Walters v. Ontario, 2015 ONSC 4855

Court File and Parties

COURT FILE NO.: CV-09-378388

DATE: 20150804

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JASON CLIVE WALTERS by his Litigation Guardian, PEARLINE SAMUDA, ALICIA WILSON, and ALICIA WILSON~~, personally~~, and CARLTON BURKE and PEARLINE SAMUDA, and JI’A ALISSA WALTERS by her Litigation Guardian ALICIA WILSON, and ADRIAN CLIVE WALTERS, and ALANA K. WALTERS, by her Litigation Guardian ADRIAN CLIVE WALTERS

Plaintiffs

– and –

HER MAJESTY THE QUEEN in right of the PROVINCE OF ONTARIO as represented by the MINISTER OF COMMUNITY AND SAFETY AND CORRECTIONAL SERVICES and TORONTO (DON) JAIL and JOHN DOE and TIM DOE and BILL DOE and TORONTO POLICE SERVICES BOARD

Defendants

Counsel: Andrew Camman, Donald R. Fiske and Michelle Arzaga, for the Plaintiffs, Jason Clive Walters by his Litigation Guardian, Pearline Samuda, Carlton Burke, Pearline Samuda, and Adrian Clive Walters Rita Bambers and Jeffrey Claydon, for the Defendant, Her Majesty the Queen in right of the Province of Ontario

HEARD: May 4, 5, 11, 12, 21, 22, 25, 26, 27, and June 1, 2015

Reasons for Judgment

GANS J.

Introduction

1In 2004, the Ministry of Community Safety and Correctional Services (“MCS”) struck a cross-disciplinary committee (the “Committee”) to report and make recommendations on offenders and other incarcerates housed in the MCS institutions who belonged to or were affiliated with criminal organizations such as street gangs, outlaw motorcycle gangs and terrorists groups. The MCS institutions, which include pre-trial detention centres, were experiencing a significant increase in the inmate population who belonged to what are collectively and generically labelled as a Security Threat Group or “STG.” The MCS staff was faced with daily STG-related issues and decisions and was intent on, if not compelled to, create “strategies” to identify and manage these high-risk offenders.¹

2Insofar as the situation then existed with respect to STGs, the Committee concluded that:

• Valuable intelligence was not being gathered;
• There were no formal strategies for STG management;
• Information sharing was ad hoc, infrequent and often misdirected; and
• There was no common approach to the management of these groups.²

3The Committee proceeded to identify “key policy initiatives,” which included staff training, identification and validation of STG members and affiliates, offender management, and information gathering and sharing. While the Report did not specify a formal mechanism for the actual housing of various STG members while in the institutions, it was the position of the MCS throughout the course of the trial that this document was a precursor to the “policy” that was ultimately introduced into the Toronto Jail (the “Don”) in July 2008.³

4The “policy” that was introduced, which will be explained in more detail later in these reasons, called for the housing of STG members based upon the concept of “numeric balancing,” which essentially meant that members of the same gang or STG would be placed throughout the maximum security ranges or units of the Don on as balanced a basis as the then current population of the institution permitted. In other words, insofar as it was practicable, members of the same gangs would be sprinkled throughout the jail and not housed in the same unit.⁴

5It was the “policy” and its implementation that formed the backdrop to, if not the very essence of, the liability issue between the parties which I was called upon to decide in the final analysis of this trial.

Factual Matrix⁵

6The first half decade of the new millennium saw an exponential increase in the operation of street gangs in various sectors of the GTA. Scarborough was home to several, including the Malvern Crew and the Galloway Boyz, who were engaged in an intense and sometimes violent turf war. The Plaintiff in this action, Jason Walters, was a low level member of the Malvern Crew. Tyshan Riley, who was housed in the same unit as Walters when the latter first arrived at the Don, was a senior functionary, if not the leader, of the Galloway Boyz.

7Walters had run afoul of the law as early as late 2003, which resulted in his incarceration pending trial at the Toronto East Detention Centre (“TEDC”) until the spring of 2005, whereupon he was released from custody after the completion of a “time-served” sentence. He was arrested yet again on November 16, 2008, on multiple weapons-related charges, and was sent to the Don on November 17.

8When he arrived at the Don, he was routinely processed through the Admitting and Discharge Department (“A&D”). At first instance, he was processed by an intake officer, who identified him as a member of the Malvern Crew, a designation which was already on his profile in the MCS Offender Tracking and Information System (“OTIS”). He was issued a notification card – a standard I.D. card provided to all incarcerates – which also noted that, while at the TEDC, he had requested and been placed in protective custody (“PC”), presumably for gang-related concerns on his part. While the requisite form was not completed by the intake officer, I am satisfied on the evidence that Walters was again offered PC upon intake but refused, a matter which has some bearing on the outcome of the liability issue.⁶

9Walters was next assigned to Range 3A South (the “Unit”) by Steve Aspiotis, the then A&D manager, at which time he was housed with 39 other inmates in 18 cells. He was the only member of the Malvern Crew assigned to the Unit, since his co-accused and co-gang member was placed elsewhere. Of the other inmates in the Unit, six were identified as members of STGs, including Tyshan Riley.

10At the time that Steve Aspiotis placed Walters in the Unit, as he acknowledged in evidence, he was only concerned with complying with the numeric balancing described in the “policy,” and while he was possessed with information which clearly identified which others of the inmates belonged to what STG, he paid no attention to any gang rivalries or any similar proclivities that might have had a bearing on Walters’ placement. Such would have been outside the ambit of what he perceived was his mandate under the “policy.”

11Walters’ first appearance in remand court occurred on November 18. It is safe to conclude that he would have been out of the Don from early morning to late afternoon, leaving that institution and returning through the A&D Department on each occasion. There is no evidence to suggest that he made any request of the MCS staff, duty counsel or the jailers at the Ontario Court of Justice to be moved into PC, though he undoubtedly would have realized in very short order after his arrival in the Unit that it was occupied as well by Tyshan Riley.

12Indeed, during the morning of November 19, in a three-way call channeled through the phone line of his girlfriend, Walters seemingly expressed the sentiment that he had no concerns for his safety, even though there was an oblique – if not benign – reference to another occupant of the Unit which the Crown suggests was a reference to Riley. Be that as it may, there is no doubt that Walters did not ask to be moved from the Unit or be placed in PC at any time prior to the assault.

13The events of November 19, 2008, unfolded in a way that did not presage the beating that Walters suffered during the early evening, which the parties agreed took place sometime between 6:20 and 7:27 p.m. In the first place, Riley had been at 361 University Avenue for the entire day as the seemingly unending pre-trial motions were unfolding before Dambrot J., as they had for some 60 hearing days since February 2008.

14The evidence of the beating came, primarily, from Lonny Pearson, an ex-inmate with a long and sordid career in and out of various provincial and federal penal institutions. Without honing in, at this moment in time, on who the actual perpetrator or ringleader of the assault was, I am satisfied on a balance of probabilities of the following:

• At some time at or about 6:20,⁷ but after the last round by the Corrections Officers (“CO”) had been performed around the Unit, Walters, who was seated at a metal picnic table two-thirds of the way down the Unit from the sally port with his back to the cells, was attacked from behind by a muscular black man;
• The attack was unprovoked;
• Walters was thereupon dragged by this individual, perhaps with the assistance of some other inmates, to the eastern portion of the Unit to the area of the shower and washrooms;⁸
• Thereupon, his assailants proceeded to stomp on him individually and collectively in the shower area for some time, although the view of the actual situs of the beating was obstructed by a waist-high wall in front of the shower proper;
• During the assault, several of the Unit inmates congregated at the area of the sally port, while the volume on the televisions along the southern bars of the Unit were turned up, presumably to muffle or obscure any cries for help or distress from Walters or the sound of the altercation itself;
• Walters was thereupon dragged back to the area of the sally port in a state of unconsciousness. A CO was summoned to the Unit by one of the inmates at approximately 7:27 p.m., at which time Walters was discovered “in a prone position, soaking wet and unconscious on a wet sheet near the sally port door.”⁹ A medical alert was sounded, after which Walters was transported to St. Michael’s Hospital.

15While not relevant to the issue of liability, the parties are in agreement that the injuries Walters sustained were severe; he required two craniectomies, the first on the day after his admission to hospital and another several months later. He was hospitalized in an acute care facility until early May 2009, after which he was sent to the Toronto Rehabilitation Institute where he remained for an additional 16 months. Leaving aside the various fractures and dislocations and subdural hematoma that were experienced in the wake of the beating, Walters is now hemiplegic and suffers from acute aphasia. Mercifully, during the course of the trial, the parties, with the assistance of my colleague D. Wilson J., were able to resolve the damages consequent to the beating, in an amount about which I have no knowledge.

Liability

16Counsel for both parties prepared – and presented – final arguments that were very persuasive. While the issues are cast in somewhat different terms, and are in fact traversed in the final analysis, those set out in the MCS factum offer a more manageable roadmap.¹⁰ To that extent, I have paraphrased the issues as set out by the MCS in its factum, a formulation which will serve as the outline for the analysis and decision that follows:

1. Did the Crown owe a duty of care to Jason Walters?
2. Are the policy decisions in the management of correctional institutions justiciable or reviewable by courts?
3. If so, did the Crown breach that duty by housing Jason Walters on Unit 3A South?
4. If not, did the Crown breach its standard of care owed to Jason Walters in supervising Unit 3A South?
5. If the answers to issues 3 or 4 are in the affirmative, did the Crown’s breach cause Jason Walters’ loss?

Duty of care

17The parties are in agreement that the Crown owes a duty of care to inmates while in its custody. In this respect, the Crown has a duty to take reasonable care for the safety of the person while under its charge.¹¹ The parties are also in agreement that the Crown is vicariously liable for the acts or omissions of the COs who, acting in the course of their employment, do something that a “reasonable person would not have done, thereby creating a foreseeable risk of harm to the inmate.”¹²

18Both parties cite and rely on the decision of Harris J. in Rhora v. Ontario, in which the Court held that a plaintiff nevertheless has the obligation to show that the COs acted, or failed to act, in such a way as to incur personal liability to the plaintiff.¹³

19In particular, the Plaintiff argues that there is an overarching duty on the part of the COs to protect an inmate from the acts of other inmates. This duty, the Plaintiff acknowledges, is not open-ended and is to be circumscribed to ensure that reasonable care is taken to protect inmates from reasonably foreseeable risks that others might impair the safety and well-being of all inmates.¹⁴

20I am mindful of the fact, as has been described by others of my colleagues, that “…incarceration, even for very short periods of time, exposes all inmates to the increased risk of harm characteristic of any prison environment.”¹⁵ Put otherwise, inmate behaviour can be highly unpredictable and to assume perfection on the part of the corrections staff would be clearly unreasonable in the circumstances.¹⁶

The Policy—non-justiciable and reasonable

21The MCS argues that the decision, based on the “policy,” to put Walters in the Unit with Riley, assuming it was he who committed or orchestrated the assault, is not reviewable by the court. If it is, the MCS argues that the decision was in fact reasonable.

22Before answering that question, some further background facts are in order.

23As discussed above, the Committee prepared a report in 2004 in which it identified the need for a policy and a program of staff education to deal with the issues surrounding the rising trend associated with the housing of members of STGs. While I heard evidence from Jim Aspiotis, a Committee member and the current MCS manager charged with the responsibility of rolling out the STG program throughout the institutional network, his study group did not formally recommend numeric balancing in their report, a concept which formed part of the touchstones of their review.

24However, no formal “policy” or protocol was ever implemented through the MCS institutions universally after the report was tabled. Indeed, any form of policy was introduced into the various provincial institutions individually and almost on an ad hoc basis. The first institution in the GTA to introduce the “policy” was the TEDC, which introduced its protocol by way of a standing order to all COs working in that institution, which I was told was done in 2005.¹⁷

25The Don, however, did not introduce any form of STG policy until July 2008. When the institution did, the policy was taken almost verbatim from that which was introduced at the TEDC. The document was in the form of a memo and was not incorporated into the COs’ standing orders or the operating manual for the institution. It was, as counsel for the Plaintiff argued, at best an ‘initiative,’¹⁸ and did not reach the level of a “policy” as that term is used and defined in the cases.¹⁹ Hence, according to the Plaintiff, it was but an operational directive and not a “true” or core policy that had as its root public policy considerations which covered the spectrum of economic, social and political factors.²⁰

26The essence of the “policy,” insofar as its application is relevant to the matters in issue, contains the following excerpt:

The placement of STG offenders within the institution shall be determined by the Superintendent or designate in consultation with the Security Manager. The institution shall attempt to maintain some separation and/or balance of STG members within living units.

The Security Manager will be consulted prior to any unit change or movement of a specific side of a unit involving a STG offender. This will assist in limiting STG offender manipulation and aid in increased control and compatibility. In an emergency situation where the immediate removal/movement of a STG offender is required from one unit to another, the Security Manager must be appraised as soon as possible. Offenders may not typically be placed in segregation solely on the basis of being a member or an affiliate of a security threat group. However, engaging in recruitment or participating in STG related activities may serve as a basis for disciplinary action, reclassification, segregation and/or transfer to another facility.²¹

27The Plaintiff further underscores the fact that when this directive was put in place, there was no formal training of the COs on the range or, more importantly, in the A&D. But for some notion in respect of the concept of numeric balancing about separating “like from like,” there was no other structure defining how the initiative, as it was referred to in internal documents, was to be implemented.

28Steve Aspiotis testified that as the A&D manager, he was not provided with any special training or aids on how and under what circumstances he was to apply the numeric balancing aspect of the “policy.” Indeed, none of the Defendant’s witnesses involved with this initiative could recall how, on the ground, the balancing was to work. Each, including Luis Raposo, the actual author of the above exhibit, had a different opinion as to how many members of the same gang could be housed in the same unit before the acceptable critical mass was exceeded.

29Furthermore, as the Plaintiff argued, there was so much confusion surrounding the roll-out that Raposo felt compelled — albeit after the Walters beating took place — to write a memo in which he raised a series of concerns about what the directive meant, what it was intended to cover, and how it was to function.²²

30While I have serious misgivings about the manner in which the initiative was introduced at the Don, for some of the reasons described above, I am not persuaded that the subject-matter of the harm at which the numeric balancing concept is aimed is not one which falls outside the concept of a true or core policy. Housing issues per se have long been considered by the Courts to fall within the exclusive domain of correctional officials.²³ It is the MCS which possesses the requisite expertise in understanding the issues attendant to the housing of incarcerates. And it is the MCS which knows the real-life supervisory and staffing issues – and the budgetary limitations – which impact the utilization of any housing concept. The MCS policy with respect to the housing of STGs falls squarely within the realm of economic, social and political factors that form the basis of “true” policy decisions as described by the Supreme Court in Imperial Tobacco, above.

31Nor am I prepared to say that the initiative/policy was unreasonable insofar as it was not made bona fide “or was so irrational or [patently] unreasonable as to constitute an improper exercise of governmental discretion.”²⁴

32I am not persuaded, however, that just because the policy/initiative itself is insulated from judicial review, that this brings an end to my analysis.

33In the instant case, I heard evidence that when the decision was made by Steve Aspiotis to place Walters, knowing as he did that the Plaintiff was a member of a STG, he only focused on the “numbers game” and what space was available in the nine maximum security units.²⁵ He did not undertake any analysis of who else was in the unit into which he intended to place Walters. His inquiry started and stopped with a determination that there would not be any other Malvern Crew members in the same unit. Putting the matter otherwise, he did not consider whether there was any potential for what has been referred to as “inmate incompatibility,” a principle that had to be considered in the context of numeric balancing.²⁶

34While decisions of the Defendant in instituting and implementing policies deserve considerable deference as the administrators of detentions facilities, a most formidable task, I am not persuaded that application of the numeric balancing principle, without considering anything else, was and is proper in the abstract.²⁷ Inmate compatibility on the basis of what the institution writ large knew or ought to have known should have formed part of the calculus.

Crown knowledge of inmate compatibility

Walters did not foresee the assault

35It is the Defendant’s position, with which I am in agreement, that because inmate behaviour is so unpredictable and the risk of harm is almost an axiom of the prison environment, that in order to hold the Defendant liable for the assault, the Plaintiff must prove on a balance of probabilities that the MCS knew or ought to have known that Walters was at risk if he were placed in a unit where Riley had been placed.²⁸

36In this respect, the MCS argues that one can assume that since Walters did not foresee the assault, neither could the Defendant have foreseen it. The Defendant cites the fact that Walters did not seek to be placed in PC, as he did when he was incarcerated at the TEDC in 2004, nor did he alert the officials to the potential for violence. This, according to the Defendant, means that Walters did not foresee the risk of harm to himself if housed in the same unit as Riley, which effectively means that that the Defendant could not have foreseen this same risk.

37In support of this proposition, the Defendant placed significant reliance on the decision of the Federal Court Trial Division in Coumont, cited above. In that case, Coumont was stabbed, within hours of his admission, by an assailant he refused to actually identify during testimony. There was evidence before the trial judge that the assailant was the ex-husband of Coumont’s girlfriend, but there was scant evidence that the correctional officials knew or ought to have known Coumont had a “special” relationship with his alleged attacker or that his attacker had a predisposition to violence or an animus against Coumont. Putting the matter at its simplest, there was no evidence of inmate incompatibility that should have put the institution on any form of alert.

38The Defendant stressed the fact that Walters had several opportunities to alert the corrections officials to the potential of an assault had he been so inclined, and that these opportunities were not limited to the time of his processing on admission. He was out of the institution at remand court the day after coming to the Don, during which time he could have availed himself of the occasion to seek assistance or put the officials on alert, or asked to be moved to PC, none of which he chose to do. The Defendant argues that this conduct underscores Walters’ apparent lack of concern and takes these events out of the realm of finding contributory negligence on the part of the Defendant, at worst.

39However, I am not persuaded that Walters was not concerned for his safety. The three-way phone call upon which the Defendant relies cuts both ways. If the call were, in fact, a report of a conversation that Walters had with Riley, presumably on November 18, it indicates that he was more than a little concerned about the issue such that he had the temerity to confront his prospective nemesis.

40The fact that he did not alert the corrections officials about his concerns is similarly not dispositive of the issue. I heard evidence – and saw it in action during the testimony of Pearson – about the “con-code”: a set of prison rules which militates against one coming clean about “troublesome” events that may happen or have happened. Apparently, the “rat” culture reigns supreme in the institutions.

41Nor do I think that Walters’ failure to request placement in PC upon admission or while at the remand court is a complete answer to this issue. While Walters had asked for and was placed in PC in 2004, during the height of the conflict between the Malvern Crew and the Galloway Boyz, those events took place four years before the events giving rise to this action. I cannot presume to put myself in Walters’ mind, although I would hasten to add that this constellation of events does have more than a modest impact on the issue of contributory negligence, a matter which the Plaintiff has all but conceded will impact the decision in the final analysis.

No pre-indicators of violence

42The Defendant also asserts that there were no pre-indicators of violence that would or should have alerted the corrections officials to the fact that Walters was at risk of an attack from Riley—assuming, for arguments sake, that I am satisfied that it was the latter who orchestrated or participated in the beating. I accept the fact that the corrections officials need be possessed of information or indicators of impending violence in order to trigger potential liability. However, I am not persuaded that in the instant case, the corrections officials were not aware, either actually or constructively, of issues in respect of Riley, even though none was brought to their attention by Walters.²⁹ In my opinion, the circumstances surrounding the incarceration of Riley, and all that entailed, takes the instant case out of the general group of cases to which my attention was directed, cases where the corrections officials had no warning of, for example, a specific animus between the victim and the perpetrator of the assault upon which a suit was founded. A more detailed discussion of Tyshan Riley’s involvement in the justice system to November 2008 will be helpful in placing the issues in context.

Tyshan Riley

43In April 2004, Riley was charged with first degree murder, attempt murder, and committing murder and attempt murder for the benefit of a criminal organization. All the charges arose out of the violent rivalry between the Malvern Crew and Galloway Boyz.

44Riley was first housed in the TEDC between April 2004 and October 2006, during which time his preliminary inquiry was held at the Scarborough Ontario Court of Justice. After his committal for trial, he was transferred to the Metro West Detention Centre (“West”) and remained there until the start of his trial in the Superior Court at 361 University Avenue before Dambrot J. in February 2008. During his incarceration at the West and the TEDC, while anything but a model prisoner, he was housed on the same ranges as members of the Malvern Crew, without any documented incident, for a total of 430 days.

45At the moment in time that Walters was placed in the Unit with Riley, the latter had been cited for 23 incidents of misconduct, of which 20 had taken place after his arrival at the Don in February 2008. Of the 23 misconducts, five related to threatened assaults or assaults, and on at least three occasions, he was found in possession of a knife or a shank.

46It was not until January 2009, after the assault on Walters and apparently for reasons unrelated to that assault, that the corrections officials at the Don determined to place Riley in Administrative Segregation for ‘security reasons.’³⁰

47As I have indicated, an issue of central importance to this case is whether, and to what extent, the Defendant knew or ought to have known that Tyshan Riley posed a heightened threat to security at the Don Jail at the relevant moment in time such that the decision to place a Malvern Crew member in the unit in which Riley was then housed could be said to be negligent. In this analysis, it is a given that the manager of the A&D did not consider this issue at the time that he invoked the “policy”/initiative in not placing “like with like.”

48The parties, at my urging, entered into an ASF, which they tweaked during the course of the trial, delivering a SASF.³¹ At paragraph 37 of the ASF, the parties stated the following:

37. There were several interim orders in the course of the proceeding against Mr. Riley. The supporting reasons for these orders referenced the police allegations against Mr. Riley that led to his conviction, including the fact that the police believed that Riley was a leader of the Galloway Boys street gang, and alleged that he led “ride squads” that drove into the Malvern Area and shot at people they believed to be members of the Malvern Crew (R v Riley, 2008 CanLII 36773 (ON SC), [2008] O.J. No. 2887). However, pursuant to sections 645(5) and 648(1) of the Criminal Code, the interim orders and the underlying reasons were not published until after the jury rendered its verdict on July 15, 2009.

49The first paragraph of the SASF contains the following additional information:

1. The Malvern Crew and Galloway Boys were street gangs operating in Scarborough in 2003 and 2004. They were rival gangs, and this rivalry led to violence between the gangs in 2004. This violence led to criminal charges against several individuals from both gangs, including Tyshan Riley, which were heard in the Ontario Superior Court of Justice between 2004 and 2008.

50Following closing submissions, I sought clarification with respect to the import of paragraph 37 of the ASF and the weight, if any, to be attached to the factual findings made in various pre-trial rulings, of which there were many. The Crown gave me the following by way of response:

3. The Crown therefore submits that your Honour should not consider whether any of the facts found in the interim orders or the underlying reasons for the interim orders came to the attention of jail staff at the Toronto East Detention Centre or the Don Jail by way of any publication because the parties agreed that these facts would not have been published, by reason of the operation of the Criminal Code.

4. It is therefore the position of the Crown that it would serve no purpose to produce and review the specific interim orders made by Justice Dambrot. Any findings therein could not be used to show that jail staff had knowledge of same as: i) these facts were not tendered as evidence at trial; and ii) it has been agreed the decisions were not published until after July 2009.

5. Further, there was no evidence on the trial record that the security measures referred to in those decisions came to the attention of jail staff other than the general knowledge that police had ordered that Riley be escorted to Court for his trial by the Emergency Task Force.

51The Plaintiff provided the following answers:

8. It is our position that the Crown has not answered His Honour’s question. The fact that publication was prohibited, under Section 648(1), does not mean that participants in the Justice system would not have disseminated information regarding the underlying concerns to jail staff.

9. It is the Plaintiff’s position that the Dambrot decisions are entitled to some weight in terms of concerns that jail staff were, or ought to have been aware of.

52The parties are in agreement, and I accept, that as a matter of law pursuant to ss. 645(5) and 648(1) of the Criminal Code, the pre-trial rulings of Justice Dambrot, as well as those of Justice Robertson of the Ontario Court of Justice during Riley’s preliminary inquiry, were subject to a publication ban. They were neither published nor publicly available until the jury rendered its guilty verdict on July 15, 2009.

53This is not, in my view, the end of the matter. I agree with the Plaintiff that the mere existence of a publication ban does not mean that relevant information could not or did not flow between various justice partners, including the Ministry of the Attorney General (“MAG”), the Toronto Police Services (“TPS”) and the MCS.

54As a first step, I must determine whether I can take judicial notice of the security threat that Riley posed in November 2008, when the events affecting Walters transpired.

55The test for judicial notice is set out in the Supreme Court decision of R. v. Spence.³² In Spence, at para. 53, the Supreme Court reiterated and endorsed “the Morgan criteria,” which was the test for judicial notice that the Court had previously set out in R. v. Find:³³

Judicial notice dispenses with the need for proof of facts that are clearly uncontroversial or beyond reasonable dispute. Facts judicially noticed are not proved by evidence under oath. Nor are they tested by cross-examination. Therefore, the threshold for judicial notice is strict: a court may properly take judicial notice of facts that are either: (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy: (citations omitted)

56Given the publication ban then in place and the absence of significant media coverage prior to the commencement of Riley’s trial, I find that the test for judicial notice is not met in the present circumstances. In arriving at this conclusion, I accept the fact that the ‘average member of the public’ would not, under the circumstances of the publication ban, have been aware of the details of the allegations against Riley or of the significant steps undertaken to secure the Ontario Court of Justice and the Superior Court of Justice during his attendances at those institutions.

57That, however, is also not dispositive of this matter. The issue, more narrowly but properly framed, is whether the Defendant, in its capacity as justice system participant, warden of the Don Jail, and a division of Her Majesty the Queen in Right of Ontario, knew or ought to have known of the extraordinary security measures undertaken during Riley’s preliminary inquiry and in preparation for his trial. I have no hesitation in answering this question in the affirmative.

58Tyshan Riley and his co-accused brought a pre-trial application before Justice Dambrot – one of many such applications – seeking a declaration that the security measures implemented and planned for their trial infringed their s. 7 and s. 11(d) Charter rights and were not justified pursuant to s. 1.³⁴ In a decision dated May 12, 2008, Justice Dambrot dismissed the application, finding that there was no violation of the applicants’ ss. 7 or 11(d) rights. In the course of his decision, Dambrot J. extensively reviewed the steps taken to assess and protect against the security threat that Tyshan Riley and the other Galloway Boyz had posed and continued to pose to the justice system and its participants. Without copying or paraphrasing every finding of relevance, the following are key details and findings from Dambrot J.’s decision:

1. Justice Dambrot referred to the security measures as “extraordinary”³⁵ and twice noted that the risk posed by Riley and his co-accused “significantly exceeds the risk ordinarily associated with a criminal trial.”³⁶

2. Justice Dambrot specifically noted that “given the nature of the allegations [against Riley and his co-accused], it would have been surprising, and indeed irresponsible, if the authorities had not attempted to assess whether, and to what extent a threat existed to courtroom security at the preliminary inquiry of these accused, and whether the standard security measures were adequate.”³⁷

3. Justice Dambrot noted the high level of coordination of justice system participants, specifically referring to meetings and coordination between representatives of the Attorney General, various responsibility centres within the Toronto Police Service, Court Services and the judiciary concerning security.³⁸

4. Justice Dambrot set out, in great detail, the specific security measures implemented during the preliminary inquiry at the Ontario Court of Justice.³⁹ An application for an order quashing those security measures was dismissed by O’Driscoll J.⁴⁰ Without setting out the full list here, needless to say that the adjective “extraordinary” is perfectly warranted in describing the security measures.

5. Det. Phillip Devine of the Intelligence Division Security Section of the Toronto Police Service oversaw a Threat Risk Vulnerability Assessment. An initial assessment was produced by Det. Novic on April 21, 2005. The Assessment was updated three times (March 19, 2006; September 24, 2007; and February 6, 2008), with a supplementary report prepared March 14, 2008, after the commencement of Riley’s trial.⁴¹

6. Det. Devine’s report concluded that “the threat of violence, assaults, intimidation of court personnel and witnesses is high, and that the threat of the accused attempting to escape is also high.”⁴²

7. Counsel for the accused vigorously attacked Det. Devine’s assessment and urged Justice Dambrot to place no reliance on it. While Dambrot J. acknowledged that some of it was based on hearsay (tips from informants and wiretaps), and that there was some irrelevant information that ought to have been excluded, he refused to discount the report’s underpinnings and conclusions to the extent desired by counsel for the accused. Justice Dambrot specifically accepted some of the assessment’s information, including that Riley had twice been found in possession of a knife concealed in his rectum while in the Toronto East Detention Centre.⁴³

59In accepting the findings of Dambrot J., I do not run afoul of the parties’ ASF or SASF, as the Plaintiff has noted in his response to my questions. The ASF stipulates that a publication ban existed by virtue of the Criminal Code. It does not state that the Defendant had no knowledge of the facts set out in Dambrot J.’s pre-trial rulings. Furthermore, the fact that Riley was transported by a SWAT team to and from the Don to Court for at least 60 days before Walters was put in their charge belies any other conclusion. Surely it is reasonable to conclude that those staffing the A&D, including the manager if not the deputy superintendents, would have been more than a little curious as to why such extraordinary precautions were being taken for one of the incarcerates.

60Indeed, I would find it inconceivable, if not irresponsible, on the part of the justice participants, including MAG in its prosecutorial and court services arms, TPS and MCS, if the security risks that Riley posed had not been brought to the attention of the managers of the Don, including the manager of the A&D, at the time that he was admitted into their care, both during the preliminary inquiry and during the pre-trial applications. Indeed, and notwithstanding the Defendant’s counsel’s attempt to minimize the contemporaneous knowledge base possessed by the Defendant’s corrections officials who testified before me, I am not persuaded that they did not have a reasonable, if not a full, dossier on Riley and the rivalry between the Galloway Boyz and Malvern Crew at the time that Walters was sent to the Don.

61I find, therefore, that the Defendant had actual or constructive knowledge of the severe threat to security that was posed by Tyshan Riley in November 2008. If they did not, they certainly ought to have known. In the words of Justice Dambrot, the failure to identify and mitigate such a risk would have been “irresponsible” on the part of those responsible for security at the Don Jail.

62As previously indicated, from my review of Steve Aspiotis’ testimony, it is clear that he did not at any time factor into his placement decision a consideration of whether Walters had any “inmate compatibility” issues, particularly with a well-known rival gang member, notwithstanding Walters’ own silence on the matter. I am not persuaded that the details concerning Riley, about which Steve Aspiotis testified, were not obtained by him prior to November 2008. I am also satisfied that because he was charged with making the ultimate decision on placement, this information should have formed part of the calculus. In my view, this issue took on particular importance when one has regard to the configuration of the maximum security ranges, in which Riley and Walters were housed.

The Ranges

63At the time of the assault, the warders at the Don utilized nine maximum security ranges to house the general population inmates.⁴⁴ Each range was divided into two separate units, a North and South unit. Each was a mirror image of the other. Entry to the individual units was through a sally port door on the western side. Each contained 18 cells housing two or three inmates each, with an anticipated maximum population of 40, depending on the demand for housing space. The cells ran from west to east from the sally port door to the shower-toilet area in the East at a distance of at least 137 ft.⁴⁵

64The shower-toilet area provided for but marginal privacy. While the inmates, from time to time, papered over the glass portion of the partition between the toilets and the area that what was referred to as the ‘day-room,’ the general area in front of the cells where inmates were obliged to remain from sun-up to sun-down, there was but a waist-high wall in front of the shower, partially obstructing observation of events that might be taking place below the level of the wall. The net effect of this shower-toilet area configuration and its distance from the western side of the unit meant that a CO’s view from the sally port area to the situs of the shower-toilets would be at a distance and might be partially obscured, particularly if inmates were congregating around the area of the sally port, or indeed stationed outside the shower-toilet stalls.

65There were two COs at most times, except when one was on break or off the floor for some job-related task, charged with the supervision of both ranges. With respect to ranges 3A, North and South, the COs were generally stationed at a desk in the northwest portion of the range, outside the sally port doors of the 3A North unit. There were no monitoring devices for these ranges so that the COs would, at best, only have a ‘visual’ of the North unit from the CO control desk and would only be able to see into the Unit, 3A South, when rounds or patrols were undertaken. These rounds or patrols were supposed to occur once every 30 minutes, plus or minus, unless the COs had occasion to enter the sally port area of 3A South for a job-related function. As I will describe later in these reasons, rounds were mandated, in both the operating manual and standing orders, to be undertaken at random intervals, but in any event within at least at 30 minute intervals at maximum.

66The net effect of the foregoing meant that there was opportunity for a sustained assault of some duration in the Unit on the range which was not monitored by the CO control desk. By sustained assault, I mean an assault which could continue for a period well beyond the time necessary for a spontaneous and brief altercation such as a ‘dust-up’ or knifing in full view of a camera or of a CO, both of which would generally be brought to an end in relatively short order.⁴⁶

Riley’s involvement in the assault

67The Defendant argues that the Plaintiff has failed to establish that the assault was committed or undertaken at the instigation of Riley and that it was gang-related. It is their position that the only evidence of Riley’s involvement, such as it is, comes from the witness Pearson, a man of unsavoury character whose evidence is so replete with inconsistencies as not to be worthy of acceptance, on any level. Indeed, the Defendant suggests that I am obliged to give myself a Vetrovec warning when considering this evidence as part of the factual matrix on the issue of causation.⁴⁷

68I first make the observation that the Vetrovec warning has, as its genesis, a criminal law context. In the context of this trial, a civil action in negligence, it does not mandate an absolute dismissal or disregard of Pearson’s evidence, but is merely meant to sound a cautionary note that there might be good reason to look at a particular witness’ evidence, one who has had more than a passing experience with the justice system, with great care and caution.⁴⁸ With that as the backdrop, I will now review the evidence that I do have on the issue of who assaulted Walters and why.

69There is little doubt that Pearson’s evidence before me varied from chief to cross and was, at times, even in chief, more than a little disjointed if not inconsistent. And there is little doubt from the admissions found in the SASF that Pearson, some few weeks after the date of the assault, failed to identify Riley from the photo-array with which he was presented.⁴⁹

70I am satisfied, however, that Pearson’s evidence, that given before me at least, was infused by the perils associated with the “con-code.” While he showed up to testify in a civil court case, he was more than a little guarded, if not inconsistent, because of the concern for his own safety even though he was no longer incarcerated. Indeed, within days of the assault, he was removed from the Unit, at his request and for his own safety concerns. Therefore, I find that his waffling in the manner and substance in which he gave his evidence was motivated by self-preservation and not by any intent to mislead the Court.

71The evidence which I did find acceptable not only had a ring of reliability to it, but was borne out by what Pearson told and was recorded by Detective Constable Angelo Xinos on November 23, 2008, when the TPS was in the process of its investigation of this assault. Pearson initialed Detective Constable Xinos’ notes of that conversation. In my opinion, those notes are more than a little instructive and provide corroboration for the evidence that Pearson gave at this trial.⁵⁰

72First, I accept the fact that the description of Walters’ first attacker—the one who put him in a chokehold from behind—given to DC Xinos by Pearson matched the description of Riley given to me by Steve Aspiotis in his evidence. Walters’ attacker was a black man of muscular or “athletic” build. More importantly, Pearson identified him to Xinos as someone who had “just come back from court that day,” a descriptor that clearly fits Riley.⁵¹ Xinos also noted that Pearson told him that Walters’ attacker had come out of cell 10, which was Riley’s cell. As best as I understand the attachment to the ASF and the statements of counsel, Riley was the only black occupant of cell 10. In addition, Xinos noted, as is reproduced in the ASF, wet clothing was found and later seized from cells 10 and 11.

73Although not asked about this during his testimony, Xinos’ Notes start with the following observations which he made on his arrival at the Don and before the commencement of his interview of Pearson:

Gang related- victim was member of Malvern Gang

Suspects- 6 were Galloway Boys

Riley, Tyshan, 82/10/28 “Pathfinder” Guy

74His notes continue with brief descriptions of five other individuals identified at that moment in time as suspects, each of whom was an occupant of cells 10 and 11 at the relevant time.

75While no doubt Pearson prevaricated when asked to re-confirm certain evidence he had originally given in chief, I am satisfied that the evidence that was recorded in the original interview was consistent with that portion of his trial evidence that I accept. Pearson’s evidence, corroborated by DC Xinos’ Notes, permits me to safely conclude on a balance of probabilities that the assault was initiated and orchestrated by Riley, and was, as was noted by Xinos, gang-related, if not motivated by gang antipathies.

76I am not persuaded that the fact that Riley lived ‘without incident’ for more than a year with other Malvern Crew members in other institutions should affect this conclusion. In the first place, I did not hear evidence on what monitoring equipment existed in the general population ranges in the West or in TEDC. The configuration of those institutions, which are more modern than the Don, might have eliminated the prospects of a ‘lengthy’ inmate-on-inmate beating, such as occurred in the instant case. And as I could not speculate about Walters’ mindset in not asking for PC at the Don in the days leading up to the assault, nor am I in a position to understand Riley’s psyche in November 2008, at a time when he was near or close to the commencement of a trial for very serious offences which, undoubtedly, he knew would carry with them a life sentence upon conviction, with limited rights to parole.

77I would observe parenthetically that if it were not a Riley-directed attack, why would the TPS record it as gang-related when Riley was the only member of the Galloway Boyz in the Unit at the relevant time? That question begs yet another: if it were not Riley, why would Walters have been subjected to such a grievous unprovoked attack and by whom?

78Finally, I am not persuaded that I have to draw an adverse inference arising out of the fact that Riley was not called to testify by the Plaintiff, even under a judge’s order. It is now beyond question that Riley is a most dangerous person, as found by a jury and as sentenced by Justice Dambrot. I can only speculate, but I dare say that it is likely that he would not have provided any meaningful evidence that would have assisted me in this case.

Breach of Protocol

79While included in the Plaintiff’s written submission, but not emphasized during oral argument, I am not satisfied that had the COs on duty during the evening of November 19, 2008, staggered their patrols or rounds, as mandated by the Adult Institutions Policy and Procedures,⁵² such would have prevented the assault or mitigated its severity in part. There was evidence to suggest that the inmates in 3A South would have had more than ample warning of the CO patrol by the noise made or caused by the officers as they made their way around the perimeter of the range, not limited to the sound of footfalls or even the opening and closing of access doors that provided ingress to the general area of the showers-toilets. And I am satisfied that Riley’s confederates would have given him ample warning of the patrol given the manner in which I was told they were stationed in the Unit during the assault.

80While I had some concern over the fact that there was no additional CO control desk in the area of the sally port outside 3A South, the Plaintiff did not call any evidence on this subject to permit me to come to any conclusion on whether the decision to locate but one control desk in the North was a policy or protocol that was reasonable in all the circumstances.

Conclusion on Liability

81I agree with counsel for the MCS that the Plaintiff is obliged to show that the injuries sustained by Walters would not have occurred but for the negligence of the Defendant and that these injuries were not too remote as to be foreseeable.⁵³ In my opinion, the injuries sustained by Walters are a direct result of the Defendant’s negligence.⁵⁴

82Had those charged with the placement of Walters in a range, notwithstanding his own gang affiliation, directed their minds to the notion of inmate compatibility in general, and Riley in specific, there should have been little doubt that as at November 2008, the placement of a Malvern Crew member with Riley in particular was a recipe for disaster, as ultimately played out. I therefore find for the Plaintiff on this issue.

83The Plaintiff sustained serious and lifelong injuries in the assault of November 19, 2008. He has demonstrated, on a balance of probabilities, that the Defendant was negligent in its housing of the Plaintiff and Riley in the same Unit. He has proven that this negligence caused the catastrophic injuries he sustained.

Contributory Negligence

84As was discussed in detail above, Walters had some opportunity, not limited to the time of his arrival at the A&D, to request placement in PC once he learned, on the evening of his admission to the Don, that he was being housed in the same Unit as Tyshan Riley. Concluding as I have that he had a confrontation with Riley about this situation, he chose nevertheless to remain in the Unit, which unfortunately proved to be a life-altering decision.

85In Squires v. Canada (Attorney General),⁵⁵ one of the few cases in which a court made a finding of contributory negligence against a plaintiff inmate involved in an altercation, the trial judge made the following observation, which bears repeating if only for its discussion of the “con-code” and its impact on incarcerates:

Squires, on the other hand, was in an environment where survival is an important consideration of every day life in a maximum security institution. While he failed to help himself, in some ways the Convict Code (“Con Code”) weighed heavily on him. In Coumont, (supra), the “Con Code” was defined as follows: (at para 9):

The “con code” contains a complex set of rules, the most important of which are that an inmate keeps his mouth shut at all times and never steals from fellow inmates. Failure to adhere to the code results in beating or being killed, particularly if you have “ratted”, and falling to the bottom of the hierarchy. Most inmates at the bottom of the hierarchy are in protective custody, mainly for their own protection from fellow inmates. Once an inmate is placed in protective custody, he is viewed by fellow inmates as the equivalent to a pedophile or a “rat” and it is highly unlikely that he could return to the general population without incident.⁵⁶

86The trial judge found Squires to be 30% contributorily negligent on the basis that Squires had withheld relevant information from the COs, information they needed to make a fully informed decision on his safety.

87During argument in the instant case, counsel for the Plaintiff candidly acknowledged that his client, again subject to the concerns associated with the con-code, should shoulder some of the responsibility for the assault in that it could have been avoided had he made a better choice in the circumstances. He sought a reduction of 10%, but conceded that a finding of contributory negligence of 15% was not off the charts. In any event, I am satisfied on the evidence that the last mentioned number is a fair and reasonable reduction by way of contributory negligence in the circumstances of this case.

Conclusion

88Accordingly, the Plaintiff shall have judgment against the Defendant for 85% of the agreed upon amount of damages. Again, I am not privy to that agreement. I may be contacted by counsel if a straight arithmetic application of this assessment cannot be applied to the agreement as to damages.

89In the meantime, and subject to vacation schedules and the like, I would ask both parties to put together briefs of costs. In the circumstances, subject to any applicable offers to settle, I am inclined to the view that costs should follow the event. Accordingly, the Plaintiff will have three weeks from the date of the release of these reasons to provide me with a Bill of Costs prepared in the “High Court of Justice” form and fashion, with a breakout of time spent by lawyers, paralegals and students by litigation benchmark event. In other words, providing me with a list of running dockets will not suffice.

90The Defendant will have three weeks from the receipt of the Plaintiff’s submissions to prepare a counter brief, providing me with a similar breakout by event, representative of what they would have claimed had they been the successful party.

91I would urge the parties to try and resolve the issue of costs without my involvement, as they did with the issue of damages.

GANS J.

Released: August 4, 2015

Footnotes

1. 1Report of Committee, pp. 3, 6 and 9.
2. 2Report of Committee, p. 9.
3. 3I have deliberately placed the word “policy” in quotation marks since whether what was introduced at the Don as a policy, as that term is employed in the jurisprudence, was very much in issue in this action.
4. 4Agreed Statement of Facts (“ASF”), paras. 11-12.
5. 5The facts articulated in this section, insofar as they provide the background to the events leading up to the assault on Jason Walters, are to be found in the ASF and the Supplementary Agreed Statement of Facts (“SASF”).
6. 6The completion of the intake forms and material was less than perfect. Not only was the PC “refusal” form not signed off on by Walters for reasons which were never quite clear to me, but his notification card was not separately marked with an STG red warning notice. Nor was an incident report prepared and submitted to the A&D manager as the protocol required. I am not persuaded, however, that these breaches tip the liability scale in and of themselves, although they are relevant, in part, in the final analysis.
7. 7The log book maintained by the Unit COs indicates that a nurse at the Don was in the area of the sally port of the Unit between 6:05 and 6:20 p.m. administering medical assistance to the inmates.
8. 8There is no dispute among the parties about the physical layout of the Unit. It is well depicted in the floor-plan (Exhibit 4) and the various photos of the Unit to and from the area of the showers and toilets (Exhibit 5).
9. 9ASF, para. 20.
10. 10Defendant’s factum, para. 35. Following the issue structure developed by the Defendant is not in any respect to be taken as a denigration of the work product of Mr. Fiske, the author of the Plaintiff’s final argument, which I also found to be first rate.
11. 11Timm v. The Queen, [1965] 1 Ex. C.R. 174 at p. 178, cited with approval in MacLean v. The Queen, 1972 CanLII 124 (SCC), [1973] S.C.R. 2 at p. 7, and Iwanicki v. Ontario, [2000] O.J. No. 955 (S.C.) at para. 19.
12. 12Iwanicki, at para. 15.
13. 13Rhora v. Ontario, [2004] O.J. No. 3087 (S.C.) at para. 80, aff’d [2006] O.J. No. 3484 (C.A.), leave denied [2006] S.C.C.A. No. 427.
14. 14Row v. HMTQ, 2006 BCSC 199 at paras. 16-18.
15. 15Iwanicki, at para. 31.
16. 16Pete v. Axworthy, 2004 BCSC 1337 at para. 72.
17. 17Exhibit 2, tab 141: Standing Order, Toronto East Detention Centre re: Security Threat Group management.
18. 18Exhibit 2, tab 145: Memorandum L. Raposo to staff (June 18, 2008): Security Threat Group initiative.
19. 19Just v. British Columbia, 1989 CanLII 16 (SCC), [1989] 2 S.C.R. 1228; R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42; Coumont v. Canada (Correctional Service), [1994] F.C.J. No. 655.
20. 20R. v. Imperial Tobacco, at paras. 78, 87.
21. 21Exhibit 2, tab 145, p. 5.
22. 22Exhibit 19.
23. 23Iwanicki, at para. 19; Coumont, at para. 47; Wolf v. Ontario (Attorney General), 2012 ONSC 72 at paras. 29, 31; Russell v. Canada, 2000 BCSC 650 at paras. 12-13.
24. 24Brown v. British Columbia (Minister of Transportation and Highways), 1994 CanLII 121 (SCC), [1994] S.C.J. No. 20 at para. 28; see also George v. Newfoundland and Labrador, 2014 NLTD(G) 106; Coumont, at para. 38.
25. 25To say that there are but nine units at the Don is a bit of a misdescription. Each unit is divided into two separate sections, a north and south range, which are a mirror image of the other. There are 18 cells on each range, each of which can house two-three inmates depending on the total complement of inmates and the numbers and “demographics” of each range, i.e. the numbers of STGs and members of each in custody. See a further description below in the body of the judgment.
26. 26Row, at para. 16; Gerstel v. Penticton (City), [1995] B.C.J. No. 1572 (S.C.) at para. 81; Russell, at para. 13.
27. 27Maltby v. Saskatchewan (Attorney General), 1982 CanLII 2320 (SK QB), [1982] S.J. No. 871 at para. 20; Almrei v. Canada, [2003] O.J. No. 5198 (S.C.) at para. 18.
28. 28Coumont, at paras. 39-40; Carr v. Canada, 2009 FC 576 at para. 15.
29. 29McLellan v. Canada, 2005 ABQB 486; Bastarache v. Canada, 2003 FC 1463; Carr v. Canada; Eng v. Canada (Correctional Services), [1997] F.C.J. No. 380.
30. 30Exhibit 16: Affidavit of Steve Aspiotis - Habeas Corpus Application; Exhibit 20: Memo of L. Raposo, January 19, 2009.
31. 31Exhibits 1and 1A.
32. 322005 SCC 71, [2005] 3 S.C.R. 458.
33. 332001 SCC 32 at para. 48, [2001] 1 S.C.R. 863.
34. 34R. v. Riley, [2008] O.J. No. 2116.
35. 35Riley, at para. 1.
36. 36Riley, at paras. 96, 101.
37. 37Riley, at para. 8.
38. 38Riley, at paras. 8, 22, 39-41.
39. 39Riley, at paras. 12-17.
40. 40R. v. S.S. (2005), 2005 CanLII 43520 (ON SC), 78 O.R. (3d) 744 (S.C.).
41. 41Riley, at paras. 10-11, 18, and 25.
42. 42Riley, at para. 27.
43. 43Riley, at paras. 92-96.
44. 44The facts articulated in respect of this section are found in the evidence of the COs who testified, as well as in Exhibits 4 (the floor plan of Ranges 3A- 3C), and 5 (photos of the Unit post-assault).
45. 45That distance was calculated from the scale dimensions provided on Exhibit 4. The exact measurements show a distance of 4200 cms, or 137.795 ft.
46. 46There was evidence to suggest that assaults can and do take place even if inmates are monitored by cameras. Indeed, I also heard evidence that assaults can and do take place in front of COs, notwithstanding the immediate consequences to the attacker.
47. 47R. v. Vetrovec, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811, 67 C.C.C. (2d) 1.
48. 48I directed myself on the Vetrovec warning found in Justice David Watt’s Specimen Jury Instructions, Final 31, from which I borrowed liberally from the standard charge.
49. 49SASF, paras. 2-6.
50. 50Exhibit 2, Tab 113: Excerpts from Xinos notebook and interview notes (collectively referred to herein as “Xinos’ Notes”)
51. 51Xinos’ Notes, page 2/7.
52. 52Exhibit 2, Vol. V1, Tab 168.
53. 53Wiebe v. Canada, 2006 MBCA 159 at paras. 35 and 45.
54. 54Clements v. Clements, 2012 SCC 32 at paras. 20-21.
55. 552002 CanLII 61315 (NB KB), 2002 NBQB 309.
56. 56Squires, at para. 69.