COURT FILE NO.: CV-15-532625-00CP
DATE: 20230908
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DR. VALERY I. FABRIKANT Applicant
- and -
CHRISTOPHER BRAZEAU and DAVID KIFT Plaintiffs/Respondents
- and -
ATTORNEY GENERAL OF CANADA Defendant/Respondent
Proceeding under the Class Proceedings Act, 1992
Valery Fabrikant, self-represented Applicant
James Sayce, Gerry Antman, and Karine Bédard for the Plaintiffs/Respondents
H. Michael Rosenberg, Jacob Klugsberg, and Adam H. Kanji for the Plaintiff in Reddock v. Canada (Attorney General)
André Lespérance and Marianne Dagenais-Lespérance for the Plaintiff in Gallone c. Canada (Attorney General)
Susan Gans and Munmun Sabah for the Defendant/Respondent
HEARD: In writing
REASONS FOR DECISION
A. Introduction and Overview
[1] After judgments in Ontario and in Québec, in which the Defendant Canada was found liable with respect to breaches of the Canadian Charter of Rights and Freedoms, concerning the use of administrative segregation in Canadian penitentiaries, there are three class actions that are being governed by a very intricate and complex judgment distribution scheme and individual issues protocol.
[2] I am case managing the Ontario actions, namely Brazeau v. Canada (Attorney General) and Reddock v. Canada (Attorney General). Justice Chantal Masse of the Superior Court of Québec is case managing the Québec class action known as Gallone c. Canada (Attorney General).
[3] In seven jointly written decisions, Justice Masse and I have approved the Distribution and Individual Issues Protocol and upon request we have made revisions to the plan.[^1]
[4] The Applicant, Dr. Valery I. Fabrikant is a Class Member. He has been imprisoned since 1992. He is currently imprisoned at Archembault Jail in Sainte-Anne-des-Plaines, Québec.
[5] In June of 2023, Dr. Fabrikant brought an application in the Brazeau Action. It is short, and I set it out in full. His Notice of Motion stated:
NOTICE OF MOTION
(Sec. 26 Class Proceedings Act)
This is an application for the Court supervision.
The Applicant has been imprisoned since 1992.
The Applicant has filed a claim for NADA [Net Aggregate Damages Award] back in the fall of 2021. At that time, the [sic] approved by the Court application form contained Track 1 Option “B,” which did not require for the Applicant to be placed in segregation for any minimum number of days, but only required that the Applicant be diagnosed with a specific mental illness and be placed in segregation after 2009. The Applicant did satisfy all these requirements.
In December of 2022, the Court adopted a totally different Protocol, according to which the Option “B” of Track 1 was eliminated, without any explicit explanation or justification, thus making significant number of prisoners no longer eligible for NADA.
The Applicant was placed in segregation from January 20 till February 14, 2022. Though the Application Form did not mention any upper time limit, the Court in one of its judgments introduced the upper limit at the date the segregation in Canada was declared illegal in 2019. This limitation was introduced by the Court in good faith under presumption that the Defendant would respect the law. The Court was wrong it its presumption.
The segregation cells in Archambault jail have no windows, no desks, no toilet seats, no light switches. The first night, the Applicant has great difficulty sleeping during the night, as the guards kept the bright light on the whole night. No human being should be placed in such a cell even of one day.
THEREFORE, may it please the Court to:
A) PROVIDE a detailed explanation of the need for the elimination of the Option “B” in the Track 1 of the Application Form. If no reasonable explanation exists, ANNUL the elimination.
B) DECLARE that the elimination of Option “B” in the Track is not applicable to the Applicant due to the Grandfather Clause.
C) ANNUL the upper time limit eligibility for NADA for the prisoners placed in segregation after 2019; ORDER the payment of additional punitive damages for every such placement in the amount of $10,000, regardless of the placement duration.
The whole with costs, if contested.
[6] For the reasons that follow, I dismiss Dr. Fabrikant’s motion.
B. Factual and Procedural Background
[7] On March 4, 2022, Dr. Fabrikant submitted a claim form. He chose Option A, the option for prolonged segregation, and Option B, the option for claimants suffering from serious mental illness who were placed in administrative segregation.
[8] On August 22, 2022, Dr. Fabrikant selected Track 3 for claims in excess of $50,000. The Individual Issues Protocol was subsequently amended, and the track selection process resumed on June 12, 2023. Although the claimants have been directed to re-elect a track, Dr. Fabrikant would not be prejudiced by this re-election.
[9] In response to Dr. Fabrikant’s Notice of Motion, on June 29, 2023, I issued the following File Direction:
Pursuant to the Class Proceedings Act, 1992, I am case managing two Ontario class actions, Brazeau v. Canada (Attorney General) and Reddock v. Canada (Attorney General), which along with the Québec class action Gallone c. Canada (Attorney General) are now in a judgment distribution and individual damages assessment stage.
With the assistance of the parties, Justice Masse of the Québec Superior Court, who is case managing the Gallone action, and I have established a Protocol for the distribution of judgment funds and for individual damages assessments.
Dr. Valerie I. Fabrikant, who is a prisoner, is apparently a Class Member of the Brazeau action.
Dr. Fabrikant has filed a Notice of Motion and seeks directions from this court with respect to his claim under the Protocol. A copy of his notice of motion is attached as Schedule “A” to this File Direction.
Dr. Fabrikant has not filed any affidavit material in support of his request for a motion.
6 This matter should proceed as a motion in writing in accordance with the timetable set out below.
The lawyers for the Plaintiffs, Christopher Brazeau and David Kift, shall respond to Dr. Fabrikant’s motion in accordance with the timetable set out below.
The lawyers for the Attorney General of Canada shall respond to Dr. Fabrikant’s motion in accordance with the timetable set out below.
The lawyers for Plaintiff, Jullian Jordea Reddock in the Reddock action may, if so advised, respond to Dr. Fabrikant’s motion in accordance with the timetable set out below.
The lawyers for the Plaintiff, Arlene Gallone, in the Gallone action, if so advised, may respond to Dr. Fabrikant’s motion in accordance with the timetable set out below.
[11] The timetable is as follows:
Dr. Fabrikant shall file his supporting affidavit material, if any, by July 17, 2023 or his Notice of Motion shall be deemed to be his affidavit.
The lawyers for the Plaintiffs in the Brazeau action and the lawyers for the Attorney General shall file their responding affidavit materials by July 31, 2023.
The lawyers in the Reddock action and the lawyers in the Gallone action, if so advised, may file their responding affidavit materials by July 31, 2023.
Dr. Fabrikant, if so advised, may file a reply affidavit by August 15, 2023.
There shall be no cross-examinations on the affidavits, and the motion shall be heard in writing on August 16, 2023.
There shall be no factums and any argument may be included as an appendix to the affidavits.
The parties shall deliver their materials in accordance with the Rules of Civil Procedure.
Let this File Direction be a fiat for the filing of Dr. Fabrikant’s Notice of Motion and any affidavit materials without a filing fee.
The parties shall send copies of their motion materials by email attachment to my judicial assistant, […]
[10] The lawyers for the Attorney General in the Brazeau action filed materials. The lawyers for the Plaintiffs in the Brazeau action did not file materials but adopted the materials submitted by the Attorney General. The lawyers in the Reddock action and in the Gallone action did not file materials.
[11] Dr. Fabrikant wished to file reply material, which was difficult given the time constraints and his imprisonment. I, therefore, issued the following File Direction on August 10, 2023:
On June 29, 2023, I issued the following File Direction: […]
To accommodate, Dr. Fabrikant, I revise the file direction of June 29, 2023 as follows:
Dr. Fabrikant, if so advised, may file reply material by August 31, 2023, which reply material shall be deemed to be an affidavit for the purposes of the motion in writing.
Dr. Fabrikant may file his reply material by: (a) sending a copy by email attachment to [my Judicial Assistant]; and (b) by sending copies by email attachment to: the Attorney General of Canada, Koskie Minsky LLP, Trudel Johnston & Lespérance, and McCarthy Tétrault LLP.
[12] Dr. Fabrikant filed his Reply material.
C. Discussion and Analysis
[13] Although I shall deal with Dr. Fabrikant’s motion on its merits, it should be and shall be dismissed on the grounds of lack of standing. The essence of Dr. Fabrikant’s motion is about the fairness, interpretation, or application of the court-approved Distribution and Individual Issues Protocol and about his assessment of what the scope and the benefits to Class Members under the Distribution and Individual Issues Protocol ought to be. The Class Members were represented by Representative Plaintiffs and by Class Counsel and since Dr. Fabrikant did not opt-out of the class action, he is bound by the outcomes of the litigation. Dr. Fabrikant has no standing to make submissions.
[14] Further, although Dr. Fabrikant is a proper claimant under the Protocol of Brazeau, Reddock, and Gallone, it is also not clear that he has standing in the Brazeau action in particular, which is the action in which he has brought his motion.
[15] In paragraph 12 of his Reply submissions, Dr. Fabrikant states: “Sec. 1.9 of the Protocol states:
Nothing in this Protocol precludes the parties from applying for an amendment to the Protocol”, so this is exactly what I am doing.
[16] Dr. Fabrikant, however, has no mandate to apply for amendments to the Protocol; that mandate rests with the Plaintiffs, Messrs. Brazeau and Kift, and the Defendant, the Attorney General of Canada.
[17] Turning to the merits of Dr. Fabrikant’s submissions, it appears that he has again been placed in administrative segregation, the federal government’s euphemism for a solitary confinement that has been found to violate the Canadian Charter of Rights and Freedoms.
[18] Dr. Fabrikant’s confinement occurred between January 20, 2022 and February 14, 2022 and he contends that that “segregation is still alive and well in all Canadian jails.”
[19] The Brazeau, Reddock, and Gallone actions reviewed administrative segregation as it existed until November 30, 2019 upon the coming into force of relevant provisions in former Bill C-83: An Act to amend the Corrections and Conditional Release Act and another Act.
[20] The determinations of Charter violations, which may or may not be continuing, that was made in Brazeau, Reddock, and Gallone do not apply outside the defined class periods. In other words, new or continuing Charter breaches are outside the scope of Brazeau, Reddock, and Gallone actions altogether and Dr. Fabrikant’s claim is outside the scope of the Distribution and Individual Issues Protocol in particular. Dr. Fabrikant’s request for damages for the 2022 placement in administrative segregation is outside the scope of Brazeau, Reddock, and Gallone. The class period closed on November 30, 2019.
[21] Continuing with the merits of Dr. Fabrikant’s submissions, it appears that he does not understand the nature of the series of amendments that have been made to the Distribution and Individual Issues Protocol. There is no merit to his criticisms. Visualize:
[22] Dr. Fabrikant is mistaken in thinking that the entitlement for a NADA (“Net Aggregate Damages Award”) has changed.
[23] The revisions to the Protocol do not change the underlying eligibility requirements of Dr. Fabrikant’s choices of Options A and B.
[24] Dr. Fabrikant is simply mistaken that these options have been eliminated.
[25] While the revisions do not change the eligibility requirements, they do provide for greater precision and predictability of the damage awards based on: the length of time in administrative segregation; the number of placements; the serious mental illness status, and particular harms. These revisions are reasonable and benefit the Class Members and facilitate the administration of the Protocol.
D. Conclusion
[26] For the above reasons, Dr. Fabrikant’s motion is dismissed. There shall be no Order as to costs.
Perell, J.
Released: September 8, 2023.
COURT FILE NO.: CV-15-532625-00CP DATE: 20230908
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
DR. VALERY I. FABRIKANT Applicant
- and -
CHRISTOPHER BRAZEAU and DAVID KIFT Plaintiffs/Respondents
-and -
ATTORNEY GENERAL OF CANADA Defendant/Respondent
REASONS FOR DECISION
PERELL J.
Released: September 8, 2023
[^1]: Brazeau v. Canada (AG), 2020 ONSC 7229; Brazeau v. Canada (AG), 2021 ONSC 1828; Brazeau v. Canada (AG), 2021 ONSC 4294; Brazeau v. Canada (AG), 2021 ONSC 4982, Brazeau v. Canada (AG) 2022 ONSC 6920; Brazeau v. Canada (AG); 2023 ONSC 2828; Brazeau v. Canada (AG), 2023 ONSC 2829.