Court of Appeal for Ontario

Date: 2018-05-23 Docket: C64634

Judges: Lauwers, Benotto and Nordheimer JJ.A.

Between

James Fontenelle Jr., Tanya Brown, James Fontenelle Sr. and Margina Fontenelle Plaintiffs (Respondents)

and

The Attorney General of Canada, Leonard Ballantyne, Terrance Bent and Nickoma Cottrelle Defendants (Appellant)

Counsel

M. Sean Gaudet and Joel Levine, for the appellant

Doug Wright, for the respondents

Heard: May 17, 2018

On Appeal

On appeal from the judgment of Justice David Price of the Superior Court of Justice, dated November 2, 2017, with reasons reported at 2017 ONSC 6604.

Reasons for Decision

Background

[1] The Attorney General of Canada appeals from the summary judgment granted by the motion judge who found in favour of the plaintiffs on the issue of liability but ordered the issue of damages to proceed to trial.

[2] The action arises out of an assault that was committed on the respondent, James Fontenelle Jr., (who we will refer to as "the respondent") by the three named individual defendants, none of whom defended the underlying action. The assault occurred while the respondent and the three individual defendants were all inmates at Millhaven Institution, which is a maximum security penitentiary located in Bath, Ontario. The respondent was seriously injured.

[3] The underlying action alleged that the Attorney General of Canada, as the representative of the Federal Crown, was negligent and breached a statutory duty of care by failing to keep the respondent reasonably safe while he was an inmate of the penitentiary.

[4] The background facts can be stated fairly briefly. At the time of the assault on October 8, 2013, the inmates in the unit in which the respondent was housed were on "strike" in protest over the transfer of inmates from Kingston Penitentiary, which was being closed. This strike had been ongoing for approximately a month.

[5] As a consequence of the strike, the inmates were not being allowed outside into the yard or the gym. Rather, they were only allowed outside of their cells for limited "range activities", and then only at limited times. There are surveillance cameras that cover the range but the cameras do not cover the insides of any of the cells. Further, each cell is equipped with an alarm. As part of the protest, inmates, including the respondent, would press the alarm even though there was no emergency. Inmates would also cover their cell door windows and prop open the doors of their cells when out on the range. Prison staff were obligated to respond to any alarm.

[6] On the evening of October 8, the respondent activated his cell alarm even though there was no emergency. Prison staff attended and reset the alarm. A few minutes later, six cell alarms were pressed at the same time, including the respondent's. Apparently this was to show the displeasure of the inmates that they had not, as yet, been allowed out of their cells. Prison staff again attended and reset three of the six alarms. They did not reset the respondent's cell alarm. There was no evidence why only three alarms were reset.

[7] A few minutes later, the cell doors were opened to allow the inmates out onto the range. For the next 30 minutes or so, the inmates on the range engaged in various activities. During this time, the respondent passed the defendant, Ballantyne, on the range a number of times, without incident.

[8] At the end of this period, Ballantyne entered the respondent's cell and left 14 seconds later. A couple of minutes later, the respondent popped his head out of his cell and appeared to speak to Ballantyne. The respondent tried to kick away the object propping open his door, but Ballantyne appeared to lunge to keep it open. Ballantyne then entered the respondent's cell. The defendants, Cottrelle and Bent, stood outside the door. Ballantyne left a few minutes later. The motion judge found that the assault occurred at this time. The assault was not observed by prison staff because none of the staff are on the range when the inmates are out of their cells. Rather, prison staff observe the activities on the range through the surveillance cameras.

[9] About 15 minutes later, the prison staff and the inmate range representative reached an agreement by which the inmates returned to their cells. At this point, the prison staff reset the other three cell alarms, including the respondent's. About an hour later, staff conducted a patrol but did not observe any issues with the respondent. About a further hour later, staff entered the range and observed that the respondent was in apparent distress. An ambulance was called and he was taken to Kingston General Hospital.

Statement of Claim

[10] In his statement of claim, the respondent asserts negligence on behalf of the appellant, the particulars of which are pleaded as follows:

(a) It failed to take reasonable care for the Plaintiff's safety;

(b) It allowed the assailants to gain access to the Plaintiff's cell;

(c) It failed to monitor the Plaintiff's cell properly to ensure that persons did not gain access to it;

(d) It knew or ought to have known that an assault was occurring and it failed to intervene in a timely manner, or at all;

(e) It failed to supervise the other Defendants properly, or at all;

(f) It failed to have adequate policies in place to ensure the prisoners' safety;

(g) In the alternative, it failed to enforce its policies;

(h) It failed to instruct its staff properly or at all on safety matters;

(i) It knew or ought to have known that the Plaintiff's safety was at risk and it did nothing to minimize the risk; and

(j) It failed to make any reasonable assessment of the risk to the Plaintiff of being housed close to the other Defendants.

[11] The appellant brought a motion for summary judgment seeking to have the action dismissed on the ground that there was no genuine issue requiring a trial. In the alternative, the appellant sought an order bifurcating the action as between liability and damages. There was no cross-motion by the respondent for summary judgment.

Analysis

[12] In our view, the motion judge greatly exceeded his authority in granting summary judgment in this case in favour of the respondent. In doing so, he made unjustified findings of fact. The appellant also submits, with some warrant, that the motion judge proceeded contrary to the principles in Rodaro v. Royal Bank of Canada (2002), 59 O.R. (3d) 74 (C.A.), at paras. 61-63. What is clear, given the factual issues that are in issue in this case, is that a trial is required to resolve whether the appellant is liable for the injuries sustained by the respondent.

[13] In awarding summary judgment, the motion judge found, at para. 11 of his reasons, that the evidence "leads to the inescapable conclusion that [Correctional Service Canada] was negligent, and that, but for its negligence, the injuries to [the respondent] would not have occurred."

[14] The motion judge correctly cited the law that applies to summary judgment motions, particularly the decision in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87. More specifically, the motion judge quoted from Hryniak, at para. 49, where Karakatsanis J. said:

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

However, he failed to properly apply that law in reaching his decision.

[15] After this quotation, the motion judge said, at para. 56, that "…I am satisfied on the evidence tendered in the motion, that I have a full appreciation of the facts and am able to reach a fair and just determination on the merits…" While the decision to exercise summary judgment powers is discretionary, deference is not owed to that decision where the motion judge comes to a decision "that is so clearly wrong that it resulted in an injustice": Hryniak, at para. 83. That is what occurred in this case.

Motion Judge's Liability Findings

[16] The motion judge made the following liability findings, at para. 70:

For the reasons that follow, I find that there was a foreseeable risk of harm to Mr. Fontenelle arising from CSC's placement of him in a "tough unit" within a maximum-security prison, among inmates, including Mr. Ballantyne, who had a known history of institutional violence against other inmates. That risk was heightened when CSC failed to dis-arm and re-arm Mr. Fontenelle's call alarm, and permitted inmates, including Mr. Ballantyne, to enter Mr. Fontenelle's cell, outside the range of surveillance cameras. I find that CSC failed to meet the standard of conduct that applied to it, that served to deter such violence and enable its staff to respond promptly and effectively if it occurred. In particular, CSC:

1. Failed to install and maintain proper surveillance of the cell interiors;

2. Failed to respond promptly and effectively to the activation of Mr. Fontenelle's cell alarm;

3. Failed to respond effectively to Inmates' propping open cell doors, and thereby allowed dangerous inmates to enter Mr. Fontenelle's cell outside the range of security cameras;

4. Failed to ascertain Mr. Fontenelle's condition promptly following the assault and secure timely medical treatment for his injuries.

Evidentiary Deficiencies

[17] 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. The motion judge erred in a number of respects in concluding otherwise. It is not necessary to review each of those errors. The following will suffice.

[18] Regarding the placement of the respondent in the "tough unit", the motion judge acknowledged that he did not have evidence respecting available institutional resources or whether there were alternative placements available to the appellant that would have been more appropriate for the respondent, given his inmate profile. He should not have proceeded to make a finding on this issue.

[19] The motion judge also found that the appellant had been negligent because it failed "to ensure that doors to the cells were kept closed while inmates were on the range" (para. 93). He found that this failure "contributed substantially" to the injuries that the respondent sustained. In reaching this conclusion, the motion judge does not appear to have given any consideration to the fact that there was an inmate "strike", that the inmates (including the respondent) were blocking their cell doors from being closed, and the safety risk posed to prison staff if they were to enter the range while the inmates were out of their cells. Given those factors, the motion judge does not explain how the prison staff could reasonably be expected to ensure that the cell doors were kept locked.

[20] The same factors ought to have been taken into account when the motion judge found that the appellant was negligent in not resetting the respondent's cell alarm. There was no evidence why only three of the six alarms were reset. The absence of that evidence ought to have concerned the motion judge in respect of any conclusion he might make about this issue. In any event, given that at the time of the assault, the alarms still had not been reset, and yet the inmates were out on the range, it is not clear how the motion judge thought the prison staff were supposed to be able to then reset the alarms. We repeat that the other three alarms had been reset prior to the inmates being allowed out on the range.

[21] The motion judge also criticized the appellant for the failure to have surveillance cameras in each of the cells so that the authorities could monitor the activities in each cell. The motion judge made this criticism without there being any evidence on this issue, including the costs associated with installing all of those cameras and the privacy concerns that the installation of such cameras would give rise to.

[22] The motion judge also faulted the appellant for the delay that occurred in ascertaining the condition of the respondent after the assault. On this point, it should be noted that the motion judge did not have any evidence from the two staff members who observed the respondent about an hour after the assault. He also did not have any evidence from the respondent on this point. Still further, the motion judge did not have any evidence that any delay in treatment had any impact on the respondent's injuries.

Incorrect Legal Standard

[23] Further, on more than one occasion, in the course of his reasons, the motion judge said that, but for a failing he identified on the part of the appellant, the assault "would likely not have occurred". That is not the correct legal standard for finding negligence. Rather, the correct legal standard is that "but for" the negligence of the defendant the injuries would not have occurred. As McLachlin C.J.C. said in Clements (Litigation Guardian of) v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, at para. 8:

The plaintiff must show on a balance of probabilities that "but for" the defendant's negligent act, the injury would not have occurred.

[Emphasis added.]

Conclusion on Appeal

[24] In the end result, the motion judge concluded that a trial was not necessary to determine liability in this case. Rather, he determined that the appellant was liable to the respondent. We note that he reached that conclusion notwithstanding that the respondent's position on the summary judgment motion was that a trial was necessary. In reaching his conclusion, the motion judge pointed to the lack of evidence from certain staff members who had been involved in the incident and the failure of the three individual defendants to defend the action. It is not clear what the significance of the latter is to the issue. If the concern was that their evidence was not before the court, then that was another reason to send the matter to trial. Whether or not the individual defendants defended the action, they are still subject to being called as witnesses at the trial.

[25] The motion judge's conclusion that a trial on liability was unnecessary cannot be sustained. The evidentiary record before the motion judge was insufficient to reach a fair and just determination that any duty of care owed by the appellant to the respondent had been breached. There was a need for much more evidence than the motion judge had on a variety of issues, such as the impact of the actions of the inmates on the ability of the prison staff to take certain steps, the actions surrounding the cell alarms, the liability consequences of finding that individual cells should have surveillance cameras, and so on.

[26] It follows from that conclusion that the appellant was not entitled to summary judgment either. This is an action that will have to proceed to trial absent the parties reaching any other resolution. On that point, we do not see any reason to bifurcate the liability issues from the damages issues. It would seem that the factual findings in the liability phase will assist in determining what, if any, damages are appropriate.

Conclusion

[27] The appeal is allowed. The summary judgment granted by the motion judge is set aside. The appellant's motion for summary judgment is dismissed. The action is ordered to proceed in accordance with the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The appellant is awarded its costs of the appeal, fixed in the agreed amount of $20,000, in the cause as also agreed between the parties. The motion judge's order reserving the costs of the motion to the trial judge remains.

"P. Lauwers J.A."

"M.L. Benotto J.A."

"I.V.B. Nordheimer J.A."