Tuesday, January 10, 2017

Court of Appeal Upholds Substantial Damage Award Against Durham Police

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.



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