COURT FILE NO.: CV-12-0269-00 DATE: 2016-MAY-04 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
ALEXANDER CHERNESKIE (by his litigation guardian, Lena Cadieux) Plaintiff – and – KINGSTON GENERAL HOSPITAL, PALADIN SECURITY GROUP LTD., JOHN DOE A and JOHN DOE B Defendants
Counsel: Angela James, for the Plaintiff Roberto Ghignone, for the Defendant KGH Kristin Muszynski, for the Defendants Paladin Security Group Ltd., John Doe A and John Doe B
Heard: January 25, 2016 The Honourable Mr. Justice J. M. Johnston
RULING UPON MOTION FOR SUMMARY JUDGMENT
Overview:
[1] The Defendants, Kingston General Hospital and Paladin Security Group Ltd., John Doe A and John Doe B commence this Motion for Summary Judgment; seeking dismissal of the action on the basis that there is no genuine issue requiring a trial. The action arises out of circumstances in which the Plaintiff, Alexander Cherneskie, an adult male, who endures acute episodes of schizophrenia since 2009, was restrained by security staff at the Kingston General Hospital (KGH).
[2] In September, 2010, the Plaintiff was a patient at Kingston General Hospital where he was being treated for cellulitis. The Defendant, Paladin Security Group Ltd., was hired by KGH to provide security at the hospital. John Doe A and John Doe B were employees of Paladin at the material time.
[3] The Plaintiff is represented by his litigation guardian, his sister, Lena Cadieux. Due to his medical issues, the Plaintiff himself is not able to provide evidence that differs from the information provided in the security notes and records of the incident that occurred at KGH. It is agreed by all that the Plaintiff suffers significant psychiatric impairments. During his course of hospitalization at KGH, the Plaintiff had a history of non-compliance with medication. There were also several incidents involving aggression by the patient, prior to the day of the incident.
[4] There was an altercation on September 12th, 2010, between the patient and security staff employed by the KGH. The situation escalated and became physical involving members of the staff of the Defendant, Paladin. Notes are available from the staff of Paladin and the hospital detailing the incident. As a result of actions of the Plaintiff, a ‘Code White’ was called on September 12th, 2010, that required four of the security guards from Paladin, located elsewhere in the hospital to rush to the scene with the patient. In the course of the interaction with the Plaintiff/patient, staff heard what they described as a popping sound, coming from the patient. It is alleged the plaintiff sustained a fracture to his elbow during this incident, after a security guard forced his arm behind his back, while seated in a chair. After the incident, but still while at KGH, the patient’s elbow was x-rayed, no fracture was detected at that time. Thereafter, the patient was discharged from KGH and admitted to Hotel Dieu. Sometime thereafter it was determined that the patient, sustained a fracture to his elbow and that it was of a serious nature.
[5] Ms. Cadieux, in her Affidavit dated November 17th, 2015, states that in September, 2010, “my brother was a patient at KGH Hospital. He was being treated for cellulitis. My brother’s psychiatric condition in the summer and fall of 2010 was quite poor.”
[6] At paragraph 8 of her Affidavit, Ms. Cadieux states the Plaintiff had told her that he believed his elbow was broken “by security guards at the KGH who were restraining him for him being given psychiatric medication. Ms. Cadieux states: “When I asked a nurse at the hospital, who had been looking after my brother about the incident, she advised me that my brother was wrong and that he simply fell while taking a shower.” At paragraph 22 of her Affidavit, she states, “I verily believe that the security guards did not make reasonable efforts to de-escalate my brother’s behaviour and in fact, ramped him up by further yelling at him.” Further at paragraph 23 of her Affidavit, Ms. Cadieux states, “I also believe that it was dangerous to my brother for his arm to have been wrenched behind his back and over a chair.” At paragraph 24 she states, “there were four security guards in the room and the fact that one guard attempted to rely on his own strength to execute a dangerous hold rather than having the other guards involved while deescalating him was negligent handling of the situation.”
[7] The issue to be determined on this motion is whether there is a “genuine issue” requiring a trial.
Position of the Plaintiff:
[8] The Plaintiff states argues this Court should find that there is a genuine issue requiring a trial, namely, whether or not Mr. Jeff Bolton, employee of Paladin Security, used unreasonable or excessive force in restraining the Plaintiff, Mr. Cherneskie, and whether he was negligent in application of force. If there is a triable issue in relation to the employee, the Plaintiff argues that the Defendants, Paladin Security and KGH, are both vicariously liable for the actions of their employees or agents. The Plaintiff argues that a review of the security records from the incident on September 12, 2010, reveal the following:
(a) immediately prior to the Plaintiff being injured there were four security guards to assist with the Plaintiff’s restraint; (b) the Plaintiff had just been administered a chemical restraint; (c) the Plaintiff was seated in a ‘geri’ chair at the time the restraint move was employed upon him; (d) there is no suggestion in the records of other hospital staff within the immediate vicinity of the geri chair other than the security guards; (e) the Plaintiff pointed to the security guard, Megan Howell, and made a statement to the effect of “I know your family” and this was not threatening; (f) Jeff Bolton, security guard, responded to the pointing and statement of the Plaintiff by grabbing his arm and yelling at him; (g) Megan Howell did not view the Plaintiff’s behaviour toward her as threatening; (h) the Plaintiff then cocked his left arm at Bolton; (i) Zach Rogers, one of the four security guards, responded to the Plaintiff cocking his arm by securing the Plaintiff’s arm at his left side; (j) Zach Rogers stayed at the Plaintiff’s side and in control of his left arm; (k) the Plaintiff swung his remaining arm (closed right fist) at Bolton; (l) Bolton grabbed the Plaintiff’s right arm and forcibly restrained the arm over the back of the ‘geri’ chair, at which a cracking sound was heard by staff members; (m) Bolton’s movement of the Plaintiff’s arm was described by Rogers in his statement: “Bolton responded by forcibly restraining his arm behind his geri chair. Security staff hears cracking noise”. (n) Howell described the incident as follows: “Bolton grabbed it (the right arm) and pulled it up over the patient’s head, pulled down on it behind the chair. This is when I heard a crack”.
[9] The Plaintiff submits that he is not required to submit expert evidence opining that the force used by the Defendants was excessive and negligent. The Plaintiff argues that there is sufficient factual basis upon which a judge could find liability at trial and, as such, there is a genuine issue requiring a trial.
[10] Further, the Plaintiff submits the evidence demonstrates the Plaintiff sustained a serious injury through use of force by an employee of Paladin Security Group and, therefore, the evidentiary burden shifts to the Defendants to show the use of force was reasonable and not excessive.
[11] For the following reasons I find that this is a case that can and should be decided at this stage, based on the evidence available. No trial is required. The Plaintiff is unable now, or in the foreseeable future, to give evidence on the issue of how the injury occurred and is unable to assist the trier of fact in this determination. The Court has available to it the statements of the participants in the incident that likely led to the injury. I find that there is no genuine issue for trial and the action against all Defendants is dismissed.
Analysis:
[12] A preliminary issue to resolve is whether the Plaintiff has established that he sustained the broken elbow injury as a result of the confrontation with the staff and Paladin security guards on September 12, 2010. The Plaintiff was discharged from KGH Hospital the following day, on September 13 after x-ray of his elbow. No fracture was seen. Subsequently through other x-rays, the fracture was detected. Given the description of some of the participants in the incident, including security staff that they heard a popping sound and the Plaintiff complained about his elbow shortly thereafter, I conclude that it is likely that the injury the Plaintiff sustained to his elbow occurred as a result of the incident at the Kingston General Hospital on September 12. There was a notation that potentially the patient fell in the shower after his discharge from KGH and while at Hotel Dieu Hospital. The plaintiff has not disclosed the Hotel Dieu records. Notwithstanding the lack of evidence from Hotel Dieu, for purposes of this decision, I proceed on the basis that the evidence supports the injury was sustained at KGH and as a result of interaction with Paladin employees.
[13] The real issue is whether, on the evidence available, there a genuine issue requiring a trial as to how the injury occurred and whether it occurred in circumstances of negligence by employees of Paladin, Paladin and/or KGH.
[14] In her examinations for discovery, Ms. Cadieux, acknowledged that the security situations facing staff similar to the one involving her brother, including the one on September 12, “are dynamic and are constantly evolving and you have to make fast decisions” (Transcript question 304). Ms. Cadieux does not question the notes of staff members during the incident with her brother. The notes confirm that the Plaintiff was not cooperating with staff and he was being aggressive and assaultive (Transcript Cadieux questions 282, 283, 305).
[15] The Paladin’s security guards involved with the Plaintiff in the incident of September 12, 2010, notes were made contemporaneous to the incident. The notes are the best record of what took place and are contained in the Motion Record of the Defendant, Paladin Security. The following is a brief recitation of relevant portions thereof.
[16] The first security guard involved with the patient was Zach Rogers. Rogers notes of September 12, 2010 at 14:48 hours states: “Patient was running from security watch and pushing/swinging chair in front of myself in an attempt to block me from following. I asked if nurses could do something about the issue as it seemed as if things were getting out of hand. 14:47 : Nurse (Christa Brisma) enters with medical injection for patient. Patient refuses injection and pushed passed nursing. I stepped in front of patient in order to restrain patient from leaving room. Patient then continued to push past me. I grabbed his arm and attempted to restrain him as nursing had stated that he did not have a choice. Patient resists arm restraint and trips and hits head on floor (witnessed by staff). He then continued to yell at me. 14:48 : I call for assistance stat from post 3 and 4 security guard Howell and security guard Mustard. Patient falls backward but is caught and lowered to floor carefully by myself and staff member Brad Flegel. I told patient to roll over as it is safer for staff and easier to administer medication, patient refuses. I continue to roll the patient onto his front. Patient then decided to swing his left arm at nurse who was trying to administer needle. I asked nursing to hold off with needle till help arrives for their safety. Patient starts to resist harder. 14:49 : I request staff to call Code White to floor. I then page it over my radio. 14:50 : Security guard Mustard and Bolton arrive on floor. Security guard Bolton takes over right arm from my hold and forces arm into restraint. Mustard takes control of left arm. I move down to control legs. Needle is administered to patient in left arm. 14:51 : Security guard Howell arrives and begins talking to patient and trying to talk him into cooperation . He refuses, so security disengages to allow patient to get up on his own. He refuses to get up so all guards help patient up into ‘geri’ chair. 14:58 : Patient makes poking gesture toward guard Howell. Security guard Bolton responds by restraint and tells patient “he will not tolerate aggressive toward his staff”. We roll patient into room. I then witness patient cock left arm toward security guard Bolton. Unknown of his next action, I grabbed patient’s left arm and held it down. Patient then swung his right arm with closed fist at Bolton. Bolton responded with forcefully restraining his arm behind the geri chair. Security staff hear cracking noise. All guards disengage. Nursing staff is informed of possible injury. 15:35 : Code White is all clear.
[17] In her statement, Ms. Megan Howell, security guard, states that she received the call and arrived to the Ward Connell 9 at 14:51 hours “to find the patient face down with security officer Shawn Mustard, Rogers and security supervisor Bolton in a restraint with patient. I went toward the patient’s head to try and talk him into going back into his room. The patient refused at this time. The restraint was released in hopes that he would get up on his own. This did not happen. With many attempts the patient did not want to go back into his room. I then asked the patient to have a seat in the geri chair. The patient also refused this.
[18] At 14:57 : at this time Bolton, Mustard, Rogers and I lifted the patient off the floor and placed him in the geri chair. As Bolton was pushing the patient back into his room the patient (who knows my family) pointed his finger at me calling me Ms. Howell and saying he knows my dad. At this time Bolton grabbed his left arm which was the one he was indicating me with and put it in a restrain behind the patient’s head (I did not feel threatened at all with the gesture from the patient), the patient was then wheeled back inside his bed where he cocked his left arm, this is when Rogers grabbed it and held it down. The patient then swung his right arm up and this is when Bolton grabbed it and pulled it up over the patient’s head and pulled down on it behind the chair. This is when I heard a crack. At 15:00 : all restraints were disengaged and the patient was complaining of right arm pain.
[19] Security guard Shawn Mustard at 14:48 : received assistance call from S/O Rogers to Connell 977. While myself and security supervisor Jeff Bolton were waiting for the elevator, we received a Code White call over our radios. Upon arrival at Connell 9 we found Rogers with patient Cherneskie on the ground. Rogers had patient’s arm secured behind his back, face down on the floor in the hallway. I knelt down beside Cherneskie’s left arm to ensure that he could not strike out at staff. Bolton assisted in restraining the patient’s right arm. At 14:50 hours: patient beginning to calm down, we instructed him to get up and sit in the geri chair. Patient refused. Security stood up and backed off and instructed him again to get up and sit in the chair. Patient refused again. Third time patient was instructed to get up or we will assist him in getting into the chair. At 14:58 : Bolton, Rogers, Howell and myself picked patient up and sat him in the ‘geri’ chair. Bolton was wheeling the chair back into the room, when I saw patient’s arm come out at Howell, which I perceived to be a striking motion. Bolton secured patient’s arm.
[20] The statement of Jeff Bolton, the individual who used the restraint upon the Plaintiff’s arm behind the ‘geri’, chair, provided the following statement: 14:48 hours: received a call for assistance to Connell 9 by security guard Zach Rogers. Security guards Megan Howell, Shawn Mustard and I responded to the floor. 14:50 hours: CODE WHITE announced overhead. Mustard and I arrived at that time. Patient was facing down on carpet outside of Connell 977. Was informed that patient was throwing chairs at staff in an attempt to block them from getting to him. Mustard and I secured patient’s arms until an intramuscular injection of chemical restraint was administered. 14:55 hours: patient advised to get into geri chair. Patient refused to go into room. As patient could not remain in corridor patient instructed to seat himself in the geri chair, or security would place him into the chair. Patient continued to refuse. All security disengaged, then instructed the patient to have a seat in the ‘geri’ chair. Patient continued to refuse. 14:58 hours: patient seated in geri chair. Patient wheeled back into Connell 977 en route, patient clenched his fist in a threatening manner toward Howell. I secured his left arm instructing him “you do not strike out at our staff”, I disengaged and continued to wheel him back into the room next to the sink by bed 1. Patient suddenly escalated cocked his fist at me I secured patient’s arm in an arm bar restraint. Patient continued to struggle. Arm secured over back of geri chair. Patient continued to struggle. 15:00 hours: I heard what I believed was a tearing sound. I looked down at patient who was displaying discomfort. All security immediately disengaged. Thereafter nursing staff was advised of possible injury.
[21] On the day of the incident, Security services at the KGH were provided by Paladin Security Group Ltd.
[22] The KGH required Paladin to show that its employees met the requirements of the Private Security and Investigative Services Act, 2005, S.O. 2005, c. 34 and they received training on use of force and non-violent crisis intervention.
[23] All of the individuals involved in restraining the Plaintiff, Mr. Cherneskie, were employed by Paladin.
The Plaintiff’s behaviour in the days leading up to September 12, 2010:
[24] The records from KGH Hospital confirm that the Plaintiff was at times aggressive and non-compliant with taking of his medication. For example:
September 7, 2010 : Plaintiff engaged in escalating, rambling and disjointed conversation, was delusional and lacked judgment. On the same date it was noted “he continues to escalate challenging staff members who required assistance of security to hold patient on bed while medication was administered.” Further on September 7 : Prior to administration of medication, patient was verbally threatening staff and nurse that they would be shot to death in the back and moved toward staff in an aggressive manner.
September 10, 2010 : Notation that “if the Plaintiff becomes violent, staff are to call security and use chemical restrains if violent or a threat to himself or others.” Further on September 10 the notation is: security was called as patient was very agitated and verbally abusive toward staff and was running around the floor using inappropriate language.
September 11, 2010 : “Further escalation, security required to assist the patient back to room, complains of elbow pain (note this is one day before the elbow pain he complains of after the incident with security guards).”
[25] Ms. Cadieux, in her Affidavit sworn August 27, 2014, acknowledges that her brother “had very extreme mental health issues both before and after he sustained the broken elbow”. She further stated, “my brother was charged with criminal offences shortly after his elbow was broken. He was accused of harassing a health care worker between November 4, 2010 and November 28, 2010. He was also charged with an assault alleged to have occurred on January 24, 2011.” On February 28, 2012, the Ontario Review Board held that the Plaintiff was a “significant threat to the safety of the public and should be detained at Waypoint” (Affidavit paragraph 7, 8 and 9).
[26] Mr. Gareth Rowberry was produced on behalf of Paladin Security Group at examinations for discovery. Mr. Rowberry testified that he was a “training manager” of Paladin Security Group at the time of this incident. He trained probably 600 to 700 security guards between Toronto and Kingston.
[27] Mr. Rowberry was asked what training guards received in terms of being able to physically restrain people safely. His answer:
They undergo a program which incorporates and teaches an understanding of the human body, the biomechanics and utilizing those biomechanics to control the subject with minimal risk of harm. (Transcript page 11)
Further, Rowberry was asked:
Q: Okay. If we assume that a person has a healthy elbow, strong arm, would you expect a behind the back hold to result in a popped, in a fractured elbow? Answer: No, it would ordinarily be quite a safe procedure.
Q: And so for a healthy arm and a healthy elbow to experience a fracture or dislocation in this hold, would that mean perhaps that the hold is implemented incorrectly or not appropriate? A: Not necessarily. It could, it’s more so to do with the amount of force that is replied back in return. The techniques are based on placing the body in particular angles to minimize movement, not to apply force to cause or stop any further sort of aggression. (Transcript page 13)
Q: So at what point would you expect a security guard to say, to think to themselves, well, this is going to damage, this man’s elbow is going to break if I can continue this and then move on basically to regroup and attempt another submission-hold? A: It’s entirely situational depending on the risk of the – of Mr. Cherneskie causing harm to himself or to other staff members or to, indeed, the security staff at the time. If it’s determine the risk is greater should he be released versus minimizing the risk to potentially greater danger to himself and others, then to sustain a hold is normally acceptable.
[28] At page 18 Mr. Rowberry testified that he had taught this particular technique to many guards without injury over a number of years. He was asked the question: So this typically is a safe technique on a healthy elbow? Answer: Absolutely. (Transcript page 18)
Issues and the Law:
[29] In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is made by a judge, the judge may exercise any of the following powers:
(a) weighing the evidence; (b) evaluating the credibility of the deponents; (c) drawing any reasonable inference from the evidence.
[30] The Supreme Court of Canada in Hryniak v. Maudlin, 2014 SCC 7, S.C.C. 7, 2014 Carswell Ontario 640 outlined the proper approach for deciding Summary Judgment Motions. There will be no genuine issue requiring a Trial when the judge is able to reach a fair and just determination on the merits of the Motion. Moreover, the evidence on such a Motion need not be equivalent to that at Trial “if the judge is confident that she can fairly resolve the dispute”.
[31] Karakatsanis, J. (writing for a unanimous court) outlined the approach to Summary Judgment as follows:
On a Motion for Summary Judgment under Rule 20.14, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact finding powers. There will be no genuine issue requiring trial if the Summary Judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers, provided that their use is not against the interests of justice. Their use will not be against the interests of justice if they lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole. (Paragraph 66)
[32] Each party must put its best foot forward with respect to the existence or non-existence of material issues to be tried. A party is not entitled to sit back and rely on the possibility that more favourable facts may develop at trial. On determining a Motion for Summary Judgment, the court must take it that all evidence that will be lead at trial is before it. Diebel v. Cox, 2012 ONSC 599 at para 18
Findings:
[33] I conclude that this Court now has the evidence that is likely available on the issues raised. The best evidence is the notes made at the time, by the individuals involved. It is unlikely that viva voce evidence would expand their recall of events. The Plaintiff will never be able to give his version of events, due to his serious psychiatric issues. The available evidence is sufficient to allow the court to fairly determine the issues, without a full trial.
[34] The Plaintiff chose not to retain an expert, nor did he provide any evidence that the Defendant, Paladin or its employees breached the standard of care required, or that they acted in negligence. Mr. Rowberry testified at the discoveries on behalf of the Defendant Paladin, that the hold used by Officer Jeff Bolton was a technique taught to security guards and one that has been used safely many times over a period of years. Injuries can result from use of this restraint hold in circumstances where the person to whom the hold is applied has a pre-existing injury or uses forces to repel.
[35] I find as a fact that in the days leading up to September 12, the Plaintiff had been acting in an aggressive manner toward nursing staff at KGH. Staff was on notice as to his behaviours and the possible security/safety risk that he posed. That of course is in no way to condone or give licence to anyone to apply unnecessary or unreasonable force.
[36] On the day in question, September 12, 2010, the Plaintiff was acting in an aggressive manner, requiring security guard Rogers to intervene. The Plaintiff pushed and swung chairs in front of Rogers. He attempted to restrain the patient. The patient continued and he resisted arm restraints; assistance was called by Rogers for other officers to attend. A chemical restraint was used. I find as a fact that staff and the security guards, in particular, attempted to implement de-escalation procedures. The Plaintiff was first put on the floor; security staff attempted to talk to him and attempted to gain his cooperation. After staff disengaged, they encouraged the patient to get up on his feet by himself, he refused. He was then helped into the chair. The patient continued his aggressive behaviour. The Plaintiff’s actions were a continuation of behaviours he had engaged in right up until the time that his right arm was placed behind his back and the popping sound was heard. Bolton advised the patient that aggressive gestures would not be tolerated toward staff. While Ms. Howell did not herself say that she felt threatened by the gesture, Mr. Mustard observing the same gesture said that he perceived it as a “striking motion”. This was a fluid situation involving the risk of injury to others. The patient cocked his left arm toward security guard Bolton. Rogers grabbed the left arm. The patient had previously been warned that he should not be aggressive. It was at this point that the Plaintiff swung his right arm with at Bolton and Bolton responded by forcefully restraining the arm behind the geri chair. The Plaintiff at the material time was a large man being uncooperative and, in fact, aggressive.
[37] The Plaintiff’s counsel argues that Mr. Bolton is the only Paladin staff member who indicated that the patient was struggling at the material time. Counsel argues this fact alone supports a trial. I reject this claim. I find as a fact that the patient struggled against all efforts made by staff including Ms. Howell who attempted to de-escalate and calm the patient, prior to the his arm being placed behind his back. I find that officer Bolton used restraint against the patient in accordance with his training, using a technique that had been used many times in the past. Injury did occur while using this technique. It is possible that the Plaintiff suffered a pre-existing injury to his elbow, he complained of elbow pain to the same elbow on September 11. I further conclude that the Plaintiff struggled at the time the restraining move was used upon him. Bolton’s description of the events is consistent with what the other witnesses stated the Plaintiff was doing shortly before the arm restraint technique was used, namely, struggling, arguing, being non-cooperative.
[38] There is no expert opinion from the Plaintiff that Paladin Security was negligent in the training it provided to staff to restrain others in a safe manner. I find that there was, in fact, such training. Further, I find that there was appropriate training given to staff regarding agitated patients. There is absolutely no evidence that Paladin created or cultivated an environment that condoned the use of excessive force with patients.
[39] It is indeed unfortunate that Mr. Cherneskie, who is an individual suffering from significant mental health issues, sustained the injury. However, at the material time, Mr. Cherneskie was acting aggressively, he was given opportunities to de-escalate and failed to do so. No doubt his actions were motivated by his psychiatric condition. A chemical restraint was administered to Mr. Cherneskie, however, he continued to struggle, in fact, right up until the time of the arm restraint. His history of aggression, his activity on the ward this particular day, his failure to heed warnings, his swinging at staff left security guards with little option in this circumstance. Staff reacted as they did and Mr. Bolton employed an arm technique which was reasonable under the circumstances. Unfortunately for the plaintiff injury resulted, but there is insufficient evidence to support a finding of negligence.
[40] In circumstances where I find no liability by the staff members of Paladin, I find that there is no evidence of a genuine issue requiring a trial against any of the Defendants and as such, the Motions for Summary Judgment are granted.
[41] If counsel cannot agree upon the issue of costs, the Defendants shall within 21 days serve and file written submissions, limited to 2 pages; together with a bill of costs. The Plaintiff shall thereafter serve and file a response, also limited to two pages.
The Honourable Mr. Justice J. M. Johnston