CITATION: Fontenelle v. Canada (Attorney General), 2017 ONSC 6604

COURT FILE NO.: CV-14-2061-00

DATE: 2017-11-02

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

JAMES FONTENELLE JR., TANYA BROWN, JAMES FONENELLE SR. AND MARGINA FONTENELLE

Doug Wright, Jillian Carrington, for the Plaintiffs

Plaintiffs

• and -

THE ATTORNEY GENERAL OF CANADA, LEONARD BALLANTYNE, TERRANCE BENT and NICKOMA COTTRELLE

Joel Levine, for the Defendant, The Attorney General of Canada

Defendants

HEARD: March 20, 2017,

at Brampton, Ontario

Price J.

Reasons for Order

OVERVIEW

[1] This case concerns the duty of Canadian Correctional Service to take reasonable steps to protect its inmates from assaults by other inmates known for violence while in prison.

[2] James Fontenelle Jr. (“Mr. Fontenelle”) committed a non-violent offence. He was assessed as a medium- security risk when he was sentenced to serve time in a penitentiary. Initially, he was sent to Joyceville Institution, a medium-security facility, to serve his sentence. But after repeated infractions of the rules at Joyceville, such as rules requiring him to stay within the range to which he had been assigned, and prohibiting inmates from engaging in tattooing, he was transferred to Millhaven Institution, a maximum-security facility.

[3] At the time of Mr. Fontenelle’s transfer, the inmates at Millhaven were protesting the transfer of serious offenders from the maximum-security Kingston Penitentiary, which was being closed, to Millhaven. The protests lasted for approximately a month.

[4] Mr. Fontenelle was placed in a unit at Millhaven that housed especially dangerous offenders, who were known by Correctional Services Canada (“CSC”) to have criminal records for offences involving serious violence. That unit was equipped with surveillance cameras at each end of the general range where inmates were permitted to congregate together, but not in the areas in between. The cameras would also provide CSC staff with a view of the interior of the cells.

[5] CSC required individual cell doors to remain closed when their occupants were in the general range because allowing the doors to remain open would create a risk that other inmates would have access to the occupant outside the view of video surveillance cameras, which provided no view of the interiors of individual cells. As a result of the protests that were occurring while Mr. Fontenelle was imprisoned at Millhaven, CSC staff restricted the inmates’ recreation in the prison yard but permitted selected inmates to be in the general range. The inmates, in response, propped open individual cell doors to give themselves or other inmates access to their own or other inmates’ cells. They also activated cell call alarms that were intended for use only in emergencies.

[6] Prison protocol required CSC staff to:

a) Ensure that the doors to cells, the interiors of which were not visible to surveillance cameras, are kept locked when inmates are in the range. This is done to ensure that inmates would not have access to other inmates’ cells, and that inmates remain visible to Correctional Officers, by means of the security cameras located at the far ends of the range.

a) Treat activated emergency alarms as genuine and respond to them promptly, by investigating the cause of the alarm and de-activating the alarms.

[7] On October 8, 2013, Correctional Officers at Millhaven failed to follow the protocols that governed them in the exercise of their duties. In particular:

a) They failed to respond promptly when Mr. Fontenelle or others blocked the door of his cell open, and blocked his cell window.

b) They inexplicably failed to de-activate Mr. Fontenelle’s emergency alarm in a prompt manner, despite the fact that they promptly de-activated the alarms in three nearby cells on the same range. The CSC staff have refused to identify the responsible officers, notwithstanding AG Canada’s undertaking to provide this information.

[8] Mr. Fontenelle sued Mr. Leonard Ballantyne and two other inmates, Mr. Terrance Bent, and Mr. Nickoma Cottrelle for damages for having caused him life-threatening head injuries when they assaulted him. He also sued the Attorney General of Canada (“AG Canada”) for damages due to the negligence of CSC staff for whom the AG Canada is vicariously liable, and for failing to protect him from the other inmates. The remaining plaintiffs in the action are Mr. Fontenelle’s common-law spouse, as well as his father and mother, each of whom claims damages pursuant to the provisions of the Family Law Act, R.S.O. 1990, c. F.3, as amended.

[9] The plaintiffs claim that the assault on Mr. Fontenelle was caused or contributed to by the negligence of CSC staff for whom AG Canada is vicariously liable. AG Canada moves, pursuant to Rule 20.01(3) of the Rules of Civil Procedure for summary judgment dismissing all or part of the claims against it, on the basis that it cannot be inferred from the known facts that the acts or omissions of CSC staff caused or substantially contributed to Mr. Fontenelle’s injuries, and that there is therefore no genuine issue requiring a trial. In the alternative, it seeks an Order bifurcating the trial into separate hearings on liability and damages.

[10] The parties agree that the existing record gives the court a full appreciation of the facts, but they disagree as to what inference should be drawn from those facts. That is, they disagree as to whether the facts, which are not disputed to any meaningful extent, support a finding that CSC was negligent and that its negligence caused or substantially contributed the Mr. Fontenelle’s injuries. They also disagree as to whether the trial should be bifurcated, but only because the plaintiffs submit that the evidence as to liability must inform the court’s assessment of damages.

[11] For the reasons that follow, I find that there is no genuine issue as to liability, not because the evidence does not support a finding of liability, but because the evidence leads to the inescapable conclusion that the CSC was negligent, and that, but for its negligence, the injuries to Mr. Fontenelle would not have occurred. There is no necessity for a trial, as the CSC’s own records establish its liability. A trial would also serve no purpose, as the only witnesses who are capable of adding anything have refused to co-operate and will likely continue to do so.

[12] The consequences of the CSC’s unexplained failure to follow its own protocols, particularly in not disarming and re-activating Mr. Fontenelle’s emergency call alarm or unblocking his cell door, were worsened by its failure to install and maintain surveillance cameras in positions that enable CSC officers to view the interior of the cells, even when the cell’s emergency call alarm was activated. As a result of the CSC’s failure to maintain adequate surveillance of the interior of Mr. Fontenelle’s cell, and its failure to respond when his cell door was propped open and his emergency call alarm was activated, Mr. Fontenelle was unable to isolate himself from other inmates on the range. He was unable to re-engage his emergency alarm, when other inmates, including the extremely dangerous and violent Mr. Ballantyne, attacked him, out of the view of Correctional Officers, causing him serious head injuries.

[13] When Correctional Officers finally deactivated the alarm outside his cell, they further failed to follow their protocol by not attempting to make voice contact with Mr. Fontenelle to ensure he was not in distress. This likely caused a delay in providing medical attention to Mr. Fontenelle for the injuries he sustained in the course of the assault.

[14] The result of these findings on liability is that summary judgment shall issue for the plaintiffs. This leaves the remaining issue of damages to be determined at a trial.

BACKGROUND FACTS

Events leading to Mr. Fontenelle’s imprisonment at Millhaven

[15] Mr. Fontenelle was 34 years old on October 8, 2013, when he was assaulted at Millhaven. He had an extensive history of offences both in Canada and the United States. Prior to his placement in the federal correctional system, he served several terms in provincial institutions. He was then convicted on December 15, 2011 of firearms offences and sentenced to imprisonment for three years and four months. This was the first sentence he served as a federal inmate.

[16] The Millhaven Assessment Unit assessed Mr. Fontenelle, and CSC placed him in the medium-security Joyceville Institution on March 12, 2012. While at Joyceville, Mr. Fontenelle was convicted of 13 institutional infractions.

[17] As a result of his institutional infractions, Mr. Fontenelle’s security classification was changed from “medium” to “maximum”. On August 13, 2013, he was involuntarily transferred to Millhaven Institution, a maximum-security prison located in Bath, Ontario. He remained at Millhaven until October 8, 2013, when he was assaulted.

[18] At Millhaven, inmate movement, association, and privileges were to be strictly controlled. Mr. Fontenelle and the inmates who assaulted him were housed in “J” unit. This is where the assault took place. J unit consists of five separate “ranges”, each containing 30 single-occupancy cells with 15 on each side of the range. Mr. Fontenelle was housed in cell L110.

[19] Surveillance cameras were used to manage movement in the building, as well as for investigations and evidentiary reviews. The video feeds could be monitored by CSC staff working in the unit management office, but were not monitored continuously. On October 8, 2013, there were only two surveillance cameras on the range where L110 was located, one at each end of the general range where inmates congregated together. These cameras faced opposite directions. These cameras did not provide a view inside individual cells.

[20] During the inmates’ strike, their access to recreational activities was at times curtailed. During these times, limited numbers of inmates were permitted out of their cells onto the range. The range barriers were closed and CSC officers generally did not enter the range, except in emergency situations and when it was safe for them to do so.

[21] Each cell contained a cell alarm that an inmate could activate in emergency situations. Once an alarm was activated, it could not be turned off until it was “keyed”. This means that a CSC officer had to physically disarm and re-arm the alarm immediately outside the cell in order for to ensure an inmate could use it again.

[22] Individual cell doors were activated electronically by CSC officers in the unit management office. During range activities, the cell doors of participating inmates were to be closed. Generally, the inmates were allowed a few minutes to gather up any belongings before the cell doors were closed. Once the cell doors were closed, the participating inmates were confined to the general range, where they could be monitored by CSC staff until they were re-admitted to their individual cells. During that period, neither Ms. Fontenelle nor the other inmates could enter their individual cells, which were out of range of the security cameras.

Intake Assessments

[23] Intake assessments were conducted for every new inmate upon arrival at Millhaven. The purpose of such assessments was to obtain information from the new inmate to assist CSC staff in determining where to place him within the institution. As part of the assessment, a CSC officer reviews the new inmate’s records to determine whether he has had past contact with other inmates in order to determine if there are current inmates who might present a risk of harm.

[24] The new inmate is questioned as to whether he has any contact concerns. If he has a verified contact concern with another inmate, based on past association or gang affiliation, he was deemed to be “incompatible” with the other inmate, and was not assigned to a cell in the same range, or in an area where they might have contact. At Millhaven, there are several ranges available, and inmates in one range had no contact with inmates in other ranges. Incoming inmates were not informed of the criminal or institutional record of other inmates. Therefore, they were unable to choose not to be assigned to a unit where inmates with violent criminal pasts reside, or avoid contact with such inmates.

[25] CSC maintained a computerized case file management system referred to as the Offender Management System (“OMS”), which CSC staff used to manage information on federal inmates during their sentences. The OMS gathers, stores, and retrieves information required for tracking offenders and making decisions concerning their correction. It contains a comprehensive database of reports on each known incident pertaining to an individual inmate, and can be cross-referenced as against multiple inmates.

[26] It was open to all inmates to make any safety concerns known to CSC personnel, in which case they were to be immediately removed from their range, and placed in a segregated unit until their concerns were investigated. If there were legitimate concerns regarding potential violence, corrective action was to be taken to ensure the safety of the inmate.

Intake Assessment and Pre-Incident Indicators

[27] Mr. Fontenelle arrived at Millhaven on August 13, 2013 and was interviewed by Parole Officer Rick Baker on August 21, 2013. Prior to the interview, Mr. Baker reviewed Mr. Fontenelle’s OMS records. He also accessed Mr. Fontenelle’s RADAR report, which is a summary of his institutional history and security classification. Mr. Baker then interviewed Mr. Fontenelle.

[28] There were no contact concerns listed in any of Mr. Fontenelle’s records as of August 21, 2013. He was not identified as being a gang member or as having any affiliations with organized crime. Mr. Baker asked Mr. Fontenelle whether he had any contact concerns regarding other inmates, and he advised that he did not. Mr. Fontenelle expressed no concerns about entering the open population at Millhaven.

[29] Mr. Baker met with Mr. Fontenelle again on September 10, 2013. When asked whether he had any concerns about his conditions in the institution, including his personal safety, he again advised that he did not.

[30] Blair Pond, a Correctional Manager at Millhaven at the time of the assault, gave evidence in support of AG Canada’s motion. Mr. Pond had daily interactions with all the inmates housed in J unit, and was familiar with both Mr. Fontenelle and the three inmates who assaulted him. Mr. Fontenelle did not tell Mr. Pond that he was concerned about the other inmates in J unit at any point before the date of the assault on October 8, 2013. Messrs. Ballantyne, Bent, and Cottrelle, the three inmates who assaulted Mr. Fontenelle, also did not tell Mr. Pond that they had any concerns about Mr. Fontenelle.

The incident on October 8, 2013

[31] On October 8, 2013, inmates throughout J unit were engaged in protests by way of a strike designed to disrupt normal patterns within the institution. This was owing to the transfer of inmates from the maximum-security Kingston Penitentiary, which was being closed, to Millhaven. Those activities included propping open cell doors, blocking cell door windows, and activating emergency cell alarms. According to the former deputy warden of Millhaven, Larry Ringler, this strike had lasted for a “lengthy” period of time, perhaps upwards of a month.

[32] CSC staff responded to the protests by curtailing inmate recreation. CSC staff restricted inmates’ access to the main yard and gym. Instead, inmates were permitted limited “range activities”, in which selected inmates were permitted out of their cells for a time, but were confined to the 1L range. Up to half the inmates, numbering 15, were allowed onto the range at a time. Range barriers were closed during such activities, and CSC officers kept themselves physically separated from the inmates.

[33] Once inmates were on the general range, their individual cell doors were closed electronically from the central post in order to prevent inmates from having access to each other’s cells. On October 8, 2013, however, the cell doors were propped open, and therefore, remained accessible to other inmates after they were released onto the range. This was known to the CSC staff.

Chronology of Events from Surveillance Video and Cell Alarm Log

[34] On the night of the assault, the surveillance video and cell alarm log recorded the following events:

• At 8:00 p.m. (20:00), the range was clear, and the inmates in 1L were secure in their cells.

• At 8:11 p.m. (20:11:56), a two-man patrol entered the range.

• At 8:12 p.m. (20:12:52), the cell alarm in cell 110 (Mr. Fontenelle’s cell) was activated, just as the two officers neared his cell.

• At 8:13 p.m. (20:13:20), one of the officers “keyed”, or deactivated, the alarm outside cell 110. At 8:13 p.m. (20:13:36), the officers exited the range.

• Between 8:15 p.m. and 8:16 p.m. (20:15:11 and 20:16:30), cell alarms were activated by six different inmates in 1L, including Mr. Fontenelle.

• At 8:17 p.m. (20:17:15), two officers re-entered the range. They “keyed”, or deactivated, three of the six active alarms, those for cells 103, 116 and 119. Inexplicably, they did not “key” the active alarm for cell 110 (Mr. Fontenelle’s cell), or cells 117 and 115.

• The officers exited the range at 8:18 p.m. (20:18:25). There has been no explanation provided to date as to why three of the six cell alarms remained active. None of the CSC Officers working on the night of the assault provided evidence to explain this failure. At the cross-examination of Thomas Fisher, AG Canada made an undertaking to provide evidence on this point, but it has not provided this evidence since.

• At 8:18 p.m. (20:18:40), the inmate range representative was released from his cell. He held a clip board and went from cell to cell, recording the names of inmates who wanted to be released for range activities, including, presumably, Mr. Fontenelle.

• At 8:22 p.m. (20:22:58), the barrier gate opened as the range representative attended at the unit management office to give the list of inmate names to CSC officers.

• At 8:24 p.m. (20:24:33), the range representative returned to the range, and the barrier was again closed.

• At 8:24 p.m. (20:24:45), the doors of the selected cells were opened, and the inmates from those cells entered the general range. Immediately, some of the inmates blocked individual cell doors in order to prevent them from being closed.

• Between 8:24 p.m. and 8:54 p.m. (20:24 to 20:54), inmates stood around, socializing, using pay phones, and microwaving food. During this period, Mr. Fontenelle passed Mr. Ballantyne several times, without apparent incident. At times, Mr. Fontenelle stood at the entrance to his cell.

• At 8:57 p.m. (20:57:27), Mr. Ballantyne exited his cell, having changed into a black t-shirt. He proceeded down range and paused at the door to Mr. Fontenelle’s cell. Over the next three minutes, he entered and exited Mr. Fontenelle’s cell while Mr. Bent and Mr. Cottrelle held the door to Fontenelle’s cell open. There were no security cameras providing a view of the interior of Mr. Fontenelle’s cell to CSC staff.

• At 8:59 p.m. (20:59:15), Mr. Fontenelle tried to kick away whatever object he had used to block his cell door.

• The assault itself cannot be seen on the video, nor is it apparent what if anything occurred inside Mr. Fontenelle’s cell. Telephone and radio transmission recordings in the Main Communication Post (“MCCP”) from the date of the assault disclose that officers observed, “[t]here’s like fucken [sic] all the people on the range were going in and out of that cell.”[^1]

• At 9:00 p.m. (21:00:59), Messrs Ballantyne, Bent and Cottrelle exited Mr. Fontenelle’s cell. Mr. Ballantyne returned to his cell and at 9:02 p.m. (21:02:17), appeared wearing a grey t-shirt. No one reported to CSC staff that an assault had taken place. CSC staff did not notice anything unusual during that period.

• By 9:18 p.m. (21:18), CSC officers and the inmate range representative had negotiated a resolution to the ongoing disruption, and the inmates had unblocked the cell doors and returned to their cells. The inmates were secure in their cells.

• Immediately thereafter, the range barrier opened and two CSC officers re-entered the range. Between 9:18 p.m. and 9:19 p.m. (21:18:57 and 21:19:13), the officers keyed, or disarmed and re-armed, the active cell alarms in cells 110, 115, and 117. Mr. Fontenelle’s cell, 110, which had been activated since 8:15 p.m. (20:15:24), was de-activated at 9:18 p.m. (21:18:57). During this period, the range lights were turned off to give the officers a better view inside the individual cells. One of the officers appeared to spend some time at or near cell 110 close to the time when the cell alarm for 110 was keyed. He did not report anything amiss with Mr. Fontenelle at that time.

• Two more patrols, or “walks”, were conducted over the ensuing period. None of the officers reported observing any issues with Mr. Fontenelle, who remained in his cell from 9:00 p.m. until 11:10 p.m. (21:00 until 23:10).

• At 11:08 p.m. (23:08:30), four CSC officers entered the range and observed Mr. Fontenelle in apparent distress. They opened Mr. Fontenelle’s cell, and caused an ambulance to be called, which arrived at the Institution at 11:38 p.m. (23:38). Thereafter, Mr. Fontenelle was taken to Kingston General Hospital for treatment of his injuries.

[35] Mr. Fontenelle does not recall the events leading up to or following the assault, owing to the serious and permanent closed head injury that he sustained in the assault.

[36] On the day after the assault, Correctional Manager Mr. Pond was assigned to escort Mr. Ballantyne to a segregation cell as part of the investigation of the assault. Mr. Pond asked Mr. Ballantyne what had happened. Mr. Ballantyne told him that Mr. Fontenelle “had a small weapon and was mouthing off”, and that he “was not going to take that from anyone”.

[37] The only evidence as to the motivation for the assault is the hearsay evidence from Mr. Pond regarding the above statements made to him by Mr. Ballantyne. Upon a search of Mr. Fontenelle’s cell, no weapon was located.

[38] Messrs. Ballantyne, Bent, and Cottrelle did not cooperate with, or assist with, the subsequent Board of Inquiry into the assault. Mr. Ballantyne eventually pled guilty to assault causing bodily harm. The charges against Mr. Bent and Mr. Cottrelle were withdrawn. Messrs. Ballantyne, Bent, and Cottrelle did not defend the present action and were noted in default.

The judicial proceeding

[39] Mr. Fontenelle and the FLA claimants sued AG Canada, as well as the three co-defendant inmates. Mr. Fontenelle caused his Statement of Claim to be issued on May 8, 2014. In it, he alleges that CSC failed to keep him safe and failed to prevent the assault. It states, in part:

12. The Plaintiffs plead that the Defendant, the Attorney General of Canada, owed a statutory duty of care to the Plaintiff pursuant to the provisions of the Corrections and Conditional Release Act, S.C. 1992, c. 20, and that it breached its duty to the Plaintiff by failing to keep him reasonably safe while he was a prisoner in the penitentiary.

13. In the alternative, the Plaintiffs plead that the assault was caused, or contributed to, by the Defendant, the Attorney General of Canada’s, negligence, the particulars of which are as follows:

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

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

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

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

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

(f) It failed to have adequate policies in places to ensure the prisoners’ safety;

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

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

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

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

[40] AG Canada delivered its Statement of Defence and Crossclaim on November 10, 2014. It denies that it was negligent or caused or contributed to the assault. It states that assault on Mr. Fontenelle by Messrs. Ballantyne, Bent and Cottrelle, and any injuries sustained as a result, were caused entirely by a verbal altercation between Mr. Fontenelle and Mr. Ballantyne, and occurred in such a short period of time that CSC and AG Canada could neither have anticipated nor prevented it.

[41] Messrs. Ballantyne, Bent and Cottrelle did not defend the action and were noted in default.

[42] AG Canada moves pursuant to Rule 20.01(3) of the Rules of Civil Procedure for an Order striking out all or part of the Statement of Claim on the basis that there is no genuine issue requiring a trial of the allegations against it.

[43] A pre-trial conference has been scheduled for December 20, 2017.

THE ISSUES

[44] The motion requires the court to determine the following issues:

a) Are there genuine issues for trial?

b) If there are genuine issues for trial, should the issues of liability and damages be bifurcated?

POSITIONS OF THE PARTIES

[45] AG Canada submits that the evidence does not support a finding of liability against it, and that there are no genuine issues for trial. AG Canada further submits that if a trial is required, the issues of liability and damages should be bifurcated and determined at separate trials, or at separate stages of the trial.

[46] The plaintiffs submit that there are genuine issues requiring a trial. The plaintiffs further submit that if the action proceeds to trial, the trial should not be bifurcated, as the issues of liability and damages are intertwined; one cannot be determined without the understanding that will emerge from the trial of the other.

ANALYSIS AND LAW

a) General principles applying to motions for summary judgment

Legislative framework

1. WHERE AVAILABLE

To Defendant

20.01 (3) A defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim.

Evidence on Motion

20.02 (2) In response to affidavit material or other evidence supporting a motion for summary judgment, a responding party may not rest solely on the allegations or denials in the party’s pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial.

Disposition of Motion

20.04 (2) The court shall grant summary judgment if,

(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or

(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.

Powers

(2.1) In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

Oral Evidence (Mini-Trial)

(2.2) A judge may, for the purposes of exercising any of the powers set out in subrule (2.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

[47] Rule 20.04 provides that where there is no genuine issue for trial with respect to a claim or defence, the court shall grant summary judgment accordingly. Pursuant to rule 20.04(2), the court may grant summary judgment in the following circumstances:

1. Where the parties agree;

2. Where the claim is without merit;

3. Where the motions judge is able to dispose of the matter and where the trial process is not required in the "interest of justice."[^2] [Emphasis added]

Jurisprudence

[48] In 2014, the Supreme Court of Canada, in Hryniak v. Mauldin,[^3] and Bruno Appliances and Furniture Inc. v. Hryniak,[^4] reinterpreted Rule 20 of the Rules of Civil Procedure, taking into account the need for the court to preserve the public’s access to justice. The Supreme Court held that summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely, and just adjudication of claims. It held that a trial is not required if the court hearing a summary judgment motion can make a fair and just adjudication, by making the necessary findings of fact, and applying the law to those facts. This is advisable if the process is proportionate, more expeditious, and a less expensive means of achieving a just result than going to trial.

[49] The Supreme Court observed that the summary judgment motion judge must assess the interests of justice that would be served by summary judgment, taking into account the relative efficiencies that would be served by that process and those that would be served by a trial, including the cost and speed of each procedure, the evidence that is available on the motion versus the evidence that would be available at trial, and the opportunity to evaluate such evidence fairly. As the Supreme Court stated, there will be no genuine issue requiring a trial if the summary judgment process gives the motion judge the evidence required to fairly and justly adjudicate the dispute on its merits, and is a proportionate, more expeditious, and less expensive means to achieve a just result.

[50] In Sweda Farms v. Egg Farmers of Ontario, in 2014, Corbett J. described the current approach to summary judgment motions following the Supreme Court of Canada’s decision in Hryniak v. Mauldin, as follows:

Summary judgment motions come in all shapes and sizes, and this is recognized in the Supreme Court of Canada’s emphasis on “proportionality” as a controlling principle for summary judgment motions. This principle does not mean that large, complicated cases must go to trial, while small, single-issue cases should not. Nor does it mean that the “best foot forward” principle has been displaced; quite the reverse. If anything, this principle is even more important after Hryniak, because on an unsuccessful motion for summary judgment, the court will now rely on the record before it to decide what further steps will be necessary to bring the matter to a conclusion. To do this properly, the court will need to have the parties' cases before it.[^5]

[51] The Supreme Court of Canada, in Hryniak v. Mauldin, gave guidance as to how Rule 20 should be applied to promote timely and affordable access to the civil justice system. Justice Karakatsanis, on behalf of the court, noted that such motions are an opportunity to simplify pre-trial procedures and move the emphasis away from the conventional trial, in favour of proportional procedures tailored to the needs of the particular case. She stated:

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.[^6] (Emphasis added)

[52] Justice Karakatsanis held that the judge hearing a motion for summary judgment must compare the procedures available in such a motion, supplemented, if necessary, by the fact-finding tools provided by Rules 20.04(2.1) and (2.2), with those available at trial, to determine whether the court can make the necessary findings of fact and apply the principles of law to those facts in a proportionate, most expeditious, and least costly manner, to achieve a just result:

This inquiry into the interest of justice is, by its nature, comparative. Proportionality is assessed in relation to the full trial. It may require the motion judge to assess the relative efficiencies of proceeding by way of summary judgment, as opposed to trial. This would involve a comparison of, among other things, the cost and speed of both procedures. (Although summary judgment may be expensive and time consuming, as in this case, a trial may be even more expensive and slower.) It may also involve a comparison of the evidence that will be available at trial and on the motion as well as the opportunity to fairly evaluate it. (Even if the evidence available on the motion is limited, there may be no reason to think better evidence would be available at trial.)[^7] (Emphasis added)

[53] Based on the guidelines set out in Hryniak v. Mauldin, I must first determine, based on the evidence before me, and without using the new fact-finding powers under Rule 20.04, whether there is a genuine issue requiring trial, whether I can fairly and justly adjudicate the dispute, and whether the motion is a timely, affordable, and proportionate procedure under Rule 20.04(2)(a). If there is no genuine issue requiring a trial, I must grant summary judgment.[^8]

[54] If there appears to be a genuine issue requiring a trial, I must exercise my discretion to determine whether the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2), provided their use will not be contrary to the interests of justice and will lead to a fair and just result, and serve the goals of timeliness, affordability, and proportionality in light of the litigation as a whole.[^9]

[55] The party moving for summary judgment has the onus of establishing that there is no genuine issue of material fact requiring a trial. Once that onus is met, the burden shifts to the responding party, opposing summary judgment, to demonstrate that their claim has a "real chance of success".[^10]

b) Are there genuine issues for trial?

[56] For the reasons that follow, I am satisfied, based on the evidence tendered in the motion, that I have a full appreciation of the facts and am able to reach a fair and just determination on the merits of the motion for summary judgment. The evidence allows me to make the necessary findings of fact, and apply the law to the facts.

[57] The witnesses who could be called at trial, and who might add relevant evidence, have not co-operated in the investigation and are unlikely to co-operate at a trial. This includes the three defendant inmates, as well as the CSC staff who entered J Unit before the assault, and dis-armed and re-armed some emergency call alarms but not others, including the one for Mr. Fontenelle’s cell, and the staff who entered after the assault but failed to perform the necessary check for a response from Mr. Fontenelle. It is unlikely these witnesses will come forward with evidence at trial. For this reason, the motion is a proportionate, more expeditious, and less expensive means to achieve a just result than going to trial.

Duty of care

[58] AG Canada concedes that the CSC owed a duty of care to Mr. Fontenelle to take reasonable care for his safety while he was in custody.[^11]

[59] The CSC is governed by the Corrections and Conditional Release Act (“CCRA”). Pursuant to s. 3.1 of the CCRA, the CSC’s paramount consideration is the protection of society. Pursuant to s. 3, however, the CSC is also charged with carrying out the safe and humane custody and supervision of offenders. Further, s. 70 mandates that the CSC maintain a living and working environment for inmates and staff that is safe, healthful, and free of practices that undermine a person’s sense of personal dignity. Additionally, ss. 4 (c) and 28 of the CCRA oblige the CSC to impose only such restrictive measures on the inmate as are necessary and consistent with the protection of inmates, staff members, and the public.[^12]

Standard of Care[^13]

[60] The central issue in the action is whether the acts and omissions of the CSC fall below the standard of conduct of a reasonable person of ordinary prudence in the circumstances, and whether in the circumstances and, on the balance of probabilities, the harm to Mr. Fontenelle from other inmates was reasonably foreseeable such that the CSC knew or ought to have known of that risk of danger.

[61] The CSC must take reasonable care to protect inmates from known or foreseeable risks. What constitutes “reasonable care” varies greatly depending on the context. A key question in determining the appropriate standard of care is whether, on a balance of probabilities, the harm to Mr. Fontenelle was reasonably foreseeable in that the CSC knew or ought to have known of the risk of the assault.[^14]

[62] “Foreseeability” means there must be a reasonable prospect that the event will occur. The greater the foreseeable harm, the higher the standard of care to which CSC will be held.[^15]

[63] In Neeson v. Her Majesty the Queen, the Federal Court set out the key principles as follows:

16. The requirement of reasonable foreseeability is satisfied if there are pre-indicators of violence, that is events or circumstances that make more likely the possibility of violence. Animosities among inmates or threats of violence are examples of pre-indicators of violence. An inmate who feels his or her safety is threatened by such animosity may notify prison officials by filing an incompatibility report. The definition of "incompatible" is set out in Commissioner's Directive 568-07, which states that incompatibles are "offenders who, for whatever reason or situation, pose a threat to the safety and well-being of each other and hence may pose a safety risk to the institution and to others." A pre-indicator of violence may, however, be established in other ways.

17. While case law cited by CSC indicates there is no breach of duty for failure to prevent a “quick, planned and violent attack”, if pre-indictors of violence exist or if violence is otherwise predictable, then it is the obligation of the CSC to take reasonable steps to ensure the safety of the at risk inmate, (Coumont,… Miclash). Given that prisons have an inherent potential for violence and that CSC cannot be guarantors of the safety of inmates, security measures need not be perfect nor infallible.... They must, however, be adequate and reasonable…. The circumstances of the institution and the inmates as well as the existence of pre-indicators are all relevant in determining the adequacy of supervision and whether the CSC have fulfilled their obligation....[^16]

[64] Much of the jurisprudence focuses on “pre-indicators of violence” between specific inmates or groups that were known or should have been known to the prison authorities. In Adams v. Canada, (2015), the Alberta Court of Queen’s Bench observed that, “Pre-indicators are ‘events or circumstances that make more likely the possibility of violence."[^17] While they can consist of interactions between an assailant and the victim inmate, they can also include an assailant’s violence toward other inmates in an institutional setting, a failure of CSC to follow protocols that ensure that inmates are together only in areas that are constantly monitored, and a lack of effective surveillance. All such factors are relevant in determining the adequacy of supervision and whether CSC has fulfilled its obligations.

[65] In some cases, liability has been imposed without pre-indicators of violence as between the assailant and the victim. In those latter cases, some other aspect of potential violence has been present.[^18] Absent convincing evidence of foreseeable risk to an inmate, or any pre-indicators of violence, CSC cannot be held responsible for injuries sustained as a result of inmate-on-inmate violence.[^19]

[66] The British Columbia Supreme Court in Le v. B.C., in granting summary judgment dismissing an action arising from an inmate assault, stated:

51 Both parties cited cases that illustrated the application of these general principles. While most cases focus on pre-indicators of violence between specific inmates or groups that were known or should have been known to the prison authorities, in some cases liability has been imposed without pre-indicators of violence. In those latter cases, however, some other aspect of potential violence has been present. Examples of the former include Walters v. Ontario, 2015 ONSC 4855, where prison authorities failed to assess and recognize the potential for violence between two inmates who were members of rival gangs, and McLellan v. Canada (Attorney General), 2005 ABQB 486, where there were a number of pre-indicators of violence between two inmates which, in cumulative fashion, established a foreseeable risk of danger.

52 Examples of cases in which liability was imposed despite the absence of pre-indicators of violence between specific inmates include Row, where the institution had, contrary to policy, a routinely predictable period of unsupervised freedom for inmates during staff shift changes, and -- perhaps -- Carr v. Canada, 2009 FC 576, where as-yet-unassessed inmates accessing a telephone room that was in high demand created a "highly-charged atmosphere" requiring much closer supervision than was provided. I have said "perhaps" above because in Carr there was a pre-indicator of violence between the specific inmates in question as a result of the prothonotary's conclusion that a supervising officer probably saw an earlier altercation between those inmates.

53 Following a similar (but more thorough) analysis, the court in Adams v. Canada (Attorney General), 2015 ABQB 527, concluded:

[50] Apart perhaps from Row, no case law was identified by the parties in which the CSC was held responsible for inmate conduct without incompatibles or other inmate-related pre-indicators. Despite this, I must consider whether the absence of appropriate security measures could make violence between inmates foreseeable even where no pre-indicators exist. This possibility is consistent with statements from other courts that the CSC has a higher obligation to take reasonable steps to ensure the safety of the at-risk inmate where pre-indicators of violence exist or if violence is otherwise predictable: Coumont [Coumont v. Canada (Correctional Service, (1994), 77 F.T.R. 253] at paras 38-39; Miclash [Miclash v. Canada (2003), 2003 FCT 113, 227 F.T.R. 116] at para 37. The issue is when violence is predictable in the absence of incompatibles or other pre-indicators.

[57] These cases provide only minimal support for the notion that, absent incompatibles or other pre-indicators, inadequate security measures could render the CSC liable for injuries resulting from an inmate assault. The harm to Mr. Adams must have been foreseeable in that the CSC knew or ought to have known of the risk of the assault. Where there are no incompatibles or other pre-indicators to forewarn the CSC, as Row suggests, an inmate assault will be considered foreseeable only if there was a substantial security breach. ...

54 I agree with that general conclusion, although I would not adopt the phrase "substantial security breach" that is used at the end of the last paragraph. Instead, I would say that there must be other facts that establish actual or constructive knowledge on the part of prison authorities of a risk or threat to inmate safety. [Emphasis added]

[67] In the present case, Mr. Ballantyne’s history of institutional violence gave CSC staff actual knowledge of the risk that he posed to other inmates, especially to an inmate like Mr. Fontenelle, who did not have a similar background and was less likely to be equipped to deal with individuals with a propensity for violence. That knowledge, together with the prisoner disturbances, the breaches of security protocol which allowed other inmates, including Mr. Ballantyne, to enter Mr. Fontenelle’s cell outside the range of security cameras, and which deprived Mr. Fontenelle of access to a disarmed and re-armed call alarm which he could use to summon help, amounted to a breach of CSC’s standard of care, and gave rise to foreseeable harm to Mr. Fontenelle.

Causation

[68] To establish negligence on the part of CSC, Mr. Fontenelle must prove, on a balance of probabilities that “but for” CSC’s negligence, his injuries would not have occurred. The Supreme Court of Canada, in Clements v. Clements, summarized the requirements of the “but for” test as follows:

The test for showing causation is the “but for” test. The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. Inherent in the phrase “but for” is the requirement that the defendant’s negligence was necessary to bring about the injury – in other words that the injury would not have occurred without the defendant’s negligence. This is a factual inquiry. If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against the defendant fails.[^20] [Emphasis added]

[69] The “but for” test must be applied in a robust, common sense fashion and scientific proof is not required to meet it.[^21] Mr. Fontenelle must establish, on a balance of probabilities, that “but for” the departures from the standard of care expected of CSC, he would not have been assaulted.

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

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

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

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

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

Inappropriate Assessment and/or placement of Mr. Fontenelle in J Unit

[71] Following Mr. Fontenelle’s conviction and sentencing on December 15, 2011, he was sent to the Millhaven Assessment Unit for the Intake Assessment Process. The assessment was completed on February 28, 2012, and an addendum added on March 12, 2012 indicated ratings of moderate institutional adjustment, moderate risk or escape, and moderate risk to public safety. He was classified as medium security.

[72] Following the Intake Assessment, Mr. Fontenelle began serving his sentence at Joyceville Institution in March of 2012 and remained there until August of 2013. While at Joyceville, he committed 13 institutional infractions. The majority of them were minor, save for possession of contraband, namely, tattoo equipment. None of the infractions involved violence.

[73] A security classification review was completed and a decision released on July 19, 2013, recommending he be transferred to maximum security and to Millhaven. A verbal rebuttal was heard, and a written rebuttal reviewed, as per Commissioner’s Directive 710-2. It was concluded that “a high level of management intervention was required in the case, and all attempts at managing Mr. Fontenelle in medium security had been exhausted.” Mr. Fontenelle was involuntarily transferred to Millhaven, as it was the only maximum security institution accepting inmates at the time of reclassification.

[74] Once at Millhaven, Mr. Fontenelle was housed on J unit, along with the inmates who later assaulted him, Messrs. Ballantyne, Bent, and Cottrelle. According to the Statement/Observations Report dated November 20, 2013, by Security Intelligence Officer Janice Whalen, who investigated crime within the institution, this unit “has a reputation as being a tough unit, and an inmate that has “done time” in J unit is seen by other inmates federally as having “street cred”.”

[75] Parole Officer Rick Baker interviewed Mr. Fontenelle on August 21, 2013, and again on September 10, 2013. Mr. Baker states that at no time did Mr. Fontenelle express any concerns regarding his placement at Millhaven. This was further reiterated by Mr. Pond, a Correctional Manager at the institution. AG Canada did not produce any evidence that Mr. Fontenelle was made aware of the violent backgrounds of the individuals he was housed with on J unit, or that he appreciated the danger he was in.

[76] Prior to his conviction for gun charges, Mr. Fontenelle’s criminal record was comprised overwhelmingly of non-violent convictions, for offences such as breach of trust, property offences, escape lawful custody, and obstruction of a peace officer. He had one prior conviction for simple assault.

[77] Mr. Fontenelle did not have any security threat group affiliations, and prior to the assault against him, was not known to the Security Intelligence Department at Millhaven. The BOI Report, and an e-mail from Melinda MacCrimmon to Kim Bannon, disclose that following the assault, staff confirmed that there were no complaint or grievances registered against Mr. Fontenelle in the Offender Management System.

[78] The CSC’s Radar Report discloses that the majority of security incidents for which Mr. Fontenelle was penalized at Joyceville were for being in an unauthorized area of the institution, namely, in another range. Additionally, he was found in possession of tattoo equipment, had blocked his window, and had a needle and homemade knife in his cell. According to the “Warden’s Situation Report - Institutional Incidents,” he was not charged with any institutional infractions following his arrival at Millhaven.

[79] In contrast to Mr. Fontenelle’s institutional record, the inmates he was assigned to share space with had extensive histories of institutional violence. Larry Ringler states, in his Affidavit, that “Each of Ballantyne, Bent and Cottrelle had extensive criminal records, including histories of institutional violence against other inmates.”

[80] The “Warden’s Situation Report - Institutional Incidents” discloses the following information regarding the inmates who assaulted Mr. Fontenelle:

a) Leonard Ballantyne:

i) At the time of the assault, Mr. Ballantyne was serving his fifth federal sentence of life for second degree murder and assault causing bodily harm. His previous federal sentences “were wrought with noncompliance issues, violence against other inmates and staff and involvement in the drug culture."[^22]

ii) In April of 2010, Mr. Ballantyne was convicted of assaulting another inmate at the Kent Institution, where he was then housed. The victim was assessed as having sustained serious bodily harm. Nonetheless, Mr. Ballantyne remained at Kent, where he was then convicted of assaulting another inmate, whom he stabbed.

iii) Mr. Ballantyne was a high-ranking member of the “Indian Posse” gang, closely associated with the “Red Scorpion” Gang, and was involved in the creation of a new institutional gang. He was involved in institutional drug culture, and was known to manipulate and intimate other inmates.

iv) Mr. Ballantyne was transferred from Kent to the Millhaven Institution in June of 2012. He was involved in nine security incidents from the date of his transfer until the date of the assault. He had previously spent time at the Special Handling Unit (Canada’s one super maximum security prison), after it was discovered that he planned to harm staff.

b) Terrence Bent:

i) Mr. Bent has a “deplorable institutional history”[^23] consisting of over 100 recorded security incidents, 182 institutional charges, and 37 separate admissions to involuntary segregation.[^23]

ii) Mr. Bent was consistently non-compliant, and resorted to violence on many occasions. Prior to the assault on Mr. Fontenelle, Mr. Bent had been involved in nine assaults or physical altercations against other inmates, had threatened staff on seven occasions, and assaulted an officer.

iii) In October of 2007, Mr. Bent was convicted criminally for assault causing bodily harm. He was considered for placement at the Special Handling Unit. In February of 2009, “Bent was again involved in a brutal attack on another inmate”[^24], convicted of assault causing bodily harm and transferred to the Special Handling Unit. He remained there for over a year.

iv) In September of 2011, Mr. Bent was convicted of assault causing bodily harm against another inmate, and received a nine-and-half-month consecutive sentence. Since February of 2013, he was involved in 12 security incidents, including assault causing bodily harm. His most recent psychological assessment prior to the assault upon Mr. Fontenelle concluded he was a "high risk for violent behavior".[^25]

c) Nickoma Cottrelle:

i) Mr. Cottrelle “has an abysmal history of assaulting other offenders in institutional settings (court holding, provincial and federal). His victims almost always sustain serious bodily injury.” Mr. Cottrelle was in custody serving a sentence for aggravated assault and assault causing bodily harm. After he was incarcerated, he assaulted an inmate by punching him in the face.[^26]

ii) Mr. Cottrelle was known to be non-compliant and aggressive towards staff. He demonstrated poor judgment and lacked impulse control. He was affiliated with street and aboriginal gangs.[^27]

[81] Given the violent records of Messrs. Ballantyne, Bent, and Cottrelle, Mr. Fontenelle should not have been housed with them. Mr. Fontenelle’s institutional infractions, while demonstrating non-compliance, did not disclose violence. The CSC staff was aware that Mr. Fontenelle’s record was “just property offences”, as evidenced by the MCCP excerpts.

[82] I am not prepared to find that Correctional Service of Canada breached its duty of care towards Mr. Fontenelle solely because it assessed him as requiring incarceration in a maximum security facility or even when it assigned him to J unit, 1L range, where it knew, or ought to have known, of the serious risk of violence he was exposed to. I do not have evidence as to the institutional resources that were available at the time, or as to whether there were alternative placements available that would have afforded Mr. Fontenelle greater safety.[^28]

[83] I do find, however, that CSC’s placement of Mr. Fontenelle in J unit, in light of his own non-violent history and the assailants track records for extreme violence, including institutional violence, heightened the obligation CSC had to ensure that measures were in place, and existing protocols were followed, to ensure Mr. Fontenelle’s safety in the environment in which it placed him.

Failure to respond effectively to Inmates’ propping open cell doors

[84] Standing Order 566-3 provides that:

11. Cell doors are only to be left open during the identified changeover period or when a group of inmates return from special activities, such as religious services, visits or group meetings.[^29]

[85] Commissioner’s Directive 566-3 provides that:

12. At maximum security institutions, the Standing Order will indicate:

• that cell doors are only to be left open during the identified changeover period or when a group of inmates return from special activities, such as religious services, visits, group meetings, etc.;

• that once the range is secured, one cell per range may remain open (to allow for cleaning, etc.) only if there are no other inmates in the range area; and,

• when applicable, the maximum number of inmates allowed on the range for leisure activities.[^30]

[86] AG Canada concedes that the cell doors were required to be closed while the inmates were out of their cells and on the range, according to CSC’s own policies and procedures. It additionally concedes that the range activities that took place on the evening of October 8, 2013, did not constitute “special activities” that justified suspending the standing protocol.

[87] When asked whether in the “usual and ordinary practice on [1L range], when inmates are out on the range, the [cell] door is closed”, former Deputy Warden Mr. Ringler, produced by AG Canada, responded “that’s correct”. Mr. Ringler confirmed that when the inmates were on the range, they were unable to access their own, or each other’s, cells until permitted to do so by staff. He further acknowledged that this was a “security measure so that [CSC staff could] easily observe all the inmates together and see what’s going on as opposed to having the cells open and people having access to each other’s cells”.

[88] AG Canada further concedes that for some time before the assault, the inmates had been refusing to comply with directions from staff to leave their cell doors open, and that the staff knew, or ought to have known, that the inmates were unlikely to allow their cell doors to close upon being released onto the range. Mr. Ringler stated, “[… the strike] went on for a period of time. I’m not sure if it was – You know, I can’t recall the period of time but it was lengthy. It was like a month or….”

[89] It was apparent to CSC staff that inmates were keeping cell doors open immediately upon their release onto the range. Staff in the control room could ascertain which cell doors were open, and which were closed, based on a lighting system. Between the lighting system and the surveillance videos, Mr. Ringler agreed that it was “obvious … [CSC staff] would have known that doors were open”, and further, that it would be “accurate to assume that whoever was in charge of the range knew immediately that there were a number of doors being kept open.”

[90] The result was that for approximately 54 minutes, between 8:24 p.m. and 9:18 p.m., the inmates who had been released onto the range had unrestricted access to Mr. Fontenelle’s cell, as is obvious from the surveillance videos and audiotapes, particularly excerpt #241.

[91] The video and MCCP audio excerpts disclose that the inmates were refusing to permit individual cell doors to be closed when they were released onto the range. The Correctional Officers who were on duty in J unit were aware, at some point that “all the people on the range” were going in and out of Mr. Fontenelle’s cell. The only reason that Mr. Fontenelle’s assailants were able to gain access to him in his cell, where he was out of range of the security cameras, was that the CSC failed to enforce its own policies and procedures, which required the cell doors to be closed when the prisoners were on the range together.

[92] Millhaven Institution is a maximum security prison where, AG Canada admits, inmate movement must be closely controlled. AG Canada admits that the cell doors were supposed to be kept closed while the inmates were on the range, in accordance with CSC’s own policies and procedures. The CSC was aware that inmates had been keeping their cell doors open and that it was likely that they would prevent their cell doors from closing before they were released onto the range on the evening of October 8, 2013.

[93] Allowing a group of 15 inmates, many of whom were extremely dangerous, with lengthy histories of institutional violence, unrestricted access to Mr. Fontenelle’s cell for a period of an hour or more, obviously increased the risk of an assault like the one that was made on Mr. Fontenelle. Having regard to the histories of violence of the other inmates in J Unit, CSC’s failure to ensure that doors to the cells were kept closed while inmates were on the range, amounted to negligence and certainly contributed substantially to the injuries Mr. Fontenelle sustained. But for the fact that Messrs. Ballantyne, Bent, and Cottrelle, were able to enter Mr. Fontenelle’s cell out of the range of security cameras, the assault would likely not have occurred.

Failure to respond effectively to Mr. Fontenelle’s cell alarm

[94] Each cell is equipped with an alarm that the inmate could use to summon help in the event of an emergency. Once activated, the alarm sounded in the security office next to the range, where Correctional Officers were stationed. The Officers could either acknowledge the alarm, which silenced it in the security office, or they could ignore it. The alarm could only be disarmed and re-armed manually with a key, just outside the cell. If the cell alarm is not disarmed within ten minutes, it sounds in the Main Communications Control Post. Even after the alarm is acknowledged or silenced, it is still active and apparent to staff until it is cancelled.

[95] At his cross examination, Mr. Fisher confirmed that once the cell alarm has been pressed or activated, it could not be pressed again or re-activated until it was disarmed and rearmed. Pressing it, once it has been activated, did not cause the alarm to do anything “new or different”.

[96] The assault against Mr. Fontenelle was investigated by the Board of Inquiry (“the Board”), which issued a report with various findings and recommendations (“BOI Report”). The Board considered all the information listed in Schedule “C” to its report, which was produced to the plaintiffs in compliance with an undertaking made at the examination for discovery of the defendants held on December 12, 2014.

[97] To date, AG Canada has refused to produce a copy of the un-redacted BOI Report. The copy of the report that has been produced contains a chronology, presumably prepared after considering all of the materials contained in Schedule “C”. The chronology in the BOI Report reads:

… 20:54 [8:54pm] – cell calls for [redacted] L110 (Fontenelle) and [redacted] are activated again while COs are at the barrier trying to gain compliance from the inmates to ‘lock-up’ so they can enter the range to conduct a security patrol and respond to cell alarms.

[98] The Board concluded that:

[T]here was a delayed response to cell calls contrary to Commissioner’s Directive 567-2, Use of and Responding to Alarms and Standing Order 567-2, Use of and Responding to Alarms, paragraphs 23 and 24, as staff would not get onto the range until the inmates were secured in their cells.

[99] The relevant parts of the Standing Order are as follows:

23. When an inmate needs to summon immediate assistance, they shall press the Cell Call button to activate. When the Cell Call Alarm is activated, a cell location is displayed on the alarm monitor in MCCP (where a staff member is monitoring) of the location of the alarm in which the assigned Cell Call has been activated. The Officer assigned to MCCP shall immediately alert the respective control post and if no response; the Duty Correctional Manager; and provide the location of the Cell Call Alarm that has been activated. This shall be done via radio. Staff shall respond as outlined in ANNEX “B” IDENTIFICATION OF RESPONDING POSTS TO ALARMS.

24. When responding to a Cell Call Alarm or upon observing an inmate in medical distress, prior to entering the cell, a minimum of two Correctional Officers must be present at the cell. One additional Correctional Officer must observe (directly or by camera/monitor) the range area in which the cell is located. This may be from the unit control post or another location within the unit where they can view the area from a distance (e.g. the head of the range).

[100] AG Canada’s witness regarding the cell alarm records was Thomas Fisher, the Regional Electronics Officer for the Ontario Regional Headquarters of the Correctional Service of Canada. His evidence on cross-examination, which was based solely on his review of the alarm records and surveillance video footage, was that the last alarm initiated from Mr. Fontenelle’s cell was at 8:15 p.m. (20:15:24). There were five alarms activated in other cells at or about the same time. This was shortly before the inmates were released onto the range. In response to the cell alarms, two Correctional Officers entered the range.

[101] The Officers who entered the range and de-activated three of the six emergency cell alarms have not been identified. CSC’s records indicate that those Officers deactivated or cancelled three of the active alarms, but failed to deactivate the other three, including Mr. Fontenelle’s alarm. AG Canada undertook to identify the Officers and inquire as to why they failed to deactivate three of the cell alarms, including Mr. Fontenelle’s, before the inmates were released onto the range, but it did not comply with that undertaking.

[102] Mr. Fisher disagreed with the Board’s findings, supra. His evidence was that the alarm in Mr. Fontenelle’s cell was activated at 8:15 p.m. (20:15:24) and that it remained active until it was cancelled at 9:18 p.m. (21:18:57), over an hour later. In the interim, Officers had entered the range and deactivated three of six alarms. The inmates had been released onto the range, and had since been secured back in their cells when the remaining alarms were finally deactivated. This is entirely absent from the BOI Report.

[103] CSC staff are required and expected to attend to every cell alarm. The Commissioner’s Directive requires staff to respond to each and every alarm call: “[A]ll cell call alarms will be treated as legitimate and designated personnel will respond according to established procedures.” There is nothing in the institutional guidelines or directives that provides that when staff believe that an inmate is setting off false or non-emergency alarms, the alarms can be ignored or treated as illegitimate. The power to disable a cell alarm is exclusively held by the Correctional Manager, who must adhere to specific guidelines.

[104] The MCCP Telephone and Radio Transmission Recordings disclose that the CSC staff was not adequately responsive to disarm and re-arm activated cell alarms. In an exchange between two officers regarding the active alarms, one Officer asks with respect to the inmates, “[s]o are they being dicks, or you just didn’t reset them or what’s the deal?” The responding Officer answers, “[B]oth”. In a later excerpt, when multiple alarms are activated, an unidentified Officer directs staff to “help them clear a couple. When we go back up, we’ll clear the rest, but I really don’t think anyone is in distress at this point.” It is apparent that the Officers were aware that some alarms remained active, but were unconcerned and did not treat the alarms as if they were legitimate, as required.

[105] While the Board observed that staff were unable to enter the range until the inmates were secured, there is nothing in the Standing Orders, Commissioner’s Directives, or institutional policies that provides that staff are not required to respond to cell call alarms until all inmates are secured in their cells. On the contrary, “there is strong implication that the response should be immediate.”

[106] CSC staff were negligent in failing to respond to Mr. Fontenelle’s cell call alarm when it was activated at 8:15 p.m. The presence of the alarm, and the likelihood that if re-activated, CSC officers would respond immediately, would likely have deterred the assailants from entering Mr. Fontenelle’s cell and assaulting him. But for their failure to respond, the assault would likely not have occurred.

Failure to install and maintain proper surveillance of the cell interiors

[107] Mr. Fontenelle has no recollection of the events leading up to or after the assault which is the subject of this claim, owing to the serious and permanent closed head injury that he sustained during the assault.

[108] Security Intelligence Officer Shannon Thompson reviewed the video and opined that Mr. Fontenelle did "not appear to be under any duress".[^31] On the whole of the evidence, I do not agree with the assertion by AG Canada’s counsel that Mr. Fontenelle “appears relaxed and unconcerned” immediately prior to the assault. In fact, this cannot be determined, owing to the failure of CSC to equip the range with cameras that could keep the interiors of the cells in view when emergency alarms in the cells were activated.

[109] The absence of security cameras capable of monitoring the interior of Mr. Fontenelle’s cell, together with the other inmates’ history of institutional violence, forms part of the context in which to view CSC’s breach of its protocols and the foreseeability of harm to Mr. Fontenelle arising from those breaches.

[110] In Carr v. Canada, (2009), the Federal Court of Canada dismissed an application by AG Canada for judicial review of the decision of a Prothonotary which allowed the action of a prison inmate against CSC for damages for injuries sustained for being assaulted by another prison inmate. Russell J. held that while the exchange of words and slight physical contact between the plaintiff and his assailant were not, in themselves, pre-indicators of violence, it was open to the Prothonotary to find such pre-indicators by looking at the entire context, including the absence of effective video surveillance.

[111] Justice Russell held that liability did not arise from the lack of cameras, but from the full context of the security situation. He stated:

106 The loud exchange of profanities that followed the slight physical contact between the Plaintiff and his assailant is not, per se, a pre-indicator of violence. It all depends on the context, and the Prothonotary is careful to place those acts in the full context of this case:

• 25 Officer Marshall stated in his testimony that turnover is high at MAU given that the average time an inmate stays is from four to six months. Unlike a regular prison where staff can get acquainted with the inmate population, the staff are often unable to identify which inmates are more violent. Officer Marshall agreed that while there are often verbal altercations that do not lead to violence, he also stated that in such a situation there is "nothing you can do but be extra vigilant... you just have to make sure that you are watching."

• 26 Furthermore, the static security measures in place were inadequate in providing a reasonable amount of protection for inmates….
• 29 The lack of camera surveillance is also an indication of inadequate precautions. At the time of the first incident between the two inmates in the telephone area, there was no surveillance camera. Moreover, while there are cameras in the area of the assault, not all cameras would broadcast to the observation gallery since there are only three monitors for four cameras. Adequate security would warrant that an operating camera would broadcast events in the area where the assault took place to the observation gallery so as to keep correctional officers informed of potential problems.

• 30 Furthermore, what is recorded is only that which is shown on the monitor that a correctional officer in the observation gallery is actually viewing. Thus, in this case, there is no direct recording of the initial altercation or the assault to aid in identifying the assailant or what actually occurred. These inadequate static security features made it incumbent on the CSC to watch for situations of potential conflict, whether reported or not. This inability to monitor key areas where inmates are able to move freely in this highly charged environment is also a breach of the duty of care.

• 31 I find that CSC breached its duty of care when it failed to take reasonable steps, in light of pre-indicators of violence, in both its static and dynamic security to prevent the assault on Mr. Carr.

110 It is, of course, possible to disagree with Prothonotary Milczynski's findings on this crucial issue of the presence of pre-indicators of violence. The Crown has advanced strong arguments, and pointed to other evidence as proof of the fact that such pre-indicators did not exist in this case. No one knows for sure what Officer Jugloff may have seen, or ought to have seen of the altercation. No one knows for sure what was observable and audible in S Control Module at the time of the altercation. Prothonotary Milczynski had to assess whether, given Mr. Carr's own evidence about the altercation and the context gleaned from other witnesses, whether a pre-indication of violence occurred in this case. The evidence on this point was certainly not conclusive. It is also possible to take exception to the Prothonotary's findings, as the Crown has done, based upon other factors relevant to the full context. But was this a palpable and overriding error? I cannot say it was.

Comments RE: Security Cameras

111 It is also evident from the Decision that the lack of surveillance in the telephone area was only "an indication of inadequate precautions." It was simply part of the whole context that Prothonotary Milczynski examined to decide whether there had been a breach of CSC's duty to take reasonable care regarding Mr. Carr's safety. The static security features come into play in two ways in the Decision:

a. "These inadequate static security features made it incumbent on the CSC to watch for situations of potential conflict, whether reported or not"; and

b. "This inability to monitor key areas where inmates are able to move freely in this highly charged environment is also a breach of the duty of care."

112 It is important to note that what Prothonotary Milczynski means by "static security features" is not just camera surveillance. She also means the line-of-sight surveillance discussed in paragraph 28 of her Decision. The lack of camera surveillance is merely an indicator of general inadequate surveillance.

113 In my view, this is not a Decision which holds that a lack of surveillance cameras constitutes a breach of the duty of care. This is a case in which the full context of surveillance is examined (including the use made of surveillance cameras) in order to determine whether reasonable steps were taken "in both [CSC's] static and dynamic security to prevent the assault of Mr. Carr."[^32]

[112] AG Canada argues that privacy concerns precluded having surveillance cameras monitoring the interiors of cells. I disagree. In R. v. Mok, (2014), Boswell J., in setting aside a stay of proceedings that a trial judge entered on an impaired driving charge based on the infringement of a female detainee’s right to privacy by video surveillance that captured her using the toilet in her cell, stated:

[76] Sometimes bad things happen when a person is in custody. Sometimes detainees attempt to hurt other detainees. Sometimes they attempt to hurt the police officers charged with their care. Sometimes they allege police brutality. Sometimes they attempt to hurt themselves. Sometimes they suffer from a medical emergency. The ability of the police to monitor detainees in their cells is an important one in terms of ensuring the safety of the detainee and others coming into contact with him or her. In Ms. Mok’s case specifically, she was considered a high risk, health wise, because of her level of intoxication. It was important that the police were able to keep an eye on her condition.

[77] In my view, the worthiness and reasonableness of videotaping everything that happens in a detention cell for safety reasons does not necessitate the surveillance and recording of the use of the toilet in the cell. The use of a modesty screen that protects the lower part of a person’s body while using the toilet would not significantly hamper the ability of the police to monitor the health and safety of anyone inside the cell. At the same time, it would preserve the dignity and bodily integrity of the detainee.[^33] [Emphasis added]

[113] The Court of Appeal upheld Boswell J.’s decision setting aside the stay. The Court of Appeal stated:

[5] The stay was originally granted by the trial judge as the remedy in this case based on the evidence that this was not a unique incident. At the time, the York Regional Police viewed and videotaped all prisoners using the toilets in their cells as a matter of policy. However, on this appeal, the court was told that since the decision of the summary conviction appeal judge upholding the finding of a s. 8 breach, steps have been taken by the York Regional Police to ensure that prisoners’ privacy while using the toilet is now protected from both viewing and videotaping. This information confirmed the findings made by a number of other trial courts recently faced with the same issue, who declined to order stays: see R. v. Arbelo, 2014 ONCJ 257, at para. 31 on changes to York Regional Police’s videotaping practices; see also R. v. Orenchuk, 2014 ONCJ 650, at para. 63, and R. v. Griffin, 2015 ONSC 927, at paras. 10-11, on changes in practice at other police forces.[^34]

[114] Even before the Court of Appeal released its decision in R. v. Mok, Dawson J., in R. v. Griffin, (2015), dismissed a similar summary conviction appeal where a detainee’s right to privacy had been breached by videotaping her using a police cell toilet. In noting the legitimate safety concerns that underlie the use of surveillance cameras to monitor the interiors of police cells, and the measures available to address the detainee’s privacy concerns, Dawson J. stated:

[9] The trial judge was also provided with an affidavit from Inspector Alison Jevons, the Detachment Commander at Burlington, sworn on January 13, 2014. Inspector Jevons provided evidence to the effect that the O.P.P. policy concerning the video recording of all prisoner activity was the result of the recommendations from four separate Coroner’s inquests into deaths of persons in O.P.P. custody.

[10] Inspector Jevons also outlined in her affidavit the steps the O.P.P. had taken in response to the privacy concerns raised in this case and two prior cases. She indicated that she had met with the Crown Attorneys for Halton and Hamilton to discuss the issue and attached an email dated September 7, 2013 which was sent to all officers under her command. The email instructed officers to ensure that all detainees were advised they were being recorded at all times and that they were permitted to cover themselves with a blanket when using the toilet. Blankets were to be available for this purpose.[^35]

[115] The expectation of privacy for an inmate at a maximum-security federal penitentiary is lower than that of a detainee who has just been arrested and is in a police cell, waiting to make a first appearance in court, and presumed to be innocent of any crime. The expectation of privacy is lower in the penitentiary, and the need for security is greater. This is especially so when an emergency alarm in the cell has been activated and CSC officers have not yet responded to investigate.

[116] But for the lack of surveillance of the interior of Mr. Fontenelle’s cell, the assault on him would likely not have occurred. The surveillance would have deterred his assailants. The existence of such surveillance of the general range accounts for why Mr. Ballantyne did not assault Mr. Fontenelle there, and instead, assaulted him in his cell, where they were outside the range of the cameras.

[117] The video recording discloses that at 8:57 p.m. (20:57:27), Mr. Ballantyne exited his cell, having changed into a black shirt. Over the next three minutes, he proceeded to enter and exit Mr. Fontenelle’s cell. Mr. Bent and Mr. Cottrelle are seen on the video holding the door open; Mr. Fontenelle can be seen trying to kick away the object that had been blocking the door of his cell. In all of that time, CSC staff had no view of the interior of Mr. Fontenelle’s cell, where he was being brutally beaten by Mr. Ballantyne.

[118] In the circumstances, where Mr. Fontenelle’s cell call alarm was activated at 8:15 p.m. and CSC staff did not respond to disarm and rearm it until 9:18 p.m., the lack of surveillance of the interior of Mr. Fontenelle’s cell deprived CSC staff of the opportunity to see that an assault was about to take place and was taking place. It deprived CSC staff of the ability to respond appropriately. Even in the unlikely event that an assault had taken place in a fully monitored cell, surveillance of what was occurring would have enabled CSC staff to intervene immediately, and if not prevent the assault altogether, at least minimize its seriousness and obtain immediate treatment for the inmate’s injuries.

Delay in ascertaining Mr. Fontenelle’s condition following the assault

[119] Between 8:58 p.m. and 9:01 p.m., Mr. Fontenelle was brutally assaulted. Surveillance footage shows that Mr. Ballantyne and Mr. Fontenelle engaged with one another at or around 8:58 p.m. If Mr. Fontenelle was fearful, the recourse available to him, as provided by the institution, was to activate his cell alarm. However, due to the fact that his cell alarm was never deactivated, his alarm was effectively useless to him. This was not something that Mr. Fontenelle would have known.

[120] Mr. Fontenelle sustained serious and life threatening injuries. He sustained his injuries in the course of the assault at around 9:00 p.m. According to the Warden’s Situation Report, when Mr. Fontenelle was finally discovered after 11:00 p.m., “the inmate’s face had visible injuries”. According to the MCCP Telephone and Radio Transmission Recordings, “the side of his face was mangled, there was blood in his ears, [and he had] shit himself”.

[121] Despite Mr. Fontenelle’s obvious and extensive injuries, which required life support and extensive hospitalization, CSC officers failed to take notice of his state during the subsequent cell alarm deactivation, two security patrols, and stand-to count, wherein inmates were allegedly required to stand and present themselves.

[122] When CSC staff attended at a cell to disarm and re-arm an alarm, they did so from just outside the cell. When doing so, staff must satisfy themselves that “there’s no problem, that [the inmate] is alive and well.” According to Mr. Ringler, they would typically do this by questioning the inmate “in regards to the cell alarm activation”, and it was his expectation that staff would do so.

[123] A security patrol and stand-to count were conducted at 9:18 p.m., but Mr. Ringer testified that he was unable to ascertain whether any Correctional Officer actually looked into Mr. Fontenelle’s cell to determine whether he was in distress.

[124] CSC staff gave contradictory accounts. An unidentified CSC Officer, who responded to Mr. Fontenelle’s cell alarm, stated that he “specifically remembers Fontenelle standing and waving to him in response to his inquiry.” However, Correctional Officer Jordan Wysman gave a report in which he states that he noticed that Mr. Fontenelle “appeared to be sleeping”, and was lying on his bed, covered by his orange blanket.[^36] It is apparent that neither Officer obtained verbal verification of Mr. Fontenelle’s condition. I find that the unidentified Correctional Officer did not make the observations attributed to him.

[125] The protocol of a stand-up count was not followed on the night of the assault. As a result, the officers did not obtain any verbal indication that Mr. Fontenelle was alive and well.

[126] AG Canada concedes that it owed a duty of care to Mr. Fontenelle to ensure that he was reasonably safe while in its custody. While there is no suggestion that Mr. Fontenelle was in imminent danger when he first activated his cell alarm at 8:15 p.m., AG Canada has not explained why the CSC Officers who were on the range when Mr. Fontenelle’s cell alarm was active failed to disarm and re-arm it. As a result of the failure to do so, the alarm was effectively not functional at the time when Mr. Fontenelle was about to be assaulted, and when he was assaulted in his cell.

c) Is a trial of liability in the interests of justice?

[127] CSC placed Mr. Fontenelle, who was not a violent offender, among inmates who had histories of serious violence, including institutional violence against other inmates. CSC failed to maintain surveillance of the interior of Mr. Fontenelle’s cell, at a time when those other inmates, including the assailants, had access to the cell, contrary to CSC’s own regulations, and when Mr. Fontenelle had no effective means of raising an alarm, because the CSC staff had failed to follow the existing protocols for responding to such alarms. CSC thereby created a risk of the assault on Mr. Fontenelle. Additionally, by failing to follow its protocol for checking Mr. Fontenelle’s condition at 9:18 p.m., when staff finally disarmed and re-armed his alarm, CSC failed to ascertain that he had been seriously injured and failed to obtain prompt treatment for him.

[128] In Row v. HMTQ, (2006), the plaintiff/inmate was the victim of a brutal attack by other inmates. The B.C. Supreme Court found that the injuries he sustained were the direct result of the negligence of the institution. Inmates were out of their cells and were unsupervised due to a routine guard changeover at the time of the assault.[^37]

[129] In Walters v. Ontario, (2017), the plaintiff/inmate was the victim of an attack by inmates. The trial judge found that the assault and subsequent injuries occurred because the Correctional Officer “breached his duty to take reasonable care for the safety of prison inmates under his charge” due to his placement of the plaintiff. The trial judge found that the plaintiff was exposed to a high risk of harm. An appeal from the decision was dismissed by the Court of Appeal.[^38]

[130] AG Canada argued that the issue of liability could be determined on the written record. I agree. Much of the evidence was from the CSC’s own documentary and video records. I have reviewed the video recording, which confirms my findings as to the vulnerable position in which the absence of surveillance cameras capable of monitoring the interior of Mr. Fontenelle’s cell, combined with CSC’s failure to follow its protocols requiring Mr. Fontenelle’s cell door to be closed when other inmates were on the range and requiring Mr. Fontenelle’s cell alarm to be kept functional, left Mr. Fontenelle.

[131] A trial on liability would not further a just outcome of the action and would serve no purpose, having regard to the following:

a) The absence of direct evidence from CSC staff, notwithstanding AG Canada’s undertaking to identify the officers who disarmed and re-armed the three cell call alarms at 8:15 p.m., and to provide their explanation as to why the three remaining alarms were not also disarmed and re-armed;

b) The failure of Messrs. Ballantyne, Bent, and Cottrelle to co-operate in the investigation, or to defend the present action,

c) There is no evidence supporting a finding of contributory negligence by Mr. Fontenelle. There is no evidence as to why he activated his alarm at 8:15 p.m., or as to who blocked his cell door. There is no basis for admitting the hearsay from Mr. Pond regarding Mr. Ballantyne’s statement to him on the day after the assault.

[132] Having determined the issue of liability, I will proceed to address the request of AG Canada for a bifurcation of the trial.

d) Should the issues of liability and damages be bifurcated?

Legislative framework

[133] Rule 6.1.01 of The Rules of Civil Procedure, with respect to the bifurcation of a trial, came into force on January 1, 2010. The Rule states:

6.1.01 With the consent of the parties, the court may order a separate hearing on one or more issues in a proceeding, including separate hearings on the issues of liability and damages.

[134] Section 138 of the Courts of Justice Act provides:

138. As far as possible, multiplicity of legal proceedings shall be avoided. R.S.O. 1990, c. C.43, s. 138.[^39]

[135] Rule 1.04(1) guides the court in its interpretation of the Rules of Civil Procedure. It provides:

1.04(1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

[136] The amendment of the summary judgment rule (Rule 20.04) on January 1, 2010, expanded the powers of a judge hearing such a motion.[^40] Following the amendment, the Supreme Court in Hryniak redefined the test to be applied, and recommended that judges dismissing such motions exercise a trial management function. Rule 20.05(1) and (2) now provide, in part:

20.05 (1) Where summary judgment is refused or is granted only in part, the court may make an order specifying what material facts are in dispute and defining the issues to be tried, and order that the action proceed to trial expeditiously.

(2) If an action is ordered to proceed to trial under sub-rule (1), the court may give such directions or impose such terms as are just.

[137] Having regard to my disposition of the issue of liability, the issue of bifurcation does not arise. The authority to direct a trial of the remaining issue of damages in specifically provided by Rule 20.05(1).

[138] Summary judgment, under Rule 20, is not, in itself, a bifurcation of the issues in a proceeding as contemplated under Rule 6.1. There will not necessarily be two trials – one for liability and one for damages. If the court decides that there is no serious issue requiring a trial under Rule 20.04, then the parties never get to a full trial. Summary judgment is an alternative process that is provided for by the Rules. The motion for summary judgment was an appropriate, fair, and just means of determining the issue of liability.

[139] If liability is found summarily, or at a mini-trial on the issue of liability, then the case will go to trial on damages. If the judge is unable to resolve the matter summarily, then Rule 6.1 considerations may factor into the decision on how to deal with the issues under Rule 20.05.

[140] In George Weston Limited v. Domtar Inc., (2012), D.M. Brown J. (as he then was) discussed the relationship of summary judgment to bifurcation of actions under Rule 6, at para. 129:

129. Rule 20.01(1) authorizes a motion for summary judgment on "part of the claim in the statement of claim". Rule 6.1.01 addresses when separate hearings may be held on "issues". As I read Sobeys' proposed notice of motion, it conflates "issues" with "claims". Although I have followed counsel's short-hand in referring to the Contract/Fair Dealing Claim and the Accounting Claim, in fact both are simply facets of the single claim for damages pleaded in para. 1(a) of the amended statement of claim. If successful, the motion would not eliminate the plaintiffs' claims for damages; it only would reduce some of the factual issues underpinning those claims. Such an objective, in my view, is not consistent with the purpose of summary judgment motions and would risk expanding Rule 20 into a device drawing the court into multiple reviews of an underlying fact pattern. Further, a review of the amended statement of claim discloses that the Contract/Fair Dealing issues are connected factually with the accounting issues; not a surprising circumstance given the length of the history of dealings between the parties put in play in the action.[^41] [Emphasis added]

[141] At para. 127, Justice Brown rejected the argument that the issues for which summary judgment was sought were discrete from the rest of the issues in the action that was before him. He was plainly concerned that a grant of summary judgment might not dispose of the action and might not really affect the litigation viewed as a whole (this was the issue discussed later in Baywood Homes Partnership v. Haditaghi, 2014).[^42] He also was labouring under the full appreciation test, which was the law prior to the Supreme Court’s decision in Hryniak.

[142] Justice Hambly, in City of Hamilton v. Attorney General et al., (2015), noted that since Rule 6.1.01, came into effect, there is divided authority on whether a court has jurisdiction to bifurcate a non-jury trial on the issues of liability and damages absent the consent of the parties.[^43] In Duggan v. Durham Region Non-Profit Housing Corporation, (2017), Master Short concluded that the court has such jurisdiction.[^44] The issue does not arise, however, in a case where summary judgment is applied for, and granted, on the issue of liability.

CONCLUSION AND ORDER

[143] For the foregoing reasons, it is ordered that:

1. Judgment shall issue for the plaintiffs;

2. The parties shall, at the Pre-Trial Conference on December 20, 2017, arrange a date for the determination of the plaintiffs’ damages, and arrange a timetable.

3. The costs of the motion shall be determined at the conclusion of the trial of the issue of damages.

Price J.

Released: November 2, 2017

CITATION: Fontenelle v. Canada (Attorney General), 2017 ONSC 6604

COURT FILE NO.: CV-14-2061-00

DATE: 2017-11-02

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

JAMES FONTENELLE JR., TANYA BROWN, JAMES FONENELLE SR. AND MARGINA FONTENELLE

Plaintiffs

– and –

THE ATTORNEY GENERAL OF CANADA, LEONARD BALLANTYNE, TERRANCE BENT and NICKOMA COTTRELLE

Defendants

REASONS FOR ORDER

Price J.

Released: November 2, 2017

[^1]: Transcript of the Main Communication Control Post Telephone and Radio Transmission Recordings (“MCCP”), Excerpt 241 [^2]: Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, at paras. 41-44 [^3]: Hryniak v. Mauldin, 2014 SCC 7 [Hyrniak] [^4]: Bruno Appliances and Furniture Inc. v. Hryniak, 2014 SCC 8 [^5]: Sweda Farms v. Egg Farmers of Ontario, 2014 ONSC 1200, at para. 32 [^6]: Hryniak, at para. 49 [^7]: Hryniak, at para. 58 [^8]: Hryniak, at para. 66 [^9]: Hryniak, at para. 66 [^10]: Hamilton Kilty Hockey Club Inc. v. Ontario (Attorney General), (2003), 2003 24429 (ON CA), 64 O.R. (3d) 328 at para. 20. [^11]: Timm v. The Queen, [1965] 1 Ex. C.R. 174; MacLean v. The Queen, 1972 124 (SCC), [1973] S.C.R. 2 [^12]: Corrections and Conditional Release Act, SC 1992, c. 20. [^13]: I am grateful to judicial law clerk Humera Jabir for her assistance in the research in this section [^14]: Adams v. Canada, supra, at para. 22 [^15]: Adams v. Canada (Attorney General), 2015 ABQB 527, at paras. 22 & 34; Subbiah v. Her Majesty the Queen, 2013 FC 1194, at para. 93 [^16]: Neeson v. Her Majesty the Queen, 2102 FC 77, at para. 20 [^17]: Adams, para. 35 [^18]: Le v. British Columbia, 2016, BCSC 966, at para. 51 [^19]: Subbiah, supra, at para. 92 [^20]: Clements (litigation Guardian of) v. Clements, 2012 SCC 32, at para. 8 [^21]: Clements, supra, at para. 9 [^22]: Warden’s Situation Report – Institutional Incidents, File No. 3100-1, 2013-10-08, at p. 4. [^23]: Warden’s Situation Report – Institutional Incidents, File No. 3100-1, 2013-10-08, at p. 5. [^24]: Warden’s Situation Report – Institutional Incidents, File No. 3100-1, 2013-10-08, at p. 4. [^25]: Warden’s Situation Report – Institutional Incidents, at 5 [^26]: Warden’s Situation Report – Institutional Incidents, at 6-7 [^27]: Warden’s Situation Report – Institutional Incidents, at 6-7 [^28]: Transcript of MCCP Telephone and Radio Transmission Recordings, Excerpt #241 at 9, line 31 [^29]: Standing Order 556 3, Inmate Movement, para. 11 [^30]: Commissioner’s Directive 566-3, Inmate Movement, para. 12 [^31]: Statement/Observation Report of Shannon Thompson, dated November 20, 2013 [^32]: Carr v. Canada, [2009] F.C.J. No. 769, paras. 106-107, 110-113 [^33]: R. v. Mok, 2014 ONSC 64 [^34]: R. v. Mok, 2015 ONCA 608 [^35]: R. v. Griffin, 2015 ONSC 927 [^36]: Board of Investigation into the Assault on an Inmate at Millhaven Institution on October 8, 2013, undated, at 6 & 19 (“BOI Report”) [^37]: Row v. HMTQ, 2006 BCSC 199 [^38]: Walters v. Ontario, 2017 ONCA 53 [^39]: ... [^40]: Rules of Civil Procedure, R.R.O. 1990, Reg. 194 [^41]: George Weston Limited v. Domtar Inc., 2012 ONSC 5001, [^42]: Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450) [^43]: City of Hamilton v. Attorney General et al., 2015 ONSC 1043, paras. 14 to 18 [^44]: Duggan v. Durham Region Non-Profit Housing Corporation, 2017 ONSC 4875