minicounsel

COURT FILE NO.: 07-49133

DATE: 2019-02-07

B E T W E E N:

Paul Bruno, Martha Bruno, Mary Catherine Bruno, Paul John Bruno by his Litigant Guardian, Paul Bruno, Jake Bruno under the age of 18 by his Litigation Guardian Paul Bruno

Gregory P. McKenna and Sabrina L. Seibel, for the Plaintiffs

Plaintiffs

and -

Joshua Dacosta, Guy Gibson, Daniel Ashenden, Terry Empey, Her Majesty the Queen in the Right of Ontario Represented by the Ministry of Community Safety and Correctional Services, The Niagara Detention Centre, Wendy Southall as the Chief of Police of the Niagara Regional Police Service, Police Officers Jane Doe and John Doe, the Niagara Regional Police Services Board, the Corporation of Regional Municipality of Niagara and William Shilson

Ian MacLeod and Robert Trenker, for the Defendant, Her Majesty the Queen in the Right of Ontario Represented by the Ministry of Community Safety and Correctional Services and the Niagara Detention Centre

Defendants

HEARD: March 19, 21-23, 26-29, and April 3, 2018 in St. Catharines

REASONS FOR JUDGMENT

P. R. SWEENY J.

INTRODUCTION

1On August 25, 2006, the plaintiff, Paul Bruno, was viciously assaulted in the Niagara Detention Centre (“NDC”) by a number of other inmates. As a result of that assault, he suffered serious and lasting personal injuries. The plaintiff issued a claim against the alleged perpetrators, Her Majesty the Queen in the Right of Ontario Represented by the Ministry of Community Safety and Correctional Services (“the Ministry”), and others.

2The parties have agreed on the damages Bruno sustained. The issue I must determine is whether the Ministry is liable to Bruno because correctional officers (“COs”) failed to take reasonable steps to protect him.

3The plaintiff says the Ministry personnel fell below the appropriate standard of care in two ways: (1) by allowing three aggressive, predatory inmates on a protective custody unit where the presence of these inmates lead to the vicious assault on the plaintiff; and (2) by failing to consult with inmates on the unit prior to placing the plaintiff in that unit.

4The Ministry denies there was a breach of the standard of care. Even if there was a breach, the Ministry denies that the breach caused the assault. Even if there was a breach and the breach caused the assault, the Ministry contends the plaintiff was contributorily negligent by failing to request an immediate transfer from the unit when he discovered the inmate, Guy Gibson (“Gibson”) on his entry to the unit. In addition to extensive documentation and read-ins from examinations for discovery of the plaintiff and a representative of the Ministry (Tom Dykstra), I heard viva voce evidence from the plaintiff, Kathleen Perron (a CO in the NDC) and two experts (Michael Weinrath and Ralph Serin).

NIAGARA DETENTION CENTRE

5The NDC is a provincial correctional facility, which was classified as a maximum security facility in 2006. However, different levels of inmates’ supervision and placement options existed in NDC. NDC housed remand inmates: inmates who were awaiting trial and/or sentencing as well as inmates serving short sentences. The vast majority of NDC inmates were on remand.

6There were three types of units in 2006: (1) dormitory-style units with 26 bunk beds located in common rooms; (2) cell units comprised of the common area cells, washrooms, and day rooms (these were for protective custody); and (3) segregation cells which were 6’x6’. In addition, NDC had a separate area for medium security inmates in dormitory style housing.

7Block A of the detention centre was comprised of four-inmate wings: 1-Wing was a general population; 2-Wing and 3-Wing were protective custody; and 4-Wing was comprised of general population cells and four segregation cells. In addition, NDC had 12 segregation cells on the second floor.

8There were three inmate placement options at NDC in 2006: (1) general population; (2) protective custody; and (3) segregation. As part of the general discipline in the NDC, inmates could be placed in “closed confinement”, which referred either to the inmates removal from their unit and placement in segregation or locking an inmate in their cell on the unit.

PAUL BRUNO

9Paul Bruno was born April 6, 1972. His father was a sergeant with Niagara Regional Police Service (“NRPS”) and had been retired for about ten years as of August 25, 2006. Bruno married Denise Collins in 2001 or 2002 and had a son, Jake Bruno. They were separated as of August 2006. Bruno had been involved in family law proceedings with Collins.

Prior Criminal History

10Bruno had an assault conviction as a young offender. In addition, he had an assault conviction on March 12, 1992, for which he received a suspended sentence and probation for 18 months. He would have been 19 years old at that time. He was convicted of failing to comply with a recognizance on July 2, 1992. In January 2005, he was convicted of theft under $5,000. He described this incident involving a TV that was removed from a hotel room in which he stayed after he had an argument with his then wife. There were a number of convictions on February 23, 2006, dealing with failure to comply with a probation order, conviction for theft under, and assault. There were convictions on February 28, 2006, for a break and enter, disobey a court order, assault, failing to comply with a recognizance, and overcome resistance by attempting to choke, suffocate, or strangle another person. The combined sentence for these convictions was 30 days plus 60 days pre-sentence custody along with two years’ probation. The charges in 2005 and 2006 arose out of Bruno’s relationship with Collins.

Bruno’s Admissions to NDC

11Bruno was admitted to NDC on three occasions: November 2, 2005, January 10, 2006, and August 25, 2006.

November 2, 2015 Admission

12The admission on November 2, 2005, was as a result of an arrest for a break and enter with intent to commit an indictable offence, along with the failure to comply with probation. This arose as a result of his entering the matrimonial home. As a result of his admission, he was placed in the general population, F-Dorm. He was described as 5 feet 9 inches tall, 150 pounds with a slender build. He was taking medication for depression and bipolar disorder.

13On November 6, 2005, he was assaulted in F-Dorm by another inmate. He was then placed in segregation for one day. The segregation compatibility assessment report, dated November 6, 2005, indicated that Bruno was “unwanted in dorms”. Initially, he did not want to go into protective custody, however, on November 8, 2005, he agreed and was placed in protective custody on 2-Wing. On November 12, 2005, he was seen for an injury to his right hand. In his examination-in-chief, he did not recall anything about the incident. On Sunday, November 13, 2005, at approximately 3:30 p.m., Bruno was removed from 2-Wing and placed in 3-Wing. The occurrence report indicates “removed from 2-Wing upon being rejected by his peers”. He was released from NDC on November 14, 2005, with his mother as a surety.

January 10, 2005 Admission

14He returned to NDC on January 10, 2006. The circumstances surrounding that return were unclear. Bruno said his mother pulled his bail. The admission checklist shows threatening, choking, breach of recognizance, breach of probation, and assault. As a result of the admission, he was placed in protective custody in 3-Wing. On January 14, 2006, an officer noted Bruno had a swollen right hand. He reported he punched a wall. Bruno was not clear on the circumstances surrounding that injury. He did testify that he recalled being pushed and assaulted by an inmate.

15On January 16, 2006, an incident report indicates he sustained a puncture of the right side of his skull, hematoma on his cheek, and swelling. Records from the emergency department of the hospital indicate Bruno was assaulted by his cellmates around 9:00 a.m. On January 20, Bruno pleaded guilty to disobeying an officer’s direct order and received a penalty of up to 15 days closed confinement. He had refused to go to his cell despite a direct order.

16Bruno was placed in segregation with Guy Gibson and another inmate. He was removed from the second floor segregation to 2-Wing on February 9, 2006. On February 23, 2006, he was sentenced to 115 days. On April 9, 2006, he was involved in a physical altercation with another inmate. He pleaded guilty to horseplay concerning the incident and received a penalty of loss of privilege to purchase or receive canteen for two weeks.

17Bruno testified that although he told no one his father was a police officer, other inmates knew. He was transferred to the Sarnia jail. It was his evidence that he was transferred to Sarnia for his safety. The transfer said it was because of “overcrowding”. I note, with respect to the transfer of inmate Ashenden, when he was transferred, it was because of his need for a “change of scenery”. I am satisfied that the explanation of “overcrowding” does not fully explain the reason why Bruno was transferred. I am satisfied that his situation, including the fact that his father had been a police officer, was a factor in his transfer. This is consistent with Bruno’s evidence on this issue, which I accept. Bruno was released from the Sarnia jail on May 9, 2006, having served his sentence.

August 25, 2006 Admission

18Bruno’s third attendance at NDC arose as a result of a charge of breach of a non-contact term of his probation. He had contacted his wife by telephone, contrary to the terms. He was arrested on Thursday, August 24, 2006, held overnight in St. Catharines, and appeared for a bail hearing Friday morning. He was not released and was transported to NDC where he arrived at 5:08 p.m. that day. He was admitted to 3-Wing at approximately 6:00 p.m. Upon entering 3-Wing, he noticed Guy Gibson. He had shared a cell in segregation with Guy Gibson. Bruno had given evidence at his discovery that Guy Gibson had threatened to kill him on many occasions. He did not report these threats to NDC. He did not advise any officer of the threats when admitted to 3-Wing. Over the course of the next two hours, he did not attempt to leave 3-Wing.

19When asked about this, he asserted that he was incompatible with just about everyone. He was in protective custody. Bruno’s experience was that COs would quickly intervene when there was a physical altercation. This was confirmed in cross-examination.

20Between 8:09 p.m. and 8:10 p.m., he was brutally assaulted in the washroom in the presence of inmates Ashenden, Dacosta, Gibson, and Empey. He was unconscious and in a coma for approximately one month.

21Bruno was a difficult witness. He was argumentative and confrontational. He has mental health issues, diagnosed as bipolar with depression. He also suffered serious injuries, including a brain injury as a result of the assault. There is some evidence that as a result of the assault, Bruno was amnesic regarding events prior to the assault. On some issues, I am unable to determine to what extent his evidence was a true recollection or whether it was created based on his observations of the video and the other records in this matter. I am reluctant to rely solely on his evidence with respect to the circumstances surrounding his admission to NDC in August 2006 and his assault. However, there is extensive evidence to allow me to make necessary factual determinations in this matter, aside from Bruno’s evidence.

OTHER INMATES

GUY GIBSON

22Guy Gibson was admitted to NDC on January 22, 2006. He was remanded on charges of robbery, theft under $5,000, and assault. The subject profile provided by the NRPS included cautions for escapes/violence/family violence. He was identified as a management risk. On January 22, 2006, he was disruptive in the St. Catharines holding cells. He was placed in segregation from January 22, 2006, until March 12, 2006. On January 25, 2006, while in segregation, he demanded a cell change and wanted to see an operational manager. When that did not happen, he pounded on the cell door and covered the door window. He threatened to “piss” on the other inmates (which included Bruno). On April 13, 2006, he refused to follow a CO’s order. He was placed in segregation from April 13 to 16, 2006. On May 4, 2005, he was convicted of theft under $5,000 and assault. He was sentenced to 60 days and was released on June 12. On May 27, an occurrence report indicates that officers spoke with members of 3-Wing about issues. Gibson was one of the members of 3-Wing at that time. On June 5, 2006, Gibson had an altercation with inmate Cirillo.

23On July 13, 2006, he was remanded to NDC on charges of a break and enter into an occupied dwelling house, possession of the proceeds of crime under $5,000, and breach of probation. On July 13, 2006, he was involved in an altercation with an inmate. He was placed on misconduct for committing or threatening to commit an assault on a person. On July 25, he was involved in another altercation with an inmate. He was first punched by the inmate a couple of times in the head. Then he got the inmate on the ground and punched him in the face. He did not stop when ordered to stop. Gibson was placed in segregation from August 1 to August 14, but the reason is not evident in the records. It was noted that “I/M continues to challenge authority. Inmate cowards when confronted but will ‘push the envelope’”. He was placed in 3-Wing after segregation.

DANIEL ASHENDEN

24Ashenden was admitted to NDC on December 27, 2005, for failure to attend court and two counts of robbery. The criminal history inquiry was completed by NDC on December 28, 2005, and indicated: caution: violence, caution: escape risk, caution: mental instability, caution: suicidal tendencies, caution: contagious disease.

25He was transferred to the Sarnia jail on April 25, 2006. He was transferred back to NDC. He was sentenced on May 3, 2006, and received a suspended sentence of 18 months’ probation. He was released.

26Ashenden was remanded to NDC on May 21, 2006, for robbery, possession of property obtained by crime less than $5,000, aggravated assault and breach of probation.

27On June 23, 2006, he approached the door in F-Dorm and asked to be removed from the dormitory. He claimed to have been assaulted by other inmates but refused to identify his assailants. He was placed in protective custody in 3-Wing. On July 5, Ashenden was observed in a physical altercation with another inmate. The unidentified inmate reported to NDC staff that he was assaulted because he did not bring drugs into the institution. The inmate believed another inmate, whose name is redacted, was behind the assault but did not participate. That inmate claimed two or three inmates assaulted him. A CCTV tape demonstrated Ashenden assaulted the inmate. He pleaded guilty. The penalty was ten days closed confinement and loss of canteen for two weeks. On July 7, a request was made that he be transferred to the Sarnia jail. On July 12, during a routine search, Ashenden became verbally aggressive and threatening towards to the COs. He was moved to segregation. On July 23, there was some “horseplay” occurring between several inmates. Ashenden disclosed that he had been involved in a conflict with an inmate who he had read in the newspaper to have assaulted an elderly woman. A CO questioned him about his behaviour and he said he was being transferred the next day and there would be no further problems once he was gone. On July 24, he was transferred to Sarnia Jail and placed in protective custody at his request. An occurrence report indicates he was involved in an assault at the Sarnia jail.

28He was transferred back to NDC on August 22, 2006, and placed in 3-Wing.

TERRY EMPEY

29Empey was remanded to NDC on February 25, 2006, on four counts of robbery and aggravated assault. He was placed in protective custody as he felt his health would be in jeopardy if placed in the general population. He was placed in 3-Wing. On February 26, the videotape of the 3-Wing day room showed Empey enter the right day shower room followed by an inmate. Several other inmates appeared to be watching what was occurring in the shower area where Empey and the other inmate were. The other inmate then exited the shower area clenching his fist and shaking out his left fist. Empey was placed on misconduct. Empey stated that he and the inmate had worked out their differences. On April 14, 2006, Empey was found in 3-Wing bleeding from the left side of his head. He said there was horseplay and he fell and hit his head on the floor. Empey was transferred to Maplehurst Correctional Centre on April 27, 2006.

30On April 30, Empey was again admitted to NDC. He was placed in 3-Wing. On May 24, he was involved in an altercation with another inmate. Two inmates were facing off against each other. A staff member knocked on the window and told them to separate. They did not comply. Empey stepped towards the other inmate. He pushed and punched the inmate. He resisted COs’ attempts to take hold of his arm. He was handcuffed and escorted out of the area. He was placed in segregation from May 24, 2006, to June 1, 2006. On June 12, Empey was observed in a physical altercation with inmate Cirillo. Cirillo was on his back on the floor, and Empey was sitting on top of him “whaling away”. Empey failed to comply with orders to break it up. When interviewed, Empey stated, “I fought him because he was in a fight with my friend Gibson before”. He was placed in segregation from June 12 to June 14 and returned to 3-Wing. On June 20, an inmate informed COs that he had been assaulted by two inmates, one of whom was Empey. His penalty was ten days closed confinement effective June 21, 2006.

31On August 16, 2006, Empey and Gibson were wrestling in the back of 3-Wing. No discipline steps were taken with respect to that incident.

JOSHUA DACOSTA

32Dacosta was remanded to NDC on October 3, 3005, for breach of recognizance and placed in C-Dorm general population. He was re-admitted to NDC on October 15 with two counts of failure to comply and placed in C-Dorm. He was remanded on July 14, 2006, for break and enter and possession under. He was placed in F-Dorm—general population. He was to appear at the Welland courthouse on August 28 for sentencing for assault with a weapon and failure to comply. He had a trial scheduled for September 12, 2006, for the charges of break and enter and possession under. There was very little documentation with respect to Dacosta in the joint book of documents.

33On August 25, he was sharing a cell in the 3-Wing with Ashenden.

NDC KNOWLEDGE OF INMATES INVOLVED IN ASSAULT

34NDC had knowledge of the history of Ashenden, Empey, and Gibson. Ashenden had a history of participating in an assault with another inmate. Empey was observed assaulting an inmate on the basis that the inmate had a previous run-in with his friend Gibson. Empey had attacked an inmate with another inmate.

35On August 25, Ashenden and Dacosta shared a cell in 3-Wing. Empey and Gibson also shared a cell in 3-Wing. There were 21 inmates in 3-Wing. There is no evidence as to the number of inmates in 2-Wing, the other protective custody unit. In addition, there is no evidence as to the number of inmates in segregation.

THE ASSAULT

36Having reviewed all the evidence including the photos of the other inmates, the video, and the records of the NDC including the report prepared by CO Tom Bradley, I am satisfied that DaCosta, Gibson, Ashenden and Empey undertook the assault. As provided by the plaintiffs’ counsel in their closing submissions, a brief description of the assault is as follows:

Time Description

20:07:50 Officer Balogh finishes clocking and leaves 3-Wing.

20:08:11 Dacosta is sitting at a table with Paul facing the sally-port area.

20:08:24 Ashenden is standing by cell number 10 with his back to the wall.

20:08:29 Ashenden walks to the front right washroom and then returns.

20:08:35 Empey comes out of the front left washroom and walks along the left area by cells 12, 11, 10, 9, and 8.

20:08:50 Dacosta stands on the floor in front of the table.

20:08:57 Dacosta walks to the front left washroom with Bruno.

20:09:01 Ashenden then removes his “flip-flops”.

Bruno stops at the entrance to the washroom, Dacosta had entered the washroom.

20:09:04 Gibson walks past Ashenden at cell 10 and proceeds to stand with his back to the wall between cell numbers 11 and 12. Ashenden sits at the table facing Gibson. Empey walks past cell number 4 and sits at the stool at the table in front of cell numbers 2 and 3. Empey, Ashenden, and Gibson look towards Bruno at the washroom along with most of the other inmates in the area.

20:09:20 Gibson walks very quickly towards the front left washroom and pushes Bruno from the entrance of the washroom into the washroom. Ashenden and Empey run into the front left washroom area.

20:09:46 Ashenden, Dacosta, Gibson, and Empey then exit the front left washroom area and walk along the wall towards cell number 9. Bruno remains in the washroom area.

20:10:08 Dacosta and Gibson “high five” each other.

20:10:15 Gibson, Dacosta, Empey, and Ashenden enter the front left washroom area again.

20:10:34 All four inmates leave the washroom. There is no sign of Paul.

20:10:01 Gibson removes an object about the size of a coffee cup from the front of his shorts as he is walking by the cell on the bottom left side of the screen (from the camera view that depicts the sally port) and he appears to hand the object to someone else.

20:12:30 Staff enter the area.

20:13:32 Nurse enters the area.

20:14:48 The inmates are confined to their cells and staff are attending to Bruno.

EXPERT WITNESSES

37The plaintiff called Michael Weinrath as an expert witness who was qualified to give opinion evidence about the classification, placement, and management of inmates in provincial correctional facilities. Notwithstanding the defendants’ challenge to his expertise on the basis that he had no or very little specific experience in Ontario, I qualified him as an expert.

38The Ministry called Dr. Ralph Serin as an expert witness. He was qualified to provide expert opinion on the standard of care with respect to the classification, placement, and management of inmates in Ontario detention centres in 2006.

39I have carefully considered and reviewed the evidence of Dr. Weinrath and Dr. Serin. I prefer the evidence of Dr. Weinrath with respect to the appropriate standard of care and that the Ministry failed to meet this standard. Dr. Weinrath’s experience with respect to classification and management of inmates is far more extensive than Dr. Serin’s.

40The Ministry asserts that Dr. Serin has provided an opinion that there was no breach of the standard of care and that ends the matter. The Ministry point to the decision of Laskin J.A., in Connell v. Tanner (2002), 2002 44921 (ON CA), 158 O.A.C. 268, at para. 1:

A doctor who treats a patient in accordance with a respectable body of medical opinion – even if it is a minority opinion – will not normally be held liable in negligence. The rationale for this principle is that the courts lack the institutional competence to decide between reasonable medical practices.

In addition, the defendants refer to a number of cases dealing with the rejection of expert opinion on the physicians, who provided the opinion, were not qualified to practice in a specific jurisdiction.

41I reject the defendants’ submission. First, this is not a medical malpractice case. The principles which may apply to medical malpractice are not necessarily applicable to other negligence cases. In any event, the quote of Laskin J.A. is qualified by the use of “not normally”.

42Second, the determination of the appropriate standard of care is a finding of fact to be made in the course of the trial. As has been noted in many prior cases, expert opinion evidence is used by the trier of fact to determine the standard of care and whether it has been breached. However, merely because an expert opines that the defendant met the standard of care or that the defendant did not meet the standard of care does not end the task of the trier of fact. In Waldick v. Malcolm, 1991 71 (SCC), [1991] 2 S.C.R. 456, in responding to the Malcolms’ argument on appeal “that the courts below should also have taken into account ‘the practices of persons in the same or similar situations as the person whose conduct is being judged’, or in other words, local custom.” Iacobucci J. wrote:

Even if there had been adequate evidence in the record of a general local custom of not salting or sanding driveway, I am not of the view that such a custom would necessarily be decisive against a determination of negligence in the case at bar. Shortly after the extract cited by the Malcolms, (supra, at p. 154), Linden also points out that:

... tort courts have not abdicated their responsibility to evaluate customs, for negligent conduct cannot be countenanced, even when a large group is continually guilty of it.

In short, no amount of general community compliance will render negligent conduct "reasonable ... in all the circumstances". (See in another context, the recent decision of this Court in Roberge v. Bolduc, 1991 83 (SCC), [1991] 1 S.C.R. 374, in which L'Heureux-Dubé J., writing for the Court, held that professional practice, which is not shown to be demonstrably reasonable, could not be an answer to a claim of professional negligence. See also: James v. River East School Division No. 9 (1975), 1975 932 (MB CA), 64 D.L.R. (3d) 338 (Man. C.A.)).

43The fact that Dr. Serin opines that NDC did not fall below the standard of care does not end the matter.

44Dr. Serin acknowledged that Bruno was a somewhat vulnerable inmate and that NDC would have known this. He acknowledged that the numerous violent incidents which occurred on 3-Wing were worrisome. He testified the direct inquiry of inmates with respect to Bruno’s placement to have been a best practice but not the standard of care. He acknowledged that Bruno’s prior history was an indicator of assault but not an acute indicator. He acknowledged that Empey, Gibson, and Ashenden were all more serious criminals. However, as I understand his evidence, there was nothing NDC ought to have done and this assault was not foreseeable.

BREACH OF STANDARD OF CARE

45Dr. Weinrath posited two breaches of the standard of care: (1) the behaviours of Ashenden, Gibson, and Empey should have led to their being removed from 3-Wing; and (2) the COs should have consulted with the 3-Wing inmates before placing Bruno there.

46Dealing with the first standard of care, given that Ashenden had been transferred because of his disruptive behaviour, given that Empey had acted in concert with other inmates in assaulting behaviour and had engaged in assaults to protect his friend Gibson, I am satisfied that the standard of care would require the inmates be separated. It was inappropriate for these inmates to be housed together.

47Although Dr. Weinrath acknowledged that Empey, Ashenden, and Gibson were appropriately in protective custody on the basis that they requested protective custody, in my view, that does not relieve the Ministry of appropriately monitoring of the placement of these inmates in the institution to address the issue of the worrisome assaults occurring in 3-Wing.

48The information available to the plaintiff about the NDC and its inmates at the relevant time is limited as a result of the order of Quinn J., dated January 14, 2010. The order required the Ministry to produce only those records related to Bruno and the named defendant inmates. There is no evidence with respect to the capacity of 2-Wing and the incidents that occurred in 2-Wing. It was Dr. Serin’s evidence that the number of incidents was not normal.

49Dr. Weinrath also testified that there are two types of violence in correctional facilities. First, expressive violence, which is spontaneous aggression that can arise over the use of items including the TV or phone. It is very hard to predict. The second, instrumental violence, which is planned and motivated by some prior event, often taking place for status within a unit. This assault was an example of instrumental violence.

50It was reasonably foreseeable that future assaults would occur if the NDC did not take appropriate steps to separate Ashenden, Empey, and Gibson. Given Bruno’s vulnerability, his risk of assault was foreseeable.

51The second breach of the standard of care was the failure to inquire of inmates before Bruno was put into 3-wing. I am satisfied that given Bruno’s vulnerability, specific inquiries should have been made about incompatibles. NDC was aware that Bruno was not wanted in the general population F-Dorm. NDC was also aware that his peers rejected him in 2-Wing. He had been involved in assaults on his prior stays at NDC. Bruno’s vulnerability included the fact that his father had been a police officer. Tom Dykstra, during discovery, confirmed that NDC knew this fact.

52I reject Dr. Serin’s opinion that making inquiries of the inmates with respect to Bruno’s placement would be futile. First, NDC had a history of communicating with inmates about issues that arose. Inquiries were made with respect to compatibility of inmates for segregation. Inquiries were made of inmates in 3-Wing with respect to conduct, including inquiries made of Ashenden just prior to his transfer to Sarnia. This was something that could be done, had been done in the past, and was not done in this case. The COs of NDC fell below the applicable standard of care.

CAUSATION

53Had the COs separated Empey and Gibson and Ashenden or any of them, I am satisfied that the gang assault would not have occurred. But for the NDC’s breach of duty, Gibson, Empey, and Ashenden would not have been together and could not have acted in concert. The brutal nature of the assault which occurred on two occasions was made possible by the inmates working together. NDC staff was aware Empey had acted with other inmates in assaults and that he had assaulted an inmate out of loyalty to Gibson. Notwithstanding this information, the COs of NDC placed Gibson and Empey in the same cell in 3-Wing.

54Had the COs made any inquiries of the inmates in 3-Wing prior to placing Bruno there, I am satisfied the assault would not have occurred. Either the inmates would have rejected Bruno, or, if not, they would have known he was identified as a vulnerable inmate and he would likely be closely monitored by the COs. In those circumstances, it is highly unlikely that the inmates would have assaulted him.

CONTRIBUTORY NEGLIGENCE

55The Ministry asserts that Bruno should have immediately requested a transfer when he saw Gibson in 3-Wing. Given the history between them, he should have immediately notified staff.

56When admitted to the NDC, there is no evidence that Bruno was questioned about incompatibles. Dr. Serin acknowledged that there were no answers to the following questions on the admission checklist: “Is there anything special about you that we need to know so that we may be able to help you?” and “Is there anything about this inmate that makes you think he or she is at risk?” Dr. Serin acknowledged that the question dealing with “anything special about you” is, in part, to deal with incompatibles to be identified. The plaintiff seeks an adverse inference be drawn against the Crown for failing to call Officer Sorley regarding the admission procedure. The defendant says this is not appropriate because Sorley was available to the plaintiff; the evidence was that Bruno would not have disclosed the fact of his incompatibility to Sorley even if asked questions; and there is no requirement at law for inmates to be asked about their incompatibility. I need not draw an adverse inference.

57I am satisfied that no question was asked with respect to incompatibility and that the two questions set out above were not asked of Bruno. Given NDC’s knowledge of Bruno’s vulnerability, I find it would have been reasonable to inquire about specific incompatibilities. The Bruno’s specific experience was that he was involved in altercations in F-Dorm general population and protective custody. His peers rejected him. In his evidence, he said he was “incompatible with everyone”. I find this to be an accurate characterization of the situation. However, if asked, he may well have specifically identified certain individuals of which he was aware of a conflict. It would have allowed for a conversation. In failing to ask, Bruno was never given that opportunity. He was in protective custody, and he expected to be afforded some protection.

58His prior experience was that when assaults occurred, COs would intervene very quickly. Therefore, while in hindsight he ought to have identified the potential problem with Gibson, he was not aware of the potential for a concerted group assault. His evidence did not disclose any prior experience with group assaults while in NDC.

59In Walters v. Ontario, 2015 ONSC 4855, aff’d 2017 ONCA 53, rival gang members assaulted the plaintiff in a correctional facility. Gans J. held that had the persons responsible for placing the plaintiff (who was in a specific gang) in a range directed their minds to inmate compatibility, in general and with respect to a specific member who was in a rival gang, the assault would not have occurred. On the finding of contributory negligence, he found that the plaintiff had an opportunity to request placement in protective custody rather than on the range with the rival gang member. He did not do so. In that case, Gans J. found the plaintiff’s contributory negligence at 15 percent.

60In Walters, the plaintiff failed to request protective custody rather than a range setting. That would be comparable to a request for protective custody as opposed to F-Dorm in this case.

61In this case, I find Bruno to be contributorily negligent. He ought to have spoken up about Gibson. I also note that it was not foreseeable to him that a gang assault would have occurred. He had no reason to believe that other inmates would support Gibson. Therefore, I find his contributory negligence to be appropriately assessed at 15 percent.

CONCLUSION

62In the result, I find that the Ministry fell below the standard of care. As a result of that breach of duty, the plaintiff, Paul Bruno, was brutally assaulted. In the circumstances, there is 15 percent contributory negligence on the plaintiff’s part.

63The parties have agreed on damages. There is an issue with respect to the claims against the other defendants. Counsel may arrange a time through the trial coordinator in St. Catharines to appear before me to address issues of approval of the infant settlement and potential judgment against the other defendants.

64If the parties are unable to agree on the issue of costs, cost submissions may be made before me at the time arranged with the trial coordinator to address other issues.

Sweeny J.

Released: February 7, 2019