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OTTAWA POLICE SERVICES BOARD COMMISSION DE SERVICES POLICIERS D’OTTAWA
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Working together for a safer community La sécurité de notre communauté, un travail d’équipe |
MEMORANDUM NOTE DE SERVICE |
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DATE 30 July 2012
TO/DEST. Executive Director, Ottawa Police Services Board
FROM/EXP. Board Solicitor
SUBJECT/OBJET LEGAL SERVICES REPORT: SECOND QUARTER 2012
RECOMMENDATION
That the Ottawa Police Services Board receive this report for information.
BACKGROUND
The City Clerk and Solicitor Department is a full-service, in-house law practice that provides a broad range of services to the Police Services Board in the areas of civil litigation, labour and employment law, procedural and general legal advice, corporate/commercial/development and environmental law. The Department’s objective is to achieve this through the most cost-effective and efficient combination of both in-house and external lawyers. In this latter regard, the Department has a Strategic Standing Offer (SSO) with two law firms for the provision of external legal services. The new SSO was negotiated for the period 2011-2014 and provides for very favourable, blended hourly rates set for the duration of the four-year term.
Pursuant to Section 6.1 of Board Policy #GA-8 – Legal Services, the Board Solicitor shall submit a report to the Board on a quarterly basis that includes statistical information and concise analysis of trends on:
- positive and negative variances against the approved budget;
- all claims or actions filed against the Board including how many have been filed, how many are outstanding, how many have been settled, the nature of them (categorized by type), and the cost of settlements;
- the number, cost and outcome of all appeals and applications for judicial review;
- any issues of significance the Board should be advised of.
In compliance with Section 6.1, this report provides the requested information with respect to the second quarter of 2012.
Ottawa Police Service2012 Second Quarter Costs of Legal Services
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Item |
Q1 Q2 Q3 Q4 |
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Internal Costs |
$66,810 $ 40,785 $ $ |
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External Costs |
$17,819 $100,798 |
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Disbursements |
$ 5,154 $ 2,019 |
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2012 Total |
$89,783 $143,602 |
DISCUSSION
2012 Budget
The Police Services Board has allocated $313,900 for the provision of legal services in 2012. At the completion of the second quarter, $233,385 or approximately 74% of the budget was spent. The adjacent chart sets out expenditures for the second quarter (rounded out for space purposes). The second quarter costs reflect the significant staff time devoted to representing the Board, both at trial as well as at mediations, discoveries and settlement conferences. The external legal costs are with respect to two matters: a Human Rights Tribunal case and a matter involving a pension dispute arising out of the transfer of Ontario Provincial Police officers to the then Ottawa-Carleton Regional Police Force, in and around 1998. In light of the legal costs incurred to date as well as anticipated hearings, mediations and case management on behalf of the Board, a deficit of approximately $40K is forecasted for year end.
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Type of Claim |
Number |
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False Arrest |
25 |
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Seizure of Personal Property |
0 |
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Breach of Charter of Rights |
5 |
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Personal Injury |
3 |
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Excessive Force/Assault |
12 |
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Malicious Prosecution |
1 |
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Negligence/Negligent Investigation |
5 |
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Vehicle/Property Damage |
2 |
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Trespassing |
0 |
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Perjury |
0 |
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Other |
12 |
2012 Litigation Claims
Eight Statements of Claim were received on behalf of the Police Services Board in the second quarter of 2012. Currently there are 65 outstanding claims/notices of claim against the Board. Five of those claims are with external legal counsel as directed by the Board’s insurer or due to the requirement for a specialized legal expertise. The remaining 60 claims are assigned to various in-house Legal Counsel. Ten claims are at the mediation stage and/or are awaiting Settlement Conference dates. The adjacent list sets out the number of current litigated claims by category or type.
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Type of Matter |
Number |
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Termination |
1 |
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Workplace Safety & Insurance Board |
14 |
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Ontario Human Rights Complaint |
14 |
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Other |
2 |
2012 Labour and Employment Law Matters
In addition to the above civil litigation claims, the City Clerk and Solicitor Department is currently managing 31 labour and employment law matters on behalf of the Police Services Board, with four new claims received in the second quarter of 2012. The adjacent list sets out the number of current labour and employment law matters by category or type. All of the labour and employment law matters are assigned to in-house Legal Counsel.
SIGNIFICANT ISSUES
There were no significant issues to report during the second quarter.
RESPONSE TO INQUIRY
At its meeting of April 30, 2012, Member Jensen submitted an inquiry following the Board’s receipt and consideration of the Legal Services quarterly report for the first three months of 2012. That inquiry focused on the number of claims citing false arrests and the use of excessive force brought against the Ottawa Police Services Board, and requested an analysis of any emerging trends. Set out below is Legal Services’ response to that inquiry.
At the outset, it should be noted that claims against the Police Services Board generally defy easy categorization. The reason for this is that plaintiffs and their legal counsel tend to adopt what might be termed a “shotgun” approach in statements of claim, citing all conceivable causes of action. Rarely is a statement of claim restricted to a single cause of action. For example, a plaintiff who has been acquitted of criminal charges may advance a claim alleging wrongful arrest and detention, excessive force (due to the allegation that any use of force on arrest was unwarranted), malicious prosecution, breach of Charter rights, and so on. Following the Supreme Court of Canada’s October 2007 recognition of negligent investigation as a new cause of action, this new tort became part of the “boilerplate” set of allegations contained in the majority of policing claims. As a result, though a claim may be framed in false arrest or excessive force, the substantive element of the allegation may not be clarified until later in the litigation process when the plaintiff is required to provide more details about the specific allegations that have been put forward.
A review of the claims against the Ottawa Police Services Board received by Legal Services since 2004 shows no significant increase in the numbers filed. In 2004, there were 22 statements of claim filed against the Police Services Board in which plaintiffs made allegations of improper policing conduct. There were 26 such claims filed in 2011, with three of those having been filed by a single plaintiff who has since been declared by the courts to be a frivolous and vexatious litigant. To date, seven claims alleging police misconduct have been filed in 2012. During the 2004-2012 period, the total number of claims peaked at 30 in 2010 and reached a low of 10 in both 2007 and 2008.
It should be noted that Legal Services tracks claims based on when they are received. However, because plaintiffs need only file a claim with the court within two years of the date of the alleged incident(s) and have a further six months in which to serve it on the Police Services Board, there can be a significant delay between the event giving rise to a claim and its receipt by Legal Services. Nevertheless, a review of the number of claims made against the Ottawa Police Services Board since 2004 discloses no discernible trend, nor does it suggest that there has been any significant increase in the number of such claims.
As a further caveat, it must be remembered that a statement of claim is based solely on allegations, many of which may be shown to be unfounded once a more comprehensive review of the evidence is available. For example, as noted in the Legal Services Q1 2012 report, two matters involving claims totalling more than $850,000 were dismissed by the courts earlier this year after separate weeklong trials. Two other claims alleging false arrest and malicious prosecution in which the plaintiffs were seeking damages totalling $1.37 million were also dismissed by the courts earlier this year for administrative reasons. Accordingly, an analysis solely of claims made against the Police Services Board is likely to offer little insight into any trends in policing or policing methods.
A review of amounts paid on behalf of the Police Services Board either as a result of negotiated settlements or court decisions is similarly uninformative in terms of disclosing trends or developments in police litigation. This is due, in large measure, to the fact that there are relatively few of such matters and a single settlement or award can unduly affect the annual total of the amounts paid. By way of example, the amounts paid annually between 2008 and 2011 are as follows:
2008: $162,750
2009: $486,500
2010: $170,671
2011: $222,300
In both 2009 and 2011, the totals were heavily influenced by single large settlements, both of which involved claims arising out of motor vehicle accidents and not police-specific claims, such as false arrest.
Based on the above, a review of the claims made against the Police Services Board, as well as the amounts paid, over the last years does not reveal any real trend or pattern. Though it could be anticipated that such things as media stories regarding allegations of police misconduct may give rise to an increase in the number of claims filed, the relatively stable number of claims suggests that any such influence is limited. In addition, given that claims are founded on allegations of perceived, and not necessarily factual, misconduct, an analysis of claims made against the police is unlikely to provide evidence of changes or developments in policing methods or approaches. Similarly, the annual amounts paid out in resolution of claims, either as a result of settlements or court awards, do not provide evidence of any trends in terms of police litigation.
CONSULTATION
As this report was administrative in nature, consultation was not required.
FINANCIAL STATEMENT
As presented in this report.
CONCLUSION
It is anticipated that the third quarter report for 2012 will be presented to the Board at its October 2012 meeting.
(Original signed by)
M. Rick O’Connor
Board Solicitor