Rita Bambers

The plaintiffs, former inmates of the Elgin-Middlesex Detention Centre, brought a motion to certify a class action against the provincial Crown alleging systemic negligence and Charter breaches resulting from overcrowding and inadequate supervision.

The Crown opposed certification and moved to strike portions of the claim and evidence.

The court struck the claim for breach of fiduciary duty but found the pleadings otherwise disclosed reasonable causes of action in systemic negligence and Charter breaches.

The court admitted the plaintiffs' evidence for the limited purpose of the certification motion and concluded that all criteria under section 5(1) of the Class Proceedings Act were met.

The motion for certification was granted.

The plaintiff, an inmate and member of the Malvern Crew street gang, was severely beaten by a rival gang member while housed at the Don Jail.

He sued the Crown in negligence for placing him in the same unit as the rival gang member.

The court found that the Crown owed a duty of care and breached it by failing to consider inmate compatibility when applying its numeric balancing policy for housing gang members.

The Crown knew or ought to have known of the severe security threat posed by the rival gang member.

The court found the Crown liable for the assault, but reduced the damages by 15% due to the plaintiff's contributory negligence in failing to request protective custody.