COURT OF APPEAL FOR ONTARIO
Lauwers, Brown and Nordheimer JJ.A.
BETWEEN
Paul Bruno, Martha Bruno, Mary Catherine Bruno,
Paul John Bruno, and Jake Bruno under the age of 18 by
his Litigation Guardian Martha Bruno
Plaintiffs (Respondents/
Appellants by way of cross-appeal)
and
Joshua Dacosta, Guy Gibson, Daniel Ashenden, Terry Empey,
Her Majesty the Queen in the Right of Ontario Represented by the
Ministry of Community Safety and Correctional Services, the Niagara
Detention Center, Wendy Southall as the Chief of Police of the
Niagara Regional Police Service, Police Officers Jane Doe and
John Doe, the Niagara Regional Police Services Board, the
Corporation of the Regional Municipality of Niagara and William Shilson
Defendants (Appellant/
Respondent by way of cross-appeal)
Ian MacLeod and Robert Trenker, for the appellant Her Majesty the Queen in Right of Ontario
Gregory P. McKenna and Sabrina L. Seibel, for the respondents Paul John Bruno, Martha Bruno and Jake Bruno
Heard: August 28, 2020 by video conference
On appeal from the judgment of Justice Paul R. Sweeny of the Superior Court of Justice, dated February 7, 2019, with reasons reported at 2019 ONSC 99, and from the costs decision dated February 26, 2020, with reasons reported at 2020 ONSC 1258.
A. Overview
1On August 25, 2006, the respondent, Paul Bruno, was an inmate being held in protective custody at the Niagara Detention Centre (“NDC”).
2The trial judge found that inmates Joshua Dacosta, Guy Gibson, Daniel Ashenden, and Terry Empey assaulted Bruno in the washroom of 3-Wing, in which they were all housed. Bruno suffered serious personal injuries and was found unconscious. He was in a coma for nearly a month and continues to suffer from the sequelae of his injuries.
3The issue before the trial judge was whether the Crown, represented by the Ministry of Community Safety and Correctional Services, is liable to Bruno in negligence because NDC employees failed to take reasonable steps to protect him as a vulnerable inmate. He was vulnerable for several reasons, the most prominent being that his father was a retired police officer. The trial judge was not required to assess damages because the parties had agreed on the quantum at $1.5 million.
4Dr. Michael Weinrath provided expert evidence for Bruno and Dr. Ralph Serin for the Crown. The trial judge relied on the evidence of Dr. Weinrath and rejected that of Dr. Serin. He found two breaches of the standard of care: first, the standard required that inmates Ashenden, Gibson, and Empey be kept separate from Bruno and not be housed together; and, second, the standard required NDC staff to consult with inmates about potential incompatibilities before Bruno was placed into protective custody in 3-Wing.
5With respect to the first breach of the standard of care, the trial judge said he was “satisfied that the gang assault would not have occurred” had NDC staff “separated Empey and Gibson and Ashenden or any of them.” He found that: “But for the NDC’s breach of duty, Gibson, Empey, and Ashenden would not have been together and could not have acted in concert.”
6As for the second breach of the standard of care, the trial judge stated: “had the [officers] made any inquiries of the inmates in 3-Wing prior to placing Bruno there, I am satisfied the assault would not have occurred.”
7However, because Bruno did not speak up when he noticed the presence of an old enemy, Gibson, in the wing, the trial judge found Bruno contributorily negligent. In his view, “it was not foreseeable to [Bruno] that a gang assault would have occurred.” He assessed Bruno’s contributory negligence at 15 percent.
8The Crown appeals and asks that the action be dismissed. Bruno cross‑appeals and asks that the level of contributory negligence attributed to him be reduced to zero.
9The appellant argues that the trial judge made numerous serious errors, in particular:
finding liability on a Ministry-level basis not tied to the negligence of specific employees, contrary to the Proceedings Against the Crown Act, R.S.O. 1990 c. P.27 and case law;
finding that the four named inmates assaulted Bruno in the washroom, particularly given the presence of a fifth inmate whose actions, if any, were not mentioned in the reasons;
preferring the expert evidence on the standard of care advanced by Bruno’s expert witness over the evidence of the Crown’s witness;
finding that the breaches of the standard of care caused the assault because the causation finding was speculative, based on hindsight, and not supported by the evidence; and
assessing Bruno’s contributory negligence too low at 15 percent (the Crown had argued at trial for 50 percent).
10Bruno cross-appeals and asserts that the contributory negligence should be set at zero.
11In considering the evidence and arguments on these issues, I have come to the regrettable conclusion that there must be a new trial. For the reasons set out below, I would allow the appeal on the basis that the reasons for decision are insufficient to permit meaningful appellate review. I would remit the case to the Superior Court for trial by another judge. Because the case must be tried anew, I will avoid unnecessary comment on the live issues.
B. Analysis
12I begin with a discussion of the governing principles on the sufficiency of reasons of trial judges and when an appellate court can salvage a judgment despite insufficient reasons, and then apply the governing principles to this case.
(1) The Governing Principles on the Sufficiency of Trial Reasons
13The Supreme Court explored the functional purposes for good reasons in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, at para. 39, per L’Heureux-Dubé J.:
Reasons … foster better decision making by ensuring that issues and reasoning are well articulated and, therefore, more carefully thought out. The process of writing reasons for decision by itself may be a guarantee of a better decision. Reasons also allow parties to see that the applicable issues have been carefully considered, and are invaluable if a decision is to be appealed, questioned, or considered on judicial review: … Those affected may be more likely to feel they were treated fairly and appropriately if reasons are given. [Emphasis added; citations omitted.]
See also Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at paras. 79-81.
14Beginning with the Supreme Court’s decision in R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869and most recently in Vavilov, there has been a continuing judicial conversation about the duty of judges and tribunals to give reasons that properly explain a decision. The cases speak about accountability, intelligibility, adequacy, and transparency. In Vavilov, the court invoked the need to “develop and strengthen a culture of justification”: at paras. 2, 14, 79 and 99; see also Vancouver International Airport Authority v. Public Service Alliance of Canada, 2010 FCA 158, [2011] 4 F.C.R. 425, at para. 16, considering a decision of the Canada Industrial Labour Board, per Stratas J.A. I do not see this project of justification, which originated in several seminal criminal law decisions, as limited to administrative law: Vavilov, at paras. 79-80.
15In Sheppard, the court noted at para. 55 that “[t]he delivery of reasoned decisions is inherent in the judge’s role [and] is part of his or her accountability for the discharge of the responsibilities of the office.” The court continued, at para. 55:
The trial judge’s duty is satisfied by reasons which are sufficient to serve the purpose for which the duty is imposed, i.e., a decision which, having regard to the particular circumstances of the case, is reasonably intelligible to the parties and provides the basis for meaningful appellate review of the correctness of the trial judge’s decision. [Emphasis added.]
16A meaningful right of appeal “must not be an illusory right”: R. v. Richardson (1992), 1992 7710 (ON CA), 9 O.R. (3d) 194 (C.A.), [1992] O.J. No. 1498, at para. 13.
17In R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, McLachlin C.J. focussed on intelligibility, stating at para. 35 that “[t]he basis for the trial judge’s verdict must be ‘intelligible,’ or capable of being made out.” She was referring to the trial judge’s duty to lay out the chain of reasoning, in which “a logical connection between the verdict and the basis for the verdict must be apparent.” She explained, at para. 35, that in discerning whether there is such a logical connection, “one looks to the evidence, the submissions of counsel and the history of the trial to determine the ‘live’ issues as they emerged during the trial.” In that task of discernment, the appellate court reads the reasons “as a whole, in the context of the evidence, the arguments and the trial, with an appreciation of the purposes or functions for which they are delivered”: see also Vavilov, at para. 85.
18Drilling down to the practical elements, in order to provide for a meaningful right of appeal, trial judges must identify the key issues; find the facts relevant to the issues; assess credibility and reliability where there is conflict; set out the chain of reasoning; make the decision; and then write the reasons to clearly communicate the decision: Welton v. United Lands Corp., 2020 ONCA 322, at paras. 57 and 58. Appellate courts rely on trial judges to find the facts and to assess credibility and reliability where there are live witnesses, as in this case. Appellate courts recognize that trial judges attend to these tasks from a privileged vantage point.
19But the principles governing the sufficiency of the reasons of trial judges do give rise to a difficult issue: To what extent should appellate courts work to salvage inadequately explained or conclusory trial reasons?
(2) When Appellate Courts can Salvage a Judgment for which there are Insufficient Trial Reasons; the Governing Principles
20I begin with the observation that this court is reluctant to order a new trial in civil matters. A new trial "should not be ordered unless the interests of justice plainly require that to be done": Brochu v. Pond (2002), 2002 20883 (ON CA), 62 O.R. (3d) 722 (C.A.), at para. 6; see also Nemchin v. Green, 2019 ONCA 634, 147 O.R. (3d) 530, at para. 71. The court must find a real prospect "that a substantial wrong or miscarriage of justice has occurred": Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(6); Vokes Estate v. Palmer, 2012 ONCA 510, 294 O.A.C. 342, at para. 7; see also Iannarella v. Corbett, 2015 ONCA 110, 124 O.R. (3d) 523, at para. 23.
21Insufficient reasons necessitate a new trial where the appellate court is unable to salvage the decision based on the available record. On what basis is that determination made?
22In Sheppard, Binnie J. wrote, at para. 55: “Where the trial decision is deficient in explaining the result to the parties, but the appeal court considers itself able to do so, the appeal court’s explanation in its own reasons is sufficient. There is no need in such a case for a new trial” (emphasis added).1 But the converse is also true. To paraphrase: Where the trial decision is deficient in explaining the result to the parties, and the appeal court does not consider itself able to do so, a new trial may be needed. This is a case-specific assessment.
23In assessing the trial judge’s reasons for sufficiency, “the reviewing court must examine the evidence and determine whether the reasons [for judgment] are, in fact, patent on the record”: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 32, per Charron J., who ordered a new trial. An appellate court must review the record to determine whether the trial decision can be rendered more comprehensible when read in the context of the record: see Maple Ridge Community Management Ltd. v. Peel Condominium Corporation, 2015 ONCA 520, 389 D.L.R. (4th) 711, at para. 30, per Hourigan J.A., citing Hill v. Hamilton-Wentworth Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129, at para. 101.
24However, there are limits on the appellate court’s ability to fairly and justly salvage a trial decision: “Where the trial judge’s reasoning is not apparent from the reasons or the record … the appeal court ought not to substitute its own analysis for that of the trial judge”: Dinardo, per Charron J., at para. 32. She added that the need to review the record is “not an invitation to appellate courts to engage in a reassessment of aspects of the case not resolved by the trial judge.”
25This court usually declines to dig into the record in order to salvage a decision where the trial decision turns on instances of conflicting evidence, evaluations of credibility and reliability, and exercises of discretion that are properly within the purview of a trial judge. I discuss each situation in turn.
(a) Conflicting Evidence
26This court does not attempt to reconcile critical conflicting evidence that could affect the outcome. In R. v. Prokofiew, 2008 ONCA 585, Borins J.A. reviewed the reasons of a trial judge following a trial for conspiracy, fraud, and theft over $5,000. The trial had taken place intermittently over seven months. Nearly one year later, the trial judge released very extensive reasons for conviction. Borins J.A. noted, at para. 30: “My main problem with the trial judge’s reasons is that she made so few findings of fact on her way to the conclusory finding that each appellant was guilty as charged.” He added: “Because reasons for conviction were not patent on the record, I am unable to determine the analytical path she followed in convicting the appellants.”
27Similarly, R. v. Capano, 2014 ONCA 599 concerned a trial judge’s consideration of the test for finding an accused to be “not criminally responsible” (“NCR”). The trial judge had not specifically articulated whether the accused’s mental disorder rendered the accused incapable of appreciating the nature and quality of the criminal act, on the one hand, or whether it rendered the accused incapable of knowing that the act was wrong, on the other hand. Faced with conflicting evidence in the trial record and the trial judge’s failure to expressly resolve this conflict in the evidence, this court ordered a new trial. Epstein J.A. noted, at para. 73: “Given the two possible ways in which Mr. Capano’s mental disorder may have affected his ability to understand that failing to report to CAMH was wrong, it was critical that the trial judge analyze and resolve how he found Mr. Capano NCR.” She stated, at para. 74, relying on Dinardo, that “it is not appropriate for this court to attempt to discern that route and explain it.”
(b) Credibility and Reliability
28This same appellate reluctance applies to critical determinations of credibility and reliability. A trial judge’s failure to “sufficiently articulate how credibility and reliability concerns are resolved may constitute reversible error”: R. v. A.M., 2014 ONCA 769, 123 O.R. (3d) 536, at para. 18, citing R. v. Vuradin, 2013 SCC 38, [2013] 2 SCR 639, at para. 11, and Dinardo, at para. 26.
29In R. v. Slatter, 2019 ONCA 807, 148 O.R. (3d) 81, Trotter J.A. commented on a trial judge’s reliability findings, at para. 66:
Although the trial judge relied on Dr. Jones’ evidence in this context, he failed to mention her evidence concerning J.M.’s suggestibility. The issue was clearly grounded in the evidentiary record. It was emphasized in defence counsel’s closing submissions. Yet, because there is no attempt to address or reconcile this evidence in the trial judge’s reasons, we are left to speculate whether the trial judge appreciated the significance of this evidence and the role (if any) that it played in his ultimate findings. [Emphasis added.]
(c) Discretionary Decisions
30Finally, this court is reluctant to make discretionary decisions that are properly within the purview of the trial judge. In R. v. Sahdev, 2017 ONCA 900, 356 C.C.C. (3d) 137, per Trotter J.A., the trial judge did not provide adequate reasons for refusing to sever counts in a criminal indictment. This court rejected the Crown’s request to decide the issue. The severance issue was complicated by a similar fact issue and required a trial judge’s exercise of discretion in a new trial.
31I now turn to apply these governing principles to the trial judge’s reasons.
(3) Application
32To provide context for the application of these principles, I will address the first issue raised by the Crown, which is that “[t]he Trial Judge conflated the concepts of direct and vicarious liability, and erred by finding that institution-level conduct could ground liability.” In doing so I do not mean to suggest that the trial judge’s reasons on the other issues were otherwise pristine and free of error; they were mostly conclusory.
(a) The Law on Liability for Inmate Assaults
33With respect to harm to an inmate, the applicable law is that Ontario can only be held liable for the negligent acts or omissions of an individual correctional officer who, in the course of employment by Ontario, did or failed to do something, thereby creating a foreseeable risk of harm to the inmate: Proceedings Against the Crown Act, R.S.O. 1990 c. P.27, ss. 5(1)(a) and 5(2); MacLean v. R., 1972 124 (SCC), [1973] S.C.R. 2; Timm v. R., [1965] 1 Ex. C.R. 174; Walters v. Ontario, 2017 ONCA 53, at para. 34; Iwanicki v. Ontario, [2000] O.T.C. 181, O.J. No. 955 at para. 15. In Walters, this court held, at para. 34:
Generally, the provincial Crown can be liable in tort to inmates of correctional facilities only in the form of vicarious liability for torts that specific Crown employees or agents commit, and only if the plaintiff could have sued the employee or agent for that tort … [Citations omitted.]
34In inmate assault cases, “Ontario’s liability, if any, must derive from actionable negligence of specific [correctional officers]” under subsections 5(1)(a) and 5(2) of the Proceedings Against the Crown Act: Walters, at para. 34. The federal law is to the same effect: see the federal Crown Liability and Proceedings Act, R.S.C., 1985 c. C-50,and Hinse v. Canada (Attorney General), 2015 SCC 35, [2015] 2 S.C.R. 621, where the trial judge found liability based on “institutional inertia and indifference.” The Supreme Court held, at para. 92 of Hinse, that the trial judge “should instead have analyzed the individual conduct of each of the successive Ministers acting in his or her capacity as a servant of the federal Crown.”
(b) The Crown’s Argument Regarding the Trial Judge’s Reasoning
35The appellant Crown points out that the trial judge did not identify any specific negligent acts or omissions by any specific correctional officer or other NDC employee. The Crown submits that the trial judge erred by expressing the issue before him in general terms only, namely “whether the Ministry is liable to Bruno because correctional officers ("COs") failed to take reasonable steps to protect him.” The Crown argues that the trial judge maintained this generic approach throughout his reasons, failed to address the conduct of any individual employee, and instead used institution-level references to the conduct of the “NDC”, “the Ministry”, “NDC staff”, and “the COs.” The Crown points to the following examples in the trial judge’s reasons:
NDC had knowledge of the history of Ashenden, Empey, and Gibson. (Para. 34)
Although Dr. Weinrath acknowledged that Empey, Ashenden, and Gibson were appropriately in protective custody on the basis that they requested protective custody, in my view, that does not relieve the Ministry of appropriately monitoring of the placement of these inmates in the institution to address the issue of the worrisome assaults occurring in 3-Wing. (Para. 47)
NDC was aware that Bruno was not wanted in the general population F-Dorm. NDC was also aware that his peers rejected him in 2-Wing. He had been involved in assaults on his prior stays at NDC. Bruno’s vulnerability included the fact that his father had been a police officer. Tom Dykstra, during discovery, confirmed that NDC knew this fact. (Para. 51)
NDC had a history of communicating with inmates about issues that arose. […] The COs of NDC fell below the applicable standard of care. (Para. 52)
Had the COs separated Empey and Gibson and Ashenden or any of them, I am satisfied that the gang assault would not have occurred. But for the NDC’s breach of duty, Gibson, Empey, and Ashenden would not have been together and could not have acted in concert. […] NDC staff was aware […] (Para. 53)
Had the COs made any inquiries of the inmates in 3-Wing [...] (Para. 54)
Given NDC’s knowledge of Bruno’s vulnerability […] (Para. 57)
In the result, I find that the Ministry fell below the standard of care. (Para. 62) [Emphasis added by the appellant.]
(c) The Respondents’ Argument Regarding the Trial Judge’s Reasoning
36The respondents submit that, read fairly, the trial judge’s liability findings were not grounded on institution-level conduct. Instead, the trial judge found liability to have “flowed through the negligence of Ontario’s employees, whose conduct breached the standard of care.” The respondents name specifically as negligent employees: NDC Superintendent Barry McDonnell, Operational Manager Dennis Dutkus, other Operational Managers (“OM”), and correctional officer (“CO”) Alison Sorley.
37The respondents submit that the reasons must be “read holistically.” So read, the trial judge must be seen to have found negligence by NDC employees for whose conduct Ontario is vicariously liable. The respondents pick out language in the reasons that supports their preferred reading:
The issue I must determine is whether the Ministry is liable to Bruno because correctional officers (“COs”) failed to take reasonable steps to protect him. (Para. 2)
The Plaintiff says the Ministry personnel fell below the appropriate standard of care in two ways … (Para. 3)
Dr. Weinrath posited two breaches of the standard of care … and the COs should have consulted with the 3-Wing inmates before placing Bruno there. (Para. 45)
The COs of NDC fell below the applicable standard of care. (Para. 52)
Had the COs separated Empey, Gibson and Ashenden or any of them, I am satisfied that the gang assault would not have occurred. (Para. 53)
NDC staff was aware Empey had acted with other inmates in assaults and that he had assaulted an inmate out of loyalty to Gibson. Notwithstanding this information, the COs of NDC placed Gibson and Empey in the same cell in 3-Wing. (Para. 53)
Had the COs made any enquiries of the inmates in 3-Wing prior to placing Bruno there, I am satisfied the assault would not have occurred. (Para. 54)
Either the inmates would have rejected Bruno, or if not … he would likely be closely monitored by the COs. (Para. 54) [Emphasis added by the respondents.]
38The respondents point out that the trial judge did not base his liability finding on institution level conduct such as a negligent policy or the lack of a procedure. They point to individual instances of negligence that “flowed through the conduct of Ontario’s employees.” The first claimed negligence is that staff “chose to allow these problematic inmates to remain housed together and not to move any of them” out of 3-Wing on the day of the assault. Second, staff “chose not to consult with the 3-Wing inmates” before Bruno, a particularly vulnerable inmate, was placed there. These decisions were made by individual staff members, “not at an institutional level.”
39The respondents acknowledge that the trial judge did not identify the employees who were at fault by name but argue that his failure to do so is not a reviewable error and it is not required by the legislation. The basis of this submission is that the staff at fault can be identified from the evidentiary record, and the trial judge, consistent with Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 72, “should be presumed to have based his conclusions on a review of the entirety of the evidence.”
40The respondents undertake a deep excavation of the evidence to substantiate this argument, which they urge this court to adopt. They assert that the responsibility to separate Ashenden, Empey and Gibson rested on Superintendent Barry McDonnell and the Operating Managers working under him. In his evidence, Dr. Serin referred to an OM16 as being the acting Superintendent at the relevant time. This, the respondents argue, would be consistent with the Superintendent’s legislated authority to delegate his duties.
41The Superintendent and the OMs were responsible for inmate discipline, which included transferring problematic inmates to other areas of the NDC or to another institution. Superintendent McDonnell was statutorily responsible for the administration of the institution and for the custody, supervision, care and safety of every inmate.
42Further, the respondents point out that Superintendent McDonnell’s ongoing responsibility for the placement and management of inmates is reflected in NDC’s internal documentation, the Adult Institutions Policy and Procedures manual, and the legislation. Occurrence Reports and Misconduct Reports were all to be addressed and forwarded to the Superintendent or his designate. The Superintendent or his designate was obliged to interview inmates being investigated for misconduct, determine whether a misconduct had been committed, and decide on a penalty if appropriate. The Superintendent was required to monitor misconduct dispositions made by designated employees. Only the Superintendent could order an inmate to be held in segregation. A Protective Custody Decision or Review required the Superintendent’s or his designate’s signature. The transfer of an inmate to another institution required the Superintendent’s or his designate’s authorization.
43Moving down a level, the respondents explain that the placement of inmates, including their internal placement within the facility, was a continuous process to be adjusted as the need arose. The relocation of an inmate to a different cell or unit required an OM’s authorization. The OM or Shift Supervisor on duty managed the shift and was effectively in charge of the NDC. All employees reported to him or her. The respondents argue that the names of the individuals on duty at the relevant time are in the record. It is noteworthy that none of these named individuals were called to testify at trial.
44The second claimed breach of the standard of care was the failure to consult with 3-Wing inmates about possible incompatibilities before Bruno was placed there. According to the respondents, this was the responsibility of OM Dutkus and CO Sorley. OM Dutkus made the final decision to place Bruno in 3-Wing on August 25, 2006, upon CO Sorley’s recommendation. OM Dutkus was required to affix his signature, the date, and any relevant notations on Bruno’s Unit Notification Card (“UNC”), which contained extracts from Bruno’s file in the computerized Offender Tracking Information System. OM Dutkus made no notations in Bruno’s UNC or in his Protective Custody Decision/Review, also signed by OM Dutkus, that 3-Wing inmates had been consulted about Bruno. He made no notation that there were any institutional or resource issues that prevented Bruno from being placed anywhere else, and he did not indicate that Bruno’s father was a retired police officer, which the respondents assert made Bruno a target within the facility and which OM Dutkus knew at the time.
45Accordingly, the respondent argues, each of the claimed breaches of the standard of care can in fact be traced to named individuals on the evidence before the trial judge. The respondents urge this court to find that the evidentiary omissions in the trial judge’s reasons can be filled by evidence that is patent on the record, and to make those findings.
46The respondents characterize the trial judge’s use of the terms “Ministry” and “NDC” as the type of loose “short forms” talk that comes to be used during trials, not an indication of fundamental error. The respondents state that even the Crown’s expert, Dr. Serin, used the same language in his report when he wrote: “in my opinion, the Crown met the standard of care…” (emphasis in original). The respondents urge the court to give no weight to this use of language.
(d) Discussion
47There is ample support for the arguments of both the appellant and the respondents in the loose language used by the trial judge in his reasons. Seen one way, the reasons can be read as the trial judge focusing on institution-level liability, contrary to the legal test set by this court’s decision in Walters. Seen another way, the reasons can be read as the trial judge recognizing the legal necessity of finding negligence on the part of individual employees despite his failure to identify them by name or their negligent actions by description.
48I am left with genuine uncertainty about whether the trial judge fully understood and properly applied the correct legal test for liability. The reasons do not record his self-instruction. His reference to Walters was not in the body of his liability discussion but only in his discussion of the contributory negligence claim. He did not refer to this court’s specification of the legal test for liability in Walters but only to the Walters trial judge’s figure for contributory negligence.
49I note that the issues were fully joined in the parties’ lengthy and pertinent written submissions (exceeding 130 pages each) filed with the trial judge along with the transcripts. The reasons, at a mere 14 pages, do not do justice to the record, nor to the arguments. The excessive delays in the case probably did not help the trial judge to remain engaged. Transcript preparation took about four months. The plaintiffs’ written argument was followed by the Crown’s argument a month later, and the reply two weeks later. After cancelling a planned conference call to address questions arising from the arguments, the trial judge took four months to render judgment and provide his reasons.
50In the parties’ written arguments the legal test in Walters was plainly explicated, the responsible individuals were named, and the parties respective positions were fully and carefully contested. It is unfortunate that the trial judge gave the material such short shrift.
51In this context the trial judge’s reasons are not intelligible or transparent. Read as a whole, they do not adequately justify the result he reached. The trial judge did not clearly and consistently identify the key issues, find the relevant facts, assess credibility and reliability, or set out the chains of reasoning applicable to each issue free of gaps and assumptions.
52It is not our function as an appellate court to undertake these tasks in order to salvage the judgment. Because the reasons do not provide the basis for meaningful appellate review, there must be a new trial.
C. Some Trial Practice Notes
53There were errors made in the admission and use of the joint document book that further frustrated appellate review and that should not happen in other cases. I laid out some elements of acceptable trial practice in Girao v. Cunningham, 2020 ONCA 260, at paras. 21-35. At paras. 33 and 34, I said:
In my view, counsel and the court should have addressed the following questions, which arise in every case, in considering how the documents in the joint book of documents are to be treated for trial purposes:
Are the documents, if they are not originals, admitted to be true copies of the originals? Are they admissible without proof of the original documents?
Is it to be taken that all correspondence and other documents in the document book are admitted to have been prepared, sent and received on or about the dates set out in the documents, unless otherwise shown in evidence at the trial?
Is the content of a document admitted for the truth of its contents, or must the truth of the contents be separately established in the evidence at trial?
Are the parties able to introduce into evidence additional documents not mentioned in the document book?
Are there any documents in the joint book that a party wishes to treat as exceptions to the general agreement on the treatment of the documents in the document book?
Does any party object to a document in the document book, if it has not been prepared jointly?
It would be preferable if a written agreement between counsel addressing these matters were attached to the book of documents in all civil cases. In addition, it would be preferable if the trial judge and counsel went through the agreement line by line on the record to ensure that there are no misunderstandings.
54Even though Girao was released after the trial decision in this case, this situation presents an opportunity for further reflection on trial practice.
55The most obvious point, which nonetheless bears emphasis, is that any agreement between counsel as to the admissibility of documents is not automatically binding on the trial judge, who remains at all times the gatekeeper of the evidence. I now turn to the problems experienced in this case.
56At the opening of the trial, Mr. McKenna read the parties’ initial agreement with respect to evidence into the record:
The documents contained in the Joint Document Brief are relevant, authentic and the dates of the documents are accurately reflected on their face. Neither of the parties are to be considered as having accepted the truth of the contents of all of the documents. Further, both parties reserve their rights to challenge what is stated in the documents, lead further evidence which may or may not be inconsistent with the documents and argue as to the interpretation and weight to be given to the documents.
57This agreement was not helpful to the trial judge because of its ambiguity, which he should have probed immediately and carefully with some obvious questions, among them: If a document is not challenged, is its hearsay content deemed to be admitted? If not “all” documents, then which?
58The approach taken by counsel and permitted by the trial judge only invited further contention, which inevitably emerged. On the second day of trial, counsel for the Crown, Mr. MacLeod, attempted to enter a Niagara Regional Police Service Supplementary Report into evidence, leading to the following exchange:
Mr. McKenna: Just maybe my friend can clear – is this going in as a business record, is that sort of the basis of the admissibility of it?
Mr. MacLeod: Your Honour, this is one our productions. I don't intend to have this marked as, and go in as, a business record as an exception to the hearsay rule. It is a document. I don't think there's any issue between the parties as to its authenticity. I don't think there's any issue as to its relevance. The witness has been questioned about these events, but it does provide evidence of some objective things that were happening at this time.
Mr. McKenna: … It's the officer's document, it's not Mr. Bruno's document. It probably sounds like I'm trying to be difficult, but if we're going to deal with this piece by piece and lead to a bigger problem later on, then I'd like to deal with this issue, you know, as a whole if we can. I just don't want to be seen to be agreeing to letting records just go in and then I'm going to be faced with some argument that I didn't dispute it at this time and I'm going to be faced with the opposite argument with their actual Ministry documents. [Emphasis added.]
59After seven days of trial, and at the beginning of the Crown’s evidence, Mr. MacLeod stated that the parties wished to make a “further stipulation with respect to some documents” and that this new stipulation would be “in addition to what was already stipulated as the agreement between the parties.” Mr. MacLeod then read the following statement into the record:
The parties agree that the records of the Ministry of Community Safety and Correctional Services contained in the joint document brief (Exhibit 1), as well as exhibits A, B, C, F, and G are business records pursuant to Section 35 of the Evidence Act. However there is no agreement that statements recorded in these records are admissible for the truth of their contents. […] For example, for an occurrence report that states that inmate X said Y, is evidence of the fact that the statement Y made was made by inmate X, [but it is not evidence that it is true.] The standing orders of the Niagara Detention Centre and the adult institutions policies and procedures are not technically business records, but are in evidence and can be referred to by the parties when examining witnesses and in argument.
60This agreement is more specific than the first, but it raises problems of its own concerning the proper application and reach of s. 35 of the Evidence Act, R.S.O. 1990, c. E.23, which should have been canvassed and resolved at the outset of the trial. This last agreement came too late; it implies that the statements had to be proved by other means but, by this point, the plaintiffs had referenced and relied on numerous documents involving various degrees of hearsay.
61A party properly invoking s. 35 of the Evidence Act is entitled to introduce certain limited forms of double hearsay contained in business records, such as statements made and recorded by two people who are each acting in the ordinary course of business, even if those statements are ultimately accorded little weight: Evidence Act, s. 35(4); Parliament et. al. v. Conley and Park, 2019 ONSC 2951, at para. 36; Setak Computer Services Corporation Ltd. v. Burroughs Business Machines Ltd., et. al., 1977 1184 (ON SC), [1977] 15 O.R. (2d) 750; [1977] O.J. No. 2226, at para. 63. In dealing with police reports and occurrence reports, however, trial judges have generally refused to admit business records in which a person, acting in the course of their duty, records unreliable third-party statements or other forms of hearsay: see for example DeGiorgio v. DeGiorgio, 2020 ONSC 1674, at paras. 50 and 54. The parties’ agreement simply stipulated that double hearsay is not admissible for the truth of its content. In my view this issue required argument and an evidentiary ruling.
62I add an observation about the respondents’ s. 35 Evidence Act notice. It seriously overreached and, in so doing, created the uncertainty that set the context for uncertainty about the permissible use of documents. The s. 35 notice, a copy of which this court requested after oral argument, ends with the following description under the heading “Liability Documentation”: “All other business and medical records listed in the parties’ affidavits of documents and produced subsequently in this proceeding in response to undertaking or production requests’”. The idea seems to have been to extend the s. 35 cloak to other documents as yet unidentified. As convenient as this might be, it is unacceptable trial practice and invites contention at trial over the status of individual documents, as transpired here. The rigorous approach set out in Girao as modified in these reasons is a good way to avoid such problems.
63As a matter of ordinary trial practice, the parties’ agreement should be entered with the joint book of documents at the earliest opportunity. In this case, the need for a timely agreement or resolution of the issues regarding documentary evidence was greater because of the unusually heavy role played by the documents. The fact that the parties felt the need to clarify their agreement so late in the game simply illustrates the inadequacy of the initial agreement and the effect of the absence of judicial scrutiny.
64This was a case of far too little, far too late, which left the trial judge in a quandary about the admissibility and use of the business records. This became apparent when he dealt with the factual issue of who assaulted Bruno. The appellant takes issue with the trial judge’s factual finding on the assault, at para. 36 of the decision, where he stated: “Having reviewed all the evidence including the photos of the other inmates, the video, and the records of the NDC including the report prepared by CO Tom Bradley, I am satisfied that DaCosta, Gibson, Ashenden and Empey undertook the assault.” Despite the parties’ reservation in their agreement on the hearsay value of statements in the documents, the trial judge effectively accepted the hearsay content of what was known in the trial as the “Bradley Report,” which the Crown produced. CO Bradley did not testify.
65This case highlights the deplorable tendency in civil cases of admitting evidence subject only to the weight to be afforded by the trial judge: “Seduced by this trend towards [evidentiary] flexibility, some judges in various jurisdictions have been tempted to rule all relevant evidence as admissible, subject to their later assessment of weight”: Teva Canada Ltd. v. Pfizer Canada Inc., 2016 FCA 161, per Stratas J.A. at para. 83. This is legal heresy, as Stratas J.A. noted, citing R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 59. I agree with his trenchant comments.
66Finally, as I noted in Girao, at para. 22: “The goal of a trial judge in supervising the assembly of a trial record is completeness and accuracy, so that the panel of this court sitting on the appeal can discern without difficulty exactly what was before [the trial judge] at any moment in the course of the trial.” In this case it was necessary for this court to look at the written closing submissions of counsel to the trial judge, but they were not in the trial record. They were sent after oral argument on the appeal at our request. In my view, good trial practice is to include any written arguments in the trial record as lettered exhibits to which the appeal court can have access if necessary.
D. Disposition
67I would allow the appeal on the basis that the reasons for decision are insufficient to permit meaningful appellate review and remit the case to the Superior Court for trial by another judge. In the circumstances, I would not address the other grounds of appeal. This is truly a regrettable outcome, particularly for the respondent who lacks the resources of the state.
68The court will accept written costs submissions of no more than five pages in length relating to the appeal costs and the trial costs in view of this disposition, beginning with the appellant. These submissions are to be served and filed with the court at coa.e-file@ontario.ca within two weeks of the release of this decision, followed one week later by the respondent’s submissions, and any reply within another week.
Released: “P.L.” September 23, 2020
“P. Lauwers J.A.”
“I agree. David Brown J.A.”
“I agree. I.V.B. Nordheimer J.A.”
Footnotes
- While many cases dealing with insufficient reasons have come out of the criminal context, this Court has had no difficulty applying them in the civil context. See Canadian Broadcasting Corporation Pension Plan v. BF Realty Holdings (2002), 2002 44954 (ON CA), 214 D.L.R. (4th) 121, at para. 64. The same applies, albeit with different considerations, to the overlap between civil and administrative law. Indeed Binnie J. relied on Baker in formulating his reasons in Sheppard.
