Court of Appeal has jurisdiction over matter involving injury from explosives during police training

The Superior Court of Justice maintains jurisdiction over a claim involving a police training exercise gone wrong, the Court of Appeal for Ontario has found in a recent case.

In Rukavina v. Ottawa (Police Services Board), 2020 ONCA 533, the appellant was the tactical commander present during a training exercise conducted by the Ottawa Police Tactical Unit, during which a hydro cut device filled with windshield washer fluid exploded and caused injuries.

Following an investigation by the Special Investigations Unit, the appellant was charged with criminal negligence causing bodily harm and breach of a legal duty to use reasonable care while having an explosive substance under his care and control under s. 221 and s. 80 of the Criminal Code, R.S.C., 1985, c. C-46. Crown counsel later stayed these charges on the basis that the filling of the hydro cut device with windshield washer fluid adhered to a settled practice of the Ottawa Police Service.

The appellant then filed a claim alleging that the respondents — certain police officers, superior officers, the then police chief and the Ottawa Police Services Board — had committed malicious prosecution and misfeasance in public office by providing false and misleading information in connection with a serious criminal investigation and with criminal proceedings, which prolonged such proceedings. He also alleged that they had released false information to the media to pressure the investigators to press charges.

The respondents filed a motion to dismiss the claim for want of jurisdiction, which the motion judge granted, stating that the claim was workplace-centred and under the exclusive jurisdiction of the collective agreement and of the disciplinary regime under the Police Services Act, R.S.O. 1990, c. P.15.

The Ontario Court of Appeal allowed the appeal, stating that the motion judge had misconstrued the essential character of the claim. The mere fact that the dispute involved the police did not have the effect of ousting the court of jurisdiction, said Justice Michal Fairburn, writing for the appeal court. Justice Fairburn also said that claim did not fall within the exclusive jurisdiction of the collective agreement.

Fairburn explained that, when determining the essential character of a claim, under the applicable legal framework, the court should focus on the alleged facts surrounding the dispute, not on how the legal issues may be framed.

In this case, the appellant was not contending that the respondents unfairly disciplined him. He was instead alleging that certain officers with whom he worked had lied to investigators and that his superior officers had misled the investigators, which put unwarranted pressure on the investigation and which led to criminal charges being wrongfully and maliciously filed against him.

“At its core, [the claim] involves allegations that point to the improper influence of a criminal investigation that took place entirely outside of the workplace,” wrote Fairburn. “In my view, the Superior Court is the only place where the appellant’s claim can be adjudicated.”

Jonathan Lisus and Zain Naqi of the Lax O'Sullivan Lisus Gottlieb LLP represented the appellant. “The decision has important implications for the tort liability of police officers in the workplace,” the firm said in a news release.