On March 3, 2014, the Superior Court of Justice granted summary judgment in an action alleging negligent investigation against a police service and a number of officers.
The plaintiff worked as a counsellor at a women’s shelter. While moving the belongings of a client, Ms. Doe, the plaintiff’s leg and finger were punctured by an uncapped needle which had been contained in one of Ms. Doe’s bags. Ms. Doe denied that the needle belonged to her. The plaintiff was nevertheless concerned for her wellbeing, as Ms. Doe had fresh needle marks, admitted to testing positive for Hepatitis C and to living with intravenous drug users.
The plaintiff complained to police who proceeded to investigate the incident. The plaintiff believed that Ms. Doe ought to be charged with criminal negligence causing bodily harm. The police consulted with a number of crown attorneys who opined that if charges were laid, there was no reasonable prospect of conviction. The plaintiff proceeded to lay a private information against Ms. Doe which was ultimately withdrawn by the crown.
The plaintiff was tested periodically for various communicable diseases and approximately one year after the incident, she was declared to be out of the risk of exposure.
The plaintiff’s action essentially made two allegations as against the police: (1) that they negligently investigated the plaintiff’s complaint against Ms. Doe, and (2) that they failed to promptly arrange for an analysis of the blood and other contents in the used needle with which the plaintiff was stuck.
The plaintiff’s complaint about the failure to charge Ms. Doe was based on the assumption that if a charge had been laid, the police could have compelled Ms. Doe to undergo a blood test. However, the plaintiff conceded that there is no provision in the relevant legislation which would have permitted the police to compel Ms. Doe to give a blood sample. Associate Chief Justice Marrocco found that the plaintiff herself could have made an application to the Medical Officer of Health for an order compelling Ms. Doe to provide a blood sample. Associate Chief Justice Marrocco concluded that any damage experienced by the plaintiff was caused by the plaintiff’s inaction and not by the alleged negligence of the police. Accordingly, summary judgment was granted, and the plaintiff’s action was dismissed.
In granting summary judgment, Associate Chief Justice Marrocco reviewed some of the principles from the recent Supreme Court of Canada decision about summary judgment in Hryniak v. Maudlin, 2014 SCC 7. He ultimately concluded that a motion judge is required to use the summary judgment process if it appears cheaper and faster than a full trial unless there is a genuine issue which requires the added expense and delay of fact finding at trial. He also noted that those responsible for court administration should make resources available, particularly in regions where judges are on circuit, to facilitate hearings and submissions which do not require everyone to be in the same place at the same time.