COURT FILE NO.: 49133/07 DATE: 26/01/2023 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Paul Bruno, Martha Bruno, Mary Catherine Bruno, Paul John Bruno and Jake Bruno Plaintiffs – and – Joshua Dacosta, Guy Gibson, Daniel Ashaanden, Terry Empey, Her Majesty the Queen in the Right of Ontario represented by The Ministry of Community Safety and Correctional Services, The Niagara Detention Centre, Wendy Southall as the Chief of Police of the Niagara Regional Police Service, Police Officers Jane Doe and John Doe, The Niagara Regional Police Services Board, The Corporation of the Regional Municipality of Niagara and William Shilson Defendants
COUNSEL: T. Gleason and B. Hughes, agents for the lawyers for the plaintiffs I. MacLeod, for His Majesty the King in Right of Ontario
HEARD: January 17, 2023
REASONS FOR JUDGMENT on motion to amend
The Honourable Justice R. J. HARPER
Issue
[1] Should the Plaintiff be granted leave to amend the Statement of Claim approximately 15 years after the issuing of the original Statement of Claim? The remaining issue, at this stage of this lengthy litigation, is between Bruno and the only remaining defendant, His Majesty the King in the Right of Ontario represented by The Ministry of Community Safety and Correctional Services (“Ontario”).
Background
[2] The Plaintiff, Paul Bruno (“Bruno”), was an inmate at the Niagara Detention Centre (“NDC”). He was assaulted by one or more other inmates on August 25, 2006.
[3] It is asserted by the Plaintiffs that Ontario placed Bruno in a “protective custody” unit of the NDC that is referred to as 3-Wing. Bruno was assaulted by more than one of the inmates that had been placed in that same 3-Wing.
[4] The assault took place in a washroom on 3-Wing. Bruno sustained serious injuries that resulted in him being hospitalized for approximately eight months.
[5] Bruno issued a Statement of Claim on June 7, 2007. In that claim he asserted that Ontario was negligent directly or through its servants, agents, or employees:
a.) Ontario saw a foreseeable risk by incarcerating Bruno with other inmates given that he is the son of a former police officer, but failed to take necessary precautions to avoid harm to him;
b.) Ontario did not provide proper care and supervision to Bruno;
c.) Ontario failed to place Bruno in protective custody or assign guards to protect him; and
d.) Ontario failed to adequately supervise inmates.
[6] From 2009 through 2011, the parties went through the process of production, examinations for discovery, and undertakings given pursuant to the examinations.
[7] The Plaintiffs passed their Trial Record in 2011. However, the claim was administratively struck for delay. It was subsequently restored to the trial list on motion by the Plaintiffs.
[8] On August 18, 2015, the Plaintiffs served Ontario with an expert report of Professor Michael Weinrath with respect to the issue of liability.
[9] Professor Weinrath’s report expressed opinions, among other things, relative to Ontario failing to comply with the proper standards and procedures as follows:
a. Placing of predatory inmates with Bruno, a vulnerable inmate.
b. Failing to gather sufficient information about the compatibility of inmates in protective custody.
[10] Ontario served Bruno with the expert report of Professor Ralph Serin. This report responded to Professor Weinrath’s report. The Serin report is dated March 10, 2017. There was a further exchange of a reply report of Professor Weinrath in 2017.
[11] Justice Sweeney presided over a 9-day trial in March and April of 2018 on the issue of liability. The issue of damages had been settled pending the result of the liability trial.
[12] At the trial before Justice Sweeney, Ontario objected, for the first time, to the admissibility of the expert testimony of Professor Weinrath. Ontario asserted that Professor Weinrath expressed opinions in his report on issues that were not pleaded. Justice Sweeney ruled that the Plaintiffs’ expert could testify and express the opinions that were set out in his report. Justice Sweeney found that there were no surprises and therefore no prejudice to Ontario. The Defence responded to the Plaintiffs’ expert report, and that response was replied to.
[13] After the trial, Sweeney J. decided that the Defendants were liable for 85 percent of the damages and that Bruno was responsible for 15 percent of the damages.
[14] Both parties appealed the order of Sweeney J. to the Court of Appeal of Ontario.
[15] The Ontario Court of Appeal (“OCA”) granted the Defendants appeal on September 23, 2020. The OCA ruled that the trial judge failed to give sufficient reasons to allow for appellate review. The OCA sent the matter back to the Superior Court for a new trial before a different judge. That trial has not yet been scheduled.
[16] Both parties appealed the OCA decision to the Supreme Court of Canada. However, leave was not granted to hear the appeal.
[17] It should be noted that, in their decision, the OCA did not comment on Sweeney J.’s ruling that allowed for Bruno’s expert to testify as there were no surprises and no prejudice toward Ontario.
Bruno’s Position
[18] Bruno brings this motion to amend the Statement of Claim to plead particulars related to Professor Weinrath’s reports of 2015 and his reply report of 2017. These amendments include pleadings stating that Ontario fell below the standard of care by placing predatory inmates with Bruno. In Bruno’s submission, there would be no prejudice to Ontario as all the amended claims were engaged by the Defendants through their own expert witness.
[19] Bruno further submits that the amendments would bring clarity to the issue and avoid any further motion at the new trial respecting the admissibility of the Plaintiffs’ expert testimony.
Ontario’s Position
[20] Ontario conceded, during argument, that some of the desired amendments amounted to claims and material facts that were joined in issue by the fact that Ontario responded to the expert report of Professor Weinrath by providing their own responding expert.
[21] Counsel for Ontario conceded that the only allowable amendments should be related to the material facts and claims related to the Weinrath report on the standard of care in placing predatory inmates with Bruno.
[22] However, counsel for Ontario submits that there should be no amendments that deal with material facts related to the removal of inmates. Ontario submits that those proposed amendments amount to material facts that create a new cause of action that is barred by the limitation period.
The Law and Analysis
[23] This motion is brought pursuant to r. 26.01 of the Rules of Civil Procedure. That rule reads [emphasis added]:
On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.
[24] It is up to the moving party to demonstrate that there would be no prejudice that could not be compensated for by costs or an adjournment. If no prejudice is demonstrated, the court must grant leave to amend.
[25] The OCA commented on the issue of whether an amended pleading created a new cause of action outside of the limitation period in Klassen v. Beausoleil, 2019 ONCA 407.
[26] The issue in Klassen is clearly set out at para. 1:
[1] This is an appeal from an order denying the appellant leave to amend his Statement of Claim pursuant to r. 26.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The central issue is whether the appellant’s proposed amendments to his Statement of Claim constitute a new cause of action that is statute-barred or whether the amendments seek alternate relief based on material facts that already form part of the claim. For the reasons that follow, I conclude that the proposed amendments do not constitute a new cause of action, and that the appeal should be allowed.
[27] The motion before this court deals with the very same issue.
[28] In Klassen, starting at para. 25, the court stated:
[25] The rule is framed in mandatory terms: the court must allow the amendment, unless the responding party would suffer non-compensable prejudice, the proposed pleading is scandalous, frivolous or vexatious, or the proposed pleading fails to disclose a reasonable cause of action: 158844 Ontario Ltd v. State Farm Fire and Casualty Co., 2017 ONCA 42, 135 O.R. (3d) 681, at para. 25; Iroquois Falls Power Corp. v. Jacobs Canada Inc., 2009 ONCA 517, 264 O.A.C. 220, at paras. 15-16.
[26] The expiry of a limitation period is one form of non-compensable prejudice. A party cannot circumvent the operation of a limitation period by amending their pleadings to add additional claims after the expiry of the relevant limitation period: Frohlick v. Pinkerton Canada Ltd, 2008 ONCA 3, 88 O.R. (3d) 401, at para. 24; 1100997 Ontario Ltd. v. North Elgin Centre Inc., 2016 ONCA 848, 409 D.L.R. (4th) 382, at paras. 21-23; United Food and Commercial Workers Canada, Local 175 Region 6 v. Quality Meat Packers Holdings Limited, 2018 ONCA 671, at paras. 64; Davis v. East Side Mario’s Barrie, 2018 ONCA 410, at paras. 31-32. In this regard, the “addition of new statute-barred claims by way of an amendment is conceptually no different than issuing a new and separate Statement of Claim that advances a statute-barred claim” (emphasis added): Quality Meat Packers, at para. 64; citing Frohlick, at para. 24.
[27] An amendment will be statute-barred if it seeks to assert a “new cause of action” after the expiry of the applicable limitation period: North Elgin, at paras. 19-23, 33; Quality Meat Packers, at para. 65. In this regard, the case law discloses a “factually oriented” approach to the concept of a “cause of action” – namely, “a factual situation the existence of which entitles one person to obtain from the court a remedy against another person”: North Elgin, at para. 19; Quality Meat Packers, at para. 65.
[29] In determining if there is a new cause of action that is statute barred, it is most significant that I take a “factually oriented” approach.
[30] In Klassen, starting at para. 29, the OCA stated:
[29] The relevant principle is summarized in Paul M. Perell & John W. Morden, The Law of Civil Procedure in Ontario, 3rd ed. (Toronto: LexisNexis, 2017), at p. 186:
A new cause of action is not asserted if the amendment pleads an alternative claim for relief out of the same facts previously pleaded and no new facts are relied upon, or amount simply to different legal conclusions drawn from the same set of facts, or simply provide particulars of an allegation already pled or additional facts upon [which] the original right of action is based.
[30] In the course of this exercise, it is important to bear in mind the general principle that, on this type of pleadings motion, it is necessary to read the original Statement of Claim generously and with some allowance for drafting deficiencies: Farmers Oil and Gas Inc. v. Ontario (Ministry of Natural Resources), 2016 ONSC 6359, 134 O.R. (3d) 390 (Div. Ct.), at para. 23.
[31] This case is extraordinary due to the length of time that has passed between the incident and injuries and the date this action was commenced. This action has been before the court since 2007. Over fifteen years have passed since this action started. In that time frame, the original Statement of Claim was amended in order to add a defendant.
[32] There were productions exchanged between the parties. Ontario never demanded particulars respecting the claimed negligence. Examinations proceeded and various topics and issues were thoroughly explored in those examinations that are pertinent to the issue of whether the amendments are clarifying, or set out material facts that create a new statute barred cause of action.
The Impact of the Process of Production and Discovery
[33] In addition to Ontario’s concession that there was a joinder of the issue of claims and material facts set out in the expert reports, it is necessary to review what impact, if any, the lengthy production and discovery process had on whether that process also joined issues that are now sought to be included in the amended claim. If so, can there be any prejudice to Ontario that cannot be dealt with in costs or an adjournment? Or are the desired amendments new facts that create a new cause of action which is statute barred?
[34] In its Factum, Ontario submits that the following are new facts that create a new cause of action:
There was never any material facts alleging that Ontario should have and could have removed inmates from 3-Wing at the material times even if there was a concern that they presented a risk of harm to Bruno.
[35] Ontario submits that claiming Ontario could have, and should have, removed certain inmates at the material times amounts to a new cause of action.
[36] I do not agree with Ontario’s submissions for the following reasons.
[37] Tom Dykstra was the NDC operational manager, shift security, in August of 2006. He was extensively examined for discovery in early 2010 and in early 2011. In the transcript of his examinations, at page 109 of the first examination, he gave an undertaking to produce any “standing order” that may deal with procedures to follow if there is an inmate who is more dangerous than most. These procedures relate to whether that inmate is too dangerous to put into protective custody.
[38] Mr. Dykstra described a “standing order” being “like a play book”.
[39] Mr. Dykstra further stated, at page 186 of that transcript, that “anything that is relevant to any offender would be inputted in the Offender Tracking Information System (OTIS) system by classification as well.”
[40] Mr. Dykstra stated, in answer to question 476 of his examination, that if there is a problematic inmate who should not be placed in protective custody, then the detention centre would probably find other accommodations for that individual. Mr. Dykstra stated that the other options for placement of such an individual would be segregation or to transfer them out.
[41] It was after that discussion in the examinations that Mr. Dykstra undertook to provide a copy of any standing orders that amounted to the NDC “playbook”.
[42] Most important, at question 514, Mr. Dykstra was asked the following:
Q. And if it was felt at some point that somebody within PC (protective custody) was, for whatever reason was more at risk for their own safety, would they be transferred to another area or would that be at least something considered.
A. If there was concern for safety of a particular offender, action would be taken, such as removal that individual for that area: possibly placement in another area, another PC area; or possibility of segregation and/or transfer out.
[43] At question 829, counsel for Bruno asked whether there would be circumstances where someone already in protective custody would be moved elsewhere.
[44] At question 834, Mr. Dykstra is specifically asked if people ever moved out of protective custody because they’re seen as a threat to other inmates in their wing. Mr. Dykstra indicated that the answer is yes. He was then asked who would make that decision. Mr. Dykstra stated that the information would get passed on from the staff to the shift supervisor and that the shift supervisor would pass it on to the operational manager who would make the decision to move that individual. Following that, reports from the staff and supervisory staff would be written and submitted to the superintendent.
[45] Mr. Dykstra was then asked if there are any sort of written criteria or guidelines as to when that decision should be made. Mr. Dykstra responded that if it needed to be done right away, it would be done right away, and there would not be any criteria regarding timeline.
[46] Mr. Dykstra referred to Adult Institutions (“ADIs”), which describe standard operating procedures, in his answers regarding standards, guidelines of rules, and procedures to follow when considering moving an inmate.
[47] When asked directly if there were any Standing Orders of the institution that relate to when an inmate should be moved who is threat to another inmate or inmates, his response was that he could not recall whether it was in the Standing Orders of the ADIs. Mr. Dykstra indicated that he believed that there was something in a Standing Order and/or ADI on the issues. An undertaking was given to advise if there was such a written guideline.
[48] The questions that were asked of Mr. Dykstra from question 850 and onwards specifically relate to a circumstance when a corrections officer felt that someone should be moved because they posed a risk to others, and what that procedure would be. Mr. Dykstra indicated that the officer would tell the supervisor and that it may or may not be placed into a written record. Options to transfer a problematic inmate were also discussed. Additionally, the Plaintiffs’ counsel asked multiple questions in an effort to discover what evidence might be forthcoming relative to the issue of possible transfer of any of the inmates. Counsel sought to know whether such evidence might come from corrections officers or documentation that may have been filed with respect to any transfer discussions.
[49] I find that the issue of problematic inmates being transferred from 3-Wing at the material times was very much engaged by both parties in the examinations for discovery. There are no surprises to Ontario regarding this issue and there are no new material facts that that create a new cause of action.
[50] I agree with Bruno that Ontario has always had notice of “the factual matrix” underlying the claim being advanced by Bruno. That claim was always founded in Ontario’s allegedly negligent conduct regarding Bruno’s detention and placement at the NDC on August 25, 2006.
[51] I accept that the proposed amendments allege facts that are clearly part and parcel of the know factual matrix. The amendments serve as clarification to the existing claim.
[52] Aside from the responding parties’ claim that the prejudice to Ontario is a new cause of action that is outside the statute of limitation, which I do not accept, Ontario has not demonstrated any other evidence that they are prejudiced by allowing the proposed amendments.
[53] Counsel for Ontario submits that many of the witness’s memories would have faded because of the passage of time and documents that would be relevant are lost or otherwise cannot be produced.
[54] I do not accept that submission.
[55] Ontario had a duty to produce all the documents that were set out in the Order of Quinn J. as far back as 2011. Additionally, in 2010 and 2011, they undertook to produce multiple relevant documents.
Conclusion
[56] I find that all the desired amendments are appropriate. They represent clarification of the claims, they do not create a new cause of action, and there is no prejudice to Ontario to allow these amendments currently.
[57] The Motion of the Plaintiff is granted. The amendments that are set out in the Plaintiffs’ Factum are allowed.
[58] The Amended Statement of Claim must be served on Ontario within 15 days. Any Amended Statement of Defence shall be served within 30 days of the service upon them of the Amended Claim.
[59] A Reply to the Amended Statement of Defence by Ontario shall be served and filed within 20 days of the service of the Amended Statement of Defence.
[60] Any further examinations as a result of the amendments to the pleadings must be completed within 30 days of the services of the Amended Reply on Ontario.
[61] If counsel are unable to agree upon costs of this motion, written submissions may be served and filed within 30 days. The submissions shall be no longer than 4 pages excluding any summaries as to costs.