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Fridays with Rogers Partners

At our weekly firm meeting, Athina Ionita discussed the case of Tongtae v. Her Majesty the Queen (Ontario), 2021 ONSC 1613. The case concerned a Rule 21 motion brought by Her Majesty the Queen (“HMQ”) on the grounds that there was no private law duty of care owed to the plaintiff. HMQ also argued that the plaintiff had failed to establish a reasonable cause of action against it. The Court granted the motion, and dismissed the action against HMQ.


The plaintiff is a resident of the State of Ohio. In February of 2017 the plaintiff’s father contacted the defendant, Madison Township Police Department in Ohio, to report that the plaintiff was experiencing a mental breakdown and had gone missing. The plaintiff was spotted several days later by police during a traffic stop in Amherstburg, Ontario.

During the traffic stop, the officers recognized the plaintiff as having been reported missing. They then issued a speeding ticket to the plaintiff and released him.

Seven hours later, the plaintiff’s motor vehicle was spotted driving in an erratic manner on Highway 401 in Milton.  OPP officers attempted, without success, to stop the plaintiff’s vehicle.

The plaintiff abandoned his vehicle at an intersection in Milton, and proceeded on foot toward some railway tracks. He attempted to climb onto a passing train, but fell and was struck by the train, resulting in both of his legs being severed below the knee.

The plaintiff advanced a number of allegations against HMQ, relating to the inadequate training of police officers, and specifically that they were not properly trained on how to use their powers under the Mental Health Act.

Applicable Law

Pursuant to Rule 21.01(1)(b) of the Rules of Civil Procedure, a judge may strike out a pleading that discloses no reasonable cause of action. On such a motion, a defendant must show that it is “plain and obvious” that the claim cannot succeed.  This test will be met where:

  1. A plaintiff pleads allegations that do not give rise to a recognized cause of action; 
  2. A plaintiff fails to plead a necessary element of a recognized cause of action; and
  3. The allegations in the pleading are simply conjecture, assumptions or speculation unsupported by material facts, or in other instances, mere conclusions of law are asserted.

In this case, the plaintiff argued that there was a prima facie duty of care owed to him by HMQ, on the following three bases:

  1. A statutory duty of care under the Police Services Act and the Mental Health Act;
  2. An analogous duty of care based on other decisions; and/or
  3. Under the Anns/Cooper test.


The Court first considered whether there was a category of previous cases where an analogous duty between the defendant and the plaintiff had been recognized. The judge was not persuaded by the plaintiff’s arguments on this point.

The judge did not accept the plaintiff’s argument that if individual police officers owe a duty of care to a particular suspect in the manner of their investigation, then HMQ, as the trainer of those police officers, also owed a duty of care to the particular suspect to have trained those police officers to a reasonable standard.

The plaintiff argued that if a police officer negligently investigated a suspect, but that same officer carried out his investigation as he was trained, HMQ, who was responsible for the training of that officer would, by analogy, also be negligent. The judge determined that the manner in which HMQ trains police officers is a policy matter, and is accordingly not actionable.

Further, the judge noted that the Ontario Court of Appeal and the Superior Court of Justice have routinely struck out claims against HMQ, or other government authorities, on motions to strike on the ground that no private law duty of care is owed. The judge stated that it is one thing to argue that the Police Services Act gives the province the duty to train police officers, but another to suggest that this creates a duty of care that extends to the plaintiff.

The judge then considered if there should be a new category of duty recognized in this case by applying the Anns/Cooper framework, and concluded that there should not be. Under Anns/Cooper, the Court considers a three-fold test:

  1. Whether the harm complained of was reasonably foreseeable;
  2. Whether there was sufficient proximity between the plaintiff and the defendant such that it would be fair and just to impose a duty of care on the defendant; and
  3. There must be no residual policy reason for declining to impose such a duty of care.

On the issue of foreseeability, the judge held that if the police are not adequately trained, it is reasonably foreseeable that harm would come to a member of the public, including the plaintiff. However, that duty is owed to the public at large. Every situation arising from the actions of an officer unconnected or not proximate to the particular plaintiff is not reasonably foreseeable by HMQ.

Regarding proximity, the judge also noted that the plaintiff had not pled a series of specific interactions between the plaintiff and HMQ, or any employee or agent at the Ontario Police College, where HMQ, through any agent or employee at the Ontario Police College had, through its conduct, entered into a specific relationship with the plaintiff sufficient to create a private law duty of care.

Lastly, policy considerations did not support expanding of the duty of care as suggested by the plaintiff. If such a novel duty of care were possible in the absence of any proximity or foreseeability, it would make HMQ the vicarious insurer of all individuals who have dealings at any time with any police officer, from any police force in the province.