Kofi Patrong has won the right to sue the Toronto Police — again.

In the latest development in a years-long legal saga, an Ontario divisional court this week struck down an appeal by Toronto police that would have stopped Patrong, 31, from suing the force for its alleged role in a 2004 gang-related shooting that left him with a debilitating leg injury.

Since 2011, Patrong has been attempting to sue police for negligence, claiming officers could have prevented the now-convicted murderer, Tyshan Riley, from shooting Patrong in a case of mistaken identity.

“I immediately started to thank the Lord and I started crying,” Patrong said Thursday, shortly after learning he can proceed with his $9 million lawsuit.

Patrong was 19, with no gang affiliations and no criminal record, when he became an accidental victim in a bizarre case of mistaken identity during a time of tense gang warfare between two rival Scarborough gangs, the Malvern Crew and the Galloway Boyz.

On April, 2004, Patrong was hanging out with friends in the backyard of a Malvern townhouse complex over lunch when he was suddenly shot by Riley, a notorious member of the Galloway Boyz. It was found in court that Riley had mistakenly believed those in the group were members of the rival Malvern Crew.

At the time of the shooting, Riley was the main suspect in a prior shooting, and it was believed he posed a major threat to public safety. Riley was being wiretapped and trailed by police on the day Patrong was shot.

In 2011, Patrong and his mother Rose launched a lawsuit against Toronto police, alleging police had both the grounds and the opportunity to arrest Riley before he could harm anyone, but chose not to intervene.

The suit was based on the so-called Jane Doe case, in which a rape victim won a lawsuit against Toronto police for failing to warn women about the “balcony rapist,” now-convicted rapist Paul Callow.

Police in that case detected a very specific pattern: the rapist entered the apartments of single, white women living in the lower units with balconies in the Wellesley and Church Sts. area. But investigators failed to notify possible victims because they didn’t want to alert the attacker to the fact that they were gathering evidence.

The lawsuit argues that police should have known Patrong was at a high risk of being victimized by Riley because he fell into a category of men who may be targeted by Riley: young, black men in Malvern who could be perceived as gang members.

The lawsuit names the Toronto Police Services Board, then-police chief Julian Fantino, and Al Comeau and Wayne Banks, two detectives investigating Riley at the time Patrong was shot.

But Patrong’s lawsuit has encountered several legal hurdles. In 2013, Ontario Superior Court Justice Victoria Chiappetta rejected Patrong’s lawsuit saying he failed to establish the “special relationship” between police and the victim that would make the officers accountable to Patrong.

The lawsuit did “not support that Patrong was readily known to the police as a target of the foreseeable harm,” he said.

His lawyers Barry Swadron and Kelley Bryan revised the lawsuit, using data from previous gang-related shootings to narrow down a more specific location where a drive-by shooting was likely to occur — the few blocks near the Malvern Town Centre, when Patrong lived.

In May, 2015, Ontario Superior Court Justice Frederick Myers gave the green light for the revised lawsuit, ruling that if the allegations in the suit are proven, “(Patrong) and others in the neighbourhood had the right to expect the police to arrest Riley before he committed another drive-by shooting.

“It is fair, just and reasonable that the defendants ought to compensate the plaintiffs for the injuries that were sustained due to the defendants’ wrongful acts,” Myers wrote.

Lawyers for Toronto police board, Fantino and the two named detectives then appealed Myers’ ruling, but a panel of divisional court judges dismissed that appeal this week.

Toronto police could still appeal to the Court of Appeal. Kevin McGivney, one of the lawyers representing Toronto police, said Thursday the ruling is being reviewed and no decision has been made about an appeal.

The case raises a difficult issue, he said: the degree to which police can be sued for harm caused by other people.

“It’s a challenging issue with broad implications,” he said.

Patrong, a father of two, spent over a month in hospital after the shooting, and almost lost his leg. Twelve years later, he still has chronic pain and walks with a pronounced limp.

He and his mother Rose — who still works full time at a bank — are getting frustrated with the delays. “She would like to retire,” Patrong said.

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Swadron, one of Patrong’s lawyers, says Toronto police should stop “fighting Kofi tooth and nail all the way.”

“My hope would be that the whole issue of Kofi’s compensation is not going to be held up in some perpetual appeals,” said Marshall Swadron, who represented Patrong on the latest appeal. “It’s time for them to stop, I hope they will.”

Wendy Gillis can be reached at wgillis@thestar.ca

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