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Court File No.:
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IN THE COURT OF APPEALS OF NEW BRLINSWICK

APPEAL FROM THE COURT OF QIjEEN'S BENCH OF NEW BRUNSMCK

BETWEEN:
THERESA JO}IES

(Plaintitr)
APPELLANT

-and-

THE ATTORNEY GEI{ERAL OF CANADA AS REPRESENTATIVE OF

TIIE ROYAL CANAI}IAN MOUNTED POLICEO AND JOHN PITCHER

(Defendants)
RESPONDENTS

NOTICE OT'APPEAL
(FORM 628)

The appellant appeals to the Court of Appeal from the decision of the Court of Queen's
Bench ofNew Brunswick dated the 2nd day of March,2018.

The appellant asks that the motion decision be reversed (cancelled) and that a new
decision (order) be granted;

Further, the appellant asks this Honourable Court to grant leave to amend the Notice of
Appeal as it deems necessary, just and fair.

The appellant applies for a stay of the judge's decision relating to costs pending the
determination of the appeal.

The appellant's grounds for this appeal, relying on rule 62 of the Rules of Court of New
Brunswick, are as follows:
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1) The Court erred in law by omitting to take into consideration the material facts
pleaded by the Appellant that she alleged the defendants "obstructed justice and

conspired to obs.truct justice" during the administation of their duties with respect

to her complaints of alleged crimes purportedly committed against her by a third

party arfi, in their duty to investigate these purported crimes, in contrast the Court
inferred the Appellant merely alleged the defendants' "failed in their duty to assist
her" in relation to same. (para I of the Deeision)
2) The Court erred in law by omitting to take into consideration the material facts
pleaded by the Appellant that she alleged the defendants were negligent when they

failed in their dutv to assist her in pursuing complaints of administrative

misconduct on the part of the R.C.M.P. and its members, in contrast the Court
inferred the Appellant merely alleged the defendants failed to assist her. (para 2 of
the Decision)
3) The Court further erred in law by omitting to take into consideration the material
facts pleaded by the Appellant that she alleged the defendants were negligent when
they failed in their dutv to assist her in pursuing complaints of criminal obstruction
ofjustice on the part of the R.C.M.P. and its members, in contrast the Court omitted
these material facts from the decision. (pxaZ of the Decision)
4) The Court erred in law by omitting to take into consideration that fact that the
Appellant's pleadings and material facts presented at the motion hearing held
November 9,2017, constituted the sole indicator of the basis upon which the
plaintiffsought to proceed to trial.
5) The Court erred in law by omitting to take into consideration the Appellant's
request in her motion brief for leave to be granted to amend the Statement of Claim

(Plaintiff s Brief on Motion para. 41).

6) The Motion Judge erred by not providing sufficient weight to the plaintiff s request
to amend her Statement of Claim in place of being "driven from the judgment seat".
7) The Court erred in law by omitting to take into consideration paragraph 204 of the
Statement of Claim (para. 8 of the Decision), where the Claim pleads that, "the

above noted "actions" of the "Defendant RCMP" and the "Defendaot Jitcher""
(referring to the "actions" of the'Negligent Individuals")"*" contrary to, but not
 3

limited to being contrary to ... the RCMP Acf', specifically Part VII of the Royal
Canadian Mounted Police Act (herein the "RCMP Acf') which specifies that
members of the Force have a statutory duty to assist any indiyidual and to facilitate

and cooperate with that individual throughout the complaint process, [Claim at

paru.204,204(b)1, as was pleaded by the Appellant at the motion hearing.

8) The Court erred in law by omitting to distinguish the decision Wellington v.
Ontario 2011 ONC A274, on the fact that this case is not a question of whether the
defendants' owed the plaintiffa private law duty of cme when it conducted its

criminal investigations.
9) The Court erred in law by omiuing to further distinguish the decision Wellington v.

Ontario 201 1 ONC A 27 4, on the fact that this case is not a question of whether the
defendants' owed the plaintiffa private law duty of care when it conducted its
investigations into complaints of administrative misconduct.
10) The Court erred in law by omitting to still further distinguish the decision
Wellington v. Ontario 2011 ONC A274, on the fact that this case does not make the
proposition that the police owe victims of crime a private law duty of care in
relation to the "investigation of alleged crimes". (para. Ll 20 of the Decision)
11) The Court erred in law by omitting to distinguish the decision Wellingtonv.
Ontario 201I ONC A274, on the fact that this case pleads the defendants did
engage the plaintiffin a relationship, creating proximity, by way of the public
complaint process, Pafi YII of the RCMP Act.
12) The Court erred in law by omitting to distinguish the decisiontr/otis v. Gatien
(2001),56 O.R. {3',\ 441, t200U O.J. No. 4415 (C.A.), on the fact that this case
pleads negligence on the part of the defendants for failing in its duty to ensure the

defendants adhered to statutory obligations the RCMP Act, Part VII, imposes,

relating to Complaints.
13) The Court erred in law by taking the Statement of Claim out of context and failing
to distinguish between much of the Statement of Claim's details as to the
circumstances which provide the basis of the pleadings and the grounds pleaded by
the Appellant for misfeasance and negligence.
 4

14) The Court erred in law by omitting to take into consideration that the Appellant, at
the motion hearing, aforesaid, pleaded misfeasance (malfeasance) on the part of the
Respondents (defendants).

15) The Court erred in law by omitting to take into consideration case law cited by
defence counsel in odhauji Estate v. Woodhouse,800313 SCR 263,2003 SCC 69

(canLII), wherein he quoted from his brief at page 70, paragraph 51, *the tort of
misfeasance in public office can arise . .. through conduct of a public officer who

acts with knowledge that he or she has no power to do the act complained of and
with knowledge that the act is likely to injure the Plaintiff."
16) The Court erred in law by omitting to take into consideration that "the facts of the
motion to strike are taken as pleaded", (Odhauji Estate, supra) in relation to
misfeasance, the Statement of Claim pleads each of the constifuent elements of the

tort (misfeasance). At paragraphs 61, 97, 107, 115, 155, 156, and 201(c) of the
Claim the plaintiffspecifically alleges obstruction ofjustice and conspiracy to
obstruct justice, the facts of which were presented by the plaintiffat the motion to
strike, such facts ought to have been taken as pleaded.
17) The Court erred in law by omitting to take into consideration the fact that the
plaintifi at the motion hearing, pleaded and relied on her statements that the

defendants criminally obstructed justice both in the course of their criminal

investigations and in the course of their investigations into her complaints of

administrative mi sconduct.
18) The Court erred in law by omitting to take into consideration the alleged breaches
of the Criminol Cade of Canada, pleaded and referred to herein, which, taken as
pleaded, constitute deliberate, unlawful breaches of statutory duties and satisff the
requirements of the tort for misfeasance; (1) deliberate, unlawful conduct in the
exercise of public functions, and (2) an awareness that the conduct was unlawful

and likely to injure the plaintiff. (Odhauji Estate, supra)

19) The Court erred in law by omitting to take into consideration case law provided by
defence counsel in Odhouji Estate, supra, wherein the Supreme Court of Canada

held:
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'the officers' alleged failure to cooperate with the SIU investigation and the
Chiefs faihne to ensure that they did cooperate both constitute unlawful
breaches of statutory duties under the Police Services Acl. The allegations that
the officers' acts and omissions "represented intentional breaches of their legal
duties as police officers" satisfies the requirement that the offrcers were aware
that their conduct was unlawfrrl and that it was intentional and deliberate. The
allegation that the Chief deliberately failed to segregate the offrcers satisfies the
requirement that he intentionally breached his legal obligation to ensure
compliance with the Police Services Act."
20) The Court erred in law by omitting to take into consideration that the Statement of
Claim pleads that the Respondents deliberately failed to ensure adherence to their
legal obligations of statutory duties underthe RCMP Act, Part VII, complaints,

among other deliberate and unlawful breaches of the RCMP Act, which, taken as
pleaded, satisfies requirements of the tort of misfeasance, the facts of which were
pleaded by the plaintiff at the motion hearing, such facts ought to have been taken
as pleaded.

21) The Court erred in law by omitting to take into consideration that the Supreme
Court of Canada ruled, n Odhauji Estates, supra, that the actions in misfeasance
against the police offices and the Chief were allowed to proceed. The Court

specified:
*if the facts of the motion to strikeare taken as pleaded, it is not plain and
obvious that the actions for misfeasance in a public office against the police
offrcers and the Chief must fail."
22) The Motion Judge erred by not providing sufficient weight to the plaintiffs
pleadings relating to misfeasance.
23) The Court erred in law by omitting to take into consideration that the Appellant
pleaded negligence on the part of the Respondents in relation to Part VII of the
RCMP Act. The plaintiffpleaded therein that, but not limited to, the defendants
unlawfully were neglieent when they failed in their duty to assist her with initiating
complaints against the defendants, contrary to the RCMP Act, Part VlI.
24) The Court erred in law by omitting to further distinguish the decision Norris v.

Gatien (2001), 56 O.R. (3',\ 441, t200U O.J. No. 4415 (C.A.), on the fact that the
Appellant in this case pleads that the statutory obligations the RCMP Act, Part VII,
 6

imposes created a proximity and caused the defendants to owe a duty of care to the

Appellant, the individual complainant.

25) The Court erred in law by omitting to take into consideration the fact that the
Appellant pleaded the defendants' statutory obligations the RCMP Ac| Part VII,
imposes caused a situation of proximity between the defendants and the plaintiff.
26) Tbe Court erred in law by omitting to take into consideration that the plaintiff
pleaded the defendants' negligence arose out of its intentional failure to comply

with its duty to assist a complainant in making a complaint against one or more of
its members.

27) The Court erred in law by omitting to take into consideration the fact that the
Appellant pleaded the defendants knew that it is reasonably foreseeable that failure
to perform such obligations the RCMP Act, Part VII, imposes would harm the
Appellant (plaintifVcomplainant).
28) The Court erred in law by omitting to take into consideration that the Supreme
Court of Canada held, in Odhauji Estates, supra, that the action in negligence
should be allowed to proceed against the Chief of Police. The Court specified:

"the circumstances of this case raise a prima facie duty of care owed by the
Chief to the plaintiffs. First, it is reasonably foreseeable that the officers'
failure to cooperate with the SIU investigation would harm the plaintiffs. As
the Chief was responsible for ensuring that cooperation, it is reasonably
foreseeable that his failure to do so would harm the plaintiffs. Second, a finding
of proximity is supported by the relatively direct causal link between the alleged
misconduct ... and the complained of harm, and by the fact that members of
the public reasonably expect a chief of police to be mindful of the injuries that
might arise as a consequence of police misconduct. The public expectation is
consistent with the statutory obligations the Police Services Acr imposed on the
Chief."

29) The Court erred in law by omitting to take into consideration that the Appellant
pleaded the Respondents' deliberately neglected similar responsibilities as those

referred to in Odhauji Estates, supra, those of ensuring its officers cooperate with

statutory obligations, not limited to the complaints process as outlined in the RCMP
Act, Part VII, the facts of which are pleaded in the Statement of Claim and were
 7

respectively pleaded by the plaintiff at the motion hearing, such facts ought to have

been taken as pleaded.

30) The Motion Judge erred by not providing sufficient weight to the plaintiff s

pleadings presented at the motion hearing relating to her pleadings of negligence as

it relates to Part VII of the r

\.',.j'4
DATED at the Town of Perth-Andover, this'.d :{' day of March, 2018.

Theresa Jones Attorney General of Canada

60 Route 390 Atlantic Regional Office
Carlingford. NB E7H 4J5 Civil Litigation and Advisory Services
E-rnail address: tjones9l 216@gmail.com 5251 Duke Street, Suite 1200
Telephone number: (506) 819-01 13 Halifax, NS B3J I P3
Fax (902) 426-2329

Appeflant (Plainrffi Counsel for the Respondents (Defendants)