COURT FILE NO.: CV-18-591719-00CP

DATE: 2019/10/07

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CONREY FRANCIS

Plaintiff

– and –

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO

Defendant

James Sayce and Charles Hatt for the Plaintiff

Alexandra Clark and Matthew Chung for the Defendant

Proceeding under the Class Proceedings Act, 1992

HEARD: September 30, 2019

PERELL, J.

A. Introduction

Introduction

1This is a certified class proceeding under the Class Proceedings Act, 1992.¹ The Plaintiff, Conrey Francis, was incarcerated in the Toronto South Detention Centre, a correctional facility that is operated by the Defendant, Her Majesty the Queen in Right of Ontario.

2In his class action, Mr. Francis alleges that Ontario was negligent and breached the inmates' rights under sections 7 and 12 of the Canadian Charter of Rights and Freedoms by Ontario’s use of Administrative Segregation, which is known colloquially as solitary confinement.

3On September 18, 2018, on consent, the action was certified as a class action,² and there is a five-day summary judgment motion scheduled for January 20-24, 2020. The cross-examinations in the run-up to the summary judgment motion are underway, and the Plaintiff, Conrey Francis seeks to summons Dr. Kelly Hannah-Moffat as a witness.

4After an appointment by Ontario, Dr. Hannah-Moffat is in the process of delivering an expert’s report that concerns Ontario’s use of administrative segregation in its prisons. She has already delivered an Interim Report and her Final Report was due to be delivered in October 2019, but delivery has been postponed to November 2019.

5Ontario opposes Dr. Hannah-Moffat testifying for the summary judgment motion. It does not, however, oppose (or it at least does not strenuously oppose) the delivery of her Final Report for use on the summary judgment motion.

6Mr. Francis requests an Order: (a) for Dr. Hannah-Moffat to be examined before the hearing of the pending motion for summary judgment; (b) in the alternative, for Dr. Kelly Hannah-Moffat to be examined at the return of the summary judgment motion in January 2019; (c) in the further alternative, an order for Dr. Hannah-Moffat to be examined both out of court and at the return of the summary judgment motion; or (d) in the further-further alternative, an order that the Final Report be delivered to Class Counsel for filing and use on the summary judgment motion as soon as it has been delivered to Ontario.

7For the reasons that follow, I order that the Final Report be delivered to Class Counsel for filing and use on the summary judgment motion as soon as it is delivered to Ontario. I do not schedule an examination of Dr. Hannah-Moffat at this juncture of the action.

B. Factual and Procedural Background

Factual and Procedural Background

8As the following description will reveal, the factual and procedural background to this motion is unusual and complicated. The background begins a few years before the commencement of Mr. Francis’ class action.

9Christina Jahn, after she had spent lengthy periods in administrative segregation in Ontario prisons, brought an application before the Ontario Human Rights Commission alleging systemic violation of her human rights. The application was settled, and Ontario was required to take a series of steps to reform administrative segregation as practiced in its prisons. The reforms were to focus on the treatment of prisoners suffering from mental illness.³

10In 2017, the Ombudsman of Ontario released a report that concluded that Ontario had been breaching the Jahn Settlement by failing to reform its prison system. Also, in 2017, Howard Sapers, the then Independent Advisor on Corrections in Ontario, released a report which came to the same conclusions.

11On April 17, 2017, Mr. Francis commenced a proposed class action against Ontario. In his Statement of Claim, he pleads, among other things, that the breach of Ontario's promises under the Jahn Settlement is an indicia of systemic negligence, deliberate indifference, and Charter breaches.

12In September 2017, the Ontario Human Rights Commission initiated a Contravention Application alleging that Ontario had breached the Jahn Settlement.

13In January 2018, Ontario settled the matter of whether the Jahn Settlement had been breached. The parties describe this as the Second Jahn Settlement. Ontario promised to "comply operationally with the first Jahn Settlement as well as to conduct a much broader system-wide review of policies and their implementation”.

14On February 28, 2018, pursuant to the Second Jahn Settlement, the Human Rights Commission by order and the Lieutenant Governor in Council appointed Dr. Hannah-Moffat as Ontario's Independent Expert on Human Rights and Corrections for a one-year term. By subsequent 2018 Consent Order of the Human Rights Tribunal of Ontario, she was reappointed for a second one-year term that runs until February 27, 2020.

15Dr. Hannah-Moffat is the Vice-President, Human Resources and Equity, and Professor of Criminology and Sociolegal Studies at the University of Toronto. She has contributed to numerous local, provincial, national, and international committees, inquiries, and commissions about the operation of penal institutions. Her expert evidence relating to solitary confinement has been accepted by Ontario Courts several times, including in Corporation of the Canadian Civil Liberties Association v. Her Majesty the Queen⁴ and Reddock v. Canada (Attorney General).⁵

16Under the Terms of Reference of her appointment, Dr. Hannah-Moffat as an Independent Expert shall "not use or disclose any confidential information, either during or after the appointment, obtained as a result of her appointment for any purpose unrelated to the duties of the appointment, except if required to do so by law”.

17On September 18, 2018, Mr. Francis’ action was certified as a class action.

18On December 11, 2018, Mr. Francis served his motion record for a summary judgment motion.

19Without any formal court order, the parties consented to a timetable for the summary judgment motion. The timetable planned that cross-examinations would occur during the summer and fall of 2019, after the completion of the exchange of affidavits. The timetable does not mention, witnesses being summonsed.

20Class Counsel approached Dr. Hannah-Moffat to be a witness for Mr. Francis for the summary judgment motion, but she quite properly declined because there is a confidential clause in her engagement for Ontario as an Independent Expert on Human Rights and Corrections.

21I pause in the narrative to note that the confidentiality clause is not an impediment to summonsing Dr. Hannah Moffat because there is an exception for disclosing confidential information “if required to do so by law”.

22Returning to the narrative, on February 18, 2019, Dr. Hannah-Moffat released an Interim Report with findings and recommendations about administrative segregation practices in Ontario prisons. Her findings are critical of Ontario's operation and management of administrative segregation. At the time of the release of her Interim Report, Dr. Hannah-Moffat's Final Report was scheduled to be issued to the public by no later than September 30, 2019.

23On May 31, 2019, Ontario delivered its responding motion record for the summary judgment motion. There was a passing reference to Dr. Hannah-Moffat’s work, but the motion material does not include Dr. Hannah-Moffat’s Interim Report.

24On July 15, 2019, Mr. Francis delivered his Reply Record for the summary judgment motion. The Reply Record includes a copy of Dr. Hannah-Moffat’s Interim Report.

25With the completion of the evidentiary record, there were 19 affiant witnesses, including 8 expert witnesses to be cross-examined over the summer and fall of 2019.

26On July 31, 2019, Mr. Francis issued a Summons to Witness for Dr. Hannah-Moffat. The Summons required Dr. Hannah-Moffat to attend for examination in September, but it left the date open for discussion between counsel. Class Counsel’s expectation was that Dr. Hannah-Moffat would testify about her findings and recommendations in the Final Report around the time of its expected issuance in September.

27The Summons was served on Dr. Hannah-Moffat on August 6, 2019. Class Counsel provided Ontario’s counsel with a copy of the Summons, and by email on Monday, August 12, 2019, Class Counsel sought to find a mutually agreeable date for Dr. Hannah-Moffat’s examination.

28On August 14, 2019, before Ontario had responded to Class Counsel’s request to schedule Dr. Hannah-Moffat’s examination, Dr. Ryan Labrecque, one of Ontario’s deponents, was cross-examined for the summary judgment motion.

29On August 16, 2019, Dr. Robert Morgan, one of Ontario’s deponents, was cross-examined and on the same day, Bernadette Cusak, a deponent for Mr. Francis was cross-examined by Ontario.

30On August 16, 2019, Ontario finally responded to the email and advised that pursuant to rule 39.02(2) of the Rules of Civil Procedure, Dr. Hannah-Moffat’s cross-examination was precluded without Ontario’s consent. Ontario, however, did not consent to her examination, and it advised that it would be moving to quash the summons. The motion now before the court was brought by Mr. Francis as a pre-emptive response and raises the issue of whether the summons should be quashed.

31Dr. Hannah-Moffat’s Final Report was not delivered in September, and its delivery has been delayed until November 2019. Ontario's responding record on this motion revealed that the Final Report may not be made public until after the summary judgment motion.

32Mr. Francis desires to maintain the schedule for the summary judgment motion. He believes that this would be possible if Dr. Hannah-Moffat’s Final Report is released to the court even if the report has not yet been released to the public.

C. The Role of Dr. Hannah-Moffat’s Testimony

The Role of Dr. Hannah-Moffat’s Testimony

33It is necessary to put Dr. Hannah-Moffat’s potential testimony into the context of Mr. Francis’ certified class action. This can be done by setting out the claim for relief and the paragraphs 2-23 of his Statement of Claim, which state:

1. The Plaintiff on behalf of the Class described herein, claims:

(a) an order certifying this action as a class proceeding and appointing the Plaintiff as the representative Plaintiff;

(b) a declaration that the Defendant breached its fiduciary duties to the Plaintiff and the Class through the establishment, funding, operation, management, administration, supervision and/or control of the Correctional Institutions, as defined herein;

(c) a declaration that the Defendant is liable to the Plaintiff and Class for damages caused by its breach of its common law duties in relation to the establishment, funding, operation, management, administration, supervision and/or control of the Correctional Institutions;

(d) a declaration that the Defendant has violated the Plaintiffs and Class members' rights under sections 7, 9 and/or 12 of the Canadian Charter of Rights and Freedoms (the "Charter");

(e) a declaration that the practices and/or failures of the Defendant in the care and custody of the Plaintiff and Class members constitute cruel, inhumane and degrading treatment or punishment contrary to section 12 of the Charter;

(f) damages or such other remedy as the as the Court may consider just and appropriate pursuant to section 24 of the Charter;

(g) damages for negligence and breach of fiduciary duty in the amount of $500 million or any such amount that this Honourable Court deems and appropriate;

(h) punitive damages in the amount of $100 million;

OVERVIEW

2. Every day, prisoners in Ontario's correctional institutions are subjected to conditions of torture, and cruel, inhuman or degrading punishment.

3. Segregation, or "Solitary Confinement" as it is more commonly known, is grossly overused on a systemic basis throughout Ontario's correctional system.

4. The effects of segregation are significant and substantial. After only a short time, a prisoner's physical and mental health deteriorate. When a prisoner already suffers from mental illness, the effects of prolonged segregation are amplified. Such damage is often irreversible and will have a substantial and lasting effect on that person's life.

5. Prisoners are left for weeks, months, and years in “administrative segregation” with little or no concern for the lasting physical or mental effects of the practice.

6. The Crown's continued reliance on Solitary Confinement in the face of widespread recommendations to eliminate its use runs contrary to the Crown's duties and obligations to the Class.

THE PLAINTIFF AND THE CLASS

7. Conrey Francis is a prisoner at the Toronto South Detention Centre in Toronto, Ontario. He is 51 old and is originally from Mississauga, Ontario. He has been diagnosed with Post-Traumatic Stress Disorder ("PTSD") and experiences extreme panic attacks. He has been subjected to Solitary Confinement during his incarceration. Mr. Francis was recently acquitted of all charges.

8. The Plaintiff brings this action pursuant to the Class Proceedings Act, 1992 on his own behalf and on behalf of the following Class:

All current and former prisoners of correctional institutions as defined the Ministry of Correctional Services Act, R.S.O. 1990, c. M.22 (the "Correctional Institutions"):

(a) who were subjected to Solitary Confinement for any length of time at one of the Correctional Institutions between January 1, 1985 and the present day; and,

(b) who were diagnosed by a medical doctor with a mental illness.

("Class members")

THE DEFENDANT AND ITS RESPONSIBILITY FOR THE CORRECTIONAL INSTITUTIONS

9. The Defendant, Her Majesty the Queen in Right of the Province of Ontario (the "Crown") is named in these proceedings pursuant to the provisions of the Proceedings Against the Crown Act, R.S.O. 1990, c. P. 27, and the amendments thereto.

10. The Correctional Institutions operate under the auspices of the Ministry of Community Safety and Correctional Services (the "Ministry"). The Ministry establishes, maintains, operates, and monitors the Correctional Institutions.

11. The Correctional Institutions are or were correctional institutions pursuant to the Ministry of Correctional Services Act, R.S.O. 1990, c. M.22 (the "Act"). In accordance with the Act, the Crown is responsible for:

(a) supervising the detention of the Class Members;

(b) creating an environment in which prisoners may be effectively and properly rehabilitated;

(c) providing for the custody of Class Members;

(d) establishing, maintaining and operating the Correctional Institutions;

(e) the provision of adequate medical treatment; and

(f) the provision of adequate psychiatric treatment.

12. In accordance with Ministry of Correctional Services R.R.O. 1990, Reg. 778 (the "Regulation"), the superintendent of a Correctional Institution is responsible for:

(a) the management of the institution;

(b) the care, health, safety and custody of prisoners incarcerated therein;

(c) administering the institution; and

(d) issuing to the employees of the institution such directions as may be necessary to fulfil the responsibilities of a superintendent.

13. The Correctional Institutions are located across Ontario. At all material times, the Crown, through and with its agents, servants and employees, owned and was responsible for the operation, funding and supervision of the Correctional Institutions. The Correctional Institutions are under the sole jurisdiction and control of, and were operated by, the Crown. The Crown retains and authorizes servants, agents, representatives and employees to operate the Correctional Institutions and gives instructions to such servants, agents, representatives and employees as to the manner in which the Correctional Institutions are to function and operate. The Ministry or its agents also discipline and terminate employees that staff the Correctional Institutions.

SOLITARY CONFINEMENT

14. In all circumstances, the use of Solitary Confinement has a severely detrimental impact on the physical and psychological well-being of a prisoner. The Crown relies on this practice to contain, manage and punish the Class. The use of Solitary Confinement on mentally ill prisoners for extended periods constitutes cruel and unusual punishment and runs contrary to Canadian and international law.

15. While in Solitary Confinement, a prisoner is placed in a small cell and is denied meaningful human contact or interaction for 23 hours day. A prisoners only human interaction is with Crown agents, which is minimal.

16. Prisoners without mental health issues suffer severe effects when in Solitary Confinement. Anxiety, depression and anger are common responses. For mentally ill prisoners, the impacts of Solitary Confinement are greatly amplified. time spent in Solitary Confinement for mentally ill prisoners can be catastrophic.

17. According to the United Nations Standard Minimum Rules for the Treatment Prisoners (Mandela Rules) and the United Nations Special Rapporteur on Torture, periods of segregation for more than 15 days and/or indefinite periods of segregation can amount to "torture or other cruel, inhuman or degrading treatment or punishment", and should be prohibited.

18. Solitary Confinement can have, inter alia, the following impacts on Class members:

(a) difficulty separating reality from their own thoughts;

(b) confused thought processes;

(c) perceptual distortions;

(d) paranoia;

(e) psychosis;

(f) worsening of pre-existing psychological conditions;

(g) physical effects, such as lethargy, insomnia, palpitations eating disorders;

(h) permanent difficulty coping with social interactions; and,

(i) self-harm and suicide.

19. These effects frustrate the rehabilitative function of incarceration on prisoners. Prison programming is not available to segregated prisoners. Mental and physical conditions cannot be properly assessed and treated while a prisoner is in Solitary Confinement. Prisoners are also more likely to lengthen their own sentences due to behaviours resulting from the conditions of their incarceration.

20. There are two types of Solitary Confinement used in the Correctional Institution: Disciplinary Solitary Confinement and Administrative Solitary Confinement.

21. An inmate may be placed in disciplinary "close confinement" ("Disciplinary Solitary Confinement") for no more than 30 days under section 32(2) of the Act if he or she commits a "serious" misconduct offence.

22. Under the Regulation, prisoners subjected to Disciplinary Solitary Confinement are entitled to certain due process safeguards. A prisoner may be placed in Solitary Confinement, under the section 34 of the Regulation ("Administrative Solitary Confinement"), if:

(a) in the opinion of the superintendent, the prisoner is in need of protection;

(b) in the opinion of the superintendent, the prisoner must be segregated to protect the security of the institution or the safety of other prisoners;

(c) the prisoner is alleged to have committed a misconduct of a serious nature; or,

(d) the prisoner requests to be placed in segregation.

24. In practice, the Ministry places inmates in Administrative Solitary Confinement for a multitude of reasons, including “medical reasons” or “unknown reasons”.

25. The justification for segregation in the Correctional Institutions is overwhelmingly administrative, rather than disciplinary.

26. Administrative Solitary Confinement has no time limits and attracts no due process. There is no opportunity to dispute placement decisions and there is no review process.

27. The extensive use of Administrative Solitary Confinement is not being used as a last resort, but rather as a routine management strategy across the Correctional Institutions.

KNOWLEDGE OF THE CROWN

28. The Crown knew or ought to have known of prisoners in the Correctional Institutions being subjected to conditions of torture, and cruel, inhuman or degrading punishment every day caused by the gross overreliance on Solitary Confinement.

29. Public third-party reviews of the use of Solitary Confinement on prisoners have concluded that the practice should be eradicated in Ontario prisons. For example:

(d) In October 2016, the Ontario Human Rights Commission raised concerns that the Ministry has failed to comply with its obligations under the Jahn v. Ministry of Community Safety and Correctional Services settlement agreement dated September 24, 2013, in which the Ministry agreed to take steps to improve its treatment of prisoners with mental health disabilities.

D. Legislative Background

Legislative Background

34For the purposes of this motion the relevant statute and regulations are s. 12 of the Class Proceedings Act, 1992 and rules 39.02, 39.03, of the Rules of Civil Procedure, which are set out below.

Class Proceedings Act, 1992

Court may determine conduct of proceeding

12 The court, on the motion of a party or class member, may make any order it considers appropriate respecting the conduct of a class proceeding to ensure its fair and expeditious determination and, for the purpose, may impose such terms on the parties as it considers appropriate.

Rules of Civil Procedure, RRO 1990, Reg 194

INTERPRETATION

General Principle

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. R.R.O. 1990, Reg. 194, r. 1.04 (1).

Proportionality

(1.1) In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.

Oral Evidence (Mini-Trial)

20.04(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.

EVIDENCE BY CROSS-EXAMINATION ON AFFIDAVIT

On a Motion or Application

39.02 (1) A party to a motion or application who has served every affidavit on which the party intends to rely and has completed all examinations under rule 39.03 may cross-examine the deponent of any affidavit served by a party who is adverse in interest on the motion or application.

(1.1) Subrule (1) does not apply to an application made under subsection 140 (3) of the Courts of Justice Act.

(2) A party who has cross-examined on an affidavit delivered by an adverse party shall not subsequently deliver an affidavit for use at the hearing or conduct an examination under rule 39.03 without leave or consent, and the court shall grant leave, on such terms as are just, where it is satisfied that the party ought to be permitted to respond to any matter raised on the cross-examination with evidence in the form of an affidavit or a transcript of an examination conducted under rule 39.03.

To be Exercised with Reasonable Diligence

(3) The right to cross-examine shall be exercised with reasonable diligence, and the court may refuse an adjournment of a motion or application for the purpose of cross-examination where the party seeking the adjournment has failed to act with reasonable diligence. R.R.O. 1990, Reg. 194, r. 39.02 (3).

Additional Provisions Applicable to Motions

(4) On a motion other than a motion for summary judgment or a contempt order, a party who cross-examines on an affidavit,

(a) shall, where the party orders a transcript of the examination, purchase and serve a copy on every adverse party on the motion, free of charge; and

(b) is liable for the partial indemnity costs of every adverse party on the motion in respect of the cross-examination, regardless of the outcome of the proceeding, unless the court orders otherwise.

EVIDENCE BY EXAMINATION OF A WITNESS

Before the Hearing

39.03 (1) Subject to subrule 39.02 (2), a person may be examined as a witness before the hearing of a pending motion or application for the purpose of having a transcript of his or her evidence available for use at the hearing.

(2) A witness examined under subrule (1) may be cross-examined by the examining party and any other party and may then be re-examined by the examining party on matters raised by other parties, and the re-examination may take the form of cross-examination.

(2.1) Subrules (1) and (2) do not apply to an application made under subsection 140 (3) of the Courts of Justice Act.

To be Exercised with Reasonable Diligence

(3) The right to examine shall be exercised with reasonable diligence, and the court may refuse an adjournment of a motion or application for the purpose of an examination where the party seeking the adjournment has failed to act with reasonable diligence.

At the Hearing

(4) With leave of the presiding judge or officer, a person may be examined at the hearing of a motion or application in the same manner as at a trial.

Summons to Witness

(5) The attendance of a person to be examined under subrule (4) may be compelled in the same manner as provided in Rule 53 for a witness at a trial.

E. Discussion and Analysis

Discussion and Analysis

35In opposition to Mr. Francis’ motion to summons Dr. Hannah-Moffat, Ontario’s predominant arguments are both substantive and also procedural.

36On the substantive side, Ontario submits that Dr. Hannah-Moffat’s possible testimony is not relevant, and in any event, her evidence is arguably protected by public interest privilege.⁶ Both points of argument are disputed by Mr. Francis, who points out that, in any event, Ontario has not laid the evidentiary foundation or formally asserted any privilege or immunity.

37On the procedural side, Ontario submits that approving a cross-examination of Dr. Hannah-Moffat in October or November after the cross-examination of the affiants has more or less been completed would violate the parties’ informal consensual timetable for the summary judgment motion, and, more significantly, Ontario submits that Dr. Hannah-Moffat’s testimony would violate the procedural scheme designed by rules 39.02 and 39.03 of the Rules of Civil Procedure for motions including summary judgment motions, which design stipulates that the examination of witnesses should proceed the cross-examination of affiants and that a moving party should not split his or her case with improper reply evidence.⁷

38While there is no evidence of other than theoretical prejudice, Ontario submits that this breach of the rules is prejudicial and procedurally unfair and that while the court has the discretion to allow examinations that do not comply with rules 39.02 and 39.03 of the Rules of Civil Procedure, the case law reveals that the court’s discretion is circumscribed, narrow, or restrictive and based on the case law, Dr. Hannah-Moffat’s examination ought not to be allowed in the circumstances of the immediate case.

39Mr. Francis’ position is that: the Rules of Civil Procedure have not been breached; if the rules have been breached, the breach is technical and miniscule and there has been compliance with the spirit of the rules; if there has been a breach of the rules, be it small and large, the court’s jurisdiction is not so circumscribed as Ontario would have it, and the court has the discretion to make one or other of the requested orders; and the court ought to exercise that jurisdiction in the circumstances of the immediate case.

40It appears that Ontario’s position is that assuming that Dr. Hannah-Moffat has material, relevant, and non-privileged evidence to give, which is disputed, in order for Mr. Francis to have complied with the requirements of the Rules of Civil Procedure, he was required to examine her before the cross-examinations of the affiants started. Further, Ontario submits that it would be an improper exercise of the court’s discretionary jurisdiction to permit her to be cross-examined after those cross-examinations have more or less been completed.⁸

41It appears that Mr. Francis’ response is that: Dr. Hannah-Moffat’s testimony is important, material, and relevant and it could not have been requested or obtained earlier; there is no prejudice to Ontario in having her testify; any contraventions of the timetable and the rules, which is denied, are miniscule, and because the summary judgment motion is in the context of a class action, the court has the plenary jurisdiction of s. 12 of the Class Proceedings Act, 1992⁹ to override any technical problems associated with rules 39.02 and 39.03 and to make "any order it considers appropriate regarding the conduct of a class proceeding to ensure its fair and expeditious determination”. He also submits that there is jurisdiction to have an examination of Dr. Hannah-Moffat ordered pursuant to rule 1.04 or rule 20.04 (2.2).

42The parties raise many issues and make many arguments, but to decide this motion it is not necessary to say much more than that rule 1.04 (1.1) directs that in applying the Rules of Civil Procedure shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.

43In my opinion, in the immediate case, it is not necessary to determine: (a) the significance, in any, of deviating from a consent timetable; (b) whether or not there has been a technical breach of any of the Rules of Civil Procedure; and (c) whether the court has the jurisdiction to relieve against any technical breach. It is also not necessary to pre-emptively rule whether or not Dr. Hannah-Moffat’s evidence would be subject to a public interest privilege or immunity.

44To explain my opinion, I return to the context of Dr. Hannah-Moffat’s possible testimony for the summary judgment motion.

45As appears from the Statement of Claim, the essential subject of Mr. Francis’ class action and summary judgment motion is the operation of administrative segregation for the 35year period between January 1, 1985 and the present day. The essence of Mr. Francis’ action is government misconduct in the past. Given her expertise and her direct knowledge of the operation of federal and provincial penal institutions, there is no doubt that Dr. Hannah-Moffat has some knowledge and expertise about the subject of Mr. Francis’ class action.

46However, there is more that needs to be said about the context of Dr. Hannah-Moffat’s evidence and about her precise role in the summary judgment motion.

47The precise reason that Dr. Hannah-Moffat is being summoned is because of her recent role as an Independent Expert on Human Rights and Corrections. While relevant, this issue about the here and now - the present state of affairs - is peripheral to the central issues in the class action that concern a 35-year old past state of affairs.

48Class Counsel submitted that Dr. Hannah-Moffat’s recent experience as Ontario's Independent Expert endowed her with direct knowledge that will assist in determining: whether Ontario has recently taken reasonable steps to reform its use of administrative segregation; whether Ontario has engaged in continuing Charter breaches and systemic negligence; and, whether Ontario has adequately responded to continuing failures. Class Counsel submitted that her Interim Report reveals that Ontario continues to breach the Jahn Settlement and that Ontario continues to breach the Class Members' Charter rights.

49In other words, the primary reason that Dr. Hannah-Moffat has been summonsed is that she can testify about the present and about whether Ontario has complied with the Jahn Settlements. Class Counsel submitted that only Dr. Hannah-Moffat can provide an appropriate level of detail with respect to adherence to the Jahn Settlement, whether Ontario has taken reform seriously and what remedy the Court should employ in responding to Ontario's continuing Charter breaches should Mr. Francis succeed on his summary judgment motion.

50Class Counsel confirmed during oral argument that Dr. Hannah-Moffat was being proffered as a witness for a precise purpose. Class Counsel confirmed, however, that apart for this purpose it was not necessary to have her give evidence at all in the sense that Mr. Francis’ could succeed on his summary judgment motion based on the approaching 10,000-page evidentiary record that already exists. Dr. Hannah-Moffat’s evidence might, so to speak, guild the lily of Mr. Francis’ case, but with or without her Interim and Final Report, her testimony was not necessary evidence.

51With this more precise understanding of the purpose of Dr. Hannah-Moffat’s evidence, if the primary reason for summonsing Dr. Hannah-Moffat is describing Ontario’s compliance or non-compliance with the Jahn settlement as part of a discussion of continuing breaches, then all that is proportionately required is to have the Final Report made a part of the record for the summary judgment motion. The Final Report, just as her Interim Report, can speak for itself. The filing of what is a public report avoids any debate about public interest privilege and keeps the scheduling of the summary judgment motion on schedule.

52In any event, evidence about continuing breaches presupposes a finding that Ontario has in the past systemically breached its fiduciary duties, its duties of care, and its Charter obligations. The nuclear core of Mr. Francis’ class action is about proving systemic misfeasance in the use of administrative segregation in Ontario’s prisons in a past beginning in 1985. Proportionate to the importance and complexity of the issues in the immediate case, the precise matters for which Dr. Hannah-Moffat has been summonsed can be more than adequately addressed by her just filing the Final Report.

53If it turns out that Ontario is found liable for breaches of the Charter and the court wishes to fashion remedies other than the award of money then perhaps Dr. Hannah-Moffat might be summoned.

54For the present purposes of the summary judgment motion, all that is required is that Dr. Hannah-Moffat deliver her report before the return of the motion. If the report cannot be delivered in time, then I will entertain an adjournment request or a request to have Dr. Hannah-Moffat summonsed as a witness at the summary judgment motion.

F. Conclusion

Conclusion

55For the above reasons, I order that the Final Report be delivered to Class Counsel for filing and use on the summary judgment motion as soon as it is delivered to Ontario.

56The immediate motion is one in which I order costs in the cause.

Perell, J.

Footnotes

1. 1S.O. 1992, c. 6.
2. 2Francis v. Ontario, 2018 ONSC 5430.
3. 3Interim Report of the Independent Reviewer of the Ontario Ministry of Correctional Services' Compliance with the 2013 Jahn Settlement Agreement and the Terms of the Consent Order of January 16, 2018 Issued by the Human Rights Tribunal of Ontario.
4. 42017 ONSC 7491 varied, 2019 ONCA 243.
5. 52019 ONSC 5053.
6. 6Smallwood v. Sparling, 1982 215 (SCC), [1982] 2 S.C.R. 686at 707-08; Province of New Brunswick v. Enbridge Gas New Brunswick Limited Partnership et. al., 2016 NBCA 17.
7. 7Seelster Farms Inc. v. Ontario, 2017 ONSC 6923.
8. 82462192 Ontario Ltd. v. Paramount Franchise Group Inc, 2019 ONSC 593; 1944949 Ontario Inc (OMG ON THE PARK) v 2513000 Ontario Ltd, 2019 ONCA 628; Johnson v. North American Palladium Ltd., 2018 ONSC 4496; Shah v. LG Chem, Ltd. 2015 ONSC 776 ; Slansky v. Canada (Attorney General), 2013 FCA 199; Sure Track Courier Ltd. v. Kaisersingh, 2011 ONSC 7388; Catalyst Fund Partnership II v. IMAX Corporation, 2008 8778 (ON SC), [2008] O.J. No. 873 (S.C.J.); Lihou v. Via Rail Canada Inc., [2006] O.J. No. 4451 (S.C.J.); Canada (House of Commons) v. Vaid, 2005 SCC 30; Brock Home Improvement Products Inc. v. Corcoran (2002), 2002 49425 (ON SC), 58 O.R. (3d) 722 (S.C.J.); Carey v. Ontario, [1986] S.C.R. 637.
9. 9Persaud v. Talon International Inc., 2019 ONSC 2488 at para 20; Fairview Donut Inc. v. The TDL Group Corp, 2011 ONSC 247 at para. 8; Berry v. Pulley, 2007 16446 (ONSC) at para 41; Wilson v. Servier Canada Inc., 2003 49292 (ONSC) at para 19.