Executive Summary: Key Legal and Evidentiary Issues

• Liability of the territorial government for inmate-on-inmate violence while in custody.

• Standard of care owed by correctional authorities under negligence law.

• Applicability of vicarious liability to the Commissioner of the Northwest Territories.

• Weight and cost implications of informal settlement offers (Calderbank letters).

• Relevance of public interest considerations in costs awards against unsuccessful plaintiffs.

• Recovery limits for disbursements related to expert witnesses, including necessity of in-person testimony.

Facts of the case

While incarcerated at the North Slave Correctional Complex in Yellowknife, Justin Gerald Clillie was assaulted by fellow inmate Jason Mark Bard. Mr. Clillie subsequently sued both Bard and the Commissioner of the Northwest Territories (GNWT), alleging negligence by correctional staff and seeking over $100,000 in damages. The claim against Bard was not addressed at trial as he had been noted in default. The matter proceeded to trial solely against the GNWT, focusing on whether correctional staff failed in their duty of care by not preventing the attack.

Mr. Clillie argued that the GNWT, through its employees, was vicariously liable for failing to ensure inmate safety. He framed the issue as novel within the Northwest Territories, contending that it raised a question of public interest and access to justice. He also emphasized the disparity in resources between him and the government. After a three-day trial, the court dismissed the claim against the GNWT, finding no breach of the applicable standard of care under settled principles of negligence law.

The court’s analysis and outcome on costs

Following its success at trial, the GNWT sought a cost award against Mr. Clillie. The plaintiff opposed this, arguing that the court should exercise its discretion and order each party to bear their own costs due to public interest considerations and the imbalance in resources. He further contended that his case addressed a novel issue of law and should qualify as public interest litigation. The court disagreed, noting that while the question of correctional officer liability in this context was new in the Northwest Territories, it had been well-litigated across Canada. The trial involved the application of settled legal principles rather than new legal doctrine.

The court found no compelling reason to depart from the usual rule that the successful party is entitled to costs. However, it did not grant the GNWT all costs requested. The court reviewed a 2022 offer made by the GNWT to settle the matter by discontinuance without seeking costs. While not compliant with formal rules on settlement offers, it was considered a valid Calderbank offer and merited enhanced costs (1.25 times the standard scale) from the date it was made. The court also rejected Mr. Clillie’s argument that the case should be costed under a lower tariff column after he sought to transfer the matter to Territorial Court. The case remained governed by the original claim amount, which exceeded $100,000, justifying application of Column 3 costs throughout.

On the issue of disbursements, Mr. Clillie challenged the GNWT’s decision to incur over $100,000 in costs for an expert witness, Dr. Thomas Gabor, including travel expenses to attend trial in person. While the court accepted that expert testimony was useful, it ruled that in-person attendance was unnecessary and avoidable. As such, the GNWT was denied recovery of Dr. Gabor’s travel costs and allowed to claim only 30 percent of his other related expenses. The court emphasized that while the GNWT had the right to pursue a robust litigation strategy, it could not shift the entire financial burden of that strategy onto an unsuccessful, modestly resourced plaintiff.

In conclusion, the GNWT won the case and was awarded costs on an enhanced scale for part of the proceedings, but with significant limitations on expert witness disbursement recovery.