The Ontario Court of Appeal has overturned a summary judgment ruling that found Correctional Service Canada liable for negligence after a man was injured in a 2013 jail beating.
James Fontenelle Jr. had launched a claim after he was attacked at Millhaven Institution in October 2013 by other inmates during a prisoner strike at the facility. He alleged he suffered life-threatening head injuries as a result of the beating and that prison staff with Correctional Service Canada — and the Attorney General of Canada — failed him by not responding to a cell alarm that was activated the night he was beaten.
In a ruling made last November, Price found in Fontenelle’s favour when it came to liability, and bifurcated the proceeding to hold a trial at a later date on damages. However, the COA ruling reversed this, and ordered the matter to proceed to trial for both liability and damages.
“It is readily apparent from the nature of the allegations made in this case, and the factual findings made by the motion judge, that the evidentiary record was woefully inadequate to make a proper determination whether any duty of care owed by the appellant to the respondent in this case had been breached,” said the Court of Appeal ruling made by Justice Peter Lauwers, Justice Mary Lou Benotto and Justice Ian Nordheimer. “The motion judge erred in a number of respects in concluding otherwise.”
Price had made the determination about liability after the Attorney General of Canada brought a motion to dismiss the action by Fontenelle.
“I find that there is no genuine issue as to liability, not because the evidence does not support a finding of liability, but because the evidence leads to the inescapable conclusion that the CSC was negligent, and that, but for its negligence, the injuries to Mr. Fontenelle would not have occurred,” said Price, in the 2017 ruling.
“There is no necessity for a trial, as the CSC’s own records establish its liability. A trial would also serve no purpose, as the only witnesses who are capable of adding anything have refused to co-operate and will likely continue to do so.”
James Sayce, an associate with Koskie Minsky LLP’s class action group, says the main takeaway of the Ontario Court of Appeal ruling is that lawyers must recall that they’re required to put their best foot forward in presenting evidence during a summary judgment motion.
Sayce says the Court of Appeal ruling clearly shows that justices felt “that the lower court judge went too far” with his finding of liability, and the COA ruling “makes sense.”
“I agree with the Court of Appeal because the [lower court judge] appeared to be frustrated with the Attorney General for not leading key pieces of evidence on its own summary judgment motion . . .,” says Sayce, adding it led the judge to rule against them. “This wasn’t a motion that was being brought by the plaintiffs in the case . . . the plaintiff was really just looking for a ruling that the matter needed to proceed to trial, and that the damages and liability shouldn’t be bifurcated, and the judge went much, much further.”
Sayce says the initial ruling by Price “might have been a bit too good to be true for the plaintiffs.”
“At the end of the day, they’re getting what they [wanted]. The Court of Appeal ruled in favour of their position on the lower court motion, which was, ‘Let’s have a trial and let’s not bifurcate damages and liability,’” he says.
Deepa Negandhi, an associate with Brauti Thorning Zibarras LLP, says the ruling reaffirms the notion that when issues are brought on a summary judgment motion, it’s necessary “to put your best foot forward if you want the motion judge to make a decision either way.”
“This case is interesting because the respondents actually didn’t want it to be decided on summary judgment and actually wanted it to go to trial, but it seems interesting that at least the motion judge thought that they could decide based on the record that was put forward,” she says.
“Even though the respondent didn’t want it to be decided at that stage, and it seems the Court of Appeal agrees with them, in that sense, in that you do need a full evidentiary record, it’s just for lawyers going forward it’s up to them to decide if they want to use the opportunity at a summary judgment stage to put their best foot forward with a full evidentiary record.”
However, Stephanie DiGiuseppe, a sole practitioner who practices criminal defence law in Toronto, says she sees positive results for inmates as a result of the ruling.
“[D]espite the Court’s decision to overturn the summary judgment of the court below in this matter, it is still somewhat heartening to see action being taken against a correctional institution for this type of negligent supervision and to know that the mater will proceed to a trial where the officers involved will be called upon the explain their actions,” she said in an email comment.
“The behaviour of the correctional officers in this case, most notably the failure to adequately monitor inmates through surveillance cameras, are features we see time and time again in cases involving institutional violence,” she added.
“Often while the perpetrators of the assault are held accountable through criminal proceedings, historically we have not seen an abundance of corollary action being taken against correctional officers or the institution itself, even, I’ll note — and I’ve had some experience of this in cases I’ve worked on — where there are allegations that correctional officers took part in directing the assault, planning the assault, or turning a blind eye to the assault.”
Counsel representing the Attorney General and Fontenelle did not respond to a request for comment by deadline.