Court File and Parties

COURT FILE NO.: CV-16-557570 DATE: 20161007 SUPERIOR COURT OF JUSTICE - ONTARIO

B E T W E E N:

ANDRIE JEROME SAMUELS, Applicant

-and-

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, the Ministry of Community Safety and Correctional Services and Toronto South Detention Centre, Respondents

BEFORE: F.L. Myers J.

COUNSEL: Andrie Jerome Samuels, in person H Schwartz, S. Gordian, and A. Chaudry for the Respondents

HEARD: October 7, 2016

Endorsement

[1] The applicant has brought a lawsuit using the summary application process provided in Rule 14.05 of the Rules of Civil Procedure. He is incarcerated, awaiting trial on criminal charges, at Toronto South Detention Centre. He is representing himself in this proceeding.

[2] The applicant seeks declarations that his constitutional rights are being violated by the respondents as a result of, among other things, frequent lockdowns, inadequate medical assistance, inadequate legal assistance, and the refusal of the prison authorities to recognize his religious freedoms. The applicant delivered a lengthy and detailed Notice of Application completely in handwriting. I have previously ruled that the Notice of Application was sufficient to commence the proceeding and, on the applicant swearing to the truth of its content, I allowed the Notice of Application to stand as his supporting affidavit as well.

[3] Her Majesty the Queen in Right of Ontario moves to convert this application to an action. Alternatively, the government seeks to extend the schedule set at the prior appearance so as to provide more time for the government to deliver its responding evidence. Finally, it asks the court amend the title of proceedings by deleting both the Ministry and the Detention Centre as neither are proper respondents. Mr. Samuels did not make any submissions opposing an amendment to the title of proceedings. Accordingly, the respondents Ministry of Community Safety and Correctional Services and Toronto South Detention Centre are deleted from the title of proceedings. Going forward the only respondent to be listed in the title of proceedings is Her Majesty the Queen in Right of Ontario. This change has no effect at all on the applicant’s entitlement to relief, if any.

[4] In addition to seeking constitutional declarations, the applicant also seeks an award of $2 million in damages for breach of his rights and for the torts of misfeasance in public office and intrusion on seclusion.

[5] Her Majesty argues that there will necessarily be credibility issues that require a trial in this lawsuit. Therefore, the applicant cannot proceed with this lawsuit by the method that he has chosen. A summary application under Rule 14 provides for a process whereby evidence is exchanged in the form of written affidavits, cross-examinations occur out of court, and then there is a brief argument in court using the affidavits and transcripts from the cross-examinations to provide factual support for the parties’ legal arguments. But, where facts are in dispute on key issues in a lawsuit, a trial is typically required so that the judge can see and hear live witnesses and is better equipped to decide as between their competing versions of events.

[6] In light of the culture shift toward efficiency and affordability in civil lawsuits discussed by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, it is not clear to me that a trial need be held so readily just because facts may be in dispute on important issues. It may be that the judge hearing the application is satisfied by the transcripts, for example, that credibility findings are not required or that she can make any necessary credibility findings without seeing and hearing lives witnesses. Demeanour of witnesses is now recognized to play a much lesser role in the assessment of credibility generally. In light of my finding below that this case ought to proceed by way of an action under Rule 14.03, rather than by application, I need not decide this issue.

[7] In responding to the applicant’s allegations, the respondent intends to deliver evidence on at least the following issues:

a. Whether the applicant has pre-existing medical issues and whether his medical record in prison will disclose that he has received appropriate care;

b. Whether there is a need for strip searches for security purposes and whether the layout of the facilities at the Toronto South Detention Centre protects peoples’ privacy while they are being searched;

c. Whether the applicant has a lawyer on his criminal charges so that he is not prejudiced by the lack of a law library or a scanner at the jail;

d. Whether the applicant requested a religious head covering on admission to the jail or before this proceeding was commenced;

e. Whether the applicant has a sincere religious belief in a recognized religion or whether he is raising religious issues as a contrivance to get access to better food and other accommodations while in jail;

f. Whether the authorities are acting in good faith dealing with labour relations and budgetary concerns that result in the need for increased lockdowns? And whether lockdowns in Toronto South Detention Centre during which prisoners can still shower and use the yard amount to constitutional deprivations looking specifically at the actual statistics for the applicant during his period of pre-trial incarceration; and

g. Whether expert evidence will help explain that the plaintiff’s medical condition is not what he says; the nature and effect of lockdowns generally and on the applicant in particular; and quantification of damages, if any, suffered by the applicant.

[8] At first blush, I was less convinced that a trial is required despite the volume of evidence. As noted by Corbett J. in Sweda Farms v. Egg Farmers of Ontario, 2014 ONSC 1200, just because a case has a number of complicated factual issues does not automatically mean it has to go to trial and cannot be justly resolved in a summary process. It seemed to me, for example, that if the respondent marshals’ evidence on the issues above, then those issue might be readily soluble in the absence of real contest by the applicant. Perhaps there might be a benefit to proceeding to obtain all of the evidence in writing and then waiting to see if one or two issues might require oral testimony after a hearing is held on the written record. The assessment of damages, for example, struck me as an issue that might be hived off to a reference and might be considerably narrowed once the hearing on liability is conducted.

[9] But then I heard the applicant’s submissions. He speaks with great conviction and much common sense. He was clear that he has evidence to rebut every issue raised by Her Majesty. Moreover he will argue that expert evidence is not required to show that lockdowns cause emotional distress; it is just common sense. He says that the government has known about problems with lockdowns for 15 years and has had more than enough time to fix the problems being suffered in its provincial jails. He stresses the need for expedition.

[10] The applicant’s submissions greatly clarified the issues for me. There is much more evidence than I had assumed and the applicant is quite prepared to prove his case. A flurry of expensive affidavits back and forth is not an efficient or an affordable way to proceed therefore. Rather, there should be proper, organized process for documentary discovery under which both sides disclose all of their voluminous, relevant documents to the other. Then there should be oral examinations for discovery so that each side can probe for admissions and understand both the strengths and weaknesses of his or its case. There should be production of all expert reports on which either side intends to rely so that the other side can consider responding and will know the case he or it has to meet. While the action procedures that I am describing are slower than a summary application process, at the end of the day they will produce a fairer, more affordable, and ultimately more efficient process in my view. The parties’ cases will be organized, disclosed, and joined in a methodical way to do things right once. An application, by contrast, risks throwing a kitchen sink of facts into the mix under the urgency of artificial deadlines, ultimately leaving a judge to try to unjumble a mess of affidavits, response affidavits, reply affidavits, sur-reply affidavits, transcripts, exhibits, answer to undertakings, and the like all in a brief legal hearing on the record with only summary factums to guide the judge through to a decision. I am not persuaded that a trial is required by the fear of making credibility findings on a written record as much as I am persuaded that an action process with proper discoveries and document organization is required. It is far preferable to the inefficiency of uploading a truckload of disorganized, hurried, highly contested materials on a motions judge. I note that this case is being decided on its own facts in light of the circumstances of this case. I am not making any general statement that a summary, written process is inefficient or not a preferable one. Each case is decided on its own facts and circumstances. For example, the fact that the plaintiff is not just a self-represented party, but a man of obvious intelligence who has seriously considered the issues and has answers at the ready plays very much into the calculus in this case. Moreover, the fact that very substantial damages are claimed means that a reference is likely required in any event. Context is everything.

[11] This application will therefore proceed as an action. The applicant and respondent will now be referred to as plaintiff and defendant respectively and the title of proceeding is amended accordingly. The Notice of Application will stand as the statement of claim. The defendant will deliver its statement of defence by November 11, 2016. The plaintiff’s affidavit of documents and the defendant’s list of documents are to be delivered together with copies of all documents listed in schedule “A” by December 31, 2016. Examinations for discovery shall be held by the end of February, 2017. Undertakings shall be responded to within 30 days of being given. The plaintiff shall set the matter down for trial by June 1, 2017.

[12] The plaintiff asked for the court’s assistance to ensure that he is able to attend before the Divisional Court on October 20, 2016 on another matter. Ms. Chaudry undertook to assist in facilitating that appearance with counsel for the opposing party in that other case. If a judge’s order is required for the plaintiff to appear in that matter, I may be contacted through my Assistant if necessary.

[13] The schedule previously established for this matter to be heard as an application is vacated.

[14] The court is dispenses with any need for the plaintiff’s approval of a formal order as to form and content. The defendant shall provide the plaintiff with a copy of the formal order that it takes out to implement this endorsement.

[15] No costs were sought and therefore none are ordered.

F.L. Myers J. Date: October 7, 2016