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Manish Odhavji

Public officials more exposed to litigation under ruling

Supreme Court decision in fatal shooting by Toronto police targets abuse of office

The Supreme Court of Canada allowed a lawsuit arising from a police shooting to proceed yesterday, ushering in a new era of litigation against public officials accused of abusing their office.

The suit was launched against Toronto Police Services by the parents and brother of Manish Odhavji, who was slain by police during a botched bank robbery in 1997.

The ramifications of the 9-0 ruling go far beyond the Odhavji lawsuit, opening a door for citizens and public-interest groups to sue public officials for all manner of shortcomings under the legal umbrella of "malicious abuse of public office."

It is expected to spawn the use of civil litigation by those hoping to change public policy -- a tactic U.S. activists have favoured for decades to further causes such as civil rights, affirmative action and access to medical procedures.

Mr. Odhavji, 22, was killed Sept. 26, 1997, when police swooped in on a carefully planned bank heist, scattering the robbers. Mr. Odhavji, who was unarmed, fled in a car. When it was stopped, he began to run and was shot and killed.

Police officers at the scene refused to provide their notes or speak to Special Investigations Unit investigators, leaving a fog of doubt about what happened. Using a centuries-old tort (or cause of legal action) that has been revived in Commonwealth courts over the past couple of decades, the Odhavji family sued them for abuse of public office. They also sued former police chief David Boothby for negligent supervision of his officers.

"The family is elated," lawyer Julian Falconer said in an interview yesterday. "The point of this lengthy process was to hold police officers accountable for corrupt practices in relations to the SIU investigation. That action for abuse will proceed.

"The Odhavji family will find out why this investigation went off the rails. The legacy of the Odhavji family is they have ensured that public officials remain accountable for excesses and abuse."

As evidence of the broad social interest in the case, the Supreme Court heard arguments from groups ranging from the Canadian Civil Liberties Association and the Mental Health Legal Committee to the Association in Defence of the Wrongly Convicted.

Henceforth, governments will have to take careful notice of warnings that they may be contravening the law, lest they go ahead and later be found liable for damages.

However, Mr. Justice Frank Iacobucci cautioned that it isn't enough for a plaintiff simply to show that a public officer made a decision that had adverse effects for somebody, since that would unnecessarily hog-tie government policy.

"In order for the conduct to fall within the scope of the tort, the officer must deliberately engage in conduct that he or she knows to be inconsistent with the obligations of the office," he specified. To succeed at trial, Judge Iacobucci said, the plaintiffs will have to show "deliberate, unlawful conduct in the exercise of public functions," as well as an awareness by police that their conduct was unlawful and likely to injure the plaintiff.

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Protest sign in Ferguson, MO after the killing of Michael Brown, a 18-year-old black male, on August 9, 2014 by Darren Wilson, a 28-year-old white male policeman in Ferguson, Missouri. The results were that same as Randy Martin. After several months of deliberation, a grand jury decided not to indict Darren Wilson for any criminal charges in relation to the killing. 007

The Odhavji family is claiming about $8.5-million. They allege that they have suffered mental distress, anger, depression and anxiety.

Mr. Falconer told the Supreme Court that an earlier Ontario Court of Appeal ruling against Pramod and Bharti Odhavji and their other son, Rahul, had given "blanket immunity" to any official who deliberately breaks the law -- from the prime minister to a tax collector. He said it would permit public officials to disobey lawful orders, knowingly make a false statement, destroy records or accept a bribe.

Police and government lawyers had countered that if the Odhavji lawsuit were allowed to proceed, it could cost taxpayers a fortune.

"To impose potential liability would lead to numerous claims alleging that police failed to apprehend a criminal as soon as they should have," said lawyers for the Ontario Ministry of the Attorney-General. "This would have a detrimental effect on the conduct of police investigations."

The Court did strike a claim for negligence against the Metropolitan Toronto Police Services Board and the province yesterday. It said, basically, that neither was sufficiently involved in the day-to-day affairs of the police to be targets of the Odhavji lawsuit.


Police can be sued, Supreme Court rules

The Supreme Court of Canada has opened the door to a lawsuit against police by the family of a Toronto man slain by police.

The ruling Friday means that the family of Manish Odhavji can sue for abuse of public office. At the same time, it ushered in an era in which citizens and public interest groups can sue public officials for all manner of shortcomings using the civil tort of "malicious abuse of public office."

Social reformers may now be able to use civil litigation to change public policy, a tactic U.S. activists have favoured for decades in furthering causes such as civil rights, affirmative action and access to medical procedures.

Mr. Odhavji, 22, was killed on Sept. 26, 1997, when police swooped in on a carefully planned bank heist, sending the robbers scattering. Mr. Odhavji, who was unarmed, fled in a car. When it was stopped, he began to run and was shot and killed.

Police at the scene that day refused to provide their notes or speak to Special Investigations Unit investigators, leaving a dense fog of doubt about what actually took place. The Odhavji family sued for abuse of public office and negligent supervision by senior police managers.

"The family is elated," lawyer Julian Falconer said moments after the ruling. "The main point of this lengthy process was to hold police officers accountable for corrupt practices in relations to the SIU investigation. That action for abuse will proceed. The Odhavji family will find out why this investigation went off the rails.

"The legacy of the Odhavji family is they have ensured that public officials remain accountable for excesses and abuse," Mr. Falconer said.

The family is seeking vindication and a claim for $8.5-million. Their statement of claim alleged that the trauma caused them to suffer mental distress, anger, depression and anxiety. They sued the officers and the chief of Police, and to actions for negligence against the chief, the Metropolitan Toronto Police Services Board and the province of Ontario.

While it allowed the lawsuit to proceed against the police officers, the court struck from the statement of claim actions for negligence against the police board and the province.

"The circumstances of this case raise a prima facie duty of care owed by the Chief to the plaintiffs," the court said. It said the failure of the police to co-operate with the Special Investigations Unit could be seen to have harmed the plaintiffs.

As the chief was responsible for ensuring that co-operation, it is reasonably foreseeable that his failure to do so would harm the plaintiffs.

"The failure of a public officer to perform a statutory duty can constitute misfeasance in a public office," the court said. It said that to succeed, the plaintiffs will need to show "deliberate, unlawful conduct in the exercise of public functions" and an awareness that the conduct was unlawful and likely to injure the plaintiff.

The failure of police to co-operate with an investigation into the shooting, and the allegation that the chief deliberately failed to segregate the officers after the shooting, if proved, would satisfy the requirements the plaintiffs are required to show, the court said.

It struck from the claim several technical allegations involving the manner in which police notes and other evidence were assembled.

The court also noted that should the case proceed to trial, the plaintiffs will have to prove that the alleged misconduct by police "caused anxiety or depression of sufficient magnitude to warrant compensation."

The court said that police board and the province are not "under a private law duty to ensure that police officers, as a matter of general practice, co-operate with the SIU. There is no close causal connection between the misconduct alleged against the board and the alleged harm.

"The board does not supervise officers and is not involved in their day-to-day conduct."

It said that courts "should be loath to interfere with the board's broad discretion to determine what objectives and priorities to pursue or what policies to enact. "

The province is "too far removed from the day-to-day conduct of members of the force and the Solicitor-General is not under a statutory obligation to ensure that police officers co-operate with the SIU," it added.

Earlier, a 2-1 majority of the Ontario Court of Appeal accepted police arguments that the family was technically precluded from suing because they were alleging the abuse of a legal duty, not a broad police power. Equally devastating for the Odhavjis, the court awarded costs against the family.

Mr. Falconer and co-counsel Richard Macklin argued that the adverse ruling in the Ontario Court of Appeal gave "blanket immunity" to any official who deliberately breaks the law, from the prime minister to a tax collector.

They said it would permit public officials to disobey lawful orders, knowingly make a false statement, destroy records or accept a bribe.

Police and government lawyers had insisted, however, that allowing the Odhavji lawsuit could end up costing taxpayers a fortune.

"To impose potential liability would lead to numerous claims alleging that police failed to apprehend a criminal as soon as they should have," a brief to the Supreme Court on behalf of the Ontario Ministry of the Attorney-General said.

"This would have a detrimental effect on the conduct of police."


SUPREME COURT OF CANADA - APPEAL HEARD

OTTAWA, 17/2/03. THE SUPREME COURT OF CANADA ANNOUNCED TODAY THAT THE FOLLOWING APPEAL WAS HEARD ON FEBRUARY 17, 2003.

SOURCE: SUPREME COURT OF CANADA (613) 995-4330

THE ESTATE OF MANISH ODHAVJI, DECEASED, ET AL. v. DETECTIVE MARTIN WOODHOUSE, ET AL. (Ont.) (Civil) (By Leave) (28425)

RESERVED

28425 The Estate of Manish Odhavji et al v. Martin Woodhouse et al and Metropolitan TORONTO Chief of Police David Boothby v. The Estate of Manish Odhavji et al.

Torts - Civil Procedure - Costs - Tort of breach of public duty or misfeasance in a public office - Tort of negligent supervision - Whether majority of the Court of Appeal narrowed the test for the tort of abuse of public office - Whether case law conflicts with respect to tort of abuse of public office - Definition and application of tort of abuse of public office to the facts - Whether Court of Appeal adopted overly restrictive view of tort of negligent supervision; - Definition and application of tort of negligent supervision to the facts - Whether the Court of Appeal erred in ordering costs.

The facts set out by the motions judge below indicate that in 1997 following a bank robbery, police officers, including Officers Woodhouse and Gerrits, stopped and surrounded a car. Mr. Manish Odhavji fled the vehicle, unarmed, and was shot twice.; He died a short time later in hospital from the gunshot wounds. Almost immediately after the officers discharged their firearms, the Special Investigations Unit (SIU) was notified and an investigation was commenced with Officers Woodhouse and Gerrits under investigation.The SIU made a number of requests to Officers Woodhouse and Gerrits and the other officers who witnessed the events, including requests for same-day questioning, pre-questioning segregation, surrender of shift-notes and on-duty clothing, blood sampling, and medical releases allowing investigators to speak to treating physicians. Compliance was not forthcoming.

The Appellants, who are the Estate of Manish Odhavji , his parents and his brother, commenced an action in the Superior Court of Ontario. Day J. of the Superior Court struck out the claims against Officers Woodhouse and Gerrits of public duty and misfeasance in public office and granted the Appellants leave to amend their claim to plead misfeasance framed in malice; struck out the claim against the Police Chief for misfeasance in public office, but not the claim against him for negligent supervision in respect of the investigation; and struck out the claim for negligent supervision against the Police Services Board but not the one against the Province of Ontario. He did not interfere with the claim against the Board for the negligence of its employees pursuant to s. 50(1) of the Police Services Act.

The Appellants appealed to the Court of Appeal for Ontario. The Respondents obtained leave to appeal to the Divisional Court but the Court of Appeal ordered the Respondents' appeals transferred to the Court of Appeal. A majority of the Court of Appeal struck out the claim against Officers Woodhouse and Gerrits for misfeasance in public office; upheld the decision to dismiss the claim of misfeasance against Chief Boothby; upheld the decision to allow the claim against Chief Boothby for negligent supervision to proceed; upheld the claim against the Board with respect to s. 50; upheld the decision to strike the claim against the Board of negligent supervision; and struck out the claim of negligent supervision against the Province.

Origin of the case: Ontario

File No.: 28425

Judgment of the Court of Appeal: December 15, 2000

Counsel: Julian N. Falconer/Richard Macklin for the Appellants

Kevin A. McGivney/Cheryl Woodin for the Respondents Woodhouse and Gerrits

Ansuya Pachai for the Respondents Chief of Police and Police Services Board

John P. Zarudny/Troy Harrison/James Kendik for the Respondent Attorney General for Ontario


Parents of man shot in holdup press bid to bring Toronto officers to account

JUSTICE REPORTER -- Manish Odhavji's parents never claimed their bank-robbing son was a saint, but they would still like the Toronto Police to pay for putting a bullet in his back.

Police at the scene the day Mr. Odhavji was killed refused to provide their notes or speak to internal investigators, leaving a dense fog of doubt about what actually took place.

More than five years later, the Supreme Court of Canada will hear an appeal of an Ontario ruling that shot down their lawsuit.

While the family's stake in the case is plain -- vindication and a claim for $8.5-million -- the larger picture involves the right of individuals to sue public officials for malicious abuse of their office.

If the Supreme Court chooses to open the door to these lawsuits, it would allow social reformers to use civil litigation to change public policy, a tactic U.S. activists have favoured for decades in furthering causes such as civil rights, affirmative action and access to medical procedures.

If the court instead restricts the right to sue, it could give state officials a blank cheque to commit wrongful acts.

"State accountability lies at the heart of democracy," said Julian Falconer, a lawyer for the Odhavji family. "Losing this would send a message to the public that officials can knowingly sabotage a homicide investigation, yet not be held accountable for it. It's just sad that the Odhavji family must bear the burden of ensuring that accountability."

Mr. Odhavji, 22, was killed on Sept. 26, 1997, when police swooped in on a carefully planned bank heist, sending the robbers scattering. Mr. Odhavji, who was unarmed, fled in a car. When it was stopped, he began to run and was shot and killed.

After the officers refused to co-operate with a Special Intelligence Unit investigation, the Odhavji family sued for abuse of public office and negligent supervision by senior police managers.

"The level of non-co-operation in this case was absurd," Mr. Falconer said in an interview.

A 2-1 majority of the Ontario Court of Appeal accepted police arguments that the family was technically precluded from suing because they were alleging the abuse of a legal duty, not a broad police power.

Equally devastating for the Odhavjis, not to mention others who mount future test cases, the Court awarded costs against the family.

Mr. Falconer said the entire ruling set back a promising strain of law that began with the landmark 1959 case of Roncarelli vs. Duplessis, where a Jehovah's Witness sued the premier of Quebec for maliciously abusing his authority.

Mr. Falconer and co-counsel Richard Macklin argue in their Supreme Court brief that the ruling gives "blanket immunity" to any official who deliberately breaks the law, from the prime minister to a tax collector.

They say it would permit public officials to disobey lawful orders, knowingly make a false statement, destroy records or accept a bribe.

Police and government lawyers insist that allowing the Odhavji lawsuit could end up costing taxpayers a fortune.

"To impose potential liability would lead to numerous claims alleging that police failed to apprehend a criminal as soon as they should have," says a brief on behalf of the Ontario Ministry of the Attorney-General.

"This would have a detrimental effect on the conduct of police investigations."