Mystery customer present during police killing of Ontario gunsmith files $2.6M lawsuit against TPS, family estate

An unidentified customer who was present during the fatal shooting of a Port Dover, Ont. gunsmith by Toronto police has launched a $2 million lawsuit against the service and the slain man’s estate, claiming he was placed in unnecessary danger during the November 2021 raid.

The lawsuit, filed on behalf of a customer of gunsmith Rodger Kotanko, alleges that both the Toronto Police Service (TPS) and Kotanko within his role as a business owner, put him in unnecessary danger when a warrant was executed on the Simcoe County workshop on Nov. 3, 2021.

During the raid, Kotanko was fatally shot by a Toronto police officer. He was 70-years-old.

The statement of claim was filed in August on behalf of the customer, who is only referred to as C.W. in order to protect his identity.

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It alleges that C.W., as the sole customer at the time of the raid, was not informed by police of the impending warrant execution and that officers used excessive force against the two men.

It also states that Kotanko is in part to blame for his own death and the harm inflicted on C.W. by inviting his customer into an establishment allegedly involved with criminal activity.

“Fortunately, most of us can only imagine how life-changing such an event would be,” legal representative Kevin Egan, who is representing C.W., told CTV News Toronto in a statement. “My client was extremely traumatized by what he witnessed. He saw a man with whom he had just been conversing, suddenly shot to death within feet of where he stood. Police, at the same time, threatened to shoot him if he moved a muscle. Then they forced him to the ground and handcuffed him to the rear, guns still trained on him.”

Alongside C.W.'s recent legal action, Kotanko’s family has also filed a civil lawsuit against TPS, alleging Kotanko met a wrongful death and that police executed the warrant unlawfully. They are seeking $23 million in damages.

The claims outlined in both lawsuits have not been tested in court, though it should be noted that an investigation conducted by Ontario’s Special Investigations Unit (SIU) found "no reasonable grounds to believe" the officer who shot Kotanko broke the law. That investigation also indicated that the sole customer present at the time of the raid and police both agreed that Kotanko didn't obey officers' commands before being shot.

When reached for comment, the Toronto Police Services Board told CTV News Toronto it could not comment on either lawsuit while they remain before the courts. Legal representation for the Kotanko family, Michael Smitiuch, said C.W.’s lawsuit comes as no surprise to his clients considering the events of the raid. He denied any wrongdoing on the gunsmith’s part.

An officer discharged a firearm during a warrant in Port Dover (Colton Wiens / CTV Kitchener)

POLICE NEVER WARNED CUSTOMER: LAWSUIT

According to the 15-page claim, C.W. had purchased a gun from Kotanko prior to the Nov. 3 raid, but was having trouble with it jamming.

On the day that Kotanko was killed, Toronto police officers travelled more than 150 kilometres outside of their jurisdiction in three unmarked police cars to the gunsmith’s workshop, it alleges.

Kotanko was not present at the workshop at first and C.W. waited in his driveway for more than an hour. Despite this, the claim alleges that C.W. was never warned the raid was about to take place.

“At all times, C.W. was clearly visible in the driveway,” the document reads. “No police approached C.W. while he was on the driveway [...] [He] was not afforded any opportunity to leave in advance of the planned raid.”

The claim says C.W planned on leaving his gun with Kotanko and returning later, but that Kotanko convinced him to stay, saying the work would only take a short amount of time.

So, C.W. stayed, according to the claim – a decision that would see him present for Kotanko’s killing.

SEARCH WARRANT EXECUTION

According to the claim, Kotanko was repairing C.W.’s disassembled gun with the door to the workshop left ajar when officers with TPS burst through the door, ordering Kotanko to raise his hands above his head.

The claim alleges Kotanko did not comply with the orders. Officers then shot Kotanko four times, according to the claim and subsequent SIU investigation.

The claim says C.W. was forced to witness Kotanko “abruptly and violently be killed in front of his eyes.”

“C.W. saw each bullet penetrate Kotanko, watched him get blown off the chair and lie on the floor with holes in his clothing,” the claim reads.

Having just shot Kotanko, an officer then allegedly turned to C.W. and yelled, “Don’t you move a f***ing muscle. If you do, you’re dead.”

“My client was extremely traumatized by what he witnessed,” Egan said. “He saw a man with whom he had just been conversing, suddenly shot to death within feet of where he stood.”

C.W. was "manually pulled and forced" face down, according to his claim. He says his hands were cuffed behind his back while officers’ guns were still trained on him and then placed on a front porch alongside Kotanko’s wife.

Police provided little compassion to Kotanko’s wife, who was trembling and crying, the claim reads. The incident left C.W. “visibly” and “uncontrollably” shaking from nervous shock, it reads.

$2.6M SOUGHT FROM POLICE, KOTANKO ESTATE

The lawsuit seeks $2,600,000 from the plaintiffs, alleging that the police’s failure to properly plan and execute the raid, alongside Kotanko’s failure to protect a customer, has taken a significant toll on his mental and physical wellbeing.

Nearly two years after the killing, C.W. is still attending therapy for a diagnosis of Post Traumatic Stress Disorder (PTSD), according to his lawyer.

“[My client] continues with therapy,” Egan said. “Whenever we need to discuss the facts of this case, his anxiety level increases and his symptoms are exacerbated.”

The impairment caused by these affiliations has rendered him unable to work, complete chores, or participate in social activities, he claims. C.W.’s adult children are also seeking damages, under Ontario’s Family Law Act, claiming that they will be required to provide their father with assistance going forward, and that the incident left them with a loss of care, guidance and companionship.

While the Kotanko family’s lawyer, Smituich, denies any allegations that suggest Kotanko was responsible for the incident, the lawyer says numerous points outlined in C.W.’s civil suit bolster the Kotanko’s family’s wrongful death suit.

“In our view, the lawsuit from the customer bolsters our position that Rodger was fixing an inoperable gun, one that was not capable of firing [at the time of his death],” Smitiuch said.

“It also bolsters our claim that Toronto police completely botched this raid, resulting in unnecessary bloodshed.”

When asked about the assertions that Kotanko failed to protect C.W. within his role as a business owner, Smitiuch denied any wrongdoing.

“In any event, the manner in which this raid was planned and carried out was completely wrong – someone should not have died when the police were simply trying to execute a search warrant.”