report
the incident and to express her concern that a mistake had been made and that
her identity had been disclosed but he did not return her call. The
plaintiff’s husband spoke to the father of the accused who expressed his anger
and intention to “pay the plaintiff back” for having gone to the police. Other members of the police followed up, but not in a meaningful way.
The plaintiff and her husband testified that following the
truck incident, both parents of the accused subjected them to on-going
harassment. The harassment became unbearable and ultimately the plaintiff
and her husband decided to sell their home and move.
The plaintiff complained of feeling hopeless and depressed
following these events and has been diagnosed with post-traumatic stress
disorder. A psychiatrist gave evidence of the significant change in her
behaviour and enjoyment of life that she had provided to her family.
At trial, the judge found that the police owed a common law
duty not to disclose the identity of an informer and that even if the duty was
not absolute, reasonable care had not been taken in the circumstances. He awarded the plaintiff general damages for emotional and
psychological injury as a result of the post-traumatic stress disorder.
He found that the failure of the police to act after they learned of the
neighbours’ harassing behaviour was an aggravating factor. The trial
judge fixed the general damages at $345,000. He also awarded Family
Law Act damages for loss of guidance, care and companionship in the amount
of $65,000 to the plaintiff’s husband and $25,000 to each child.
The Police Board appealed to the Ontario Court of Appeal.
The Court of Appeal held that the trial judge’s finding that
Officer Liepsig had promised confidentiality to the plaintiff was supported by
the evidence, attracted deference and there was no basis to overturn it.
As to the issue of damages, the Court of Appeal held that, in
its view, the case could and should be decided as a civil claim for damages for
breach of confidence. The fundamental point was that, on the findings of
the trial judge, Officer Liepsig had made a promise of confidentiality and
anonymity to the plaintiff in exchange for the information that she provided.
The trial judge found that the promise was breached and that the
plaintiff had suffered damages as a result. Those findings brought the case
squarely within the long-recognized cause of action for breach of confidence
and the plaintiff was accordingly entitled to recover on that basis.
The police had argued that the case did not meet the
requirements for breach of a duty of informer privilege in criminal law.
However, the Court of Appeal held that there was no reason to qualify the right
to sue for breach of confidence by adding additional elements that would take
the case into a criminal law regime. To do so would put an ordinary
citizen interacting with the police in an impossible situation. The
plaintiff had no way of determining whether the police could obtain the
information she was offering from another source. Nor did she have any
way of gauging what the police considered to be the risk of harm she faced
should her identify be disclosed. She explained her fear of harm to
Officer Liepsig and that fear ultimately proved to be well-founded. She
was entitled to rely on Officer Liepsig’s promise of confidentiality in
exchange for her cooperation in giving him the information.
The court disagreed with the submissions made by the police that the trial judge had
made reference to awards made in cases that were not analogous; that the plaintiff
suffered from a pre-existing condition, i.e. that she had already experienced
anxiety and distress before her identity was revealed; and that the trial judge
should not have awarded aggravated damages. The court held that it
was open to the trial judge to find that the failure of the police to take any
meaningful steps to protect the plaintiff and her family from the harm they were
suffering as a result of the wrongful disclosure of her identity did aggravate
the damage she suffered. The police had promised the plaintiff
confidentiality in order to gain her cooperation. Their duty to her did
not cease once they had broken that promise. The promise they made
as police officers included a duty to protect the plaintiff from the
consequences of wrongful disclosure.
Regards,
Blair
