Court File and Parties

COURT FILE NO.: CV-22-1750 DATE: 2024-07-05 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: James Phixaykoune, Plaintiff AND: His Majesty the King in Right of Ontario, Attackers “A”, “B” and “C”, Doctors “A”, “B” and “C” and Correctional Officers “A”, “B” and “C”, Defendants

BEFORE: Justice Mills

COUNSEL: Neil G. Wilson and Meghan Coker, for the Plaintiff James Coristine, for the Defendant Crown

HEARD: June 21, 2024

Endorsement

[1] The plaintiff was severely beaten on April 8, 2020, while incarcerated at Maplehurst Correctional Centre (“MCC”), and he sustained life altering injuries. The assault was perpetrated by other inmates of the facility, and it was captured on video by the closed-circuit television system. It was a brazen assault. More than 90 minutes passed before the correctional staff entered the unit to remove the plaintiff for medical attention. The plaintiff was taken to hospital and then transferred by air ambulance to the trauma unit of St. Michael’s Hospital where he remained in a coma for several days.

[2] The plaintiff commenced these proceedings on September 8, 2022. Amongst others, he named the Crown and correctional officers “A”, “B”, and “C” as defendants. He now seeks leave to amend his pleading to properly identify the anonymous correctional officers.

Statutory Framework

[3] In the usual course, leave would be readily granted to properly identify anonymous defendants. However, when those defendants are employees of the Crown they are provided protection against personal liability for negligent conduct, unless the conduct was undertaken with bad faith. The Crown Liability and Proceedings Act, 2019 (“CLPA”) and the Ministry of Correctional Services Act (“MCSA”) provide limited statutory immunity for Crown employees, and more specifically for correctional officers against personal liability for torts committed within the context of their employment, unless committed in bad faith.

[4] Section 17 of the CLPA creates a threshold bar to civil action in respect of a tort based on misfeasance or bad faith against Crown employees unless leave of the Court is granted. Any actions commenced without leave are stayed unless and until leave is granted.

Fiduciary Duty Claim

[5] The plaintiff has not obtained leave of the Court. He submits leave is not required and that there is no stay of proceedings in effect as the torts alleged to have been committed by the correctional officers are based on negligence, breach of fiduciary duty, and breaches of s. 7 and s. 12 of the Canadian Charter of Rights and Freedoms. The plaintiff submits the claims are not in respect of a tort based directly on bad faith.

[6] This submission is untenable for two reasons.

[7] In paragraph 1(a) of the Statement of Claim and the proposed Amended Statement of Claim, the breach of fiduciary duty and the alleged Charter breaches are asserted only against the Crown. It has long been accepted the Crown generally owes no fiduciary duty to individual citizens, including inmates of correctional institutions: Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, at para. 37; Johnson v. Ontario, 2016 ONSC 5314, at paras. 40-46. If the Crown owes no fiduciary duty to the plaintiff, the correctional officers as employees of the Crown cannot owe a fiduciary duty to the plaintiff.

[8] The proposed amendments to the Statement of Claim include a passing reference in paragraph 29 to a breach of fiduciary duty owed by the correctional officers but the plaintiff fails to plead any basis on which a fiduciary duty was owed to him by these proposed defendants. The draft Amended Statement of Claim fails to identify the required elements to establish a fiduciary duty owed personally by the correctional officers to the plaintiff: Barker v. Barker, 2022 ONCA 567, at para. 54 (citing Alberta v. Elder Advocates). There may be sufficient facts pleaded to establish a fiduciary duty owed by the Crown, but there are no facts to support a fiduciary duty owed personally by the correctional officers to the plaintiff.

[9] Secondly, the claims against the correctional officers are founded in negligence, gross negligence, and recklessness for which they are provided immunity pursuant to s. 8(1) of the CLPA. Recourse for torts or breaches of employment-related obligations by Crown employees lies with commencing suit against the Crown, not the individuals.

[10] Therefore, leave is not granted to the plaintiff to amend paragraph 29 of his Statement of Claim to include the breach of fiduciary duty claim against the individual corrections officers.

Bad Faith Claim and Stay of Proceeding

[11] If the plaintiff wishes to proceed with claims against the individual correctional officers, the claims must be founded on bad faith in the exercise of their powers or the execution of their duties. If bad faith allegations are made, s. 17 of the CLPA is invoked and leave is required to pursue the claims against the correctional officers. Until such time as leave is granted, the action is stayed.

[12] To obtain leave and to lift the stay, the plaintiff must satisfy the two-part test outlined in s. 17(7) of the CLPA. The Court must be satisfied the proceeding is being brought in good faith and there must be a reasonable possibility the claim will be resolved in the plaintiff’s favour. This test was enacted to screen out lawsuits pursued with an ulterior motive, known as “strike suits”, where a plaintiff commences a civil action to harass or to generate negative publicity for a defendant, with the primary intention to extort a financial settlement. The test is also intended to screen out negligence claims that for tactical reasons have been pleaded with allegations of bad faith.

[13] The Crown opposes the motion to lift the stay of proceedings, claiming the plaintiff is unable to show he has a good faith reason to pursue action against the correctional officers, and that the allegations of bad faith against the officers have no merit.

[14] There is no question this action is not a strike suit. It has been brought as a result of serious injuries sustained by the plaintiff from an assault suffered in a correctional facility. The plaintiff alleges his injuries were exacerbated by the delay in obtaining medical attention because the correctional officers failed to adhere to the institutional policies and procedures published by the Ministry of the Solicitor General and to abide the Standing Orders published by Ministry of Community Safety and Correctional Services for MCC.

[15] “Good faith” in the commencement of legal proceedings has been interpreted to mean the plaintiff has an “honest belief that he or she has an arguable claim for reasons consistent with the statutory remedy, not for an oblique or collateral purpose, and with a genuine intention and capacity to prosecute the claim.”: Vecchio Longo Consulting Services Inc. v. Aphria Inc., 2021 ONSC 5405, at para. 83. The plaintiff bears the burden on a balance of probabilities to establish the claim has been initiated on a good faith basis.

[16] The plaintiff has retained legal counsel and has demonstrated he intends to prosecute the claim to recover damages for the very serious injuries he sustained. The plaintiff clearly believes he has an arguable case having regard to the video evidence of the assault and the findings of the Investigation Report commissioned by the Crown.

[17] I am satisfied the plaintiff has commenced the action against the correctional officers on a good faith basis, thereby satisfying the first prong of the test in s. 17(7) of the CLPA.

[18] The plaintiff has been candid in confirming one of the reasons for personally naming the correctional officers in the lawsuit is to obtain discovery rights respecting these individuals. They are the persons with the greatest knowledge of what did, and perhaps more importantly what did not, happen on the day in question. Identifying defendants for this purpose is not necessarily an abuse of process provided the individuals have direct involvement in the substance of the claim: Sataur v. Starbucks Coffee Canada Inc., 2017 ONCA 1017, at para. 7. This expressed purpose for pursuing action against the correctional officers does not undermine my finding the test of good faith has been met.

[19] Meeting the second prong of the s. 17(7) CLPA test, that there is a reasonable possibility of success in the claim the correctional officers acted in bad faith, is more difficult. An absence of good faith does not inherently give rise to a finding of bad faith.

[20] Bad faith requires intent: C.R. v. Her Majesty the Queen in the Right of Ontario, 2019 ONSC 2734, at para. 160. It calls for a subjective state of mind. The plaintiff must adduce evidence each individual correctional officer intended to cause him harm. It is not a concept that can be collectively attributed to a group or a collective. Negligence or the exercise of poor judgment do not constitute bad faith: Jackson v. Mayerle, 2016 ONSC 1556, at para. 58. There must be a conscious wrongdoing.

[21] The plaintiff admits he does not believe the correctional officers wanted to see him harmed. Rather, he relies on the findings in Sparks v. Ontario, 2010 ONSC 4234 at para. 26 where it was held that reckless or inexplicable conduct can amount to bad faith, as can a fundamental breakdown of the orderly exercise of authority. The modern judicial view of bad faith is said to encompass seriously careless or reckless acts: Finney v. Barreau du Québec, 2004 SCC 36.

[22] The plaintiff submits the failure of the correctional officers to monitor the unit, to conduct patrols in accordance with the published policies and procedures for MCC, and to properly supervise the inmates was reckless, inexplicable conduct, a breakdown of the exercise of authority, and a departure from everyday norms of fairness and reasonableness, all of which amount to bad faith.

[23] The plaintiff must lead evidence of bad faith. He relies upon the Investigation Report findings and the Occurrence Reports authored by the correctional officers to establish bad faith.

[24] The Investigation Report finds the officers failed to meet management expectations to conduct twice hourly patrols. The officers explained they were attending to their various duties in the institution, and they understood perimeter patrols were sufficient when the inmates were out of their cells in the common area. The Investigation Report noted deficiencies in the patrol and escort logbooks, found that some written reports failed to meet ministry standards, and one correctional officer failed to submit a timely Occurrence Report.

[25] None of these shortcomings meet the standard for recklessness. There is no evidence the correctional officers knew the plaintiff was particularly vulnerable, nor is there any evidence the correctional officers intended to breach the ministry standards and protocols. The failure to adhere to patrol policies was adequately explained, and the record keeping deficiencies were not egregious. There does not appear to have been an abdication of the exercise of authority. The failures of the correctional officers to conduct twice hourly random internal patrols while maintaining perimeter patrols cannot be said to be a departure from everyday norms of fairness and reasonableness.

[26] There is no other evidence of bad faith.

[27] At their highest, the actions and the omissions of the correctional officers amount to negligence in the execution of their duties, a liability for which they are provided immunity by the CLPA. There is no reasonable prospect of success on the claim of bad faith and therefore leave is not granted to add the correctional officers to the proceeding.

Further Amendments

[28] Paragraph 28(p) of the Amended Statement of Claim pleads “the conduct set out in the Correctional Services Oversight & Investigation Report into the incident”. This is improper and must be struck as it pleads evidence without identifying the specific conduct referenced in the Correctional Services Oversight & Investigations Report on which the plaintiff asserts a claim. The plaintiff is however granted leave to amend the proposed Amended Statement of Claim to properly plead this claim if he wishes to do so.

[29] The Crown otherwise takes no issue with the proposed Amended Statement of Claim, but without prejudice to raise any defence to the pleading.

Justice Mills Date: July 5, 2024