Ontario's Court of Appeal overturns $1.6 Million judgment against Thunder Bay Police Services Board

Decision quashes trial judge's finding of police negligence in auto theft case

TORONTO, Sept. 15, 2016 /CNW/ - The Court of Appeal for Ontario has set aside a $1.6 million judgment in an action brought by Central Auto Parts and its owner, Ricardo P. Mercuri, against the Thunder Bay Police Services Board and officer Frank Barclay. On September 2, 2016, the court released its unanimous decision allowing the appeal and setting aside the trial judge's judgment except for an agreed award of $70,000 for loss of property improperly stored by the police.

"If there was any doubt, this case makes clear that when an action is brought against police for negligent investigation, expert evidence with respect to standard of care is critical," says Kirk Boggs, a lawyer with Lerners LLP, who along with Jasmine Akbarali and David Litwin, also with Lerners, argued the appeal on behalf of Frank Barclay and the Thunder Bay Police Services Board. "In this case the trial judge elected to define the standard of care and make findings of liability against the police without expert evidence."

The Court of Appeal noted that the investigation of automobile parts theft is highly complex and it was unfair to the officers involved for a judge to determine the reasonableness of their actions without the benefit of expert evidence.  The court also concluded that without expert evidence the trial judge improperly elevated the standard of care expected of a police officer from whether they had reasonable and probable grounds to lay charges, to an obligation to prove guilt.

The background: Mr. Mercuri and Central Auto Parts were part of a police investigation into stolen vehicles and auto parts that began in 1997. They were acquitted of possession of stolen property in 2005 and subsequently sued lead investigator Frank Barclay and the Thunder Bay Police for negligent investigation. In 2014, after a lengthy trial, an Ontario Superior Court of Justice judge issued judgment in favour of Mr. Mercuri and Central Auto Parts awarding damages totaling $1,581,116.62 plus interest and costs.

On appeal, Boggs argued the trial judge erred by evaluating the police officers' actions from the perspective of whether they could prove Mr. Mercuri knew the auto parts were stolen rather than whether the officers had reasonable and probable grounds to believe that an offence had been committed.   

"This is an important distinction. The role of the police is to investigate and assess whether there are reasonable and probable grounds for an arrest based on the information available to them at the time.  They are not required to prove the accused's guilt in order to be acting reasonably. That is the role of the Crown and judges," says Boggs.

The appellants also took issue with the assessment of non-pecuniary damages and damages for loss of profits. The Court of Appeal agreed with the submissions made by co-counsel Jasmine Akbarali that "emotional upset" is insufficient to justify an award for personal injury, which requires proof of serious trauma or illness. Without medical evidence to prove Mr. Mercuri suffered psychological illness, his unsupported testimony was not enough to justify an award for pain and suffering.

Akbarali also argued that the more than $1 million the trial judge awarded jointly to Mr. Mercuri and Central Auto Parts for loss of income as a result of the negative media attention the investigation and subsequent prosecution garnered was unreasonable.

"The Court of Appeal found that without expert evidence of what normal police practices were for communicating with the media, the trial judge was not in a position to evaluate whether any communications that did occur fell below the standard of care or whether any damages flowed from those communications," says Akbarali. "The court also emphasized that it is important to analyze each plaintiff's damages separately and not blend corporate and individual plaintiffs' claims. Each have certain cause of action available to them and limits on the types of damage that can be awarded to them depending on the facts."

Lerners LLP, one of Canada's largest litigation groups with over 100 lawyers, has offices in Toronto and London, Ontario. Lerners lawyers represent a wide range of individual and institutional clients, from victims of accidents to corporations embroiled in complex business disputes and appeals. Its lawyers, many of whom have been involved in landmark cases, practice in the following areas: Commercial Dispute Resolution, Medical Liability, Professional Defence, Insurance Law, Corporate Bankruptcy and Insolvency, Personal Injury Law, Public Law, Appeals, Tax and Business Law.


For further information: For more information or to arrange an interview, please contact: Mary Ann Freedman for Lerners LLP, Phone: (416) 868-1500, Email: mafreedman@freedmanandassociates.com

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