Sample Case Brief

Style of Cause (Case Name) and Citation: McLean v McLean, 2017 SKQB 127

Procedural History: This is an application by the defendants to the Saskatchewan Court of

Queen’s Bench. They want the court to strike a claim brought against them by the plaintiffs.

Facts: Commented [SMK1]: Context + Material to decision

• The defendant P threatened the plaintiffs with a gun. He subsequently violated a no

contact order that ensued from the threat.

• P pled guilty and was convicted of offences relating to the threats.

• The charges relating to violation of the no contact order were stayed. P received a
suspended sentence and probation along with a fine and a firearm prohibition.

• The plaintiffs did not have an opportunity to provide victim impact statements prior to
P’s sentencing.

• P was married to the defendant B, who was a former RCMP officer.

• The plaintiffs sued the defendants, alleging that the RCMP had (for an improper purpose)
negligently investigated the criminal case and covered up P’s criminal acts. The claims
were for negligent investigation and misfeasance of public office.

• The plaintiffs claimed to have suffered from mental stress and anxiety and for costs
incurred to order the transcripts of P’s criminal proceedings along with costs and losses
associated with needing to divide the farming property that had previously been operated
by P and the plaintiff D.

Issue(s): Did the facts as pled in the Statement of Claim fail to establish a reasonable cause of Commented [SMK2]: Factual element

action, as a result of which the Statement of Claim should be struck? Commented [SMK3]: Legal Principles

Decision: The application was allowed, except one claim by the plaintiff D against the defendant
P.

Reasons:
Rules:

1. Queen’s Bench Rules, rules 7-9 establish that on applications to strike a claim for no
reasonable cause of action, all of the facts pled must be assumed to be true, pleadings
must be read generously, plaintiffs must plead enough foundation for the causes of
actions pled, and pleadings should only be struck where it is plain and obvious that there
is no chance of success.
 2. [Para 12] According to Supreme Court of Canada decisions (and other jurisdictions),
damages must consist of physical injury or recognizable psychiatric illness before
recovery in tort is possible.
3. [Para 14] The BCCA in Thompson v Saanich (District) Police Department established
that even where there are several reasons for a Statement of Claim to be struck, a party’s
failure to plead that they had suffered compensable injuries was “on its own” sufficient to
strike a claim.
4. [Paras 24-25] Norris v Ontario (Ont CA) held that police officers do not owe a private
duty of care in relation to the investigation of alleged crimes other than exceptional
circumstances such as a duty to a particular suspect under investigation or to warn a
narrow group of potential victims of a specific threat.
5. [Paras 26-28] Exceptional circumstances existed giving rise to a duty of care in Jane Doe
v Metropolitan Police, Beckstead v Ottawa, and Patrong v Banks.
6. [Para 31] The SCC in Odjavji Estate v Woodhouse established that misfeasance of public
office requires both deliberate unlawful conduct in the exercise of public functions and an
awareness that the conduct is unlawful and likely to injure the plaintiff.

Application of Rules:

1. Foundations for the causes of actions were not properly pled.

2. [Para 13] The mental stress and anxiety pled by the plaintiffs did not amount to
psychiatric illness as required for recovery in tort.
3. [Paras 15-19] Of the other damages claimed, only the expenses and damages associated
with dividing the farm property might be compensable. This narrow claim between the
plaintiff D and Defendant P would not be struck.
4. [Para 27] The police did not know that the defendant P intended to threaten the plaintiffs.
These circumstances were distinguishable from Jane Doe and Patrong v Banks, where
the police knew that the plaintiffs were in danger. This was not an exceptional case where
a private duty arose in relation to a public investigation.
5. [Para 32] Given that the defendant RCMP did not know that the plaintiffs were in danger
of threat from the defendant P, the second part of the test for misfeasance of public office
was not satisfied.

Ratio: The Claim failed to disclose a reasonable cause of action in tort where no recognized
damages were pled, and where the elements of negligent investigation and misfeasance of
public office are not pled. In such circumstances, the Claim will be struck.

Notes (if required):

• The court also dealt with vicarious liability and with amendment of pleadings.
• The court also reiterated that statutory breaches in and of themselves did not confer a
civil right of action.

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• The court articulated an overarching policy statement at para 59: “Fundamental to our
criminal justice system is that crimes are wrongs against society as a whole. Not against
individual citizens. Not against victims. It is the public interest, not private interests, that
are served by sentencing.”