Toronto Injury Lawyer Blog
Police investigations, prosecutorial decisions, and regulatory functions are typically carried out in the public interest, even though they may significantly affect individual interests.
Courts are generally reluctant to find that those public functions meet the criteria of private law duties owed to individuals affected by those functions
For example, a victim of crime usually can’t sue a Crown prosecutor in negligence because a decision not to prosecute weakened a later civil action.
Similarly, investors generally can’t sue a securities regulator because a regulatory decision failed to prevent financial loss. In both examples, the public actor’s decision may harm individual interests, but the function is exercised for the public at large rather than for the protection of a specific person’s private interests.
What happens if a person alleges that shortcomings in an OPP investigation of a car accident prejudiced/reduced the value of their personal injury case? What happens if the OPP messes up their investigation into a car accident; and that investigation completely messes up the civil personal injury case at trial; or presents such a risk to the Plaintiff at trial that they have to alter their litigation strategy?
Can a police force’s public investigative responsibilities be converted into a private law duty owed specifically a plaintiff, or to a group of plaintiffs?
The cases discussed below focus on that distinction.
Some survived motions to strike or similar early challenges, but those outcomes mainly reflect the high threshold for preliminary challenges, not any finding that the claims were likely to succeed on the merits.
Even if a private duty can be established, breach and causation remain difficult. The Plaintiffs would still need to show that the police’s investigation was negligent beyond the range of acceptable errors police officers are allowed to make and not merely wrong. The Plaintiffs would also need to prove that a better investigation would likely have changed the outcome of the personal injury case.
There are a lot of hurdles to clear when claiming damages for a poorly done police investigation.
I. Traversy v. Smith (ONSC, 2007)
Traversy arose from an MVA investigated by the OPP. The plaintiffs alleged that the investigating officer misidentified vehicles, inaccurately documented vehicle damage, prepared incorrect diagrams, and reached mistaken conclusions regarding the MVA. They alleged that those errors impaired their ability to establish liability in the subsequent personal injury case.
This decision was rendered at a preliminary stage. The court did not find that a duty of care existed, that the investigation was negligent, or that the plaintiffs suffered compensable loss. It held only that the claim should not be struck before discovery.
The court also noted that the Highway Traffic Act may impose duties on police officers receiving accident reports to secure particulars of the accident and complete a written report. Those statutory obligations were relevant to whether a duty of care might be arguable.
II. Delfin v. CAA Insurance (ONSC, 2025)
Delfin arose from a collision involving an unidentified cargo truck. The plaintiffs alleged that OPP officers failed to obtain witness statements, gather evidence, investigate the truck, and take other investigative steps that would have allowed them to identify and pursue the responsible tortfeasor.
The plaintiffs claimed that investigative shortcomings impaired their ability to recover against another party through civil litigation. The court reaffirmed that police do not owe particular victims a private duty of care to conduct a thorough or competent investigation. Allegations framed as a stand-alone negligent-investigation claim were struck.
However, the court permitted the plaintiffs to replead allegations based on specific statutory duties arising under the Police Services Act and Highway Traffic Act. The court held that those statutory duties might provide the proximity necessary to support a negligence claim.
Delfin draws a distinction between a general negligent-investigation claim and a claim grounded in specific statutory obligations.
III. Wellington v. Ontario (ONCA, 2011)
Wellington involved the family of a young man who was fatally shot by police. The plaintiffs alleged that the SIU failed to conduct a competent investigation and that a proper investigation would have resulted in criminal charges against the officers involved.
The Ontario Court of Appeal held that it was plain and obvious that the SIU owed no private law duty of care to the victim’s family. The Court emphasized that the SIU’s mandate is fundamentally public in nature. Although victims and their families may have a strong personal interest in the outcome of an investigation, that interest is ultimately shared with the public at large. The Court concluded that recognizing a private law duty would be inconsistent with the SIU’s public responsibilities and could create tension between the SIU’s obligation to conduct impartial investigations and the interests of particular individuals.
The Court of Appeal’s reasoning strongly suggests that such interests are insufficient to establish the proximity required for a private law duty of care.
IV. Patrong v. Banks (ONSC, 2013)
Patrong involved a drive-by shooting committed by a person whom police knew to be dangerous and likely to engage in further violence. The plaintiff argued that police owed him a private law duty of care because they knew or ought to have known that the shooter posed a foreseeable threat to a narrow group of potential victims to which he belonged (based on gang neighbourhood dynamics). The court accepted that harm was foreseeable. Nevertheless, it held that the pleadings failed to establish the proximity between the police and the plaintiff required to support a private law duty.
In reaching that conclusion, the court distinguished Doe v. Metropolitan Toronto (Municipality) Commissioners of Police, where police possessed information identifying a narrow and foreseeable class of potential victims and were therefore found to owe a private law duty of care. Unlike the plaintiff in Doe, Patrong was not a specifically identifiable target known to police before the shooting. Rather, he was one member of a broader group of individuals (a resident of the neighbourhood in war with the Plaintiff) who might be harmed by the shooter’s conduct. The court concluded that Patrong had no greater claim to police protection than other members of the public.
Patrong demonstrates that even where harm is foreseeable, a plaintiff must establish a relationship sufficiently distinct from the public at large to justify imposing a private law duty.
