CITATION: Reynolds v. Kingston (Police Services Board), 2007 ONCA 166
DATE:  20070314
DOCKET: C45999

COURT OF APPEAL FOR ONTARIO

BORINS, MACPHERSON and JURIANSZ JJ.A.

B E T W E E N :
LOUISE REYNOLDS (Plaintiff/Appellant)	Peter C. Wardle and Daniel R. Bernstein for the appellant
- and -
THE CITY OF KINGSTON POLICE SERVICES BOARD, BRIAN BEGBIE, ANDREW BIRD, HARVEY KELLER, BILL KENNEDY, CHRIS BARRETT, THOMAS GOODFELLOW, DR. CHARLES SMITH and DR. ROBERT WOOD (Defendants/Respondents)	W. Niels F. Ortved and Jane A. Langford for the respondents Sheila R. Block and Sandra Perri for the intervenor Association in Defence of the Wrongly Convicted Kim Twohig and Amy Leamen for the intervenor Ministry of the Attorney General
Heard:  February 12, 2007

On appeal from the order of the Divisional Court (Justice J. G. O’Driscoll, Justice J. R. R. Jennings and Justice J. M. Wilson) of the Superior Court of Justice dated May 24, 2006.

BORINS J.A.:

I

[1]            On June 26, 1997 the appellant, Louise Reynolds, was charged with the second degree murder of her seven year old daughter Sharon.  It would be almost two years until she was released on bail pending her trial.  Pursuant to a warrant under the Coroners Act, R.S.O. 1990, c. C.37, the respondent, Dr. Charles Smith, a pediatric pathologist, had earlier conducted a post mortem examination on the body of Sharon to determine the cause of her death.  In his view, her death was caused by the loss of blood resulting from multiple stab wounds.  Contrary to s. 28(2) of the Act, following the autopsy, Dr. Smith gave an oral opinion of the cause of death to the Kingston police.  It was not until March 8, 1998 that Dr. Smith complied with s. 28(2) by providing a written post mortem report to the coroner who had issued the warrant directing him to perform the autopsy.

[2]            It was on the basis of Dr. Smith’s opinion of the cause of Sharon’s death that Ms. Reynolds was charged with Sharon’s murder.  There was a pit bull terrier located in the basement of Ms. Reynolds’ home where Sharon’s body was found.  The Kingston police failed to tell Dr. Smith about this before he performed the autopsy, although he subsequently became aware of this fact during the police investigation.  However, he continued to assert that the cause of death was multiple stab wounds.  In testifying on April 27 and 29, 1998 at Ms. Reynolds’ preliminary hearing, Dr. Smith testified that Sharon’s death was caused by loss of blood resulting from more than eighty stab wounds to her body made by a knife or a pair of scissors.  He also testified that it was his opinion that Sharon’s wounds were not caused by dog bites.  Ms. Reynolds was consequently committed to trial on the charge of second degree murder.

[3]            Following the preliminary hearing, on the recommendation of the Deputy Chief Coroner for Ontario and the Chief Forensic Pathologist for Ontario, crown counsel obtained an order for the exhumation of Sharon’s body.  A second post mortem examination of her body was performed by Dr. Smith and by other pathologists.  The result of this autopsy was that a dog was responsible for at least some of Sharon’s injuries.

[4]            Based on the result of the second autopsy, on January 25, 2001, the Crown withdrew the second degree murder charge against Ms. Reynolds.  She had been in custody for exactly twenty‑two months from the date of her arrest until April 26, 1999, when she was granted judicial interim release on very stringent terms.  During this period, her other children were removed from her care by the authorities.

II

[5]               Shortly after the Crown withdrew the murder charge, Ms. Reynolds commenced this proceeding against the City of Kingston Police Services Board, six members of the Kingston Police Force, Dr. Smith and Dr. Wood.  Dr. Wood is a forensic odontologist, retained by the Crown, who, in his report of February 22, 1998, opined that the markings seen on Sharon’s body were not dog bite marks.  In a twenty‑four page statement of claim, Ms. Reynolds described her claims against all of the defendants with exceptional particularity.  Her claims against the police defendants alleged that they negligently investigated her daughter Sharon’s death, leading to her false arrest and false imprisonment.

[6]               The central focus of Ms. Reynolds’ claim against Dr. Smith is also based on negligent investigation.  She alleges that he performed the initial autopsy negligently, recklessly and in bad faith, with the view to securing a conviction.  In addition, she relies on the emerging tort of misfeasance in a public office, alleging deliberate unlawful conduct on the part of Dr. Smith in the exercise of his public functions under the Coroners Act.  It is evident from the statement of claim that Ms. Reynolds’ claim against Dr. Smith is based on what he did or failed to do, and not in respect to his testimony at her preliminary hearing.

[7]               Relying on the witness immunity rule, Dr. Smith moved pursuant to rule 21.01(1)(b) of the Rules of Civil Procedure to strike out Ms. Reynolds’ statement of claim on the ground that “it discloses no reasonable cause of action”.  In dismissing the respondent’s motion, Coo J. concluded “that it is not plain and obvious that the plaintiff’s claim is doomed to failure as it has been cast in this action”.  Before Coo J., the appellant’s statement of claim did not include a claim based on the tort of misfeasance in a public office.  Master Egan subsequently granted the appellant leave to amend her statement of claim to add a claim based on this tort.

[8]               Dr. Smith was successful in his appeal to the Divisional Court from the orders of Coo J. and Master Egan.  In reasons reported at (2006), 267 D.L.R. (4th) 409, a majority of the Divisional Court allowed both appeals.  On behalf of the majority, O’Driscoll J. dismissed Ms. Reynolds’ action against Dr. Smith.  In dissent, Wilson J. would have dismissed both appeals and permitted Ms. Reynolds’ action to proceed to trial.  Having been granted leave to appeal, Ms. Reynolds appeals from the result reached by the majority of the Divisional Court.  As I will explain, I am in agreement with the reasons of Wilson J.  Accordingly, I would reverse the decision of the Divisional Court.

III

[9]               Before considering the reasons of O’Driscoll J. and Wilson J., it will be helpful to make a brief reference to the test that applies on a rule 21.01(1)(b) motion and to the witness immunity rule.

[10]          Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, is the leading case on when a statement of claim, or portions of it, may be struck out on the ground that it fails to disclose a reasonable cause of action.  As such, it deals with the substantive adequacy of a claim.  On behalf of the Supreme Court, at p. 980 Wilson J. articulated the following test:

Thus, the test in Canada governing the application of provisions like Rule 19(24)(a) of the British Columbia Rules of Court is the same as the one that governs an application under R.S.C. O. 18, r. 19: assuming that the facts as stated in the statement of claim can be proved, is it “plain and obvious” that the plaintiff’s statement of claim discloses no reasonable cause of action?  As in England , if there is a chance that the plaintiff might succeed, then the plaintiff should not be “driven from the judgment seat”.  Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case.  Only if the action is certain to fail because it contains a radical defect ranking with the others listed in Rule 19(24) of the British Columbia Rules of Court should the relevant portions of a plaintiff’s statement of claim be struck out under Rule 19(24)(a).[1]

[11]          Earlier, at p. 972, Wilson J. observed:

…Thus, the fact that the plaintiff’s case was a complicated one could not justify striking out the statement of claim.  Complex matters that disclosed substantive questions of law were most appropriately addressed at trial where evidence concerning the facts could be led and where arguments about the merits of a plaintiff’s case could be made.

The requirement that it be “plain and obvious” that some or all of the statement of claim discloses no reasonable cause of action before it can be struck out, as well as the proposition that it is singularly inappropriate to use the rule’s summary procedure to prevent a party from proceeding to trial on the grounds that the action raises difficult questions, has been affirmed repeatedly in the last century.  [Citations omitted.]

[12]          Wilson J. concluded as follows at pp. 990‑991:

The fact that a pleading reveals “an arguable, difficult or important point of law” cannot justify striking out part of the statement of claim.  Indeed, I would go so far as to suggest that where a statement of claim reveals a difficult and important point of law, it may well be critical that the action be allowed to proceed.  Only in this way can we be sure that the common law in general, and the law of torts in particular, will continue to evolve to meet the legal challenges that arise in our modern industrial society.

[13]          The “plain and obvious” test has been followed consistently in Ontario in cases such as R.D. Belanger & Associates Ltd. v. Stadium Corp. of Ontario Ltd. (1991), 5 O.R. (3d) 778 (C.A.); Spasic Estate v. Imperial Tobaced Ltd. (2000), 49 O.R. (3d) 699 (C.A.); leave to appeal to S.C.C. refused 196 D.L.R. (4th) vii; Folland v. Ontario (2003), 64 O.R. (3d) 89 (C.A.); leave to appeal to S.C.C. refused 229 D.L.R. (4th) vi; Bendix Foreign Exchange Corp. v. Integrated Payment Systems Canada Inc. (2005) 18 C.P.C. (6th) 15 (Ont. C.A.); Freeman‑Maloy v. Marsden (2006), 267 D.L.R. (4th) 37 (Ont. C.A.); leave to appeal to S.C.C. refused 267 D.L.R. (4th) ix.  These cases stand for the proposition that at the interlocutory stage of proceedings the court should not dispose of matters of law that are not fully settled in the jurisprudence.  Such issues should be decided at trial on the basis of a full evidentiary record.

[14]          The absolute immunity of parties and witnesses from subsequent liability for their testimony in judicial proceedings developed in early English cases and is well established at common law.  Any communication, even perjured testimony, made in the course of a judicial proceeding, cannot serve as the basis for a suit in tort.  The rationale for witness immunity, which has become less an evidentiary rule than a rule of substantive law, is that the proper administration of justice requires full and free disclosure from witnesses unhampered by fear of retaliatory lawsuits.  See, e.g., Samuel Manu‑Tech Inc. v. Redipac Recycling Corp. (1999), 38 C.P.C. (4th) 297 (Ont. C.A. ) at paras. 19 and 20.

IV

[15]          Before the Divisional Court, Dr. Smith appealed from the decision of Coo J. on the ground that he erred in failing to apply the witness immunity rule to strike out the appellant’s entire claim against him.  His position was that as he had testified at her preliminary hearing, absolute privilege provided him with immunity from liability for all stages of his involvement in the police investigation of the death of the appellant’s daughter, beginning with the autopsy that he performed on her body at the direction of the coroner.  Dr. Smith repeated this argument before this court.  He also appealed on the same ground from the order of Master Egan granting leave to the appellant to amend her statement of claim by adding a claim based on the tort of misfeasance in a public office.

[16]          In his reasons for judgment, O’Driscoll J. discussed the origins and applications of the witness immunity rule, considered whether the rule applied in criminal cases, considered the “width and the breadth” of the rule, the test of necessity with regard to the rule and, very briefly, whether the rule applied to the tort of misfeasance in a public office.

[17]          O’Driscoll J.’s reasons for allowing the appeal and dismissing Ms. Reynolds’ claim against Dr. Smith are contained in paras. 29 to 32:

In my view, on the facts admitted for the purpose of this motion, Dr. Smith’s post-mortem examination, his oral communication to the Kingston Police of his opinion of the cause of death, his post-mortem report, Dr. Smith’s testimony at the preliminary inquiry are all inextricably bound together such that it is not possible to distinguish between a claim for negligent investigation and a claim for negligent testimony.

Having been served with a warrant under the Coroners Act, Dr. Smith was required by law to conduct a post-mortem examination on the body of Sharon to ascertain the cause of her death. The Coroners Act also required Dr. Smith to prepare a written post-mortem report. Dr. Smith was required by the provisions of the Criminal Code of Canada to obey the subpoena, attend at Ms. Reynolds’ preliminary inquiry and, under oath or solemn affirmation, answer the questions asked of him. Dr. Smith did all the things required of him by law. His opinion as to the cause of death never changed. There can be no question that Dr. Smith has witness immunity for his oral testimony….

On this record, I come to the same conclusion as reached in Elliott (supra) – the witness immunity rule applies to the negligence claim against the defendant – here Dr. Smith – a witness who testified in an earlier proceeding and who is now being sued on that earlier testimony and/or a post mortem report that he was required by law to prepare.

Having reached that conclusion, in my view, it is “plain and obvious” that the Plaintiff cannot succeed on the negligence claim against Dr. Smith. See: Hunt v. Carey Canada Inc., 1990 (S.C.C.), [1990] 2 S.C.R. 959, 976.   [Emphasis added.]

[18]          Having dismissed Ms. Reynolds’ claim in negligence, in paras. 33 and 34, without any analysis, O’Driscoll J. also dismissed her claim for misfeasance in a public office:

As quoted earlier, in Samuel Manu-Tech (supra) at para. 20 it is stated that the doctrine of witness immunity “extends to any action, however framed and is not limited to actions of defamation”. See also: Lowe v. Guarantee Company of North America, [2005] O.J. No. 2991 at para. 58 (Ont. C.A. ).

Therefore, the Plaintiff’s action based on the allegation of misfeasance in public office cannot succeed because the Hunt v. Carey test has once again been met.

[19]          In her dissenting reasons, Wilson J. explained that Ms. Reynolds was not suing Dr. Smith with respect to the testimony he gave at Ms. Reynolds’ preliminary hearing.  Wilson J. interpreted the allegations against Dr. Smith in the statement of claim as having negligently performed the initial autopsy in bad faith, with a view to securing a conviction, and having engaged in misfeasance in a public office.  At para. 53, she stated:

There is no case in Canada considering the scope of witness immunity with respect to a pathologist who conducts an autopsy pursuant to the Coroners Act and subsequently testifies in criminal proceedings.  Furthermore, both the law relating to the doctrine of witness immunity and the law relating to the tort of public misfeasance are uncertain and constantly evolving, driven by the particular facts of individual cases.  Counsel for Dr. Smith have not cited any binding authority on this court in support of their position.  The decision in Elliott v. Insurance Crime Prevention Bureau, [2005] N.S.J. No. 323 (QL), 256 D.L.R. (4th) 674 ( C.A. ) outlines the legal issues relevant to defining witness immunity persuasively and comprehensively, but it is clearly distinguishable on its facts.

As it emanated from the dismissal of a rule 21.01(1)(b) motion, she characterized the appeal as raising questions of law with respect to the scope of the witness immunity rule, and whether the legal components of the tort of misfeasance in a public office had been pleaded.

[20]          Justice Wilson engaged in a lengthy review of English and Canadian authorities that have considered the application of the witness immunity rule in a variety of factual situations.  In para. 112, she concluded that the authorities demonstrate that the law with respect to the scope of witness immunity is not settled in Ontario, and that the courts have decided that this issue cannot be resolved at the pleading stage.  It can only be determined at trial on the basis of a complete factual record.  This is because whether witness immunity applies is primarily a question of fact.  Moreover, the party claiming immunity has the burden to prove facts that bring him or her within it.  She went on to refer to R.D. Belanger, supra, and other decisions of this court which emphasize that matters of law that have not been fully settled should not be disposed of at the pleading stage of the proceedings.

[21]          Justice Wilson’s reasons for dismissing the appeal are to be found at paras. 130 to 132:

The law with respect to witness immunity and absolute privilege has evolved and continues to evolve. The courts have not examined the provisions of the Coroners Act that define the duties and limit the privilege afforded to someone like Dr. Smith.  The determination of the boundaries of witness immunity, and the distinction between investigation and testimony in this specific context, involve nuanced questions of fact.

The determination of unsettled legal issues should be made only in the context of a full factual record, possibly including appropriate expert evidence: see Spasic Estate v. Imperial Tobacco Ltd. (2000), 49 O.R. (3d) 699, 188 D.L.R. (4th) 577 ( C.A. ), at paras. 22-23.  To the extent that this case involves the resolution of unsettled questions of law, requiring a factual context, a Rule 21 motion is not the proper forum to resolve the issue.

For all these reasons, I am not satisfied that the defendant Dr. Smith has proved that it is “plain and obvious” in law that witness immunity applies to all acts and reports provided by Dr. Smith related to the autopsy. I would therefore dismiss the appeal from the decision of Justice Coo.

[22]          In addition, Wilson J. would have dismissed Dr. Smith’s appeal from Master Egan’s order granting Ms. Reynolds leave to amend her statement of claim to add a claim based on the tort of misfeasance in a public office.  The added claim raised the issue whether a medical practioner who performs an autopsy at the request of a coroner is a public officer, or acts as an agent of the coroner.  Justice Wilson stated that this issue has not been determined by any court in this province.  In para. 145, Wilson J. expressed her agreement with the conclusion of Master Egan that “it is not beyond all doubt that the claim that Dr. Smith is a public officer is impossible of success”.

V

[23]          The only issue on this appeal is whether, in striking out Ms. Reynolds’ claims against Dr. Smith, the majority of the Divisional Court erred in law by failing to properly apply the “plain and obvious” test.  In my view, it did.  The essence of Ms. Reynolds’ claims against Dr. Smith is in respect to his role as a public official investigating a suspicious death under the Coroners Act, and not to his role in testifying in her criminal prosecution.  As Wilson J. has pointed out, this is a classic example of the type of case that should be allowed to proceed to trial to enable the court to make a decision on Dr. Smith’s witness immunity claim, which he has the burden of establishing, on the basis of a complete factual record.

[24]          In my view, it is important to keep in mind that the court is dealing with a pleading motion brought by Dr. Smith who contends that it is plain and obvious that the respondent’s statement of claim fails to disclose a reasonable cause of action.  As such, this issue is to be determined on the basis of the pleadings that, for the motion, are taken to be accurate and capable of proof.  Following this analysis, I have no doubt that the statement of claim discloses a reasonable cause of action constituting the torts of negligence and misfeasance in a public office.  There is no radical defect in the pleading of the elements of either tort.  Dr. Smith contends that the claims cannot succeed because he is the beneficiary of the witness immunity rule.  In my view, this is different from contending that a statement of claim is not substantively adequate.  Probably it would have been more appropriate had the appellant’s claims been attacked on a Rule 20 motion for summary judgment.  However, in my view the result of such motion would have been the same as it would have been clear that there was a genuine issue for trial in respect to the application of the witness immunity rule as this would be for the trial judge to determine on the basis of a complete factual record.

[25]          As I have mentioned, the majority of the Divisional Court, without any analysis, allowed the appeal from Master Egan’s order granting leave to the appellant to amend her statement of claim to plead the tort of misfeasance in a public office on the ground that “the allegation of misfeasance in public office cannot succeed because the Hunt v. Carey test has once again been met”.  In Freeman‑Maloy, supra, applying Odhavji Estate v. Woodhouse, [2003] 3 S.C.R. 263, at para. 26 Sharpe J.A. stated that “[a]lthough the tort of misfeasance in a public office has deep roots in the history of the common law, it is constantly evolving”.  Given the permissive right to amend pleadings in rule 26.01, in my view the majority of the Divisional Court erred in reversing Master Egan’s order.  As well, there did not appear to be any evidence that Dr. Smith would be prejudiced by the amendment.  That is not to say that the claim will succeed, only that it should be allowed to proceed to trial to be fully considered on the basis of a proper factual record and in the light of the other claims asserted by Ms. Reynolds.  As Sharpe J.A. pointed out in para. 27 of Freeman‑Maloy: “This will allow the appellant to air all aspects of his complaint and develop a full record to afford the court the opportunity to rationalize the appropriate scope and limits of this tort in relation to the other causes of action advanced by the appellant.”  Further, as Iacobucci J. stated in para. 42 of Odhavji: “If the facts are taken as pleaded, it is not plain and obvious that the actions for misfeasance in a public office…must fail.”

VI

[26]          For all of the foregoing reasons, I would allow the appeal, set aside the order of the Divisional Court and dismiss Dr. Smith’s rule 21.01(1)(b) motion and his appeal from the order of Master Egan.  Pursuant to the agreement of counsel, Ms. Reynolds is to have her costs of the appeal fixed at $10,000 inclusive of disbursements and GST.  Counsel are to agree when the costs are to be paid.  Counsel have requested that they be given the opportunity to agree on the costs of the hearing before the Divisional Court, failing which they are to deliver brief written submissions to this court.

RELEASED: March 14, 2007 (“SB”)

“S. Borins J.A.”

“I agree J. C. MacPherson J.A.”

“I agree R. G. Juriansz J.A.”