Law Times

Law Times • OcTOber 30, 2017 Page 3 www.lawtimesnews.com Judge throws out lawyer's claim against police BY ALEX ROBINSON Law Times A n Ontario judge has dismissed a $5.4-mil- lion negligence claim brought by a lawyer against the Brantford Police Ser- vices Board. In Painter v. Richardson, Ernest Painter claimed an in- vestigation conducted by officer Ronald Richardson into fraud allegations was negligent and that his law practice had closed down in 1994 as a result of the criminal charges he faced. Superior Court Justice Ger- ald Taylor, however, found Rich- ardson's investigation did not fall below the standard of a rea- sonable police officer at the time of the investigation. Lawyers say the decision serves as a reminder of the high threshold that must be met to bring a successful neg- ligence claim against police. "It's still such an uphill battle for a plaintiff to bring such an action," says Devon Ryerse, a lawyer with Agro Zaffiro LLP, who represented the police in the case. Painter was charged in 1992 with fraud, obtaining credit by fraud, perjury and obstructing justice. But the proceedings were dropped after it became clear at a preliminary hearing that the information charging Painter had never been sworn. The charges came from alle- gations that Michael Lewicki, a former client of Painter's, made after the two were involved in an unsuccessful business venture together in the 1980s. After the venture fell apart and years of lit- igation between the two ensued, Lewicki, who died in 2006, made a complaint to the Law Society of Upper Canada and the police claiming Painter had charged him a criminal interest rate. Once the proceedings were dropped, Painter decided to bring a lawsuit against the police. Lawrence Greenspon, a certi- fied specialist in both criminal defence and civil litigation, says negligence cases against the po- lice are very difficult cases right from the start. "The vast majority of police officers are doing a very tough job and doing it well," says Greenspon, who was not in- volved in the case. "But there are some that are not doing their job well and civil action is the only realistic rem- edy for people who have been wronged by police negligence or excess force." Painter submitted that the impact of the criminal charges had an immediate impact on his practice, leading to it closing down in 1994. He claimed dam- ages for the loss of income from his law practice and loss of other investments, as he has not prac- tised law since the 1990s. Painter is now listed in the law society's directory of lawyers as "administratively suspended." While Painter blamed the failure of his practice on the criminal charges, Taylor found the firm was already "in sham- bles" by 1991, before the charges were brought. "I accept that a lawyer who is charged criminally will face some adverse consequences af- fecting his professional reputa- tion," Taylor wrote in the deci- sion. "However, once the pros- ecution was terminated, Ernest Painter could have continued practicing and explained to for- mer and future clients that al- though he had been charged he had never been convicted." Taylor confirmed that the standard of care in such inves- tigations is not perfection and that a reasonable officer, judged in the circumstances at the time the decision was made, can make mistakes without breach- ing the standard of care. The judge found that the investiga- tion was appropriate based on the available evidence and that no evidence had been fabricated or withheld in order to convince the Crown to lay charges. Stuart Zacharias, a lawyer who has defended police in neg- ligence claims, says the decision emphasizes the importance of the fact that the Crown reviewed and approved the charges and went ahead with the preliminary enquiry. "Let's not forget that the po- lice are just one set of actors in the criminal justice system," says Zacharias, a partner with Lern- ers LLP, who was not involved in the Painter case. Zacharias says the decision reaffirms that the standard in such cases is not one of perfec- tion viewed in hindsight. Law- yers say that the court has to consider the information avail- able at the time of the investi- gation, as well as what was con- sidered acceptable investigative conduct at that time. "By no means was the inves- tigation perfect, [but] the take- away point is that the investi- gation is assessed based on the time the investigation occurred," says Richard MacGregor, one of the lawyers who represented the police in Painter. "You're looking at police of- ficers from the time of the inves- tigation, not now [and] today's standards." In his decision, Taylor de- scribed Painter as someone who sees himself as a victim when things do not turn out the way he hopes and that he "views his world through his own prism." Taylor also noted in the de- cision that Richardson "was not found not guilty after trial" and that the proceedings were dropped because the charging information had not been prop- erly sworn. "In my view, that is very dif- ferent than a finding that Ernest Painter committed no criminal offences and was completely innocent of the charges which were brought against him," the judge wrote. Bruce Hillyer and Stephen Abraham, who represented Painter in the claim, did not respond to a request for com- ment. LT NEWS Devon Ryerse says bringing a negligence action against the police is an uphill battle. 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