Police Chiefs and Boards May be Liable for Police Brutality Incidents
In the recent Court of Appeal for Ontario case, Rivard v. Ontario, 2025 ONCA 100, the Court considered a claim made against the Kingston Chief of Police and the Kingston Police Services Board following the allegedly violent arrest of the respondent.
This case offers valuable insight into the liability that Police Services Board and Police Chiefs may face on account of the actions committed by other police officers.
Background
This action arose following the arrest of the respondent, Donald Rivard and his girlfriend in September of 2018. Rivard alleged in his amended Statement of Claim that he was forced off the road in his pick-up truck by multiple police vehicles and then dragged from his vehicle window by police officers before being helplessly assaulted by the officers on the ground. He claimed that the officers punched and kicked him to the point of losing consciousness, shattering his shoulder blade and causing him to suffer a seizure and bleeding from his ears. Rivard and his girlfriend were charged with possession of fentanyl and cocaine for the purpose of trafficking.
In his Statement of Claim, Rivard made a claim for damages totalling $9,000,000. He alleged that the Kingston Chief of Police acted negligently in the screening, training, and oversight of his police officers and that the Kingston Police Services Board was directly and vicariously liable for his damages.
Lower Court Decisions
The Kingston Chief of Police and the Kingston Police Services Board later brought a motion to dismiss Mr. Rivard’s claim against them under Rules 21.01 and 25.11.
Rule 21.01(2)(b) allows a defendant to strike out a pleading on the ground that it discloses no reasonable cause of action, while Rule 25.11 permits the court to strike out or expunge all or part of pleading on the ground that it is scandalous, frivolous or vexatious, or is an abuse of the process of the court.
The motion to strike was dismissed, and the respondent’s cross-motion for leave to amend their Statement of Claim was granted. The Police Chief and Board then obtained leave to appeal to the Divisional Court. At the Divisional Court, Justice McCarthy held that the actions against the Police Chief and the Board would proceed.[1]
The Police Chief and Board were then successful in obtaining leave to the Court of Appeal for Ontario.
Court of Appeal for Ontario Decision
The Court of Appeal considered two issues that highlight the potential liability that Police Boards and Chiefs can face when the actions of other police officers rise to negligent or tortious levels.
In particular, the court considered whether:
- The Divisional Court erred in finding that Mr. Rivard’s pleading advances a tenable claim in negligence against the Chief of Police;
- The Divisional Court erred in allowing Mr. Rivard’s action in negligence to proceed against the Police Services Board.
Tenable Claims in Negligence against Chiefs of Police
The Court of Appeal summarized Mr. Rivard’s allegations against the Chief of Police as allegations that he “failed to adequately screen, train, supervise, and discipline officers contrary to the Police Services Act”, resulting in Mr. Rivard’s damages.
In advancing their argument, the appellants stated that these claims were not tenable claims in negligence as “a claim against a police chief is adequately pleaded only where the chief is alleged to have been either directly implicated in the conduct complained of, or only ‘one step removed’ because of an alleged failure that is factually interwoven with the alleged officer misconduct.”
The Court of Appeal did not accept this argument, and stated that Mr. Rivard’s claim in negligence against the Police Chief was consistent with the established principles applicable to actions made against Police Chiefs as seen in Odhavji Estate v. Woodhouse,[2] Miguna v. Ontario (Attorney General),[3] and Miguna v. Toronto Police Services Board.[4]
The Court of Appeal held that at the time of Mr. Rivard’s arrest, the Kingston Chief of Police had a duty “to ensure that members of the police force carried out their duties in accordance with the Police Services Act and the regulations, and in a manner that reflects the needs of the community, and that discipline is maintained in the police force.” The Court also stated that the Chief had a duty of “administering the police force and overseeing its operation in accordance with the objectives, priorities and policies established by the police services board.”
In sum, the Court of Appeal held that Justice McCarthy’s analysis was not erroneous, and that Mr. Rivard had advanced a tenable cause of action against the Kingston Chief of Police.
Claims in Negligence Against Police Services Boards
Prior to the Court of Appeal, the Divisional Court had struck the majority of Mr. Rivard’s allegations against the Police Board on the basis that they alleged the Board had a supervisory role over police operations, which the court found that they do not legally have. This was due to the limitations of the Board’s ability to oversee and direct specific police operations as listed in the Police Services Act, which limits Police Boards to give orders and directions only to the Chief of Police, but not to any other members of the Police Force.
This left only two allegations against the Board for the Court of Appeal to Consider:
- Mr. Rivard alleged that the Board failed to discharge its statutory obligation to provide adequate and effective police services by not sufficiently addressing systemic racism within the police service as well as excessive use of force against visible minorities; and,
- That the Board makes no or insufficient effort to curtail police brutality and by failing to do so has created a systemic problem of abuse, brutality, assaultive behavior by police against the public.
The Kingston Police Service Board conceded that it could be held vicariously liable for torts committed by its police officers, but argued that no material facts alleged that could give rise to a finding that it was directly negligent to Mr. Rivard.
The Court of Appeal agreed with the Police Board, stating that in regard to the first allegation, Mr. Rivard did not allege any facts that connected his racial identity with his arrest, or that his arrest was motivated by racism. The Court stated that Mr. Rivard’s allegation implies that his indigenous identity caused him to suffer greater damages as a result of the arrest, but these allegations could not be grounds to finding liability against the Board.
In regard to the second allegation, the Court of Appeal stated that Mr. Rivard had not alleged any additional instances of police brutality, abuse or assaultive behaviour by the Kingston Police prior to his arrest. Therefore, the claim that there was a systemic problem of abuse and brutality caused by the Board’s inactions could not give rise to liability against the Board.
In sum, the Court of Appeal held that as a result of there being no material allegations of fact against the Board to show that it was directly liable against Mr. Rivard, the Divisional Court had erred in failing to strike these claims. The Court of Appeal determined that only the vicarious liability claim against the Board would stand.
Takeaways
Rivard v. Ontario offers valuable insight into claims made against Police Chiefs and Police Boards for negligence caused by the actions of individual officers.
The case shows that claims against Police Chiefs for failing to properly train, supervise and discipline officers, contrary to the Police Services Act, can be tenable claims, especially when a member of the public has suffered damages as a result of police misconduct.
The decision also supports the finding that in instances of police brutality, claims of direct negligence against Police Service Boards will require sufficient material allegations, beyond a single incident. Police Boards can however, continue to face vicarious liability claims for the actions of their individual police officers.
[1] See Rivard v Kingston Police, 2023 ONSC 6627
[2] Odhavji Estate v Woodhouse, 2003 SCC 9
[3] Miguna v Ontario (Attorney General), 262 DLR (4) 222.
[4] Miguna v Toronto Police Services Board, 2008 ONCA 799