Court File and Parties

COURT FILE NO.: 340/15 DATE: 20210903

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Vincent Augustine Schwientek Plaintiff

– and –

London Health Sciences Centre, Khadr Abdallah, Chris Bell, Daryl Braddon, Matthew Gurski, James Torrefranco and Peter Vandyke Defendants

COUNSEL: V. Edgar and M. Reid for the plaintiff C. Chant and M. Sagermann for the defendants

HEARD: March 16, 17, 18, 19, 22, 23 24, 29, 30, 31, April 1, 6, 8, 2021

REASONS FOR JUDGMENT

Leitch J.

[1] On October 2, 2014, Mr. Schwientek was physically restrained, pursuant to a medical order, by the individual defendants, who were security guards employed at London Health Sciences Centre (“LHSC”).

[2] Mr. Schwientek alleges that this restraint was unnecessary, the force used was excessive, and he sustained injuries as a result—a forehead laceration, fractures to the left 5^th and 6^th rib, a right knee lateral meniscus tear, a sprain/strain of the medial collateral ligament, and aggravation of patellofemoral osteoarthritis.

[3] He further alleges that mental health room 3 at LHSC, where he had been involuntarily admitted, was not a safe and appropriate environment.

[4] In addition, he alleges that, while at LHSC, his blood was taken by a nurse without his consent, contrary to the Health Care Consent Act, 1996, S.O. 1996, c. 2.

[5] Mr. Schwientek claims non-pecuniary general damages in the amount of $100,000, special damages of $1,200 for physiotherapy expenses, future care costs of $198,731.70, and punitive damages of $1,000 for the alleged unnecessary and retaliatory actions of the defendants. OHIP’s subrogated claim is $3,644.17.

[6] All the named defendants testified except Mr. Gurski, who was not directly involved in the restraint, and Mr. Torrefranco, who has been injured and was unable to give evidence. It was agreed that no adverse inferences are to be drawn from the fact that these defendants did not testify.

[7] Mr. Schwientek’s counsel confirmed that they were not seeking any individual findings of fact but, rather, “a joint finding” for which LHSC would be liable.

[8] Part of the evidentiary record was a video (with no audio) of mental health room 3, which was 23 minutes and 2 seconds in length. It began at 19:20 on October 2, 2014. Every witness viewed the video and commented on it during their testimony.

Background

[9] Mr. Schwientek was born August 15, 1963. He was a paramedic for 15 years. A 2002 workplace injury disabled Mr. Schwientek from employment.

[10] Dr. Cunningham has been Mr. Schwientek’s family doctor for over 20 years. Mr. Schwientek has a good relationship with Dr. Cunningham and places a lot of trust and faith in her.

[11] Prior to the October 2, 2014 incident, Mr. Schwientek was diagnosed with major depression, which Dr. Cunningham noted was “complicated by chronic back pain, cocaine dependence, alcohol dependence, gambling addiction”. Mr. Schwientek testified he also suffered from PTSD.

[12] During his evidence in chief, Mr. Schwientek only referenced challenges with alcohol, but he acknowledged on cross-examination that drugs were an ongoing problem for him at the time of the incident. He also acknowledged that he sought help for his addictions prior to the incident and had participated in several residential programs from 2007 to 2013. He has had several relapses and addictions remain a constant challenge for Mr. Schwientek.

[13] Mr. Schwientek also struggled with substance abuse following the October 2, 2014 incident. There are emergency records reflecting an attendance October 29, 2015 because of an overdose, which was followed by a psychiatric assessment. There were other incidents of concern noted in his medical records which reveal, as was suggested to Mr. Schwientek on cross-examination, that he has a pattern of crisis, drug abuse, and self-harm. Mr. Schwientek acknowledged that was the case.

[14] Prior to October 2, 2014, Mr. Schwientek had been in a residential treatment program for two months. After leaving that program he had been “couch surfing” at his friend’s place for six to eight weeks. He was exhausted and was not sleeping well. On October 2, 2014 Mr. Schwientek and his friend went to a bar near his former matrimonial home for lunch and some drinks. Afterwards, he returned to his former matrimonial home and lay on the bed to sleep.

[15] While he was sleeping, Mr. Schwientek’s son and friend called the police and the police attended at Mr. Schwientek’s former matrimonial home. As noted in the general occurrence report of London Police Services dated October 2, 2014, Mr. Schwientek told his friend that he did not want to live anymore, that he just wanted to go somewhere and get high on crack and let drug dealers “take care of him”, or that he wanted to put a bag over his head and handcuff himself behind his back.

[16] The police noted that Mr. Schwientek admitted he was feeling overwhelmed with everything going on but denied threatening to commit suicide. He did not want to go to the hospital. The police also noted that “he further advised that it would not be necessary for him to go to the hospital because he knew how to “talk around the doctors” and he would be released anyway.

[17] Mr. Schwientek was apprehended by the police at 14:30 under the Mental Health Act, R.S.O. 1990, c. M-7 and transported to Victoria Hospital campus of LHSC. As required by the Mental Health Act, a police officer remained at the hospital with Mr. Schwientek until he was relieved by an LHSC security guard.

[18] Notwithstanding what was noted by the police, and the fact that he was taken involuntarily to the hospital, Mr. Schwientek testified that he had been “grateful to be taken to the hospital” and he was sad and ashamed of what had become of him.

[19] During his triage assessment at LHSC at 15:00, Mr. Schwientek’s comment to his friend was noted, as well as the fact that his marriage had recently broken down. It was also noted that he admitted to having a “couple of drinks”, he did not feel that he needed to be in the hospital, he had a history of polysubstance abuse, he separated from his wife in March, and he was now homeless and couch surfing.

[20] The clinical progress record for October 2, 2014 reflected that Mr. Schwientek entered mental health room 3 at LHSC at 15:20.

[21] Ms. Tina Oliveira testified as a representative of LHSC. She is currently the Director of Emergency Health Services and, prior to that time, was the Manager of the Emergency Department at the Victoria Hospital campus at LHSC.

[22] She testified that each of the seclusion rooms contains a chair bolted to the ground and a restraint stretcher. The door to the seclusion rooms can be locked from the outside and the light switches are on the outside. These rooms are under camera surveillance with cameras at the nursing station and in the hallways. There is no medical equipment in a mental health room.

[23] Dr. Marcus Van Aarsen was an emergency physician on duty when Mr. Schwientek arrived at LHSC with the City of London Police. Dr. Van Aarsen testified as a participant expert. He graduated from medical school in June 2013 and was receiving training in emergency medicine working towards a specialty qualification in that area. Fifty per cent of his time on duty in the emergency department involved dealing with people with mental health issues.

[24] As Dr. Van Aarsen put it, the “single take-away” he remembers from Mr. Schwientek’s case was that Mr. Schwientek had been a paramedic. This fact resonated with Dr. Van Aarsen, as it revealed that healthcare providers are not immune to physical and mental health problems.

[25] The clinical record indicates that Mr. Schwientek was assessed at 16:30.

[26] When Dr. Van Aarsen assessed Mr. Schwientek, he noted Mr. Schwientek had frequent lower back injuries, had previously been prescribed Percocet and OxyContin, and now was using crack cocaine. Dr. Van Aarsen noted that Mr. Schwientek reported that he had recently separated from his wife and had no home and no money.

[27] Dr. Van Aarsen also noted that Mr. Schwientek displayed slight hostility but that note did not indicate that Dr. Van Aarsen felt threatened by the patient. Mr. Schwientek had a low mood, poor interest, low energy, and poor concentration.

[28] Dr. Van Aarsen noted that Mr. Schwientek denied being suicidal, but also that Mr. Schwientek told the police officers who transported him to emergency that Robin Williams had made a “poor choice” in relation to his suicide attempt. He told the officers that he would put a bag over his head and tie his hands behind his back. These statements had prompted Mr. Schwientek’s apprehension and subsequent attendance at the emergency department.

[29] Dr. Van Aarsen’s physical examination of Mr. Schwientek was unremarkable.

[30] Dr. Van Aarsen testified that after taking Mr. Schwientek’s personal risk factors into account—that Mr. Schwientek had substance abuse problems, had recently experienced separation, had made subtle hints that he was thinking of suicide, and had stated a plan—Dr. Van Aarsen ultimately concluded that Mr. Schwientek was at a very high risk of attempting and completing suicide. He found Mr. Schwientek to be a risk to himself and others.

[31] Dr. Van Aarsen decided it was necessary to “form” Mr. Schwientek under the Mental Health Act. Dr. Van Aarsen completed the form 1 at 17:00. The clinical record indicates that Mr. Schwientek was “placed on form 1” and was provided the required form 42 at 17:30. As a result, Mr. Schwientek was to remain in the hospital involuntarily until a psychiatric assessment was completed.

[32] The decision to “form” Mr. Schwientek was based on s. 15(1)(a) of the Mental Health Act Dr. Van Aarsen completed the form 1, noting in relation to the Past/Present Test that he had reasonable cause to believe that Mr. Schwientek “has threatened or is threatening to cause bodily harm to himself”. He based his belief on his observation that Mr. Schwientek “mentions ‘ending it all’. Unwilling to discuss this further. Very low mood re: marital separation, having ‘spent all of his money on drugs’”.

[33] Dr. Van Aarsen also relied on what Mr. Schwientek’s friend and son described: that Mr. Schwientek “stated he would like to ‘go do some crack and let the drug dealers finish me off’ and he ‘explained a plan involving a plastic bag and hands tied behind his back’”.

[34] In relation to the Future Test, Dr. Van Aarsen was of the opinion that Mr. Schwientek was apparently suffering from a mental disorder of a nature or quality that would likely result in serious bodily harm to Mr. Schwientek. Dr. Van Aarsen based this opinion on Mr. Schwientek’s professed “willingness to ‘end it all’” and what Mr. Schwientek’s friend and son noted.

[35] Dr. Sangita Sharma, who testified on behalf of Mr. Schwientek as an expert in emergency medicine, queried whether Mr. Schwientek met the criteria for future harm to himself because he denied being suicidal. Dr. Sharma has been an emergency physician at two hospitals in Hamilton since she completed her residency in 2005. One of those hospitals is a regional centre for emergency psychiatry. During shifts there, 10 to 15 per cent, and sometimes as much as 50 per cent of her work on each shift involved psychiatric care.

[36] Dr. Sharma testified that based on the record, there was an implication that Mr. Schwientek wanted to die. Therefore, there was no issue that the s. 15(1)(a) criteria for the Past/Present test was met. However, with respect to future risk, she was less certain. Dr. Sharma believed that there was a contradiction between the body of the emergency record, which included Mr. Schwientek’s statements that he was not suicidal, and Dr. Van Aarsen’s conclusions.

[37] According to Dr. Sharma, it was “hard to tell” with respect to the risk of future harm and she was not opining one way or the other. She queried whether the notations in the emergency record could relate to what Mr. Schwientek was thinking previously but no longer thinking while he was in the emergency department. As she put it, it was not clear whether there was “capacity for future harm” because of the “contradiction” in the emergency record. She did state that the form 1 was “probably valid”.

[38] Mr. Schwientek testified that based upon what Dr. Van Aarsen was told by the police, the doctor was justified in placing him on a form 1. During Dr. Sharma’s testimony, it was formally admitted on behalf of Mr. Schwientek by Mr. Schwientek’s counsel that Mr. Schwientek was properly subject to a form 1.

[39] After Mr. Schwientek was placed on the form 1, Dr. Van Aarsen testified that he would “hand off” Mr. Schwientek to a psychiatrist for a psychiatric consultation.

[40] Dr. Jennifer dela Paz, who also testified as a participant expert, was on duty October 2, 2014, working as a first-year resident in psychiatry and on call to the emergency department. She was working under the guidance and supervision of the consultant psychiatrist Dr. Lefcoe.

[41] She described the normal process of being paged by the emergency doctor: First, the medical student on duty would begin the assessment. Then Dr. dela Paz would review line-by-line the notes taken by the student, return with the student to meet with the patient, and conclude the psychiatric assessment. A psychiatric assessment usually takes 60 to 90 minutes.

[42] Dr. dela Paz had a vague recollection of seeing Mr. Schwientek in the mental health room and talking about his history of working in medical services and the fact that he did not want to be in the hospital.

[43] The psychiatric assessment began at 17:40. It notes

• the presenting complaint: told 14-year-old son (or friend?) he was going to take a lot of crack cocaine and “let the drug dealers take care of him”. It was noted that he was brought into emergency because of suicidal thoughts by the police.
• he had relapsed and had left the residential program and had been sleeping on couches for a week.
• he reported he did not use cocaine and denied using other substances.
• he acknowledged that he had had a two-day binge after being sober for seven months.
• he “now admits recent use” of crack cocaine and “would test positive”; however, he was “evasive on times/amount”.
• his family had experienced mental health issues, he had a significant trauma history, had financial concerns, and had recently separated, was subject to a restraining order, and was on probation for 8 months after having pled guilty to spousal assault. 1 month of probation remained.
• he denied being suicidal.
• he was “very labile, ++anger, frustration”.
• his speech was “at times rapid and loud, profane, angry to be here”.
• originally, on the pre-preprinted form there was an indication that there was no “history of violence in hospital” but that was changed to an indication of violence with the note “aggression—can be somewhat de-escalated”. There was an indication that there was no “violence to others/property”, no “intimidation of others/threats” and no “violent ideation”.
• his judgment and insight were “limited”, and he “wanted to fight security (and did)”.
• he “denies any current, active suicidal plan but endorses passive SI”.

[44] After discussions with Dr. Lefcoe, the management plan was to admit Mr. Schwientek to a unit reserved for high-risk patients (the “PICU”) “for stabilization and further assessment”. Dr. dela Paz testified that because of Mr. Schwientek’s history, his stressors, the fact that he was brought to the hospital by police, and his behaviour in the emergency department, they were concerned that he could not make safe judgements if he left the hospital.

[45] Dr. Sharma agreed with the assessment that Mr. Schwientek was in a situational crisis based on the comments he made and the clinical notes and records.

[46] At 19:07 an admission request was made by Dr. Lefcoe. Dr. dela Paz made other admission orders shortly thereafter. Also, at 19:07 she ordered oral Haloperidol for agitation on a PRN (as needed) basis, giving the nurse a range of medication to be administered depending on behaviour. She ordered oral Lorazepam PRN for anxiety or agitation at 19:12.

[47] Ms. Olivia Hughes Bronwen was the emergency room nurse on duty on October 2, 2014. At that point in time, she had had 2 years of nursing experience in the emergency department. Mr. Schwientek was part of her assignments that evening. She described the orders made in relation to Mr. Schwientek as “usual psychiatric patient orders”. She reviewed and accepted responsibility for the orders. She reviewed and accepted responsibility for the Lorazepam order at 19:28 according to the order detail record.

[48] According to the administration record, Mr. Schwientek was given Lorazepam orally at 19:28. However, there is no evidence on the video that Lorazepam was given. The giving of this mediation was also not charted. The refusal of medication by a patient is not necessarily charted if the order for the medicine was a PRN order. As I will discuss later, the security guards, Dr. dela Paz and Nurse Hughes testified that given Mr. Schwientek’s behaviour seen in the video, it was not safe for staff to enter his room. I note here parenthetically that the possibility that Nurse Hughes interacted with Mr. Schwientek and he accepted the Lorazepam does not diminish the strength of all the other evidence in relation to Mr. Schwientek’s behavior that I will review in detail.

[49] At 19:30 Dr. dela Paz made another PRN order for injectable Haloperidol. She prescribed a standard dose for an adult who is agitated. Nurse Hughes reviewed and accepted this order at 19:40 according to the order detail record.

[50] Mental health restraints were ordered at 19:36 by Dr. dela Paz. The validity of this medical order was not in issue.

[51] Dr. Sharma acknowledged that security guards and nurses take the form 1 “at face value” and are obliged to comply with physician’s orders.

[52] Nurse Hughes is seen in the video waiting at the doorway of the room after the guards entered the room to restrain Mr. Schwientek. She testified she waited there along with the ER technician until it was safe for her to enter. She was standing by so she could give Mr. Schwientek his injection as quickly as possible.

[53] She is seen entering the room once Mr. Schwientek is restrained. The guards help to hold Mr. Schwientek’s arm steady so that she can safely administer the medication. She gave the injection at 19:40.

[54] She is also seen in the video putting a bandage on Mr. Schwientek’s forehead.

[55] The administration record indicates that the injection was given at 19:40.

[56] As soon as a patient gets placed in restraints a “restraint flow-sheet” is completed. This record indicated that the restraints were initiated at 19:40 and that the patient had been escalating and ripping sheets and threatening security. It was noted that the patient was oriented, had psychomotor agitation, and was combative. It was also noted that the Haloperidol was given as a chemical restraint.

[57] Nurse Hughes also completed a nursing note at 19:45. This note indicated that Mr. Schwientek had refused to give vital signs and was “escalating in room—pacing around room and moving stretcher around and ripping sheets”. She noted that he was “making verbal threats” to security and had refused an injection for de-escalation. She charted that he had been put into restraints by security and she injected the haloperidol in his right upper arm.

[58] She also charted at 19:45 that he had “sustained injury” to his left forehead during the restraint process and at 20:15 that “patient++ concerned about wound on left forehead”. Nurse Hughes indicated that she would chart any injuries the patient received and that, if he had complained to her of injuries other than that to his forehead, she would have indicated the same in her notes.

[59] Dr. dela Paz observed that Mr. Schwientek was quite restless and agitated after the physical restraint. She reassessed his status after the restraints were applied and she testified that she would have spoken to him about why that was done and inquired how he was feeling. She had no recall of him mentioning any injuries and, if he had, she would have documented that and spoken to nursing staff.

[60] Mr. Schwientek was monitored by Nurse Hughes every 15 minutes to ensure that he could still move his hands and feet and had good body alignment. She noted that Mr. Schwientek was “oriented as to date and time and he could carry on a reasonable conversation”.

[61] The taking of vital signs at 20:10 and bloodwork at 20:15 by Nurse Hughes, her nursing notes at 20:15, the notations on the restraint flow sheet at 20:15, the ECG (a standard admission test ordered for most patients) at 20:25, and her notes at 21.30 will be discussed more fully below.

[62] The removal of the restraints at 21:30 was noted on the restraint flowsheet.

[63] According to the administration record maintained by Nurse Hughes, Seroquel was offered, accepted by Mr. Schwientek, and administered at 21:38. A Nicotine patch that had been ordered was refused by Mr. Schwientek at 21:38.

[64] At 22:50 Nurse Hughes noted that the patient appeared to be sleeping. He had no complaints and the restraints remained off.

[65] Nurse Hughes made further notes in the clinical progress record at 1:45 a.m. on October 3, 2014 noting that Mr. Schwientek had been up to use the washroom and ambulated independently. She noted that a urine sample was obtained.

[66] At 4:30 a.m. she noted that he was sleeping and had no complaints. At 6:10 a.m. she noted that he continued to sleep.

[67] The clinical progress record noted that at 7:15 he remained asleep, and security was monitoring. At 9:45 it was noted that he again refused the nicotine patch.

[68] Mr. Schwientek was assessed by a psychiatric resident at 11:10.

[69] Mr. Schwientek was discharged at 14:15 on October 3, 2014. The assessment and plan indicated that Mr. Schwientek had an adjustment and polysubstance abuse disorder. His form was discontinued and he was booked for an urgent psychiatric follow-up on October 14,2014. He was to be seen by a Transitional Case Manager regarding a crisis bed placement if he was unable to arrange to stay with a friend.

What occurred at LHSC on October 2, 2014 according to Mr. Schwientek

[70] Mr. Schwientek is 5’ 9” and weighs 225 pounds. He acknowledged that he is a “big guy compared to some”.

[71] Mr. Schwientek did not have, as he put it, a great recall of seeing the physician in the emergency department. He explained that he was exhausted and mentally fatigued. He was insistent he never threatened self-harm. He testified that he was not aggressive and the reason he was put into a room alone was to allow him to have a bed so he could lie down and sleep. He testified that it was extremely warm in that room and that is why he removed his shirt. He recalled being offered, and accepting, a sandwich and beverage from one of the security guards.

[72] He recalled that a guard came in and told him his blood would be taken. This guard was aggressive in his stance and pounded his fist into his hand as he spoke with Mr. Schwientek. Mr. Schwientek testified that this guard was rude, and he was rude back, saying “you won’t take any of my blood and I won’t take any of yours”. He is ashamed now that he made that statement.

[73] According to Mr. Schwientek, it was one guard in particular “who didn’t like me, and I didn’t like him”. This guard was rude and aggressive in his nature. This guard shut the curtain on the window and laughed at Mr. Schwientek. Mr. Schwientek asserted that this guard was instigating an already tired and aggravated patient, and this prompted Mr. Schwientek to try to block the camera.

[74] During his examination in chief, Mr. Schwientek testified that he wanted to apologize, that his behaviour on October 2, 2014 was “not my finest hour” and he was embarrassed by the whole thing. At the same time, having worked with distraught patients, he knew that showing respect for a patient’s dignity goes a long way, and the antagonizing guard did not show any respect.

[75] Mr. Schwientek recalled that there were communications with the guard over the curtain. The guard was “mouthing off” to Mr. Schwientek and Mr. Schwientek “mouthed off” to him. Mr. Schwientek described a constant back and forth with this guard and testified that a “threat of violence seemed to be there with this man”. He testified that no other guards spoke to him.

[76] Mr. Schwientek testified that the guard was never in any imminent danger from him. Mr. Schwientek denied threatening the guard. The guard irritated Mr. Schwientek and the guard was quite punitive. Everything was done by the guard “to stir the pot” and “keep things brewing”. Mr. Schwientek explained that he was not in a good state and this guard knew how to get under his skin.

[77] He recalled that his room was locked at one point and he did not know why.

[78] Mr. Schwientek insisted that the antagonizing guard kept closing the window curtain and laughing at him, and that this prompted him to block the camera in retaliation. He felt this guard was trying to make his stay as unpleasant as possible, and the incident happened because the guard had had enough of him.

[79] He denied trying to hurt himself by wrapping his hands and said he wrapped his hands only to block the camera.

[80] He denied covering his hands to take an aggressive position or posture.

[81] Throughout his testimony, he insisted that the antagonizing guard was purposefully aggravating him and the instigation from the guard was the cause of everything that transpired.

[82] Mr. Schwientek insisted that he was never threatening to anyone and denied that having fabric between his hands posed a choking hazard to others or a potential hazard to himself.

[83] He also disagreed with any suggestion that it was open to the guards to think he was going to harm them, suggesting that he was no threat to them through a locked door.

[84] According to Mr. Schwientek, the only reason for the guards to come into the room was because there was a gurney there on wheels that should not have been there.

[85] Mr. Schwientek would not agree that he looked threatening and did not know what he said when he was pointing his finger with his arms outstretched.

[86] He recalled that he looked out of the window of the room and could see a “whole row of guards coming”. He saw the antagonizing guard “grinning”, and Mr. Schwientek said that he knew he would be on the losing end. He said he was quite nervous. He had seen situations go down when he was a medic which were not always pretty and were not always fair. He described the situation as a lose-lose for him.

[87] Mr. Schwientek clearly remembered being taken down to the ground and that he was not harmed during the take-down to the floor. He indicated that the take-down was not done harshly; however, once he was on the ground, he was punched and kneed. Specifically, he said one guard kneeled on his right knee, causing him to scream in pain. He described the scene as absolute chaos, with everyone doing their own thing and him being swarmed.

[88] After the “mauling”, as Mr. Schwientek described it, one guard pushed his forehead into the floor. Mr. Schwientek described a severe hit to his forehead that was 100 per cent unnecessary. The guard stated, “that’s what you get when you don’t cooperate”. Mr. Schwientek described this action as punitive.

[89] Mr. Schwientek was certain that he complained of pain following the restraint, but he could not recall to whom.

[90] As a result of the guards’ actions, Mr. Schwientek indicated that he sustained a long-lasting right knee injury (which prevents him from cycling very often and which has caused planter fasciitis), two rib fractures (which were sore for four weeks), and a goose-egg on his forehead the size of half a baseball, which cleared up quite readily. He considered the injury to his forehead to be a massive hematoma and not a small bump, as noted in the incident report described below.

[91] Mr. Schwientek asserted multiple times that the antagonizing guard was the third person into the room but the first person “on him”. He testified that this guard demonstrated over-aggression towards him and there were several punches and several knees thrown at him.

[92] He described the conduct of the security guards as “uncalled for”. He said that what happened to him was a beating; he was beaten by several guards and his head was rammed into the floor.

[93] Mr. Schwientek disagreed that he was maneuvered to the corner to keep him safe and to reduce the chance of injury for everyone. Mr. Schwientek asserted that he moved to the corner for defensive purposes and out of fear.

[94] Mr. Schwientek also disagreed with the assertion that he struggled violently during the minute and 15 seconds he was on the floor. He asserted that he backed away and was not aggressive.

[95] When it was put to him on cross-examination that the guards will deny punching and kicking him, Mr. Schwientek disagreed.

[96] Mr. Schwientek denied having any communication with Mr. Braddon when Mr. Braddon opened the door. He denied ever threatening to have the security guards’ jobs, as noted in Mr. Vandyke’s duty book, which I discuss below. He denied going into the hall repeatedly, being aggressive, and refusing to re-enter his room.

[97] He denied threatening the guards with violence. He remembered with certainty that he did not ‘swing’ at anybody and asserted multiple times that he had no propensity for violence.

[98] He asserted that the actions of the guards were intentional. He did not know their motivation, but he knew that one guard had issues with him.

[99] Mr. Schwientek insisted throughout his cross-examination that he was very cooperative before he had a problem with the antagonizing guard.

[100] Mr. Schwientek, on cross-examination, asserted that he had a rock-solid memory of a guard slamming his fist into his hand while telling Mr. Schwientek that they were going to take his blood. As Mr. Schwientek stated, people remember traumatic events, and this was a traumatic event for him.

Assessment of Mr. Schwientek’s evidence

[101] Mr. Schwientek believed that he was intentionally assaulted and was the victim of excessive force. He stated that he was agitated and provoked by one security guard in particular. However, I have concluded that his memory of the October 2, 2014 incident is not reliable and cannot be accepted for the following reasons:

(i) there were several contradictions or inconsistencies in Mr. Schwientek’s evidence with respect to what occurred on October 2, 2014

[102] As previously noted, Mr. Schwientek asserted he was grateful to go to the hospital and he reiterated on cross-examination that he was passive and cooperative. However, his attendance at and admission to the hospital was involuntary. Further, Mr. Schwientek’s assertions are inconsistent with the police notes, the triage assessment, and the notes of his psychiatric assessment.

[103] At the beginning of his testimony, Mr. Schwientek testified that he never had been in a situation like he was in on October 2, 2014, but on cross-examination acknowledged that he had been brought into the emergency department for psychiatric assessment involuntarily on previous occasions.

[104] When the report from the police officers on October 2, 2014 was put to him, Mr. Schwientek continued to deny that he said anything to anyone about self-harm or harm to others but acknowledged that he said that he could talk around doctors because he had been in the medical field. Mr. Schwientek also denied bringing up Robin Williams’s suicide. He asserted he has never been suicidal, notwithstanding what was indicated in the psychiatric assessment. I cannot accept Mr. Schwientek’s denials in the face of the testimony and notes of Drs. Van Aarsen and dela Paz and the details and conclusions in the psychiatric assessment. As previously set out, the appropriateness and validity of the form 1 was admitted.

[105] The triage assessment noted that Mr. Schwientek had reported having a couple of drinks on October 2, 2014 before being taken to the hospital. However, Mr. Schwientek had to agree on cross-examination that he consumed more than a couple of drinks.

[106] It was pointed out to Mr. Schwientek on cross-examination that his psychiatric assessment noted he had been on a two-day binge and had taken four sleeping pills that morning, facts very different from those he reported at triage. It was also pointed out that in the psychiatric assessment he eventually admitted to recent cocaine use, something that he had not previously revealed to any of the health professionals he encountered. The October 2, 2014 toxicology report confirmed that he was positive for cocaine and sleeping pills.

[107] On cross-examination Mr. Schwientek stood by his assertion that he had been clean for seven months before the incident. However, on cross-examination, he had to acknowledge that on June 27, 2014 he had visited the emergency department complaining of chest pain from cocaine use. He further acknowledged that 4 days later and again on July 31 he returned with the same complaint. He was also discharged from the residential treatment program “due to relapse”.

[108] Throughout his evidence, Mr. Schwientek insisted that he was cooperative and never fought security. However, according to the hospital records, Mr. Schwientek had gone from being slightly hostile in the emergency department to being aggressive, displaying indications of violence and “++ angry” during the psychiatric assessment.

[109] While Mr. Schwientek testified that he only escalated because of interactions with the guards, he acknowledged on cross examination that the nurses had noted that he had escalated. Mr. Schwientek pointed out that he had been de-escalated “easily” by the nurses.

[110] According to the clinical progress record, at 17:50 Mr. Schwientek was “escalating while standing in MH hallway”. It was also noted that he was “refusing bloodwork” and vital signs at this time, that Mr. Schwientek wanted to call a lawyer and was given an opportunity to do so, that he stated “I don’t do drugs, there isn’t anything in me so I’m not giving you any bodily fluids. I don’t have to”, and that he “voluntarily went back in room” when a nurse spoke with him privately.

[111] At 18:00 it was noted that he was “angry” but “de-escalated with limit setting”.

[112] In sum, although Mr. Schwientek escalated twice in a ten-minute period, he was successfully de-escalated by the nurses each time.

[113] However, after 18:00, there is evidence that Mr. Schwientek was not calm and co-operative. I cannot accept the argument of Mr. Schwientek’s counsel that because the video does not begin until 19:20 there is a 1 hour 20-minute gap in the evidence

[114] The psychiatric assessment, which began at 17:40 and continued for 60 to 90 minutes, revealed that Mr. Schwientek presented in contrast to how he claimed.

[115] At 19:30 Dr. dela Paz made another PRN order for injectable Haloperidol, prescribing a standard dose for an agitated adult. She testified that she would make such an order if a patient is escalating and “we cannot wait because of the risk of the patient harming themselves or others”.

[116] In addition, Dr. dela Paz ordered mental health restraints at 19:36. As she testified, such an order would be made because the patient at that point in time was escalating and was unsafe to himself or others.

[117] According to Nurse Hughes, the progression of medical orders signified to her that the patient was becoming increasingly agitated over a short period of time.

(ii) Mr. Schwientek’s description of his behavior is not consistent with what is seen on the video

[118] Mr. Schwientek originally testified in chief that he covered the camera because the curtain was drawn. However, the curtain was wide open when Mr. Schwientek is first seen getting up on the bed and taking the pillow out of the pillowcase to cover the camera.

[119] As I described above, Mr. Schwientek blamed the incident on one guard. On the video, different guards are seen looking into his room—one, the instigator, according to Mr. Schwientek, has a beard and one does not. About four minutes into the video, when Mr. Schwientek has the bed in front of him, two guards are at the window.

[120] In addition, while Mr. Schwientek testified that he had fabric from his bedding in his hands to cover the camera, he is later seen on the video wrapping his hands by the door, which would not be an action done to cover the camera.

[121] Further, although Mr. Schwientek insisted that he should have been left alone to rest, he is frequently seen on the video standing on top of the bed. After watching the video, it is impossible to accept his assertion that that his only desire was to lie down and rest.

[122] Also, while Mr. Schwientek contended no efforts were made by the security guards to de-escalate him, the video reveals that several efforts were made: the curtain on the window to his room was closed, different guards spoke with Mr. Schwientek, and Mr. Braddon spoke to Mr. Schwientek in a non-threatening manner.

(iii) Mr. Schwientek’s assertion that he is not a person with a propensity for violence is not consistent with several incidents prior to October 2, 2014

[123] Mr. Schwientek’s assertions that “violence is not my thing”, that he is “not a violent person” and there is “no propensity for violence in him” are not consistent with several incidents prior to October 2, 2014 described in medical records

[124] Mr. Schwientek was in the emergency department at LHSC in May 2007 when he was placed on a form 1. His wife reported that he had pulled out a butcher knife and said he was going to kill himself. On this visit to the emergency department, he denied drug use; however, it was noted that the police said he had admitted to using cocaine and hashish that week.

[125] In relation to the May 2007 incident, Mr. Schwientek testified that he just stuck a knife in the butcher block during an argument with his wife. According to the emergency psychiatric assessment Mr. Schwientek’s wife felt threatened and feared for her safety. She attributed his behaviour to cocaine use. Mr. Schwientek denied any drug use and refused a screen. The assessment also noted that Mr. Schwientek was loud, angry, and threatening and he in refusing a physical examination he was aggressive.

[126] Mr. Schwientek, on cross-examination, denied smoking hashish and indicated he did not know where the police would get that information. Mr. Schwientek also denied threatening his wife and testified that that was simply not in his nature. He insisted that he was admitted to the hospital on this prior occasion for a rest. These assertions are difficult to accept given the statutory requirements of The Mental Health Act relating to the involuntary admission of an individual.

[127] In addition, the records reveal that, according to a March 16, 2010 consultation note of psychologist Dr. Maxfield, Mr. Schwientek and his wife reported that because Mr. Schwientek “needed money to pay off the drug dealer or extortionists, who make severe threats against him and his family”, he went to his wife’s place of business, intimidated the staff, and took money. It was noted that “he becomes very agitated, shouting often, angry that he cannot get this money, angry that his account of this threat is perhaps discredited. He is adamant that he must have the money”. It was recommended that he attend a residential drug treatment program.

[128] Four days after this appointment, Mr. Schwientek was brought into emergency by his brother. The March 20, 2010 emergency record notes suicidal ideation, depression, and cocaine use. In the psychiatric assessment, it was noted that he fought with the staff, that he was fighting with his family, that he was intimidating others by threats of violence, and that he was displaying violent ideation.

[129] In addition, on June 12, 2011, Mr. Schwientek urgently received another psychiatric assessment. He was presenting with anxiety and depression after separating from his wife. Concerns about him harming himself were noted.

[130] In my view Mr. Schwientek minimized these observations by suggesting that “they are always concerned about harm and they should be”. He noted that he had had PTSD for years in addition to lower back pain.

[131] The records relating to the October 2, 2014 incident noted that Mr. Schwientek was “on probation for spousal assault” and subject to a restraining order. In March 2014, his wife called the police and reported an assault and choking. According to Mr. Schwientek, his wife could also have been charged with aggravated assault, but he considered her a very good wife and mother and was not prepared to charge her. While this attitude reflects positively on Mr. Schwientek, it does not resolve my concerns with the reliability of his evidence.

[132] I note that this evidence of prior conduct is not referenced to establish that Mr. Schwientek was violent on October 2, 2014 but it is relevant to an assessment of the credibility of his evidence that he is not violent.

(iv) Mr. Schwientek’s evidence is inconsistent with the evidence of the security guards

[133] I was impressed with the evidence of Messrs. Peter Vandyke, Khadr Abdallah, Daryl Braddon, and Chris Bell. Each of them had some independent memory of their interactions with Mr. Schwientek and their memories were refreshed by their duty books and incident reports, which were maintained as part of their responsibilities. I found them very professional. They presented as calm, caring, and empathetic individuals who are committed to ensuring the safety of patients and staff. It is important to note that their evidence relates to a period during which Mr. Schwientek’s counsel contended there was a gap in the evidence.

[134] Mr. Peter Vandyke had been a security guard at LHSC for 9 years prior to the incident.

[135] According to his daybook, at 15:30 he was assigned to the mental health area. He noted in his duty book “new patient at MH3, form 1, from the community x medic”. It was significant to Mr. Vandyke that Mr. Schwientek had been part of the health care team and was familiar with the Mental Health Act as a medic. That would create some form of commonality between them and allow him to develop a rapport to better communicate with Mr. Schwientek.

[136] Mr. Vandyke had a vague memory of Mr. Schwientek’s “hostility”. He had noted that Mr. Abdallah was “doing standby” and that the “patient [was] uncooperative and confrontational”.

[137] Mr. Vandyke had a recollection of Mr. Schwientek escalating and not staying in the room. He recalled that Mr. Schwientek became very agitated when Mr. Vandyke told him to stay in his room.

[138] Mr. Vandyke testified that they always do what they can to de-escalate a situation; they are always communicating and setting expectations. Mr. Vandyke recalled Mr. Schwientek coming into the hallway and threatening him. He made notes in quotations of statements made by Mr. Schwientek: “You can’t tell me what to do”, “I’ll have your job”, etc.

[139] Mr. Vandyke explained that he doesn’t often write quotes in his duty book, but these were significant statements repeated several times and were “very defiant”.

[140] Mr. Vandyke went onto say that he receives threats every day in the process of his job but these “felt like he [Mr. Schwientek] really meant it”.

[141] He also noted that it was difficult to get Mr. Schwientek back into the room, that Mr. Schwientek was “threatening violence”, and that he was given numerous chances to remain in his room.

[142] The door to Mr. Schwientek’s room was eventually locked, as Mr. Vandyke noted, because of “escalating threats and risk to staff”. Because locking the door takes away freedom of movement and is an environmental restraint, it is not done lightly and mandates reporting.

[143] Mr. Vandyke did not specifically recall Mr. Schwientek saying, “come inside and I’ll give you some blood”, as Mr. Abdallah noted at 18:49, but that note squared with his recollection.

[144] As the “standby officer”, Mr. Abdallah had the responsibility of creating the incident report in relation to the door-locking.

[145] Mr. Khadr Abdallah worked at LHSC from 2011 to 2018, when he left to take up alternate employment outside of the city. He became involved with Mr. Schwientek at 17:58. He was dispatched to the mental health room 3 to take over as the standby because of the behaviour Mr. Vandyke had observed.

[146] Throughout the time that Mr. Abdallah was with Mr. Schwientek from 17:58 to 19:40, his behaviour was aggressive. Mr. Abdallah described Mr. Schwientek as yelling, refusing to close the door, being upset and angry that he was still in the hospital, and threatening security.

[147] Mr. Abdallah indicated that they made efforts to de-escalate him and tried to help and assist him, but Mr. Schwientek was not cooperative.

[148] Mr. Abdallah completed an incident report at 18:49 with respect to the door lock which included the statement from Mr. Schwientek described above. In this report, he also noted that once inside the room, Mr. Schwientek “began to cover up the camera and threatens security to come inside his room to fight him”.

[149] Mr. Vandyke described Mr. Schwientek as being out of control and stated that it would be wrong to say he did not need to be restrained. They had been trying for hours to de-escalate Mr. Schwientek and he needed medication. In any event, as he noted, security officers are obliged to follow a medical order to restrain.

[150] Mr. Vandyke noted in his duty book that Mr. Schwientek took a “fighting stance”, a pre-cursor to a swing, he explained. In Mr. Vandyke’s view, wrapping his hands to protect them revealed that Mr. Schwientek was preparing to fight and was bettering his chances. Mr. Vandyke also described the pillowcase being wrapped around Mr. Schwientek’s hands as possibly a choking weapon, something that is a very high-level threat that significantly ‘ups the risk factor’ for the security guards. Positioning himself behind the bed also gave Mr. Schwientek a ramming weapon or more cover.

[151] Mr. Vandyke noted at 19:20 that he was going to be relieved on the door at the end of his shift, but he was standing by to assist and that “[p]atient highly agitated and threatening to injure”; “[t]ake out one guard and have our job”.

[152] As Mr. Vandyke said, any guess work in relation to Mr. Schwientek’s hands being up, wrapped, and held in an aggressive posture was removed when his words were also considered. He absolutely disagreed with the suggestions on cross-examination that Mr. Schwientek appeared afraid or that he was cowering in the corner before the take-down.

[153] Similarly, Mr. Abdallah testified that he specifically remembered that Mr. Schwientek was very confident in himself and was not frightened.

[154] Mr. Abdallah also recalled constantly trying to talk Mr. Schwientek down, asking him to please lay on the stretcher and take the wrapping off his hands.

[155] Mr. Abdallah testified that Mr. Schwientek’s aggressive behaviour with the wrapping on his hands scared Mr. Abdallah because, as he put it, “that’s life or death right there, if he [Mr. Schwientek] gets that around my neck or someone else’s”. As Mr. Abdallah explained, he did not know Mr. Schwientek’s training. Mr. Abdallah was also concerned with Mr. Schwientek getting behind the bed and pointing it towards the door as if he was going to “ram us”.

[156] Mr. Vandyke was clear that Mr. Abdallah did not antagonize Mr. Schwientek. Mr. Vandyke had no recollection of Mr. Abdallah telling Mr. Schwientek he would have to give blood or smacking his hands together. He did not see that day, nor has he ever seen, any member of security grind their fists into the palm of their hand. Mr. Vandyke testified that that type of action would not be tolerated.

[157] Similarly, Mr. Abdallah was clear that he did not antagonize Mr. Schwientek, nor did he see Mr. Vandyke antagonize Mr. Schwientek. Mr. Abdallah absolutely denied that either of them punched their open hand. He denied yelling at Mr. Schwientek or hearing anyone else do so. He testified that he absolutely did not raise his voice or say anything that would intimidate Mr. Schwientek.

[158] Like Mr. Vandyke, Mr. Abdallah also stayed on after his shift to assist.

[159] Mr. Daryl Braddon had been a security guard for 11 years at the time of the incident. He started at LHSC in 1999. He left for 4 years to work in construction and returned in 2009.

[160] He arrived at LHSC for the start of his shift at 19:30. He was to relieve Mr. Abdallah, who passed on to him that Mr. Schwientek was unhappy, upset, and wanted to leave. The door to Mr. Schwientek’s room was locked and Mr. Braddon heard yelling and shouting.

[161] In his duty book, Mr. Braddon noted that Mr. Schwientek was

very amped up, making threats, trying to cover up camera with sheets, says he wants to fight, room already locked, standing on bed, wrapped up his hands in blankets to fight, got stretcher ready to push at us.

He explained that his phrase “very amped up” indicated that Mr. Schwientek was verbally aggressive, yelling, and excited. It was very concerning that someone amped up was making threats. Covering the camera was a concern because it indicated that Mr. Schwientek was trying to hide something and trying to prevent his next steps from being recorded. Mr. Schwientek looked ready to do a choke hold on himself or a security guard.

[162] It was Mr. Braddon’s understanding that officers had tried to de-escalate Mr. Schwientek for quite some time. Mr. Braddon was aware that Mr. Abdallah’s attempts to de-escalate Mr. Schwientek had failed. Mr. Braddon witnessed Mr. Abdallah trying to communicate with Mr. Schwientek and observed that Mr. Schwientek was clearly agitated.

[163] As Mr. Braddon explained, he was new on the scene, so he tried to de-escalate and calm Mr. Schwientek. Mr. Braddon indicated that they try everything in their power “to not go physical” because “we don’t want to get hurt and we don’t want the patient to get hurt”. De-escalation and cooperation are always preferable to physical restraint. Having just come on duty, Mr. Braddon considered himself “the last resort” in the efforts to de-escalate Mr. Schwientek.

[164] Mr. Braddon is first seen at the window of the mental health room. He testified that while at the window he asked Mr. Schwientek to get off the stretcher. He also talked calmly through the door when Mr. Schwientek was positioned behind the stretcher. He described Mr. Schwientek as a larger man with an intimidating stature who was loud, vocal, and trying to intimidate. Mr. Braddon indicated that he recalled these concerning things independently.

[165] Mr. Braddon was advised by Nurse Hughes that Mr. Schwientek was to be restrained because he needed medication. As Mr. Braddon said, “we take our orders from doctors and nurses”.

[166] Mr. Braddon testified that he also tried to de-escalate Mr. Schwientek by passing on to him what the physicians had ordered and telling him he would not have to be restrained if he cooperated. In response, Mr. Schwientek indicated, as Mr. Braddon noted in his duty book, “he’s going to take us all out”.

[167] Mr. Braddon is seen in the video leaning against the open door with his hands at his sides, talking to Mr. Schwientek. Mr. Braddon testified that, while he was standing in the doorway, he tried to look relaxed by leaning against the door. He explained the implications of the form 1 to Mr. Schwientek and that Mr. Schwientek needed to be medicated. He would have told Mr. Schwientek that they did not want to “get physical” and suggested to him that they should do things “the easy way”. Mr. Braddon remembered Mr. Schwientek saying, “if you come in here, you’re the first person I’m going to take out” and, as he said that, as seen on the video, Mr. Schwientek has his hands outstretched and pointing at Mr. Braddon. As Mr. Braddon described, Mr. Schwientek’s hands were wrapped and were held in a position to make a choke hold. Mr. Schwientek could not be convinced to settle down.

[168] Mr. Braddon noted in his duty book that both of Mr. Schwientek’s hands were still wrapped. It was clear to Mr. Braddon that Mr. Schwientek would not cooperate, and Mr. Braddon called for assistance.

[169] Mr. Chris Bell, who has served as a security guard at LHSC since he was hired in 2005, came on duty at 19:30. He was called to assist in mental health room 3. He noted in his duty book that “patient ramming stretcher on door stating he is punching out any guard who enters room”. He recalled hearing a lot of yelling and arguing from mental health room 3 when he entered the area and was informed by medical staff that a restraint had been ordered for the patient.

[170] He recalled one of the guards talking to Mr. Schwientek, trying to de-escalate him when the door was opened, but he couldn’t confirm any of the exact words used. He recalled Mr. Schwientek being very agitated and acting aggressively with a lot of posturing and yelling. He recalled threats but no specific wording. Mr. Bell confirmed that in the video he is seen in the background when Mr. Braddon opened the door.

[171] Mr. Bell did not see any guard grind his fist into the palm of his hand nor did he do that. He does not remember any discussion regarding the taking of Mr. Schwientek’s blood.

[172] When the guards enter the room, Mr. Braddon is seen on the video moving the stretcher aside so that Mr. Schwientek could not use it. Mr. Braddon described Mr. Schwientek being taken against the wall to gain control and Mr. Schwientek swinging out. Mr. Braddon acknowledged on cross-examination that Mr. Schwientek’s swings cannot be seen on the video, but he was unequivocal in his evidence that when Mr. Schwientek was up against the wall after they first entered, Mr. Schwientek was striking out.

[173] Mr. Schwientek was successfully taken to the ground. Mr. Braddon explained that this was the safest option because it is harder for the patient to strike out from the ground and because the guards have eyes on all limbs. The guards wanted to take control of all moving parts. Throughout this process, Mr. Braddon testified that they would be telling Mr. Schwientek to calm down, to stop resisting, and to work with the guards.

[174] In his duty book Mr. Braddon noted that Mr. Schwientek “took swings” and they “took him to ground hard”. Mr. Schwientek “hit his head on floor” and, as a result, had a “bump on left forehead” but “no other notable injuries”. Mr. Braddon was clear that if Mr. Schwientek had complained of other injuries, he would have noted them.

[175] Mr. Braddon also noted that one of the knees of a security guard had been injured during the restraint.

[176] Mr. Braddon prepared an incident report on his next shift. In his incident report, which he testified coincided with his memory of the incident, Mr. Braddon noted that he had spoken with Mr. Schwientek “several times, asking him to stop this behaviour, which he refused, stating that if we came in and tried to stop him, he would hurt us all”. He also noted that Nurse Hughes informed him that Mr. Schwientek needed to be restrained to have medication administered and, when Mr. Schwientek heard he needed to be restrained, Mr. Schwientek “stated that he was not going to let this happen and if we came into his room, he was going to take at least one of us out”. Mr. Braddon opened Mr. Schwientek's door and “tried to talk him down”. Mr. Braddon noted that in response Mr. Schwientek “once again pointed at me and stated that since you’re going to be the first in, I’m going to take you out first”.

[177] In addition, Mr. Braddon noted Mr. Schwientek “proceeded to position himself behind a stretcher and wrap a pillowcase around both hands positioning himself into a fighting stance and started to call us on”. He further noted that Mr. Schwientek “took several swings at security, having no contact”.

[178] He also noted in the incident report that Mr. Schwientek “appeared to have a small bump on the left side of his forehead which had happen (sic) sometime during the restraint. This injury was addressed by Registered Nurse Hughes while medication was being administered”.

[179] He did not recall seeing any blood on Mr. Schwientek’s forehead. He testified there was an injury, and it was red, and he denied on cross examination that he minimized the injury in stating that it was small. As he explained, “that’s just what it looked like to me”.

[180] Mr. Braddon testified that he never punched or kicked Mr. Schwientek or hit his head and he saw no one else taking that action. He saw no one, nor did he, push Mr. Schwientek’s knee into the floor.

[181] As Mr. Braddon indicated, when a patient resists and there is physical contact, injuries occur, but the officers try to do things as safely as possible. The take-down was as controlled as it could be and it would be not correct to say that if there was more control, there would be no injuries. As Mr. Braddon explained, when someone acts as Mr. Schwientek did, sometimes there is injury.

[182] Similarly, according to Mr. Vandyke, de-escalation attempts were made throughout the entire process right until the very end. He described the situation as being as controlled as a physical altercation gets and said that if Mr. Schwientek had not resisted, none of this would have happened.

[183] Mr. Vandyke testified he did not hit Mr. Schwientek’s head onto the ground and he did not kick or punch him, nor did he see anyone else do those things. He did not hear anyone, nor did he, make the alleged statement of “that’s what he gets for not cooperating”. As Mr. Vandyke put it, “use of force is not personal; we take it very seriously and we do it day in and day out as part of our jobs”. Mr. Vandyke was adamant that threatening or retaliating behaviour did not occur. As he noted, people have been terminated from their employment “for much less”.

[184] Mr. Abdallah recalled trying to pry away the pillowcase from around Mr. Schwientek’s hands and the need to get Mr. Schwientek’s hands out to get control. He recalled Mr. Schwientek not giving up, continuing to struggle while on the ground and actively resisting for a while.

[185] As Mr. Abdallah put it, the subject’s behaviour dictates how much force we use. If the patient is cooperative, no force is used but if he is assaultive, more force is required.

[186] He testified that he absolutely did not punch or kick Mr. Schwientek or strike his head on the ground, nor did his colleagues. He was insistent that they used the least amount of force necessary, and no one punched or kicked Mr. Schwientek, grounded his knee, or banged his head.

[187] Mr. Abdallah noted at 19:30 that no injuries were sustained, except that Mr. Schwientek “received cut on head during scuffle taking him to the ground”. He disagreed with the suggestion on cross examination that if someone gets hurt, there is a failure in the process because, as he put it, accidents happen. There have been occasions when he has been injured and so have patients.

[188] Mr. Bell described the situation as a serious one because Mr. Schwientek was acting aggressively and threateningly and had wrapped the pillowcase around his hands. It was his understanding that the nursing staff and guards had tried to de-escalate Mr. Schwientek, and Mr. Bell saw Mr. Braddon try to do that again when he arrived on the scene.

[189] He, too, reiterated that their goal was to go in and control the situation as safely as they could with the least amount of force possible. To ensure that the least amount of force was used, they moved the stretcher as soon as they entered the room. Mr. Schwientek was face down for a portion of the take-down. Mr. Schwientek resisted and fought them off. Once they gained control, Mr. Schwientek was stood up and escorted to the bed without incident.

[190] Mr. Bell indicated he saw no one antagonize, yell, or provoke Mr. Schwientek; no one made threatening gestures; no one kicked or punched Mr. Schwientek while he was on the ground; no one pushed or struck Mr. Schwientek’s head into the floor; and no one said, “that’s what you get for not cooperating”. When asked if he saw anyone punch or kick Mr. Schwientek’s left rib, he responded that he was right there facing that direction and saw none of that activity.

[191] Mr. Bell had no concerns with how the restraint took place. As he put it, such situations occur almost daily and almost on every shift.

[192] Mr. Bell testified that if Mr. Schwientek sustained injuries, he was not injured maliciously. All he was aware of was that Mr. Schwientek received a bump on his head. He did not know how he injured his forehead and he saw no one push his head into the ground.

[193] As Mr. Bell put it, “no one went into the room to hurt Mr. Schwientek, if he claims his knee and ribs were injured in addition to the bump on his head, I know nothing about those injuries and if he was injured, I’m sorry for that”.

[194] Mr. Braddon noted at 19:48 that “all involved security cleared” and he remained on standby

[195] At 21:32 Mr. Braddon noted the restraints were off, and Mr. Schwientek was now cooperative and sleeping. As Mr. Braddon indicated, “we do not keep patients in restraints longer than we have to”.

[196] With respect to the restraint process, Mr. Vandyke testified that “we do this as a group on a fairly regular basis”. They approach quickly to reduce the risk to all. He noted that they move the bed to make an opening. They entered with their hands up and open and took Mr. Schwientek to the ground to make him less mobile. He indicated that the more people we have, the less force that each person needs to expend, which allows us overall to use less force. He went on to explain that they use at least four to restrain an uncooperative patient, but the more people, the better if someone is heavily fighting. While Mr. Vandyke acknowledged on cross-examination that there were quite a few people in a small, confined place, he was adamant that the situation could not be described as chaotic. He described the situation as quite orderly, with everyone having their place.

[197] Similarly, Mr. Abdallah noted that Mr. Schwientek was a “big guy” and having more officers involved in the restraint made it safer for all.

[198] Mr. Bell observed that a restraint occurs on almost every shift. He too did not consider the situation chaotic. As he put it, this is “my every day”, the number of people involved was the number of people they needed, and the incident went very smoothly.

[199] Mr. Braddon indicated that there is safety in numbers and, further, when they see several guards, patients are often deterred and calm down. Mr. Braddon believed that Mr. Schwientek was going to be assaultive. In such circumstances, the more guards, the safer it is for the patient and the guards.

[200] I am satisfied that despite ongoing efforts to de-escalate Mr. Schwientek, his behavior became increasingly alarming, which was the basis for Dr. dela Paz’ order to restrain as I will discuss more fully below. I am also satisfied that there was no antagonizing or threatening behavior and no intentional assaultive conduct by the security guards. More specifically I am satisfied that no guard ground his hands into his palm and made the statements that Mr. Schwientek asserted, which would have escalated the situation and could have been perceived as a threat, all of which would have been inappropriate according to Mr. Steve Summerville, an expert in the use of force in a hospital setting whose qualifications I will describe below. I am also satisfied that no guard smashed Mr. Schwientek’s head into the ground, kneeled on his right knee, or kicked his rib when he was lying on the ground, conduct which Mr. Summerville stated would be excessive and unnecessary.

[201] The evidence of Messrs. Vandyke, Abdallah, Braddon, and Bell was credible and reliable. I am satisfied that they did not collude amongst themselves and they did not “extend” their evidence beyond their independent recall and their notes in their duty books. This point is very clear from the fact that only Mr. Braddon testified, as he recorded in the incident report, that he observed Mr. Schwientek taking swings.

[202] Mr. Vandyke testified that he had no recollection of the swings reported by Mr. Braddon, though he recalled Mr. Schwientek and had made a note that Mr. Schwientek was in a fighting stance.

[203] Similarly, Mr. Bell was clear that Mr. Schwientek did not take a swing at him and he could not comment on what other persons observed.

[204] It was asserted on behalf of Mr. Schwientek that Mr. Braddon lied in his incident report to justify unnecessary actions in taking Mr. Schwientek “down to the floor” and injuring him. Plaintiff’s counsel submitted that it was Mr. Schwientek who was truthful in denying he took strikes, and his evidence was corroborated by the other security guards and Nurse Hughes, who did not see Mr. Schwientek strike out. As further support for Mr. Braddon’s lack of veracity, it was asserted that he minimized the extent of Mr. Schwientek’s forehead injury by describing it as a “small bump”. I cannot accept these assertions. Mr. Braddon was not a rogue guard seeking to justify his or his colleague’s aggressions. The guards had a duty to physically restrain Mr. Schwientek as ordered by Dr. dela Paz. There is no evidence that Mr. Schwientek’s head injury was wrongly described by Mr. Braddon. The medical record completed by Nurse Hughes, which provides the most important evidence on this point, is consistent with Mr. Braddon’s description as I will reference below.

[205] The evidence of Messrs. Vandyke, Abdallah, Braddon, and Bell describing their interactions with Mr. Schwientek was consistent with:

(a) their qualifications and character traits required for their hiring

[206] Mr. Jeffrey Langford was the coordinator of the security department. He supervised and hired security staff. He testified that when he hires security guards, he looks for applicants who are positive and pleasant, have a minimum two-year diploma in a police foundations program, have customer service experience, and have a demonstrated ability to handle emergency situations. New hires need to learn report writing, note taking, and practice operational skills.

[207] Each of the security guards met these qualifications and was licensed under the Private Security and Investigative Services Act (2005), S.O. 2005, c. 34 and its regulations.

[208] As Mr. Langford noted, the fact that LHSC has an “in-house” security program to provide care to the staff, patients, and visitors allows LHSC to “closely manage our team” and retain staff. Mr. Langford highlighted LHSC’s low turnover rate, which he said fosters trust among the team.

[209] On cross-examination, Mr. Langford reiterated that the security guards are “hand-picked”, “carefully groomed individuals”. If any of Mr. Schwientek’s allegations were true, such behaviour would be considered inappropriate. Mr. Langford indicated that such behaviour would be unprofessional and that, in his 19-year leadership role, he never had to address that kind of conduct.

(b) their orientation program and ongoing training

[210] Mr. Langford described an extensive orientation program for the security guards. Guards are instructed to be “professional, respectful, kind, and empathetic and to make good observations and uphold the values of our department”.

[211] Although the police foundation program includes education about the Mental Health Act, because that legislation is “a cornerstone” of work in the emergency department a significant portion of LHSC orientation and training is focused on that legislation and working with patients with mental health issues.

[212] The security guards all receive annual training, which includes de-escalation training and high-risk training. In 2014 LHSC used Threat Ready, a course taught by a London Police officer, for use of force training. The security guards completed this training September 22-25, 2014. As Mr. Langford described, the core elements of the training are de-escalation, how to communicate with someone in an escalated state, self-defence, and controlling and restraining techniques. Mr. Langford emphasized that, if force is required, a security officer ought to apply the least amount of force necessary. He also emphasized that officers avoid force at all costs and always de-escalate first.

(c) their role withing the mental health area at LHSC

[213] Along with 2 nurses assigned to the mental health area of the emergency department, 2 security guards are assigned to that area with 1 always in the hallway outside the 4 seclusion rooms.

[214] The guards spend more time with patients in this area and do all sorts of “customer-based service things” such as getting a sandwich or a drink for a patient or helping a patient to use the phone. Ms. Oliveira indicated the security guards are not intimidating; rather, they are a calm presence and they provide comfort to patients. Nonetheless, their primary role is to ensure the safety of security, staff, patients, and visitors.

[215] Mr. Vandyke indicated that there are unique benefits to being a hospital security guard: the pay package allows “good staff to be retained”. Mr. Vandyke commented that the longer a team works together, the better.

[216] Mr. Braddon described a close, information-sharing relationship with the medical staff. Mr. Bell stated that the medical staff and security officers work as a team. They communicate well and share the aim of assisting the individual that they are monitoring in the mental health area.

[217] Dr. Van Aarsen explained that in theory doctors top the hierarchy in the emergency department, followed by nurses and then security. But in practice, Dr. Van Aarsen explained, everyone functioned as a team, and they worked off each other’s suggestions. He was complimentary of the security personnel at Victoria Hospital campus; he has found them to be the most experienced in dealing with mental health patients.

[218] Dr. dela Paz similarly emphasized that patient care is a team effort at LHSC, and that the security guards are part of the care team.

[219] Nurse Hughes also described working closely with the security guards. Nurses communicate frequently with the guards with regards to the status of their patients.

(d) the LHSC policies they were obliged to follow, which included the following:

LHSC Use of Force policy

[220] This policy is consistent with the “bedrock” of the training curriculum: that force is to be used only as necessary.

[221] The first step in the use of force model is the guard’s presence in the environment, the second step is verbal de-escalation, the third step is holding/restraining, and the very end of the range is fatal force.

[222] Mr. Langford indicated that guards who did not follow this use of force policy were terminated. Security occurrence reports, duty books, and video are reviewed, and the hospital verifies that everyone acts within the confines of their role as a security guard. Audits are done regularly to ensure that there are no disturbing behaviours occurring.

LHSC Patient Standby Policy

[223] The Patient Standby Policy provides that hospital patient staff may require that a security guard watch a patient that is under certain conditions, one of which is being “formed under the Mental Health Act”. Guards serving in this role are to “maintain a visual contact with the patient that they have been assigned at all times”.

LHSC Environmental Restraints Policy

[224] This policy indicates that “an environmental restraint is completed by security when a guard lock a door as approved by a healthcare professional to ensure safety to the patient, other patients and workers”. When faced with an escalating patient, “we can engage a door lock after talking to the nurse or doctor and explaining concerning behaviours. A separate security report is expected if a door is locked”.

(e) what I saw on the video

[225] I saw no evidence of aggression or antagonistic behavior by the security guards.

[226] Different security guards were at the window. This effort to have a different person communicate with Mr. Schwientek is a de-escalation technique.

[227] There appeared to be ongoing communication between Mr. Schwientek and the guards just before the curtain on the window was pulled, which, as previously mentioned, is a de-escalation technique.

[228] Mr. Schwientek paces, covers the camera, wraps his hands, gestures, and gets behind the bed facing the door.

[229] Mr. Braddon is seen talking to Mr. Schwientek with guards behind him. Mr. Summerville described this as a “pregnant pause” at the door. Mr. Braddon keeps his hands at his sides and leans against the door. Mr. Schwientek in my view brandishes his wrapped hands at Mr. Braddon.

(v) Mr. Schwientek’s version of events does not accord with what an expert on the use of force in a hospital setting described as “concerning behavior” by Mr. Schwientek

[230] Mr. Somerville is an expert in the use of force in a hospital setting and, in the education, and training of security guards. He had 24 years of experience with the City of Toronto Police Department and 20 years of experience in training security guards in the health care industry in the use of force. Mr. Summerville described the following as “concerning behavior” by Mr. Schwientek that he observed in the video:

• While a security guard was at the window observing Mr. Schwientek, Mr. Schwientek gestured toward the security guard.
• What Mr. Schwientek did with the cloth caused him concern. In particular, the fact that Mr. Schwientek covered the camera was concerning because he did not know whether Mr. Schwientek was trying to disconnect or obstruct the camera. Being unable to observe a patient is extremely problematic in a hospital setting, particularly with a mental health patient. The security guards have a duty of care to protect this patient.
• When Mr. Schwientek stood behind the bed and positioned it in the direction of the doorway, the bed became a potential weapon.
• Wrapping a pillowcase around a closed right fist portrays an assaultive gesture. This threat posture was extremely serious. It would allow Mr. Schwientek to choke a person. It also created the means or ability to create serious bodily harm to a person entering the room.
• The communication between Mr. Schwientek and the guard through the door, by virtue of the body language, suggested there was some form of verbal communication. It was a threatening gesture by Mr. Schwientek at the window. He was brandishing his wrapped fist. Mr. Summerville stated that this indicated a change from a subjective to an objective threat circumstance.
• After more communication between the guards and Mr. Schwientek, Mr. Schwientek wrapped his hands, again indicating a threat or a danger for any clinician entering the room.
• Wrapping one’s hands is not an action taken by a person cooperating and wishing to be compliant.
• Mr. Schwientek came down from the bed and was at the door with a potential weapon in his hands i.e., the piece of fabric.
• Mr. Schwientek returned to stand behind the stretcher, an additional weapon of concern for those who must enter the room.
• The officer’s [Mr. Braddon’s] presence was being used to prevent an application of force. Many people would cooperate when seeing a uniformed officer enter the room. There was also a conversation initiated by Mr. Braddon. His body language with his hands down at his sides was non-confrontational. He did not point his finger and made no threatening gestures or cues. In contrast, Mr. Schwientek approached Mr. Braddon pointing and gesturing his wrapped hands in a threatening or warning gesture.
• In Mr. Summerville’s experience, Mr. Schwientek’s gestures were suggesting assertive responses. There was nothing defensive that he observed. Mr. Schwientek was not backing up. He would not describe Mr. Schwientek as afraid.
• The guards were not making provocative gestures or responding to the assaultive behaviours of Mr. Schwientek.

(vi) Mr. Schwientek’s version of events does not accord with Mr. Langford’s and Ms. Oliveira’s observations from the video

[231] When asked whether he saw any signs of escalation on the part of Mr. Schwientek, Mr. Langford responded that wrapping fabric around his fists or hands was threatening behaviour, suggesting that he was readying to strike with his hands protected. Those actions are considered “pre-assault indicators”. Seeing such behavior, Mr. Langford stated, would absolutely create concerns, as it indicated a potentially volatile situation without any certainties about what Mr. Schwientek would do.

[232] When asked what evidence of de-escalation he saw, he described the conversations through the window and Mr. Braddon’s conversation while leaning against the open door. Mr. Langford indicated that, to him, Mr. Braddon looked non-threatening, “kind of casual, he did not have his arms crossed, he was not gesturing, and he was trying to manage the situation verbally”.

[233] Considering what he saw and what was noted in the reports, on a spectrum of severity from 1 to 10, he considered this situation a 4 or a 5.

[234] When asked how he would describe what happened during the restraint process according to what he saw on the video, Mr. Langford indicated that he saw the guards entering, the stretcher being put to one side, the guards proceeding towards Mr. Schwientek, who was then in the back corner of the room, the guards putting their hands on Mr. Schwientek’s arms and directing him in a forward motion to the floor. He observed the guards around Mr. Schwientek and a struggle going on. He observed Mr. Schwientek being assisted to his feet and helped to the stretcher that had restraints on it.

[235] As the guards’ supervisor, Mr. Langford had no concerns with what he saw on the video. He saw no one strike or do harm to the patient. The restraint appeared well managed: a decision was made to enter, the entry happened quickly, the guards took control quickly, Mr. Schwientek was taken to the floor for a short time, and Mr. Schwientek was helped to the stretcher.

[236] Mr. Langford was clear that anything done intentionally to harm Mr. Schwientek would not be acceptable conduct. As he noted, officers are required to make a note in their duty book if they strike or punch someone and that requirement is followed, in his experience. There was no such evidence or reporting in the duty books of the officers involved in this incident.

[237] Mr. Langford did not see Mr. Schwientek punch a guard when he viewed the video but, in his view, if Mr. Braddon wrote that, then it happened. He had no reason to doubt Mr. Braddon, who had been a long-term employee and had maintained an impeccable work standard and behaviour.

[238] Mr. Langford had no concern with the number of guards restraining Mr. Schwientek—6 with 3 others standing by to assist if needed. Mr. Langford described it as a best-case scenario, with an officer for each limb, someone to help control the torso, and someone to control the head. “You try to have as much control as possible, so six guards for that purpose was what is taught. If only two or three guards had entered, there would have been a greater struggle”.

[239] Ms. Oliveira also had no concerns arising from her observation of the video or the number of security guards in the room.

[240] Ms. Oliveira testified that she saw in the video a very agitated patient getting on and off the stretcher and wrapping his fists. She testified that these behaviors would have been concerning to her if she had been on duty in the emergency department. The fact that he voiced suicidal ideation made him a risk to himself and to officers. She noted there was a history of violence and drug use.

[241] She indicated that security guards do not stand at the door and peer in the window and stare at a patient unless something draws them to do so, and she was certain that something would have prompted the guards in this instance to go to the window.

[242] She also indicated that the door to a patient’s room is locked when a patient is a risk to others or themselves. Patients are restrained because of their level of agitation and for their own safety.

[243] To her, Mr. Schwientek appeared hostile and frightening.

[244] She saw that the guard opened the door and leaned on it. The guard had his arms down in a casual and non-confrontational posture. Nevertheless, the patient remained agitated throughout the interaction.

[245] She emphasized that while security guards can restrain a patient without doctor’s orders, the physical restraint here was ordered by physicians.

[246] Ms. Oliveira testified that it is LHSC practice to have a clinical person standing by when a patient is restrained. Both Nurse Hughes and an ER technician were in the doorway throughout the restraint.

(vii) Mr. Schwientek’s version of events does not accord with the evidence of Dr. dela Paz and Nurse Hughes

[247] Dr. dela Paz had a vague recall of seeing Mr. Schwientek in the mental health room. She recalled standing in the doorway of his room, and she would do so because she had “some elevated concern” of his behaviour. She also recalled talking about his history of working in medical services and the fact that he did not want to be in the hospital.

[248] It is significant that Mr. Schwientek’s condition and behaviors prompted Dr. dela Paz to issue her orders. Dr. dela Paz testified that, according to the psychiatric assessment, there had been efforts to de-escalate Mr. Schwientek and that she, too, would have made efforts.

[249] She described the situation as being serious. She was concerned about the risk of harm to Mr. Schwientek and to others.

[250] Dr. dela Paz ordered restraints because the patient was escalating and was unsafe to himself or others. She thought it was appropriate that physical restraint be ordered so that the chemical restraint could be administered safely. It was not safe for a nurse to enter the room without Mr. Schwientek being restrained. She testified that she issued the chemical restraint order at 19:30 and the physical restraint order at 19:36 not only because of Mr. Schwientek’s positioning in relation to the bed, but also because of his demeanor, his other behaviours, the historical factors of risk and violence, and the fabric wrapping.

[251] Dr. dela Paz commented on the video during her testimony, noting that the security guards appeared to be trying to communicate with Mr. Schwientek.

[252] To her, Mr. Schwientek covering the camera indicated that he did not want his actions recorded, which was suggestive that unsafe behaviour would follow.

[253] She described Mr. Schwientek as presenting as fit and strong. To her, he looked aggressive when he was standing on the stretcher wrapping his hands and his posture looked threatening, hostile, and angry.

[254] Wrapping the fabric around his hands and covering his fists suggested to her that he was trying to protect his fists if he punched someone, or he was going to hold the fabric like a ligature. The fabric wrapping was “quite concerning” because it called his intentions into question.

[255] Dr. dela Paz testified that Mr. Schwientek appeared as though he could use the bed as a battering ram.

[256] She could not see what Mr. Schwientek was doing while the guards were restraining him, as he was not visible on the camera. To her, the fact that there were multiple security staff involved in restraining him reflected the level of the patient’s agitation and risk of violence.

[257] Nurse Hughes had no recollection of her conversation with Mr. Braddon that he noted in his incident report and she had no recollection of Mr. Schwientek’s behaviour while he was in the mental health room.

[258] When she observed Mr. Schwientek on the video moving the stretcher around the room and wrapping linen on his hands, it looked to her like he was preparing for a fight.

[259] Nurse Hughes found it concerning that Mr. Schwientek was covering the camera and would therefore be unsupervised. As she testified, cameras are there for safety reasons and he could be a risk to himself while a camera was covered. While it was possible that he wanted privacy, the camera was there for his safety.

[260] Seeing security at the door signified to her that the security guards were trying to verbally de-escalate Mr. Schwientek, something she indicated they regularly do. As she put it, the security guards always try to verbally de-escalate a patient. She was clear that de-escalation is always attempted.

[261] In observing the video, she thought Mr. Schwientek appeared very agitated: he was standing on the stretcher, moving the stretcher, wrapping linen on his hands, and going up to the door and pointing his fist. She stated that she would not feel comfortable going into his room.

[262] She never saw the security guards agitating or provoking Mr. Schwientek nor did she see any security guards hitting Mr. Schwientek

[263] According to her observations, the security guards walked calmly into the room, the “extras” stood aside to help if needed, and the stretcher was moved because it could have been a safety hazard. The actions of the security guards looked “very controlled”. They did not look like they “rushed” Mr. Schwientek.

[264] While she did not see Mr. Schwientek strike security guards, she indicated that if a patient is agitated and fighting back, there is a risk of injury.

[265] When Mr. Schwientek was taken to his feet it looked like he was calming down.

[266] Nurse Hughes disagreed with the proposition that nine security guards were an inappropriately high number. She had seen many restraint processes where that number were involved.

Conclusions with respect to what occurred October 2, 2014

[267] I am satisfied that the security guards interacted with Mr. Schwientek and physically restrained him as they described. They made repeated attempts at de-escalation. They did not verbally antagonize Mr. Schwientek or “inappropriately goad” him as his counsel asserted in argument. They did not threaten him. There was no intentional assaultive conduct by the security guards.

[268] I will turn next to the issue of whether it was necessary to restrain Mr. Schwientek with 5-point restraints and whether there was an excessive use of force, as asserted on behalf of Mr. Schwientek.

Was it necessary to restrain Mr. Schwientek in this manner? Was the appropriate use of force applied?

[269] Dr. Sharma suggested that given that Mr. Schwientek had been successfully de-escalated with conversation at 17:50 and 18:00, it would have been preferable to de-escalate him that way again. She testified that based on what she saw on the video, there was no evidence of Mr. Schwientek “being talked down” and she did not observe any attempts to de-escalate Mr. Schwientek prior to the physical restraint seen in the video. However, her point of view is diminished by the fact that it was based on the unsworn summary of what happened according to Mr. Schwientek, provided to her in 2019, and her review of the video. She acknowledged on cross-examination that she had not been provided with the transcripts of the examinations for discovery of the security guards or the hospital representative. She did not have the duty books of the security guards or the incident reports completed by the security guards. She acknowledged it would have been helpful to see these records. I note also that my observations of the video, set out above, differed from Dr. Sharma’s.

[270] Further, Dr. Sharma acknowledged on cross-examination that in her report she did not mention that Mr. Schwientek had wrapped his hands or pounded on the door. She said that that was because all these behaviours were very common and do not change what staff are required to do. While I agree that staff in all circumstances are obliged to fulfill their duties, the omission of these details in Mr. Schwientek’s behavior diminished her evidence on cross-examination that she would not agree that Mr. Schwientek looked threatening, provocative, and belligerent. It similarly diminished her evidence that she would not agree with the proposition that someone who comes forward to a group of guards is unafraid.

[271] Dr. Sharma also suggested that it would have been appropriate to have Mr. Schwientek chemically restrained without putting him in the five-point restraints. She indicated this would have taken less time and would have been safer for everyone. When asked on cross-examination if she would feel comfortable sending staff into Mr. Schwientek’s room to give him an injection based on his presentation seen in the video, she indicated “we do it all the time”. She testified that she or staff would enter the room accompanied by a security guard, and they would be in the room a shorter period and 5-point restraints were unnecessary.

[272] Dr. Sharma is not qualified to offer an opinion on use of force. She has expertise in emergency medicine involving a high percentage of psychiatric care, but she is not a use of force expert.

[273] Furthermore, what Dr. Sharma described is not a standard practice at LHSC and there is no evidence to suggest that it should be.

[274] As Ms. Olivera indicated, it was not standard practice to hold down a patient to be injected. There is always a risk with injections to everyone involved and it would be a very unsafe scenario to proceed in that way.

[275] Similarly, Nurse Hughes disagreed that the injection could have been given without the pinel restraints. She testified that it is not safe to administer medication without these restraints and to do so creates a risk to her, the guards, and the patient himself, as the medication could be injected improperly.

[276] Mr. Abdallah testified that a doctor or nurse could absolutely not have entered the room, given Mr. Schwientek’s behaviour. As he testified, the guards are trained to undertake that responsibility and they must do what they are asked to do. He went on to say it would not have been sufficient control to only have a couple of officers hold Mr. Schwientek while he was injected. As Mr. Abdallah indicated, it is very difficult to inject a flailing patient.

[277] Mr. Braddon similarly noted that Mr. Schwientek was strong enough and uncooperative enough that it would not have been safe for two guards to hold him. Mr. Braddon stated that it is unsafe to try to inject a patient who is thrashing around.

[278] As Mr. Vandyke indicated, at some point this patient required care and staff could not even entertain the thought of entering the room when he was behaving this way.

[279] Similarly, according to Mr. Bell, a doctor or a nurse absolutely would not enter a room with a patient in this state.

[280] Importantly, as she stated, Dr. Sharma could not comment on Mr. Summerville’s report because that was not within her scope of expertise.

[281] Mr. Summerville explained that security guards are subject to the provisions of the Criminal Code governing the use of force—specifically ss. 25, 26 and 34; security guards and police officers are trained to conduct themselves in accordance with the “Ontario Use of Force Model”; and, in Ontario, security guards are trained and held accountable to the same use of force model as police officers. Mr. Summerville indicated that use of force training includes teaching to strike, in soft tissue areas, to gain control without causing injury.

[282] He noted that all the defendants were licensed security guards and had obtained the required training. They are permitted to apply force as required and necessary pursuant to ss. 25, 26 and 34 of the Criminal Code and the Mental Health Act. In this case, the guards were ordered by physicians to restrain the patient pursuant to the Mental Health Act and the Patient Restraint Minimization Act, S.O. 2001, c.16. The guards had a duty to implement the instructions ordered. In other words, the guards did not restrain Mr. Schwientek based on their own assessments; they were duty bound to carry out the order given by the physician. Had they failed to act as directed, the patient could have harmed himself or exposed health care workers to threats or injury.

[283] In Mr. Summerville’s view, Mr. Schwientek was a large person who was making threatening gestures. In Mr. Summerville’s opinion, what he observed the officers doing on the video was reasonable and appropriate physical restraint that met both the legislative and hospital policy requirements.

[284] In fact, Mr. Summerville testified that it would have been open to the guards in this case to use more force; however, the least intrusive way of controlling Mr. Schwientek was employed.

[285] Mr. Summerville was clear that reasonable force can be used, and the person restrained can still be injured. He has seen injuries occur such as back strains, hurt arms, knee issues, and head injuries. In his opinion, injuries are usually the result of resistance and, as he put it, resistance unlocks the opportunity for injury.

[286] In Mr. Summerville’s opinion the defendants met the required standard of care. Their actions were consistent with the Mental Health Act, the Patient Restraint Minimization Act, the Private Security and Investigative Services Act and LHSC policies. Their actions were also consistent with the Ontario Use of Force Model. Their actions were necessary and reasonable, and the force used was not excessive.

[287] I accept Mr. Summerville’s opinion that the guards appropriately carried out the order to restrain Mr. Schwientek. He was well qualified to provide this opinion and it was based on a factual scenario consistent with my findings of fact.

[288] In forming his opinion, Mr. Summerville noted that when the guards entered Mr. Schwientek’s room their hands were by their sides consistent with de-escalation training. As Mr. Summerville put it, they were using their body language to calm Mr. Schwientek.

[289] He also noted what I referenced earlier—the “pregnant pause” with Mr. Braddon speaking with Mr. Schwientek in a non-confrontational way while other guards waited. Mr. Schwientek was given an opportunity to voluntarily comply. During this pause, the officers could assess or measure how Mr. Schwientek was going to respond.

[290] When it was clear that Mr. Schwientek was not going to co-operate, the guards proceeded into the room. Appropriately, the guards’ priority was to get the stretcher out of the way. Those officers not needed to control Mr. Schwientek prepared the stretcher. He found it appropriate to have officers standing by to help if needed and to prepare the stretcher.

[291] It appeared to Mr. Summerville that they had an operational plan: some guards went to the stretcher and some guards approached Mr. Schwientek; some went left, and some went right.

[292] He did not consider the circumstances that he observed on the video to be chaotic or out of control. Rather, he described the officers as calm and controlled with no anxiety or anger being revealed in their faces.

[293] The guard in front approaching Mr. Schwientek had his palms down for the purpose of holding or restraining.

[294] All their behaviours were consistent with obtaining control. In accordance with the defensive tactic requirement, Mr. Schwientek was grounded to maintain control.

[295] Mr. Summerville saw no blows and no body language consistent with blows or strikes; namely, there was no shift of the shoulders or hunching of the back. All he saw was behaviour consistent with a compression hold, that is, with pinning a person on the floor. He observed officers with their legs out behind them, dropping their body weight low. Their hands were down and not raised. He described the “proning out” of the guards. He saw no elevation, which would have been needed to administer a blow or a strike.

[296] He considered the number of personnel involved to be appropriate. The officers covered each zone of the patient: there was one guard each on the upper left, upper right, lower left, lower right, hip area, and head. Mr. Summerville testified that implementing restraint by six guards was consistent with ministry and police training, and that it was an effective way of controlling people without injury. The key to preventing injury was that there be no loss of control.

[297] When Mr. Schwientek is taken up off the floor, there are four officers who assist him to the bed, with two officers on each side. Three guards were on the other side of the bed and, according to Mr. Summerville, the restraints were safely and effectively applied.

[298] Mr. Summerville emphasized that the size of the room does not impact the number of security guards appropriate for a restraint.

[299] Control was not gained until Mr. Schwientek was on the stretcher and the restraints were applied.

[300] Mr. Schwientek received medical attention quickly.

[301] Although I have concluded that it was necessary to physically restrain Mr. Schwientek and the force used was reasonable and not excessive, there remains the issue of the whether the environment was safe and appropriate for Mr. Schwientek.

The appropriateness of the environment

[302] Mr. Schwientek testified that it was reasonable to be provided with a bed because he was exhausted, but he thinks it would have been safer for him to have been given a mattress on the floor. He indicated that that was the case for the most part in psychiatric wards that he had been in when he was a paramedic

[303] The appropriateness of the bed in mental health room 3 was also raised by Dr. Sharma. In Dr. Sharma’s opinion, seclusion rooms are to be designed to limit the ability of a patient to harm themselves or others. During her evidence in chief, she indicated that she had “a bit of a concern” that the bed in the room where Mr. Schwientek was placed was moveable. She suggested that the bed could have been removed, leaving just the mattress on the floor. She described that as a “better scenario”.

[304] She acknowledged she was not qualified in room design, but her knowledge comes from working in an emergency department and other facilities that she has worked in. She indicated that in the hospital she now works in, the beds in the seclusion room are bolted to the floor and the camera is not near the bed.

[305] She also suggested that a reasonable alternative to a fixed bed is a mattress on the floor. When it was suggested to Dr. Sharma that restraint of Mr. Schwientek would have been more difficult in such circumstances, as the restraints were attached to the bed, she indicated that would go back to her point that physical restraint was unnecessary in this case.

[306] In her opinion, it made no sense to put Mr. Schwientek in a room with a bed that created a foreseeable risk of danger. She indicated he could have harmed himself if he had fallen off the bed. If the bed was not in the room, that risk of harm would not exist.

[307] I am not inclined to accept Dr. Sharma’s opinion that the moveable bed—a restraint stretcher—created an unacceptable risk of harm that rendered mental health room 3 unsafe. While she has expertise in emergency medicine, she acknowledged she has no expertise in relation to room design. In addition, I agree with defendants’ counsel that her opinion was underwhelming on this issue. Furthermore, the evidence of Dr. Van Aarsen, Dr. dela Paz, Nurse Hughes, and Ms. Oliveira supports my conclusion in relation to Dr. Sharma’s opinion.

[308] Drs. Van Aarsen and dela Paz had no concern with Mr. Schwientek being on a restraint stretcher in the mental health room. Both stressed that restraint stretchers enable rapid transport of patients requiring emergency care. Dr Van Aarsen noted the comfort a bed provides and explained that it is very rare for a bed to be removed from a room; beds are only removed when patients are in a severely aggressive or violent condition. Dr. Van Aarsen opined that the benefit of having a restraint stretcher for comfort and transport outweighed any risk that the bed presented. Dr. dela Paz did not know of any rooms with an immoveable bed and in her opinion, it would be inhumane to only provide a mattress on the floor.

[309] Nurse Hughes did not believe there was any danger arising from the fact that the bed was moveable and indicated that all mental health rooms where she has worked have contained moveable beds. To her knowledge, beds have not been removed from rooms and replaced by mattresses on the floor.

[310] Ms. Oliveira testified that all the emergency department rooms are equipped with moveable stretchers so that care can be responsive to changing conditions. She explained that they need to move patients quickly if treatment is required. Moveable stretchers aid in such circumstances: the head of the bed can be moved up and down, the bed can be moved up and down and there are side rails. She considered the option of a mattress on the floor dehumanizing.

[311] With respect to the suggestion that the only risk to Mr. Schwientek was the bed itself, she responded that there was a greater risk if his condition had changed, and he could not be moved safely to a treatment area.

[312] She noted an immoveable bed had been considered for a geriatric mental health room, but that plan was rejected as the benefits did not outweigh the risks.

[313] She described all the risk assessments undertaken by LHSC on a weekly, monthly, and yearly basis and indicated that if staff had identified a moveable bed as an issue, the situation would have been dealt with. She stated that the use of moveable stretchers had never been raised as a safety issue and that type of bed continues to be used in the emergency department.

[314] She reiterated that transitioning a patient from a stationary bed to a stretcher when the patient is struggling, or their condition is deteriorating is not appropriate care, treatment would be delayed and there would be an increased risk of injury to the patient and the staff.

[315] On cross-examination, she was asked about keeping a hospital stretcher outside the room and transferring a patient to that stretcher if need be. Ms. Oliveira indicated that scenario was not practical, as there is not enough space to store stretchers outside of the mental health rooms.

[316] I also note that, as Ms. Oliveira pointed out, with only a mattress on the floor there is no ability to restrain a patient. The security guards also commented on the potential difficulties with such a situation.

[317] Messrs. Vandyke, Abdallah, Braddon, and Bell were unanimous in their agreement that the restraint stretcher was a helpful restraint mechanism that promoted safety. In the absence of a stretcher with restraints, they would have to apply handcuffs, which they called a very last resort. Handcuffs can cause injury to the restrained person’s wrist. Furthermore, they all testified that patients ought to have a bed and a mental health patient deserves better than a mattress on the floor. They considered a bed a basic right.

[318] Mr. Summerville also stated that the bed was necessary for restraint. In this case, Mr. Schwientek was only under control when restrained to the bed. Mr. Summerville reiterated on cross-examination that restraints cannot be applied without the stretcher and removing a bed out does not eliminate or minimize risk.

[319] I cannot find the LHSC policy in relation to the furnishings and design of mental health room 3 was inappropriate or in any way unsafe. There is no evidence to suggest a moveable restraint stretcher in a mental health room is contrary to any standard.

[320] I note that during argument, plaintiff’s counsel referred to a document created by The Patient Safety Education Program – Canada which suggested that a seclusion room should not contain furniture that could be moved. This document was entitled “Module 13d: Mental Health Care: Seclusion and Restraint: When All Else Fails”. I agree with the submission of counsel for the defendants that there is no evidence to establish the significance of either this organization or this document.

[321] Furthermore, there is no connection between Mr. Schwientek’s injuries and the bed. In other words, the bed did not cause any injuries.

[322] Dr. Sharma also questioned why a mental health room would allow a patient to leave that room. She indicated that most seclusion rooms are locked, the doors are not monitored, and cameras are used for observation. According to Dr. Sharma, if the form 1 was valid, then the environmental seclusion should have been full, not halfway: Mr. Schwientek should have been locked in the room alone, so a guard outside the door was not required.

[323] According to Dr. dela Paz, however, it was necessary to order the chemical and physical restraints even though Mr. Schwientek was in a room by himself because at some point in time the door would have to be opened. Patients who are alone and agitated can become aggressive when the door opens or can sustain injury while alone. As Dr. dela Paz explained, just because a person is alone does not mean there is no risk of harm.

[324] Ms. Olivera indicated that patients do not come to the hospital to be locked up, that Mr. Schwientek’s level of agitation was not comfortable, and the hospital has an obligation to provide treatment to people, particularly those in crisis. She emphasized that patient care does not involve putting a person in a locked room and keeping them there. When it was suggested that it wasn’t a significant harm to leave him in a locked room, she indicated that doing so would extend his agitation and that he could hurt himself in a locked room.

[325] Nurse Hughes indicated that normally doors to these rooms are unlocked while the patient is calm. She disagreed with the suggestion that Mr. Schwientek could have been left alone in the locked room.

[326] On cross-examination, Mr. Vandyke disagreed with the suggestion that leaving Mr. Schwientek alone in the locked room posed no risk. The option of leaving Mr. Schwientek alone in the room had been exhausted according to Mr. Braddon because he was not settling down. As Mr. Bell put it, the door would eventually need to be opened for Mr. Schwientek to receive care and it was not safe for the door to be opened for that purpose or even for him to be allowed out of the room to use the washroom.

[327] I cannot find there was anything inappropriate in delaying the door lock of Mr. Schwientek’s room until it was found necessary to lock the door as reported at 18:49.

[328] I will deal next with the alleged breach of the Health Care Consent Act.

Was Mr. Schwientek’s blood taken without his consent?

[329] At 20:10 Nurse Hughes collected Mr. Schwientek’s blood according to the toxicology report.

[330] Dr. dela Paz confirmed that there was no imminent risk of harm if Mr. Schwientek’s bloodwork was not taken at that time. Mr. Schwientek had the right to refuse to give blood.

[331] Mr. Schwientek did not remember the bloodwork being taken. He stated he would never have given his consent to have bloodwork taken. He denied being asked to consent and testified that if he had been asked to consent, he was not in shape to give informed consent and “all day long he had been saying no”.

[332] Nurse Hughes testified that her practice is to note when a procedure is refused or when a procedure is done after it was consented to. She followed that procedure in relation to Mr. Schwientek. On cross-examination Nurse Hughes was challenged on the fact that she does not specifically write when a patient consents to a procedure. She was insistent that she would have had a conversation with Mr. Schwientek and obtained his consent. She disagreed that she needed to note that consent was given for the blood to be taken.

[333] Nurse Hughes noted on the graphic record that Mr. Schwientek refused to give vital signs at 19:45.

[334] At 20:10 she noted on the graphic record details of his vital signs. She explained that she would enter with portable equipment—the temperature probe, the blood pressure cuff, and the finger probe for an oxygen reading—and that it is “nearly impossible” to obtain vital signs if the patient is not keeping still. She indicated that if the patient was not cooperating, she would note that vital signs were refused.

[335] At 20:15 Nurse Hughes charted on the clinical progress record that Mr. Schwientek was “calm/cooperative”, and she was able to obtain vital signs and bloodwork. She indicated she would have explained that the bloodwork had been ordered and if the patient had refused to allow bloodwork, she would not have proceeded. To do so in such circumstances would put herself and the patient in danger.

[336] Nurse Hughes was adamant that she would never take someone’s blood without their consent. If bloodwork was refused by a patient, she would note that.

[337] On cross-examination denied the suggestion that she assumed that he was consenting because he was calm.

[338] She further charted at 20:15 that the patient was agreeable to one hand being released from the restraint to have a drink of water. She noted that it would have been explained to him that if he continued to stay calm, they could take off other restraints. As earlier set out, she also noted at 20:15 that he was “++ concerned re his wound” on his forehead.

[339] On the restraint flowsheet at 20:15 it was noted that the patient was oriented and cooperative, and his right wrist was released. The other restraints remained.

[340] At 20:25 she noted that an ECG was done. She indicated that procedure also cannot be done if a patient is not cooperative, as the patient must remain still. Again, if that procedure was refused, she would have noted that.

[341] At 21:30 she noted that the patient was calm and cooperative with security. The restraints were discontinued.

[342] On cross-examination, Nurse Hughes acknowledged that it was possible that Mr. Schwientek had a better recall of events than she did, given that the events were more personal and traumatic to him. However, she was clear that she trusted her charting and she did not chart a refusal. She reiterated that she would never take bloodwork from a patient who refused it, whether they were in restraints or not. The only time she has seen blood taken without a patient’s consent is if the patient is unconscious because of trauma or resuscitation.

[343] Ms. Oliveira was similarly adamant that no nurse would take blood from an uncooperative or refusing patient and to do so would be illegal and immoral. She indicated that, from the hospital’s perspective, there was no expectation that a chart would note consent. When Nurse Hughes documented what she did, that was an indication that the patient had consented.

[344] I accept the evidence of Nurse Hughes, which is supported by appropriate nursing notes and charting. She was not at all defensive and was a very straightforward witness.

[345] As Ms. Oliveira observed, Nurse Hughes was able to obtain Mr. Schwientek’s vitals five minutes before the bloodwork was taken. She noted, as Nurse Hughes did, that you cannot obtain vital signs from an uncooperative patient. This supports Nurse Hughes’s contention that Mr. Schwientek was cooperative with respect to the bloodwork.

[346] Ms. Oliveira also noted that Mr. Schwientek could verbalize that he wanted a drink so he could also verbalize that he was refusing the blood work if he wished to refuse.

[347] I conclude my discussion of this issue by noting that the medication given to Mr. Schwientek by injection was administered to enable him to be calm and to reduce his agitation. There is no evidence that this medication rendered Mr. Schwientek incapable of giving consent.

Conclusions on the liability of the defendants

[348] I have concluded that the plaintiff’s claims against the defendants must be dismissed.

[349] Nevertheless, I will proceed to a determination of the injuries caused by the restraint and an assessment of damages.

What injuries were caused in the physical restraint of Mr. Schwientek?

[350] There are some unusual aspects in the evidentiary record in relation to this issue. Mr. Schwientek asserted that he had bruises and abrasions all over his body. He said he’d looked like he had been in a fight with Mike Tyson. He also testified that he was complaining of pain after the restraint.

[351] However, the only injury observed by Nurse Hughes and the security guards was the forehead laceration. Regardless of its size, it did not require any medical treatment other than the bandage that Nurse Hughes is seen applying in the video.

[352] Also, this is the only injury of which there is any record. Nurse Hughes noted Mr. Schwientek was concerned about this wound. I am satisfied that, had he complained of any other injury—to his ribs or his knee, for example—or if he had complained of any pain symptoms, Nurse Hughes would have recorded those complaints.

[353] There is also no note of any injury in the discharge summary.

[354] Further, on discharge, Mr. Schwientek made no complaint about mistreatment. When asked about this, he indicated that he did not want to interact with security. He insisted that he complained about his injuries to medical people, but he did not know to whom. However, the clinical progress record at 14:15 on October 3, 2014, which noted that Mr. Schwientek was discharged home, included a note that Mr. Schwientek had made a “complaint with security dispatch re: some missing valuables not found in locker”.

[355] In addition, he did not seek any medical attention in relation to his injuries until he saw Dr. Cunningham on November 13, 2014 (although I note his appointment was booked October 27^th). At that time, Dr. Cunningham noted that Mr. Schwientek had retained counsel and was “told by his lawyer to come in and get a physio req.”

[356] He reported to Dr. Cunningham that on October 2 he was formed. Dr. Cunningham noted that according to Mr. Schwientek, “they wanted to take his blood, and security got involved. One security guard was very aggressive verbally to Vince [Mr. Schwientek] and spent time outside the door when he was in the special room. This guy came in and told Vince that he had to give blood, did not have a choice because he was formed…. he and Vince had words through the window in the door…then suddenly 11 security guards came in wearing latex gloves, all except for the guy who had been telling Vince he had no choice about this. That fellow came in the room with ‘boxing gloves’ so it looked to Vince that he was coming in prepared to flight.…He says that he was not doing anything except being mouthy. They came in and surrounded him. He felt swarmed. He was taken down fast. There were a lot of punches and knees involved. Someone smashed his head on the ground, and he had a laceration and he started to bleed….”.

[357] I note parenthetically that the security guards wore latex gloves, but no one is seen in the video wearing boxing gloves.

[358] Dr. Cunningham also noted that although Mr. Schwientek had indicated that “the psychiatrist had documented his injuries”, there was “nothing in the discharge note [which had been copied to her] at all about physical altercation and injuries”.

[359] At this first visit, Mr. Schwientek reported his right knee was “painful when he walks” and his ribs were painful. They were both tender on examination. There were no objective findings related to the knee and no pain medicine was prescribed.

[360] His right knee and ribs were x-rayed November 17, 2014. In relation to his right knee, there were no remarkable findings: soft tissues were normal, there were no fractures, no significant degenerative changes, etc. The rib x-ray revealed “subtle fracture, 5^th rib laterally and possibly another fracture poorly visualized, 6^th rib”.

[361] He was seen again by Dr. Cunningham on December 9, 2014. His right knee was bruised and was “still bothering him” and was “still bruised medially”. By this point Mr. Schwientek had also had a bone scan, which “showed new fracture L ribs 5^th and 6^th ribs. Lots of deg. changes in multiple joints, knees, shoulders, back”.

[362] Mr. Schwientek attended physiotherapy from December 11 to January 5, 2015. He was discharged form physiotherapy February 2, 2015, noting that his pain had decreased and there had been improvement.

[363] He was next seen by Dr. Cunningham January 5, 2016. He reported right knee pain since the incident. His next physiotherapy appointment was January 21, 2016. He had eight sessions of physio between January and March 2016. In the discharge report it was noted that his pain was gone.

[364] The right knee was x-rayed again January 7, 2016.

[365] An MRI of the right knee on February 20, 2016 revealed a “small horizontal tear in the body of the lateral meniscus”.

[366] The issue of whether the rib and knee injury Mr. Schwientek complained of to Dr. Cunningham on November 13, 2014 and identified November 17, 2014 and February 20, 2016 were caused by some altercation or incident other than what occurred October 2, 2014 was pursued by the defendants on their cross examination of Mr. Schwientek.

[367] Mr. Schwientek had no recollection of what he did from October 2 to November 13, 2014.

[368] The defendants also queried whether Mr. Schwientek had a prior right knee problem.

[369] While Mr. Schwientek insisted that he had never complained of his right knee before the October 2, 2014 incident, the records included a report of a CT scan of both knees on April 16, 2009 and a clinical history of “left and right knee pain”. The reported impression related only to the left side: “mild degenerative changes femorotibial joint with small intra-articular loose body on the left side”.

[370] Dr. Julian Mathoo, an expert in physiatry and rheumatology retained by the defendants, undertook a file review. Dr. Mathoo stated that the clinical notes did not evidence any knee problems prior to the incident, but the fact that there was a CT scan done of both knees in 2009 suggested that there had been some indication for such investigation. Dr. Mathoo noted that the most common reason for a CT scan is pain, but sometimes it is done because of swelling, redness, tenderness, or instability.

[371] The defendants also noted that the record revealed that Mr. Schwientek had prior rib fractures and plantar fasciitis.

[372] Another unusual aspect of the evidence was in relation to the right knee injury. Dr. Mathoo described the meniscus as the shock absorbers to the knee. He indicated that a cause of a meniscus tear is a twisting injury while the leg is planted on the ground. It can occur when the upper body is twisted while the knee is bearing weight. Kneeling on the back of the knee is not a risk for meniscus injury and thus in his opinion Mr. Schwientek’s knee could not have been injured as he described.

[373] Dr. Newell, who assessed Mr. Schwientek on April 9, 2019 as an expert in physical medicine and rehabilitation retained by plaintiff’s counsel, acknowledged that meniscus tears usually stem from twisting while feet are on the ground.

[374] In any event, as I have found, no security guard kneeled on the back of Mr. Schwientek’s right knee as he described.

[375] It is also strange that when Mr. Schwientek saw Dr. Cunningham in September 2020, he reported pain at that time on the outside of the knee rather than the inside. Dr. Newell acknowledged that four years after the incident, the pain appeared to have shifted dramatically from the inside of the knee to the outside.

[376] Dr. Mathoo testified that there was no history of an intervening incident to explain what is seen on the MRI of the right knee. While it was extremely unlikely that the knee injury would be caused as Mr. Schwientek described, anything is possible. Dr. Mathoo suggested that Mr. Schwientek may have twisted his knee on the way down to the ground. Similarly, Dr. Newell noted there is no way of determining what was happening as Mr. Schwientek was going down to the ground; he could have twisted during that intervention. She believed that more than likely the tear of the lateral meniscus occurred during the October 2, 2014 incident.

[377] On a balance of probabilities, I am prepared to find that in addition to the injury to his forehead, Mr. Schwientek sustained an injury to his right knee and fractures of his left ribs caused by the physical restraint on October 2, 2014. There is no evidence that he was involved in any other physical altercation where he sustained these injuries. As Dr. Mathoo noted there is no event noted in the medical records to explain the meniscus injury. Further, as Mr. Langford, the security guards, and Mr. Summerville all acknowledged, injuries can occur during a restraint when a patient is resisting.

[378] There is no issue that Mr. Schwientek’s forehead injury healed without scarring, his back pain was not aggravated for any significant length of time and his rib fractures have spontaneously healed with no significant consequences. Planter fasciitis, which he testified was secondary to his knee injury, has fully resolved.

[379] However, he testified that his knee from time to time is a problem and walking upstairs is difficult. He has some limitations with mobility because of his knee: he cannot kneel to garden, he cannot cross-country ski because the knee does not feel strong enough, and he does not cycle as frequently as he used to.

[380] The extent and consequences of his knee injury were in issue at trial.

[381] Mr. Schwientek saw Dr. Cunningham with respect to his knee complaints for the fourth time in March 2016. Fluid in the knee was noted and pain was in a different area.

[382] His fifth visit with respect to the knee was September 14, 2020.

[383] Overall, Mr. Schwientek saw Dr. Cunningham five times for his knee and only once in the four years preceding the trial. The defence queried the significance of his knee injury considering the limited and sporadic treatment he received for this injury.

[384] Further, when Dr. Emilie Newell assessed Mr. Schwientek on April 9, 2019, she noted that his back was his main problem.

[385] However, she also noted that he reported that his left knee was painful at the time; a mild to moderate pain, and functionally he felt insecure when standing on his right leg. She noted that he was careful when going up and down stairs and that standing for 45 minutes aggravated his pain, as did prolonged walking, and he found it difficult to be engaged in activities requiring him to bend his right knee. He was unable to cycle.

[386] Dr. Newell’s physical examination of Mr. Schwientek revealed the following in relation to his right knee:

• he had full range of motion.
• he had tenderness on the inside of his right knee.
• he had swelling on top of his kneecap.
• he had a positive MacMurray’s test (which indicated the injury was coming from the meniscus).
• he could squat fully.
• he could perform a single leg stance on his right leg for 10 seconds but was insecure.
• he was unable to hop in place at all with his right leg and felt insecure.
• he had a normal gait; and
• the circumference of his right thigh was larger than the left and as she noted “this came as a surprise to me as his right knee was the one giving him trouble” and she would expect a loss of muscle in the leg that is causing difficulty.

[387] She acknowledged his physical examination was all normal except for his inability to hop, the fact he had fluid under his kneecap, and that he was unstable.

[388] Dr. Newell found it more than likely that Mr. Schwientek had osteoarthritis in his knee before the incident. Dr. Mathoo agreed on this point.

[389] In Dr. Newell’s opinion, Mr. Schwientek has reached maximum medical recovery and she considered the knee injury permanent based on the 2016 MRI.

[390] She opined that his ability to kneel, crawl, negotiate stairs and ladders, walk over regular terrain, jump, and sustain prolonged/repetitive knee flexion was impaired because of the incident and that these injuries are permanent.

[391] She recommended a physiotherapy assessment to ensure he is doing his exercises properly, to assess his footwear, and to assess him for a possible knee brace.

[392] Dr. Mathoo did not recommend further physiotherapy because, as he noted, Mr. Schwientek already has achieved the optimal outcomes that one would hope for following physiotherapy and has maintained strength as identified by the muscle bulk of his leg.

[393] Dr. Mathoo noted that, while Mr. Schwientek reported pain and tenderness, there was full range of motion, normal stability, normal strength, and normal gait pattern. To Dr. Mathoo, this suggested no residual functional impairment of the knee as the extent of an impairment is assessed by assessing the range of motion, stability, and gait.

[394] He would not expect kneeling to be limited because of this meniscus tear. As he explained, there is no compression on the meniscus through kneeling.

[395] He noted that Mr. Schwientek would have persistent limitations commensurate with his pre-existing back injury—that is, limitations with heavy pushing/pulling, heavy lifting, and standing.

[396] With respect to whether the tear has healed, Dr. Newell indicated that the answer to that question required another MRI, but it is more than possible the tear is still there. If the tear stays the same, it is an area of trouble for the foreseeable future. As she noted, Mr. Schwientek has never been referred to a specialist for the knee and there is no way of determining the extent of the healing of the tear without imaging.

[397] Dr. Mathoo explained that lateral meniscus tears have a favourable prognosis for healing on their own. The size of the tear matters, and it was important in this case that the tear was noted as small. The location of the tear matters because an adequate blood supply assists the healing. A small lateral meniscus tear has a prognosis for healing. The prognosis for tears is improvement, not deterioration.

[398] On this evidentiary record, I am prepared to accept Dr. Newell’s opinion with respect to functional limitations and their permanence.

The assessment of damages

[399] I have found no conduct on the part of the defendants which would justify an award of punitive damages in favour of Mr. Schwientek.

[400] With respect to special damages, there was no issue with the claimed $1,200 for physiotherapy expenses.

[401] It was agreed that OHIP’s subrogated claim should not include the charges for care on October 2and 3, 2014.

[402] In assessing nonpecuniary general damages, I agree with the submission of counsel for the defendants that Mr. Schwientek’s pre incident history is more significant than the injuries he suffered on October 2, 2014, As described, he faces the challenge of overcoming alcohol and drug addictions. He has a chronic serious back injury. He has mental health issues.

[403] The defendants assess general damages in the range of $21-$28,000. As previously noted, the plaintiff suggests the appropriate assessment is $100,000.

[404] I note that the forehead injury was of a de minimis nature, the rib fractures caused discomfort for a short period of time, the knee injury is painful but not so much so that Mr. Schwientek sought extensive treatment, and the knee is not limiting him from employment. He has functional limitations because of his chronic back problems as outlined by Dr. Mathoo and confirmed by his work disability. There is no reasonable expectation that knee surgery is required in relation to his injury. Both experts agree that he had pre-existing osteoarthritis. However, he has permanent limitations described by Dr. Newell which impact recreational activity, use of stairs, prolonged walking and standing.

[405] I find that the appropriate award of non-pecuniary general damages is $60,000.

[406] The plaintiff claimed significant damages for future care based on the evidence of Mr. Anthony Ruddick, an expert in life care planning and occupational therapy.

[407] Certain of Mr. Ruddick’s recommendations were difficult to justify on the facts of this case. For example, the cost to move the laundry facilities in the home of Mr. Schwientek’s former spouse from the basement level to the bedroom level because using stairs was difficult for Mr. Schwientek cannot be justified. Quite apart from the question of how Mr. Ruddick costed this item, I would not allow this proposed expense as Mr. Schwientek’s former wife was not interviewed by Mr. Ruddick, nor did she testify, and there is no indication of how often Mr. Schwientek does laundry in her home.

[408] Also, while Mr. Schwientek may benefit from participation in another residential treatment program, there is no evidence to support Mr. Ruddick’s contention that Mr. Schwientek’s PTSD symptoms were aggravated by the restraint on October 2, 2014 and that the defendants should therefore pay for a 56-day program outside of London because Mr. Schwientek “does not have as much faith in the system here”. Similarly, there is no evidence to justify a claim for individual psychological counselling as proposed by Mr. Ruddick.

[409] I note also that Dr. Newell only recommended a physiotherapy assessment for the limited purpose she indicated. Therefore, I would not consider including ongoing physiotherapy and kinesiology over the next two years as part of a future care cost award. As Dr. Mathoo noted, Mr. Schwientek has achieved optimal outcomes. Furthermore, as Dr. Mathoo opined, rehabilitation years after an injury is not indicated for pain management. With this evidence, I make no award for future physiotherapy expenses. Similarly, there is not a sufficient evidentiary foundation to support the claim for a knee brace, ice packs, a gym membership for pool access, orthotics, or a perching stool.

[410] Mr. Schwientek made a significant claim in relation to lawn care, snow removal, and handyman services notwithstanding the fact that his personal residence is an apartment with an elevator. His claim was based on Mr. Ruddick’s opinion with respect to the cost to replace a level of assistance that “reflects size of home and pre-incident abilities” and was based on Mr. Schwientek’s statement that he would assist his former spouse with these services if he could. What services Mr. Schwientek was able to provide to his spouse before October 2, 2014 and with what frequency is unclear. There is insufficient evidence to justify an award of the magnitude claimed.

[411] I accept that a limitation on kneeling, crawling, using ladders, and sustained prolonged/repetitive knee flexion justifies an award for future housekeeping needs and am prepared to make an award as claimed in the amount of $19,188.

Conclusion

[412] For the foregoing reasons, the action is dismissed.

[413] The defendants are presumptively entitled to costs. I urge counsel to resolve that issue, but if necessary, they may make brief written submissions within 60 days.

“Justice L.C. Leitch”

Justice L.C. Leitch

Released: September 3, 2021