Court File Nos.:

CV-23-00692638-00CP CV-23-00692655-00CP CV-23-00695057-00CP CV-23-00692646-00CP CV-23-00692651-00CP

Date: 2024-06-07

Ontario Superior Court of Justice

Between:

Court File No.: CV-23-00692638-00CP

Jullian Reddock Plaintiff – and – Attorney General of Canada Defendant

– and –

Court File No.: CV-23-00692655-00CP

David Kift Plaintiff – and – Attorney General of Canada Defendant

– and –

Court File No.: CV-23-00695057-00CP

Darcy Loyie Plaintiff – and – Attorney General of Canada Defendant

– and –

Court File No.: CV-23-00692646-00CP

David Peter McMath Plaintiff – and – Attorney General of Canada Defendant

– and –

Court File No.: CV-23-00692651-00CP

Christopher Brazeau Plaintiff – and – Attorney General of Canada Defendant

Counsel:

Michael Rosenberg, Jacob Klugsberg, Adam H. Kanji, James Sayce, Gerry Antman, Karine Bedard and Mark Risebrough, for the Plaintiff Jocelyn Espejo-Clarke, Negar Hashemi, Marcia Pritzker Schmitt, Michael McNeely and Amen Alam, for the Defendant

Michael Rosenberg, Jacob Klugsberg, Adam H. Kanji, James Sayce, Gerry Antman, Karine Bedard and Mark Risebrough, for the Plaintiff Lorne Ptack, for the Defendant

Michael Rosenberg, Jacob Klugsberg, Adam H. Kanji, James Sayce, Gerry Antman, Karine Bedard and Mark Risebrough, for the Plaintiff Diane Fernandes, Omar Ha-Redeye, Syed Nizami and Hiam Kogiashvili-Amar, for the Defendant

Michael Rosenberg, Jacob Klugsberg, Adam H. Kanji, James Sayce, Gerry Antman, Karine Bedard and Mark Risebrough, for the Plaintiff Melanie Toolsie, Susan Chen, Danielle Johnson and Krystene Robinson, for the Defendant

Michael Rosenberg, Jacob Klugsberg, Adam H. Kanji, James Sayce, Gerry Antman, Karine Bedard and Mark Risebrough, for the Plaintiff Stephen Kurelek and Brooklynne Eeuwes, for the Defendant

Heard: October 23-27, 2023

REASONS FOR JUDGMENT

D.A. WILSON J.

Background

[1] Christopher Brazeau and David Kift commenced an action in July 2015 against the Attorney General of Canada (“Canada”) seeking damages for breaches of ss. 7 and 12 of the Canadian Charter of Rights and Freedoms (“Charter”) arising from placements in administrative segregation in federal institutions. The case was certified as a class proceeding on December 14, 2016: Brazeau v. Attorney General (Canada), 2016 ONSC 7836. The members of the class were those inmates with serious mental illnesses or “the sickest of the mentally sick”: Brazeau v. Canada (Attorney General), 2020 ONSC 3272, at para. 28 (“Brazeau Damages Redetermination”). There were 3,636 Brazeau class members entitled to share in the aggregate damages award. The class was defined as:

“All offenders in federal custody, who were placed in administrative segregation in a federal institution situated outside Quebec after February 24, 2013, or who were placed in administrative segregation in a federal institution anywhere in Canada before February 24, 2013 were diagnosed by a medical doctor with an Axis 1 Disorder (excluding substance use disorders) or Borderline Personality Disorder, who suffered from their disorder, in a manner described in Appendix A, and reports such during their incarceration, where the diagnosis by a medical doctor occurred either before or during incarceration in a federal institution and the offenders were incarcerated between November 1, 1992 and the present, and were alive as of July 20, 2013.”

[2] Appendix A describes the manifestations of the Axis 1 disorder:

Appendix A: Significant impairment in judgment (including inability to make decisions; confusion; disorientation); Significant impairment in thinking (including constant preoccupation with thoughts, paranoia; delusions that make the offender a danger to self or others); Significant impairment in mood (including constant depressed mood plus helplessness and hopelessness; agitation; manic mood that interferes with ability to effectively interact with other offenders, staffs or follow correctional plan); Significant impairment in communications that interferes with ability to effectively interact with other offenders, staff or follow correctional plan; Significant impairment due to anxiety (panic attacks; overwhelming anxiety) that interferes with ability to effectively interact with other offenders, staff or follow correctional plan; Other symptoms: hallucinations; delusions; severe obsessional rituals that interferes with ability to effectively interact with other offenders, staff or follow correctional plan; Chronic and severe suicidal ideation resulting in increased risk for suicide attempts; Chronic and severe self-injury; or A GAF score of 50 or less.

[3] Jullian Reddock initiated an action on March 3, 2017 against Canada seeking damages for breaches of ss. 7 and 12 of the Charter also arising from placements in administrative segregation. Reddock was certified as a class proceeding on June 21, 2018: Reddock v. Canada (Attorney General), 2018 ONSC 3914.

[4] The class definition in Reddock is:

All persons, except Excluded Persons, as defined below, who were […] subjected to a period of Prolonged Administrative Segregation, as defined below, at a Federal Institution, as defined below, after November 1, 1992, and were alive as of March 3, 2015 (“the Class”); Excluded person are: (i) All offenders incarcerated at a Federal Institution who were diagnosed by a medical doctor with an Axis I Disorder (excluding substance abuse disorders), or Borderline Personality Disorder, who suffered from their disorder in a manner described in Appendix “A”, and reported such during their incarceration, where the diagnosis by a medical doctor occurred either before or during incarceration in a federal institution and the offenders were incarcerated between November 1, 1992 and the present and were alive as of July 20, 2013; and (ii) All persons who were […] subjected to Prolonged Administrative Segregation, as defined below, only at a Federal Institution situated in the Province of Québec after February 24, 2013. Persons who were […] subjected to Prolonged Administrative Segregation at Federal Institutions situated in Québec and another Canadian province, or at a Federal Institution situated in Québec prior to February 24, 2013, are not Excluded Persons. Defined terms are: (i) “Administrative Segregation” is defined as sections 31 to 37 of the Corrections and Conditional Release Act, S.C. 1992, c. 20; (ii) “Prolonged Administrative Segregation” is defined as the practice of subjecting an inmate to Administrative Segregation for a period of more than fifteen (15) consecutive days; (iii) “Federal Institutions” are defined as the system of Federal correctional facilities across Canada that is administered by the Correctional Service of Canada, a Federal Government body.

[5] In a nutshell, the Reddock class was defined as all persons, except excluded persons, meaning the Brazeau class, who were involuntarily subjected to a period of prolonged administrative segregation for a period of at least 15 days at a Federal institution between November 1, 1992 and the present.

[6] Arlene Gallone commenced an action on February 24, 2016 in Quebec, claiming damages against Canada for breaches of ss. 7 and 12 of the Charter related to placements in segregation in federal penitentiaries. On January 13, 2017, it was authorized as a class proceeding: Gallone c. Procureur général du Canada, 2017 QCCS 2138. Justice Masse from the Quebec Superior Court is the case management judge for the Gallone action. Justices Perell and Masse have been managing these class actions together. I will refer to Justice Perell on the Brazeau and Reddock cases because I am dealing only with the actions commenced in Ontario.

[7] On March 25, 2019, Justice Perell released his reasons on the summary judgment motion on the common issues for the Brazeau representative Plaintiffs: Brazeau v. Attorney General (Canada), 2019 ONSC 1888 (“Brazeau Common Issues”). He determined that these class members should not have been placed in administrative segregation. He found Canada liable for breaches of ss. 7 and 12 of the Charter and granted summary judgment in which the class members were awarded aggregate Charter damages of $20 million for damages for breaches of the Charter as well as for vindication and deterrence. He noted that for those class members not satisfied with their share of the aggregate damages award, they could proceed to individual issues trials for additional compensatory damages. He stated at paragraph 21, “The findings of fact made on this summary judgment motion carry forward as issue estoppels into any individual issues trials.” Justice Perell did not find Canada liable for punitive damages but noted the Federal government could be liable for punitive damages at the individual issues trials. Canada appealed.

[8] On August 29, 2019, in his decision on the summary judgment motion on the common issues trial in the Reddock action, Perell J. awarded class members $20 million in aggregate damages for vindication, deterrence and compensatory damages for breaches of ss. 7 and 12 of the Charter, “with additional compensatory damages to be payable after individual issues trials”: Reddock v. Canada, 2019 ONSC 5053 (“Reddock Common Issues”). The compensatory portion of the award was assessed at $9 million, so each class member would receive a minimum award of $2,200. He was satisfied that his award took into account a base level of mental suffering, a base level of harm for every inmate would have suffered general damages for the assault on their Charter rights. Justice Perell declined to order punitive damages finding there was not the necessary intention to evade responsibilities and he had already addressed the purposes of punitive damages through his award of vindication and deterrence damages. Canada appealed.

[9] Justice Perell has recently written,

“…it shall be important to keep in mind that by the courts’ awarding the Class Members: (a) a share of the aggregate damages and (b) a right to claim additional damages on an individual basis, the courts were also deciding that: (a) Charter damages had been suffered by each and every individual Class Member; but (b) the amount of compensation for additional idiosyncratically suffered Charter damages remained to be determined. It shall also be important to keep in mind that the determination of the additional Charter damages compensation would be very challenging, because the nature of the suffering of the Class Members was mental harm, and many of the Class Members had pre-existing mental health problems. And it goes without saying that for all the Class members aside form being placed in administrative segregation, their incarceration in a federal penitentiary was not conducive to mental wellness.” Brazeau v. Canada, 2024 ONSC 2947, at paras. 6, 7.

[10] There has been no trial in the Gallone action. However, Canada agreed to a consent judgment in accordance with the liability determinations as set out in Brazeau and Reddock. On September 10, 2020, Justice Masse ordered that the amount of aggregate damages in Gallone be determined in the same manner as in Brazeau and Reddock on a pro rata basis for the class. The members recovered judgment of $5.9 million.

[11] The appeals in Brazeau and Reddock were heard together and on March 9, 2020, the Court of Appeal affirmed the Charter damages in Reddock and the judgment on liability: Brazeau v. Canada (Attorney General), 2020 ONCA 184 (“Brazeau Appeal”). The issue of the Charter damages in Brazeau was remitted back for redetermination.

[12] Justice Perell heard the redetermination as a motion in writing and released his decision on March 28, 2020, awarding Brazeau class members $20 million for vindication, deterrence, and compensation inclusive of interest, which he described as compensatory damages for the purposes of individual issues trials. Justice Perell wrote, “I conclude that there is a base level of Charter damages that I would value at $20 million across the class. The base level award is for the entire class for vindication, deterrence, and compensation for the breaches of the Charter. The compensatory portion of the claim is inclusive of pre-judgment interest…for the purposes of the individual issues trials that are to follow I would designate each Class Member’s share of the $20 million without deduction for ...legal fees…many if not most of the Class Members will not need to proceed to individual damages assessments for compensation because they will already have been fully compensated for this head of damages. This is very fair to Canada and vindication and deterrence will also have been achieved on a class-wide bass by the aggregate award: Brazeau Damages Redetermination, at paras. 32-34.

[13] Each Brazeau claimant received his share of the aggregate damages in the amount of $8,411.23. The individual class members had the right to individual assessments on compensatory damages by way of proceeding to trial.

[14] Section 25 of the Class Proceedings Act, 1992, S.O. 1992, c. 6, empowers the court to design the procedure for the individual issues trials. Justice Perell and Justice Masse developed a protocol for the distribution of the aggregate damages awards in Brazeau, Reddock and Gallone and established a procedure for the Plaintiffs who qualified for additional compensation, which I will refer to as “DIIP”, Distribution and Individual Issues Protocol. This was revised, generally on consent.

[15] In joint reasons with Justice Masse, Justice Perell addressed the issues of the distribution protocols for the aggregate awards of damages and the protocol setting out the procedure for the individual issues determinations: Brazeau v. Canada (Attorney General), 2020 ONSC 7229; Reddock v. Canada (Attorney General), 2020 ONSC 7232 (collectively, “DIIP Decision”). In the DIIP, it was determined if the claimant is a member of the Reddock or Brazeau classes the individual motion shall be heard as a half day summary determination and “the Court shall determine the Claimant’s entitlement to damages, if the Claimant is successful”: Schedule “C”, s. 46. These motions were directed to proceed on a paper evidentiary record, including expert evidence. Any amount received in favour off the Claimant must be reduced by the collective damages award.

[16] The DIIP, which was arrived at with input from counsel, sets out the complete procedure why which class members are permitted to make individual claims for damages in addition to their portion of the aggregate damages that they received. It also sets out the definitions of the Brazeau class members and the Reddock class members.

[17] The DIIP also establishes the procedure for Track 1, 2, and 3 claims. In the DIIP, Justice Perell established 3 tracks for Plaintiffs who were seriously mentally ill (“SMI”): the first track is for people who were SMI and who were placed in administrative segregation for 1-5 days; the second track is for individuals who were SMI and who were placed in administrative segregation for 6-15 days; and the final track is for people who were SMI and were placed in administrative segregation for more than 15 days. For Track 3 cases, the over $50,000 track, it was determined that “a judge of the Ontario Superior Court of Justice… would determine the Class member’s claim pursuant to a summary judgment procedure under Rule 20 of Ontario’s Rules of Civil Procedure”: DIIP Decision, at para. 19.

[18] Justice Perell directed, “General causation of harm is no longer an issue at the individual issues stage of Brazeau, Reddock, and Gallone. Apart from the general damages from the illegal placement in administrative segregation, specific causation of particular harms remains an individual issue. The Class members are entitled to receive general or moral damages for their similar injuries, but what remains to be determined at the individual issues stage is specific causation and the quantum of the compensation to be provided for the harm caused by the Class member’s unlawful placement into administrative segregation. We agree with Canada that the issue of quantum is idiosyncratic and cannot be determined by a mechanical application of a per diem rate”: DIIP Decision, at paras. 134-135

Individual Issues Trials

[19] I was asked by Justice Perell, with the agreement of Justice Masse, to determine the damages on 10 Track 3 claims. I was not involved in the class actions prior to this request; my knowledge of the history emanates from the decisions of my colleague Justice Perell, and the information imparted to me by counsel. I was advised that counsel had agreed they would select 10 “bellwether cases” which would serve as precedents to resolve common issues that appeared in many of the claims and would provide guidance for the resolution of the other claims. It was determined that the 10 individual cases would be heard as summary judgment motions.

[20] In Brazeau, Justice Perell made a number of issue estoppels—see Brazeau v. Canada 2020 ONSC 7229, at paras. 130-131. Based on the factual findings in Brazeau, Reddock and Gallone and the legal findings in of the Ontario Court of Appeal the following are matters for which there are issue estoppels in Ontario:

a. Canada contravened the Charter rights of all Class Members and the Class Members suffered similar injuries of different intensities.

b. Administrative segregation causes serious physical and serious psychological harm to any inmate placed in administrative segregation and the harm is particularly acute for those already suffering from serious mental diseases and disabilities.

c. Administrative segregation causes the following effects: aggression, anxiety, cognitive dysfunction, delusions, depression, hallucinations, hopelessness, hypersensitivity, impaired memory and concentration, irritability, loss of control, panic attacks, paranoia, psychosis, rage, severe obsessional rituals, self-mutilation, significant impairment of ability to communicate, sleep disturbances, suicidal ideation and behaviour, withdrawal, and a sense of impending emotional breakdown.

d. Negative health effects from administrative segregation can occur after only a few days in solitary confinement, and the health risks rise with each additional day spent in such conditions.

e. The harm from administrative segregation does not stop with the end of the placement but continues long after the inmate returns to the general population and in some inmates the harm is permanent.

f. All of the Class Members suffered psychiatric harm from being placed in administrative segregation, which in truth is solitary confinement contrary to the Mandela Rules.

g. It has been widely recognized from 2011 that prolonged solitary confinement of any inmate caused serious harm and should be avoided.

h. The longer a person spends in solitary confinement the more severe the harm they suffer.

[21] Justice Perell made it clear that the issue estoppels are binding on the trier of fact on the individual trials. General causation of harm is no longer an issue at the individual issues stage of Brazeau and Reddock.

[22] Justice Perell wrote, “The negative health effects from administrative segregation can occur within a few days of segregation and those harms increase as the duration of the time in administrative segregation increases and the expert evidence in the immediate case establishes that there is physical and mental harm from prolonged administrative segregation, which is to say that every inmate placed in administrative segregation for more than fifteen days suffers a base level of psychiatric and physical harm”: Reddock Common Issues, at para 268.

[23] Justice Perell’s damage awards recognize that the placement in administrative segregation was “above the ordinary annoyances, anxieties and fears that come with living in a penitentiary”: Reddock Common Issues, at para. 391. The Class Members received general damages for their similar injuries, but what is to be determined at the individual issues stage is specific causation and the quantum of any further compensation to be provided for the harm caused by the class member’s placement into administrative segregation.

[24] I concur with Justice Perell that the issue of quantum is idiosyncratic and cannot be determined by a mechanical application of a per diem rate. That view is reinforced by the expert opinions that I have found to be persuasive on the various motions.

[25] Pursuant to s. 25 of the Class Proceedings Act, 1992, the procedural scheme was set and I do not have the authority to make any determinations concerning procedure or scope. My task is to determine the 5 bellwether Track 3 cases. All class members are bound by the judgments on the common issues. To be clear, my decisions of the individual issues of the Track 3 claims may establish precedent for similar claims, but I am not tasked to determine proper procedure or the scope of the individual issues determinations.

[26] I am asked to determine the additional damages, if any, each of the five Plaintiffs is entitled to as a result of the placements in administrative segregation in addition to their share of the aggregate damages. I had no input into which cases were selected as the bellwether cases for the summary judgment motions on individual damages. That task was left to counsel. In my task of hearing the individual issues trials, I did not concern myself with which class a Plaintiff belongs in nor with which track the claim is proceeding on. I have a basic understanding of the different tracks and of the DIIP, but I have not studied the lengthy, complex procedures for the processing of the various claims. These matters are of no moment to me in my task of assessing any additional compensatory damages an individual Plaintiff is entitled to on the evidence. I will make brief reference to the different tracks and classes only to provide context for my decisions.

[27] Class members who select Track 3 get a share of the distribution of aggregate damages if he or she was placed in segregation for more than 15 consecutive days. His or her individual issues claim shall be determined in accordance with the Track 3 summary judgment procedure. The Class Member’s share of the gross aggregate damages award is a credit to the payment of any damages awarded under Track 3.

[28] Initially the 10 motions were to be heard together; as a result of discord between counsel, Justice Perell directed that 5 of the motions would be heard in October 2023 followed by the remaining 5 in February 2024. Subsequently, Justice Perell determined that the 5 remaining summary judgment motions would be adjourned sine die, pending the release of reasons on the first 5 bellwether cases.

[29] Brazeau class members had very serious pre-existing mental health problems, were SMI. Justice Perell found that the Brazeau class members were “ the sickest of the inmates suffering from mental illness”: Brazeau Common Issues, at para. 5.

[30] The Reddock class definition is different because these claimants did not have to prove a medical diagnosis in order to be members of the class; they, too, are inmates that were placed in segregation for more than 15 consecutive days after November 1, 1992.

[31] To summarize, the Track 3 claimants have been awarded damages for their time in administrative segregation but what I was asked to determine is the impact of the placement in administrative segregation on the individual Plaintiffs; general causation of harm is not in issue, having been determined on the summary judgment motions before Justice Perell. It is the idiosyncratic harm, to borrow a phrase from Justice Perell, that I shall determine based on the evidence.

[32] In the Brazeau Damages Reconsideration, Justice Perell recalculated the issue of damages for class members pursuant to s. 24 of the Class Proceedings Act, 1992. I agree with his observation that there is no established formula for the assessment of damages, nor should there be. This is because the assessment is idiosyncratic, it depends on the circumstances of each case and no two Plaintiffs are the same.

[33] At the outset, I note that in each case the Plaintiffs have asked for further damages for vindication and deterrence, which they have referred to interchangeably as punitive damages. They also ask for an award of further compensatory damages which are referred to as general damages and/or further Charter damages. The DIIP provides that further damages may be awarded if the trier of fact is persuaded on the evidence that the Plaintiff has proven his case for further damages arising from the breaches of his Charter rights due to the time in segregation.

[34] To be clear, compensatory damages for breaches of the Charter are different than general damages which are awarded for pain and suffering and future losses associated with injuries. In Vancouver (City) v. Ward, 2010 SCC 27, the Supreme Court noted that Charter damages are intended to compensate a person for losses suffered as a result of breach(es) of the Charter and as well, to provide vindication and deterrence to discourage future breaches. There is overlap between compensatory Charter damages and compensatory damages in private law. As the court explained in Ward, both share the goal of attempting to put a Plaintiff in the position he/she would have been in had the breach not occurred. There is a similarity in the types of damages too; they may be injuries of a physical or emotional nature and may include pecuniary losses. Some decisions dealing with Charter damages reference tort law and in Ward, the Supreme Court stated that tort law assists in assessing compensatory Charter damages. However, the Court was clear that double recovery between the two types of damages is not permitted.

[35] Punitive damages are intended to serve three purposes: to give a Defendant his or her just dessert (retribution) for conduct; to deter the Defendant and others from engaging in similar behaviour in the future (deterrence); and to show the community’s collective condemnation for what has transpired (denunciation): see Whiten v. Pilot Insurance Co., 2002 SCC 18. While there is overlap between Charter damages for vindication and deterrence and punitive damages in private law, Charter damages focus on the harm the infringement causes society. Charter damages are not intended as a comment on an individual defendant’s conduct or deterring that person specifically in the future. In Ward, the Court explained that Charter damages for deterrence “seeks to regulate government behaviour, generally, in order to achieve compliance with the Constitution”: at para. 29.

[36] In these cases, Justice Perell was clear that he awarded aggregate damages including compensatory damages, as well as damages for vindication and deterrence and noted that “many if not most of the Class Members… will not need to proceed to individual damages assessments for compensation because they will already have been fully compensated for this head of damages, and vindication and deterrence will also have been achieved on a class-wide basis by the aggregate award”: Brazeau Damages Redetermination, at para. 34.

[37] Counsel for the Plaintiffs repeatedly made the submission that Justice Perell made findings of fact that cannot be relitigated, such as placement in administrative segregation for more than fifteen days causes serious physical and mental harm and that no placement in administrative segregation can be considered voluntary. I accept these issue estoppels. At the same time, the solicitors for the Plaintiffs are unwilling to accept other findings of Justice Perell, that are not necessarily aligned with the interests of the Plaintiffs. For example, Justice Perell also wrote, “Although on the evidence in the Reddock Case (and on the evidence in the Brazeau Case), there are individual instances of bad faith and abuse of power by the Correctional Service, I agree with the Federal Government that it cannot be said on a class-wide basis that it acted in bad faith or abused its power. (This explains, in part, why, as discussed below, class-wide punitive damages are inappropriate in the immediate case)”: Reddock Common Issues, at para. 345.

[38] In his common issues Judgment, Justice Perell declined to award punitive damages against the Federal Government, although he noted that punitive damages might be awarded after the individual issues trials. He did not find that the conduct of the Correctional Service justified an award of punitive damages and he wrote, “I do not find as a fact that on a class-wide basis, there has been high-handed, malicious, arbitrary, or highly reprehensible conduct that departs to a marked degree from ordinary standards of decent behaviour. Although the conduct of the Correctional Service was clearly wrong…this does not warrant an additional punitive damages award especially in circumstances when Charter damages for vindication and deterrence are being awarded. Thus, I shall not make a class-wide award of punitive damages”: Reddock Common Issues, at paras. 474-475.

[39] Justice Perell in his aggregate award of damages included damages for vindication and deterrence for the breaches of Charter rights. He determined that the awards he made for aggregate damages included the vindication and deterrence damages on a class-wide basis in an effort to fully compensate the class members. Justice Perell ruled on the liability issues and considered the conduct of the Defendant. He awarded damages for vindication and deterrence. In doing so he noted “the purposes of an award of punitive damages have already been served”: Brazeau Common Issues, at para. 454; Reddock Common Issues, at para. 471. I agree with his comment.

[40] Punitive damages are an exceptional award and are ordered where a Defendant’s conduct has been “high-handed, malicious, arbitrary or highly reprehensible misconduct that departs to a marked degree from ordinary standards of decent behaviour”: Whiten, at para. 94. In that case, Justice Binnie also stated, inter alia, that punitive damages are generally given only where the misconduct would otherwise be unpunished or where other penalties are likely to be in adequate to achieve the objectives or retribution, deterrence and denunciation.

[41] It is clear from the principles established in Whiten that an award of punitive damages is directed towards addressing the behaviour of a private individual as opposed to the conduct of the government. It is also to be noted that an award of punitive damages is not to compensate a Plaintiff but rather to deter a Defendant and others from such misconduct in the future. The arguments advanced by counsel on these motions were directed to further compensation for the Plaintiffs, while the goal of punitive damages is directed to addressing conduct of a private Defendant.

[42] In his recent decision, Justice Perell noted the reluctance of the Court generally to award punitive damages for breaches of a human rights. He stated, “Thus, in the immediate case, where vindication damages have been awarded it is unlikely that punitive damages are warranted for a human rights breach”: Brazeau v. Canada, 2024 ONSC 2947, at footnote 23.

[43] I accept, as Justice Perell found, that the conditions of administrative segregation were appalling, inhumane, degrading and caused harm to the class members. Given Justice Perell’s award of aggregate damages including those for deterrence and vindication, the conduct of the Defendant has been addressed and the goals of punitive damages have been achieved. While Justice Perell noted that punitive damages could possibly be awarded in the individual issues trials, considering the evidence taken as a whole on these summary judgment motions, I do not find it is necessary or appropriate to make an award of punitive damages and I decline to do so in each of the bellwether cases I have heard.

[44] My mandate, as clearly articulated by Justice Perell in his various decisions, is to hear the individual issues trials by way of summary judgment motions and determine if any additional compensatory damages should be awarded based on the evidence idiosyncratic to an individual case. The additional compensatory damages are comprised of damages for the pain and suffering endured while in administrative segregation and ongoing, as well as special damages that are causally related to the time in administrative segregation such as loss of income and care costs that are proven on the evidence.

[45] The Honourable Robert Sharpe and Professor Roach noted in their book, The Charter of Rights and Freedoms (Toronto: Irwin Law, 2009) at pp. 384-5:

“It can be extremely difficult to measure in money terms the amount appropriate to compensate the Plaintiff for physical injuries or for damages to reputation, dignity, or privacy or simply for the violation of a Charter right. Translating into money the extent of the injury amounts to little more than sophisticated guesswork. In many cases, the damage suffered as a result of a Charter violation will fall into this intangible territory. The rights and freedoms guaranteed by the Charter are abstract and intangible and thus assessment of the extent of the injury in monetary terms will often be difficult. Low awards for the violation of a Charter right might trivialize the right while high awards may create an unjustified windfall for the applicant.”

[46] I agree with the view expressed above. There is no “correct” number to represent the value of an injury whether it is from an act of negligence or from a breach of a person’s Charter rights. As Justice Perell has also stated, for the individual trials, the Plaintiff must prove something more than the damages found at the common issues trial in order to obtain further compensation. The Plaintiff must establish causation of a specific harm that would not have occurred but for the placement(s) in administrative segregation: Clements v. Clements, 2012 SCC 32.

[47] The Plaintiff has the onus of proof on a balance of probabilities. With respect to future claims, there is a different evidentiary burden, as set out in Graham v. Rourke, 1990 7005 (ON CA), 75 O.R. (2d) 622 (C.A.): “A Plaintiff who seeks compensation for future pecuniary loss need not prove on a balance of probabilities that her future earning capacity will be lost or diminished or that she will require future care because of the wrong done to her. If the Plaintiff establishes a real and substantial risk of future pecuniary loss, she is entitled to compensation.”

[48] I am not addressing the issues of limitation periods, the number of “qualifying” days spent in segregation, which class a Plaintiff is a member of, or which track the claim is proceeding on. These are not matters that are necessarily significant to me in my assessment of damages nor were they part of my mandate.

General Observations

[49] Counsel has been involved in these class actions and participated in the various hearings undertaken by Justices Perell and Masse; they are well aware of the DIIP and the issue estoppels. They are well aware of the history of these actions and the purpose of the individual trials. It is unclear to me why counsel failed to work cooperatively to assist the Court in its task of assessing damages at individual trials.

[50] Notwithstanding the fact that Justice Sanderson case managed these matters prior to my involvement, and the process for determining the damages on the individual trials had been set in place with the concurrence of counsel, from the time of my involvement in February 2023 counsel regularly sent emails to my assistant requesting “urgent” case conferences because they disagreed on many things. Canada wished to bring motions prior to the hearing of the individual trials, counsel could not agree on a timetable for the steps leading up to the motions, counsel refused questions during cross-examinations and the solicitor for the Plaintiff demanded an expert withdraw his report. As I noted in my endorsement of October 3, 2023 emanating from a case conference, “Since I fixed the original dates for the motions at the initial case conference in February, there have been multiple requests for case conferences, both before me and before Justice Sanderson, the case management judge. Most of the requests have been deemed as “urgent” by counsel and have been accompanied by pages of correspondence and emails and at times, motion records have been sent as well.” Simply because a judge has been assigned to hear motions does not mean that counsel can inundate the judge with requests to deal with matters that counsel ought to be able to determine between themselves.

[51] Similarly, it is unclear to me why Canada repeatedly made the submission that some of the time in administrative segregation was voluntary and thus, not something Canada should be held accountable for. Justice Perell stated clearly found that no placement in administrative segregation may be considered “voluntary” for my purposes: Reddock Common Issues, at para. 273.

[52] In my view, it is the obligation of counsel, particularly on an assignment such as this one, with a judge who has not been involved historically in the cases and was unfamiliar with the procedure that had been implemented, to assist the Court with the issues that require adjudication. The individual trials were to assess any further damages to be awarded to claimants who had received their share of the aggregate damage awards.

[53] In my view, to assist me with the assessment of damages in the individual trials, counsel ought to have done the following:

1. Provided the Court with a concise summary of the history of the Brazeau and Reddock actions;

2. Provided the Court with the procedures that had been implemented by Justice Perell for the administration of the claims and their relevance to the individual trials;

3. Agreed to abide by the list of the issue estoppels as determined by Justice Perell. The Defendant persisted in submitting that many of the placements in segregation were done at the request of the Plaintiffs when Justice Perell had already determined that no placement in segregation could be deemed voluntary. The Plaintiffs persisted in making reference to matters that were beyond the scope of the damage assessments on individual trials and were more properly argued on the liability phase of the action, such as the conduct of the guards.

4. In each of the bellwether cases, provided the Court with a fulsome agreed upon statement of facts, which would have greatly assisted me in understanding the factual underpinning of each bellwether case. Following the hearing of the motions, I requested an agreed statement of facts from counsel for each case. What I received was a document listing the dates of birth of the Plaintiffs, and a list of the dates each was in administrative segregation. This was, in my view, a poor attempt at compiling facts that were not in dispute, which would have been of assistance to me in my task. As I have noted previously, I did not have the benefit of involvement with these cases from the outset, as counsel have. I have attached the Agreed Statements of Fact as provided by counsel as an appendix to these reasons.

5. Counsel filed voluminous briefs for each summary judgment motion, consisting of motion records, supplementary motion records, and reply motions records, all of which were multiple volumes. In addition, there were briefs of authorities, transcripts of cross-examinations and briefs of undertakings and refusals. The Brazeau motion record comprised approximately 14,000 pages, the Reddock record was 9,600 pages, the Loyie record was 9,000 pages, the McMath record was in excess of 12,000 pages. The books of authorities consisted of many, many cases. Together, counsel uploaded almost 54,000 pages of materials for these 5 motions. That is an excessive amount of documentation given the individual trials were only concerned with the idiosyncratic injuries suffered by a Claimant and whether the Plaintiff was entitled to further damages. In my view, a great deal of the material that was uploaded to CaseLines was unnecessary and could have been avoided had counsel worked collaboratively to put a proper evidentiary record before the Court in an efficient manner.

6. Counsel should have used a single expert to assess the Plaintiff for each of the bellwether cases; if that was not possible, counsel should have asked the experts retained to meet and determine what issues they agreed upon and what issues they remain divided on and why. It would have been helpful to the Court if the experts could have worked collaboratively to identify their respective opinions on the questions they were asked to opine on and why they disagreed with the other expert. This would not be an exercise in criticizing the opposing expert; rather, it would be in accordance with the obligation of an expert as set out in Rule 53.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to provide the court with fair, objective, nonpartisan evidence to assist the trier of fact. This has been described as “hot-tubbing” and can be used when the parties have retained experts of the same specialty, who have been asked to opine on the same issues in a lawsuit. It removes the need for counsel to try and discredit the opposing expert and focuses the opinion evidence of the expert on the precise issues where the two experts do not agree. Furthermore, counsel should have agreed on what documentation the experts were going to review for the purposes of preparing their reports.

[54] Instead, in the five bellwether cases I heard, counsel used different experts for different cases and neither side conceded the expertise of the other’s expert. Since the individual damages trials were done by way of summary judgment motions, while there were transcripts available for the cross-examinations of the experts, the Court did not have the benefit of seeing the expert testify, nor the opportunity to ask the expert questions. Taking “pot shots” at the opposing expert did little to assist me with the appropriate assessment of damages.

[55] The experts who prepared reports for these motions were bound by the findings made by Justice Perell on the judgment on the common issues in the class proceedings. Usually, experts are not bound by any findings; they are free to conduct an examination and arrive at their own conclusions. Having to adopt findings which an expert may disagree with could potentially be problematic for an expert, whose function it is to assist the court in areas outside of the realm of experience of the trier of fact. Given the importance of the issue of causation as well as the fact that all of the Plaintiffs in the bellwether cases had pre-existing serious mental health illnesses, it would have assisted me to have had a common expert who assessed the Plaintiff, or at least, counsel should have directed the experts to confer in an effort to narrow the issues in which they did not agree and to further elaborate on the reasons behind their disagreement.

[56] My mandate was to assess whether the evidence demonstrated on a balance of probabilities that the Plaintiff in the individual trials had proven idiosyncratic damages that had not been compensated by the award of aggregate damages; that is a narrow task. Each of the Plaintiffs in the five bellwether cases was complicated from a damages perspective; they had all experienced what I will loosely describe as lives prior to their admission into segregation that were marked by trauma, abuse, dysfunction, addiction, violence and incarceration. Four of the five Plaintiffs went on to further criminal convictions and incarcerations following release from segregation. Trying to determine the effects of the placement in administrative segregation against this backdrop with Plaintiffs who had pre-existing serious mental health illnesses requires expert opinion from qualified psychiatrists. Having experts who have different backgrounds, may have had little experience with people who have spent significant periods of time in penitentiaries, and who did not review the same documentation was not helpful to my task. While it may not have been possible to agree on the same expert, certainly counsel could have done more than they did to narrow the disparity between the expert opinions.

[57] On paper, with impressive curriculum vitaes, reading reports may leave the trier of fact with a less than optimal understanding of where the experts diverge in their opinions and why. It would have been far more efficient and of much greater assistance if counsel had worked cooperatively to either retain a joint expert or to “hot-tub” the experts to narrow the issues and to better explain the disparities in their opinions. As it was, there were questions that were not answered by the expert’s reports and not covered in cross-examination. Counsel ought to have ensured the expert evidence was as focussed as possible.

[58] In a recent decision, Justice Perell commented,

“Some of their [the lawyers] disputes have become just lawyer’s gamesmanship and attempts to relitigate, and snatch victories from the jaws of defeat or to diminish liability or to increase liability and to ignore and circumvent what the courts of Ontario and Quebec have already decided or to renege upon what the parties negotiated parts of the DIIP. Both parties have not always conducted themselves to secure the most just, most expeditious and least expensive determination of the proceeding on its merits (See rule 1.04(1) of the Rules of Civil Procedure) or have not always observed the principles of proportionality and ensured that their actions, their pleadings, and the means of proof they used were proportionate, in terms of the cost and time involved, to the nature and complexity of the matter and the purpose of the application…Both parties have refused to admit matters that ought to have been admitted, and both parties have introduced extraneous matters and complexities that ought not to have been introduced.” Brazeau v Canada 2024 ONSC 2947.

[59] I concur with the observations of Justice Perell and given that I was not involved with the class actions at an earlier stage and was unfamiliar with their history and their procedure, I am of the view that it was incumbent on counsel to assist me with the damages assessments, not to make my task more difficult.

THE CLAIMS OF JULLIAN REDDOCK

Background facts

[60] Jullian Reddock (“Mr. Reddock”) was born in 1986. He began serving his first federal prison sentence when he was nineteen years of age. His second federal imprisonment commenced in 2012 after he pled guilty to manslaughter. He has spent a total of 414 days in administrative segregation, the longest period being 119 days in 2013.

[61] Mr. Reddock was the representative Plaintiff at the common issues trial and is a member of the Reddock class. He received an aggregate damage award totalling $8,411.23 less deductions.

[62] Mr. Reddock had a difficult childhood with a great deal of conflict and abuse. By age 14, he was a Crown ward and was placed in foster care and group homes. He was diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) and was charged with many crimes of violence when he was a youth. He had a significant history of violence prior to entering administrative segregation.

[63] Mr. Reddock was released from federal incarceration in 2017 and testified that he was arrested and jailed numerous times from 2017 to 2019. In 2019, he was involved in an assault with a weapon and breaching bail. He is currently serving a sentence in a provincial penitentiary in Alberta. I was not provided with information as to when he is likely to be released from prison. These factual points, and others, should have been included in the agreed statement of facts I requested from counsel.

[64] The agreed statement of facts that was provided lists states that both expert psychiatrists who assessed Mr. Reddock agree that it is more likely than not that Mr. Reddock developed a trauma and/or stressor related disorder as defined in the DSM-5 (from the American Psychiatric Association) from his placements in segregation and that he would benefit from treatment for this disorder.

[65] Counsel for the Plaintiff asks for an award of compensatory damages of $500,000, future care costs of $118,094, management fee of $13,581, tax gross-up, and $200,000 for what is described as “vindication and deterrence damages, including punitive damages.” In addition, interest and costs are sought.

[66] The Defendant requests the motion be dismissed or in the alternative, that $20,000 be awarded in damages.

Evidence

[67] Mr. Reddock filed an affidavit sworn September 11, 2023 and a reply affidavit sworn September 11, 2023 for this motion. Mr. Reddock’s affidavit sworn September 30, 2019 filed on the original motion before Justice Perell was also referred to in evidence. He was cross-examined on his affidavits on October 3 and 5, 2023. The cross-examination was interrupted regularly by objections from counsel, which led to long interchanges between counsel. This was, for the most part, unnecessary and unhelpful to my analysis. In addition, the re-examination was not in accordance with the rules of evidence. There were many leading questions and, in my opinion, many of the questions asked were not proper re-examination. There was much disagreement between counsel on the record concerning the propriety of questions asked in re-examination. Again, that was not helpful to my analysis.

[68] Reading the transcript of Mr. Reddock’s examination demonstrated that, at times, he was argumentative, demanding to know why he had to answer questions from counsel and he made aggressive comments such as, “Did you hear what I said to you?” and at one point, counsel for the Defendant stated that he was yelling at her and being abusive. While it is difficult to get a complete sense of a witness from reading transcripts, the record is replete with denials from Mr. Reddock concerning facts set out in the contemporaneous notes from Correctional Services Canada (“CSC”).

[69] In his affidavit, he states that he spent at least 23 hours a day in his cell. He describes appalling treatment from the guards, including harassment, threats, taunts about his religion and requests for basic items being ignored.

[70] Mr. Reddock deposes that being in segregation caused him “severe harm” which included depression, anxiety, suicidal ideation and self-harming behaviour. He describes being in a constant state of paranoia and anxiety. He inhaled drugs to cause him to pass out and commenced cutting himself with razor blades. Because he was denied basic things such as the ability to use a phone to call his family, he started to bang his head against the wall in the shower to get the guards’ attention. Instead, he was pepper sprayed.

[71] He states he contemplated suicide regularly and was placed on Suicide Watch which meant that he was dressed in a gown and left on the floor of his cell. His requests for mental health assistance were denied. Mr. Reddock states that he had pre-existing mental health conditions including depression, anxiety, paranoia and suicidal ideation, all of which were exacerbated by his time in segregation. As a result of his time in segregation, he asserts that he experiences ongoing Post Traumatic Stress Disorder (“PTSD”), and has nightmares and flashbacks regularly. He did not express his suffering to the staff at prison because it would be used against him.

[72] To summarize, in his affidavit, Mr. Reddock states that his time in segregation has resulted in severe behavioural issues, difficulty in maintaining relationships, overpowering delusions, aggressive outbursts, significant impairment in mood, constant depression and drug use. He has tried to kill himself multiple times “as a result of my placements in administrative segregation.”

[73] The evidence from the Defendant paints a different picture. The affidavit of Nancy Shore, who was the assistant warden at Bowden Penitentiary where the Plaintiff was placed in 2014/2015, denies various statements in the Plaintiff’s affidavit. Ms. Shore deposes that inmates in segregation were allowed an hour of exercise time outdoors daily and given showers every other day. She notes that the cells were cleaned between placements and that inmates were given cleaning supplies to clean their cells. The records demonstrate that Mr. Reddock was given proper clothing, access to the phone and control over his lights. Contrary to the assertions in Mr. Reddock’s affidavit, Ms. Shore states that there are no references to mental health complaints during his time in segregation at Bowden.

[74] The warden from his time at the Saskatchewan Penitentiary from 2015/2016, Kathy Neil, deposes that on more than one occasion Mr. Reddock got into a fight with other inmates. She also confirmed that inmates are responsible for cleaning their own cells and that all inmates are provided with standard clothing and bed linens. At the Saskatchewan prison there is also a gym that inmates can use if they prefer not to go outside.

[75] The nurse from the Saskatchewan penitentiary, Ms. Willoughby, in her affidavit notes that she was aware of Mr. Reddock going on hunger strikes because he wanted to see an orthodox Rabbi. The Chaplain was attempting to arrange a visit and the nurse made a referral to the psychology department both times. The note from the social worker dated February 24, 2016 indicates that Mr. Reddock was self-harming to make a point; he wanted to see a Rabbi as he was interested in converting to Judaism. He also threatened a hunger strike if his request was not accommodated. The Willoughby affidavit contains numerous records indicating that Mr. Reddock was given access to mental health services and that his threats of slashing himself were done to obtain what he wanted, such as protesting against a transfer to another institution.

[76] The affidavit of Ms. Bell-Boychuk from Stony Mountain Institution where Mr. Reddock was in 2016 also disputes the contents of the Reddock affidavit in terms of the conditions of the cells, the access to mental health services and the ability to leave the cell to attend the library or exercise yard. She denies that guards ignored requests from inmates in the segregation cells.

[77] Ms. Sandhu was the warden at Matsqui Institution and Kent Institution. In her affidavit, she notes that Mr. Reddock has a long history of criminal convictions and has spent the majority of his life in prison. He was involved in the criminal justice system since the age of 12 and has had approximately 35 convictions, many for violent offences. Ms. Sandhu describes Mr. Reddock as a very difficult inmate: he set fires in his cell; assaulted guards and other inmates; and was not interested in attending programs while incarcerated. She also disputes his assertions that he was denied access to the exercise yard, showers and mental health treatment. She confirms that it was the responsibility of the inmate to clean the cell and that bedding and clothing was provided, but the inmate could also bring in their own.

[78] The affidavit of the psychologist, Dr. Neufeld, states that Mr. Reddock received access to care for mental health concerns during his time in segregation. Dr. Neufeld was involved in assessment with the Plaintiff and she received reports from other specialists. With respect to the banging of his head against the shower wall, the psychologist who assessed him noted that the self-injury was not due to mental health issues but was a way of getting the staff to respond to his demands.

[79] Dr. Neufeld states that Mr. Reddock had difficulty getting along with staff and other inmates and he was abusive to her personally. She believes his threats of self-harm were motivated by a desire to achieve his own goals as opposed to serious mental health issues. The affidavit of Ms. Bujold confirms the views expressed by Dr. Neufeld, that Mr. Reddock’s behaviour while in segregation was not due to mental health problems that were not being addressed but was motivated by a desire to get what he wanted.

Expert Reports

[80] The Plaintiff was assessed by the psychiatrist Dr. Waheed in April 2023. Dr. Waheed offers the opinion that the placements in segregation “likely” resulted in an increase in the following: symptoms of depression, impaired concentration, hopelessness and suicidal thoughts; thoughts of self-harm, angry outburst and head-banging; anxiety, panic attacks; hallucinations; and mistrust of others. He believes Mr. Reddock under-reported his problems. Dr. Waheed makes several diagnoses pursuant to the DSM-5: ADHD; PTSD; dysthymia; and ASPD. He assesses the prognosis as “guarded” and recommends psychiatric care, and cognitive behaviour therapy.

[81] Dr Fung, psychiatrist, assessed the Plaintiff in July 2023 at the request of the Defendant. She offers her opinion that Mr. Reddock’s time in segregation resulted in an unspecified trauma and stressor related disorder. She also notes he had a crystal methamphetamine disorder and a pre-existing antisocial personality disorder which was unaffected by his time in administrative segregation.

[82] Dr. Fung disagrees with Dr. Waheed that the time in segregation caused PTSD, observing that Mr. Reddock does not meet the necessary criteria for such a diagnosis. As well, she disagrees that Mr. Reddock has persistent depressive disorder, noting that his self-report of low mood or feelings of hopelessness while in administrative segregation is not sufficient to make the diagnosis.

[83] Dr. Fung concludes that the placements in segregation did not result in significant impairment in judgment, mood or ability to communicate with others. Nor does Dr. Fung believe that segregation resulted in significant anxiety. She states that the time in segregation did not result in severe or chronic suicidal ideation, but they probably contributed to some of his self-injurious behaviours while he was incarcerated. She opines he will probably continue to have waxing and waning trauma-related symptoms over his lifetime without full recovery but with proper treatment, the impact of the psychological harm will decrease.

[84] Dr. Fung recommends psychiatric treatment for his symptoms and 15-20 sessions of trauma focused cognitive behavioural therapy. He is able to do his activities of daily living.

Analysis

[85] Mr. Reddock is the representative Plaintiff for the Reddock class proceeding. The solicitor for the Plaintiff seems to suggest that because Mr. Reddock is the representative Plaintiff on the motion on the common issues, I am required to accept all of the evidence of Mr. Reddock as set out in his affidavits. That is incorrect; I am not bound to accept the evidence of Mr. Reddock as set out in his affidavits, particularly if it is contradicted by other evidence that I do accept.

[86] The motion heard by Justice Perell was on a different record of evidence. In his reasons, he noted the evidentiary record for the motion was extensive and included an affidavit from Mr. Reddock as well as the affidavits from others and reports from different experts. One of the realities is that on a motion for summary judgment, the evidence is put before the Court by way of affidavit, drafted by counsel. The cross-examination is put before the Court by way of transcripts. It can be challenging to assess credibility on a paper record. The fact-finding process can be difficult at times, even on simple matters. For example, Mr. Reddock asserts that his cell in segregation was filthy. The evidence from the Defendant is that cells were cleaned every time a new placement commenced and that inmates were given cleaning supplies and expected to do their own cleaning. It is difficult to determine which evidence is correct, particularly if the cross-examination doesn’t assist.

[87] Mr. Reddock has been compensated for the general harms caused by his time in segregation. His individual trial is to determine whether Mr. Reddock is entitled to any further damages as a result of the breaches of his s. 7 and 12 Charter rights. The onus is on the Plaintiff to prove on the evidence, on a balance of probabilities, that he should be awarded further damages because of his idiosyncratic circumstances.

[88] The solicitors for Canada make the submission repeatedly that Mr. Reddock chose at times to remain in segregation and at other times, he requested placement in segregation. That is of no moment to me, given that Justice Perell found that no placement in segregation could be considered voluntary.

[89] Looking at the evidence as a whole, it is clear that the Mr. Reddock had a difficult childhood commencing with a lack of a stable home. He was diagnosed with ADHD at an early age, had difficulty in school and became involved in crime at an early age. While a teenager he committed twenty-four crimes, some of them associated with violence. There is evidence that he was diagnosed with PTSD in 2010.

[90] One of the evidentiary problems, in my view, is that Mr. Reddock has filed affidavit evidence that is almost entirely based on his own statements, without any other corroborative evidence. By way of example, his reply affidavit consists of 40 additional paragraphs with statements such as, “…the lasting trauma from my time in segregation has affected every aspect of my life. These effects include but are not limited to: feelings of depression and helplessness; strong substance abuse; angry and aggressive behaviour to others; self-destructive behaviour; periods where I am unable to feel positive emotions; problems with concentration; and sleep issues.”

[91] While I accept that Mr. Reddock may attribute the majority of his current problems to his time in segregation, that is of little persuasive value, given he is the Plaintiff with an interest in the outcome. The solicitor for the Defendant describes Mr. Reddock’s affidavits as “self-serving” and I agree. The paragraphs consist of broad-brush statements about how he was treated in segregation without any detail, and his evidence is directly contradicted by the affidavits filed by Canada and by the records. The Plaintiff testified that because of his mental health problems from bein gin segregation, he received treatment from CSC medical professionals while in federal penitentiaries, such as psychologists. However, he did not append any of their treatment notes to his affidavits.

[92] I find the affidavit evidence of the Plaintiff largely unsatisfactory in terms of describing additional harm from his time in administrative segregation. I agree with the submissions of counsel for Canada that his affidavits contain self serving statements without evidentiary foundation. He makes broad statements about his treatment at the hands of the guards without providing details. He states that he was not provided with winter clothing, that he was not permitted to make telephone calls, and that his cell was filthy and disgusting. All of these points are contradicted by the affidavit evidence from the wardens of the penitentiaries who had involvement with Mr. Reddock and had knowledge from their own personal experience. They have included documentation with their affidavits to support their evidence.

[93] I accept Justice Perell’s finding of general causation of harm attributable to segregation for which Mr. Reddock has been awarded his share of the aggregate damage award.

[94] Turning to the expert evidence, overall, I prefer the report of Dr. Fung to that of Dr. Waheed because it is more thorough and relies both on the self-report of Mr. Reddock as well as the contemporaneous medical and CSC records. Dr. Waheed’s report appears to be based primarily on the Plaintiff’s self report and not on contemporaneous documentation. It would have been preferable for Dr. Waheed’s report to list all of the foundational documents he reviewed and relied on in coming to his opinion, in compliance with the requirements of Rule 53.03.

[95] Dr. Waheed does not deal with the Plaintiff’s history prior to his placement in segregation, which is significant. While Dr. Waheed notes that Mr. Reddock told him about his troubled childhood, living on the streets and his history of violence and criminal behaviour, he fails to make any reference to these facts when arriving at his opinion. It is as if this critical history is irrelevant. Instead, he finds several “prominent mental health difficulties” which he says have “likely resulted” from his time in segregation. That is far from compelling evidence of additional harms arising from the placements in administrative segregation.

[96] I find the report of Dr. Fung more thorough, balanced, and fair than that of Dr. Waheed. Counsel for the Plaintiff submits that Dr. Fung’s opinion ought not to be accepted because she does not treat patients who are in segregation, however Dr. Waheed’s report does not indicate he has any specific experience dealing with patients in segregation. While both Dr. Waheed and Dr. Fung opine that Mr. Reddock has Anti-Social Personality Disorder (“ASPD”), Dr. Waheed seems not to consider this as a possible explanation for some of the Plaintiff’s behaviour. Dr. Fung is of the opinion that the ASPD pre-existed the segregation time and was not affected by it. Since his release from federal custody, Mr. Reddock has continued with criminal behaviour and is currently in jail in a provincial institution. Given the Plaintiff’s history prior to admission to segregation as well as since being released, and because traits associated with ASPD include deceitfulness, unlawful behaviour, repetitive lying and aggressiveness as indicated by repeated physical fights or assaults, that should have been addressed by Dr. Waheed.

[97] Dr. Fung states that some of his escalating symptoms from 2015 to 2017 were due to an evolving unspecified trauma and stressor related disorder arising from the time in segregation. She also notes that because of the traumas he experienced as a child and youth, he was at an increased risk of developing a trauma-related disorder. She opines that his placements in segregation “probably contributed” to some of his self-injurious behaviours while he was incarcerated. Finally, she states that it is “possible” that his placement in administrative segregation was a cause, not the sole cause, of his illicit substance use. I accept Dr. Fung’s opinion on the effects of Mr. Reddock’s time in segregation and note that Dr. Waheed concurs that on a balance of probabilities, the Plaintiff developed a trauma-related disorder and that he would benefit from some treatment for it.

[98] The reply factum of the Plaintiff is comprised of argument. I am aware of the issue estoppels of Justice Perell. I am aware that he found the claimants suffered horribly while in segregation. I am aware that in coming to his findings, Justice Perell relied on different expert evidence than that which is before me. The fact that Mr. Reddock was the representative Plaintiff in the class action is of no particular moment to me in my task of assessing his damages. I am undertaking that task on the basis of the motion record before me, and the evidence that was filed. Justice Perell assessed the aggregate damages from which each claimant received a share. It was left to me to determine the damages on the individual issues trials.

[99] While Mr. Rosenberg submits that Mr. Reddock will never lead a normal life and that the time in segregation caused this, I do not accept this submission and it is not supported on the evidence. I also reject his statement that the burden rests with the defence to establish that Mr. Reddock’s current problems are related to other factors. The Plaintiff bears the onus of proof of establishing that but for his time in segregation Mr. Reddock would not have the mental health issues he has today: Clements. The evidence does not support the contention that if Mr. Reddock had not spent the time in segregation his life would be different. The onus is on the Plaintiff to establish on a balance of probabilities that there is additional harm suffered that ought to be compensated.

[100] As pointed out by the solicitors for the Defendant, there are significant discrepancies between Mr. Reddock’s prior affidavits sworn in 2017 and 2019 and the affidavits filed for this motion on damages.

[101] He had depression, angry and aggressive behaviour, self-destructive behaviour, problems with concentration, etc. long before his time in segregation. The issue for his trial is what role did the time in administrative segregation play in his overall constellation of symptoms today? What would he be like but for his time in segregation? Given that he has already been compensated for the harms occasioned by segregation including psychiatric harm, anxiety, aggression, delusions, hopelessness, irritability, sleep disturbances, suicidal ideation and a sense of impending emotional breakdown, what is the additional harm caused by segregation?

[102] Both of the expert psychiatrists who examined Mr. Reddock agree that he has antisocial personality disorder which predated his time in segregation. I agree with Dr. Fung that he does not have PTSD as a result of his placements in segregation. In my view, the evidence supports the opinion of Dr. Fung that on a balance of probabilities, Mr. Reddock developed an unspecified trauma and stress related disorder due to his placements in administrative segregation. I also accept her opinion that after his release from prison in 2017, the symptoms were intermittent. She opines that he will have some symptoms which will wax and wane, which would benefit from treatment.

[103] Counsel for Mr. Reddock submits he is a thin-skulled Plaintiff because of his serious pre-existing mental health illnesses: Athey v. Leonati, 1996 183 (SCC), [1996] 3 S.C.R. 458. While I agree that Mr. Reddock had prior traumas and psychiatric diagnoses prior to his federal incarceration, his case is distinguishable from Athey, supra, because factually the two cases are very different. Athey was a tort case involving a Plaintiff who had prior back problems, then suffered injuries to his back in two different motor vehicle accidents and went on to develop a herniated disc. The issue at trial was what was the cause of the herniated disc and whether the injury should be apportioned between tortious and non-tortious causes. The case involved a single indivisible injury, which is not the case with Mr. Reddock. As well, there were no subsequent events in Athey that effected the injury, which is also not the case with Mr. Reddock. It cannot be said that but for his time in segregation, Mr. Reddock would not have serious mental health illnesses at the present time.

[104] As both experts agree, Mr. Reddock’s prior experiences and diagnoses made him vulnerable to developing further illnesses as a result of his time in segregation. He experienced a trauma related disorder, something idiosyncratic to Mr. Reddock, something over and above the general harm associated with segregation for which he has already been compensated through his share of the aggregate damages. Athey does not support the submission of the Plaintiff that Canada is responsible for all of Mr. Reddock’s mental health issues and the treatment associated with them following his placements in segregation. The issue to be determined is what are the additional damages to Mr. Reddock as a result of his time in segregation. That is a different issue than the Court addressed in Athey. When assessing damages, the Court cannot look at one incident in isolation, such as placement in segregation, and ignore other experiences that affected a Plaintiff’s injuries as if they were irrelevant, such as abuse, drug addiction, other placements in segregation, placements in the general prison population, to name some of the more common experiences for the Bellwether Plaintiffs.

[105] The quantum of damages sought by the Plaintiff in this case arising from segregation is not in accordance with the evidence or with the jurisprudence. While the experts concur that Mr. Reddock suffered some harm while in administrative segregation, the pre-existing mental health problems that he had such as ASPD and ADHD are also strongly associated with other things such as substance abuse, aggressive behaviour to others and self-destructive behaviour. While in cross-examination of Dr. Fung, Mr. Rosenberg suggested, “…it’s fair to say that all of the symptoms that he’s listed at paragraph 37 of his reply affidavit could be associated with the trauma disorder that you’ve diagnosed, right?”, Dr. Fung did not agree with this proposition. Instead, she stated that his antisocial personality disorder, ADHD, along with his background and lifestyle are more probably the cause of his symptoms. She agreed that his time in administrative segregation may have aggravated his symptoms [emphasis mine]. Furthermore, the suggestion from counsel that his symptoms could be associated with the trauma from segregation is not evidence on a balance of probabilities.

[106] The solicitor for the Plaintiff suggests that damages in the amount of $500,000 are appropriate. He submits that I should look to the Barker v. Barker, 2022 ONCA 567, case for guidance. While I agree that the cap on general damages addressed by the Court in Andrews v. Grand & Toy Alberta Ltd., 1978 1 (SCC), [1978] 2 S.C.R. 229, does not apply to cases concerning breach of fiduciary duty and intentional wrongdoing, the number suggested by counsel is not in accordance with the jurisprudence nor it is supported by the evidence on this case. The Barker case is factually unique; the trial judge assessed the compensatory damages of individual Plaintiffs from $1,000 to $2.1 million. He noted the goal of compensatory damages “is to locate horizontal comparisons not with the type of conduct for which the Defendants are liable, but with the type and context of the suffering endured by the Plaintiffs”: Barker v. Barker, 2021 ONSC 158, at para. 26 (“Barker Trial Decision”).

[107] In Barker, the trial judge stated “It is obvious that in a case like this any quantification of damages, especially for non-pecuniary losses, will entail an element of arbitrariness…At the same time, the quantification must not be out of line with existing cases. It certainly must not be so high or low as to be considered disproportionate….As the Supreme Court of Canada has put it, “the award must be fair and reasonable, fairness being gauged by earlier decisions.”: Barker Trial Decision, citing Andrews, at p. 261.

[108] It is not helpful, in my view, to compare this case to a landmark decision such as Barker with different factual matrix, which was not a class action with awards of aggregate damages and which did not have the issue estoppels and complex procedural scheme as this one does. It is also to be noted that of the twenty-eight Plaintiffs in the Barker case, the trial judge assessed the damages of only four of them at more than the cap. Neither do I find the Boily v. Canada, 2022 FC 1243, case relied on by the Plaintiff to be of much assistance, because it is not factually similar and was a case involving the extradition of a claimant to another country where he was subject to torture, something known to the Defendant.

[109] The damages assessment is driven by the idiosyncratic facts relating to each Plaintiff, as any damage assessment is. As I have stated elsewhere in these Reasons, I decline to assess damages based on a per diem rate; in my opinion, that is not an appropriate way to assess any additional harm caused by segregation, because the individual responses to segregation differ, for a variety of reasons.

[110] In Ward, a case which was referred to by counsel for both parties, the Court addressed damages awarded pursuant to s. 24(1) of the Charter. It was noted that such damages are not private law damages in the nature of a tort claim. Rather they are intended to compensate an individual for breaches of the person’s rights after a breach of the Charter has been established. The goal of s. 24(1) damages are to compensate the claimant for losses caused by the breach and to place the claimant in the same position as if the rights had not been infringed. In addition, vindication and deterrence have been recognized as valid objectives of Charter damages. The damages must be “appropriate and just”.

[111] As the Court stated in Ward, at paras. 48-50: “Where the objective of compensation is engaged, the concern is to restore the claimant to the position she would have been in had the breach not been committed. As in a tort action, any claim for compensatory damages must be supported by evidence of the loss suffered…non-pecuniary damages are harder to measure. Yet they are not by that reason to be rejected. Again, tort law provides assistance. Pain and suffering are compensable. Absent exceptional circumstances, compensation is fixed at a fairly modest conventional rate, subject to variation for the degree of suffering in the particular case. In the extreme cases of catastrophic injury, a higher but still conventionally determined award is given on the basis that it serves the function purpose of providing substitute comforts and pleasures.”

[112] In my view, considering the pre-existing conditions of Mr. Reddock as well as the evidence emanating from his time in segregation and what has transpired since his release from federal prison in 2017, I assess the damages for the idiosyncratic additional harm suffered by Mr. Reddock due to his time in segregation at $50,000, which is a fair and reasonable assessment.

[113] The Plaintiff seeks future care costs in the range of $87,131 to $118,094 for such things as counselling, psychiatric expenses, a substance abuse program, medication expenses and occupational therapy. The Plaintiff expert, Ms. Bierbrier, has relied on the opinions set out in Dr. Waheed’s report of May 16, 2023 and appears to have costed all items that she believes Mr. Reddock would benefit from and notes that she has not considered the issue of causation. That is not helpful. There is no expert opinion that states that all of Mr. Reddock’s current problems are as a result of his time in segregation. Ms. Bierbrier’s future care costs report is of little assistance to me because it ignores the issue of what care costs in the future are attributable to Mr. Reddock’s time in segregation. Furthermore, the evidence indicates that in the time Mr. Reddock was not incarcerated, he did not seek any treatment for his mental illnesses. The onus is on a Plaintiff claiming future care costs to prove there is a substantial risk that such expenses will be incurred in the future.

[114] Ms. Bierbrier recommends time with an occupational therapist and a rehabilitation support worker “to assist in providing him with organizational support to re-establish community life roles and productivity…to promote leisure, physical and social activity outside of the house on a daily basis.” She also relies on Dr. Waheed’s recommendation of a vocational counsellor “to establish and implement a viable work plan”. I do not find on the evidence that Mr. Reddock’s ability to work has been impacted by his time in segregation and I decline to make any award for vocational counselling.

[115] The defence future care expert, Shauna Brown, conducted a paper review of the reports of Dr. Waheed and Dr. Fung and Ms. Bierbrier as well as the documentation both pre and post segregation in the form of records from the CSC.

[116] Ms. Brown notes that Mr. Reddock has a history of long-standing mental health problems dating back to childhood. Both Dr. Waheed and Dr. Fung concur that he needs treatment by a psychiatrist which is covered by OHIP. She identifies the cost of trauma directed therapy, 15 to 20 sessions, to be $7,875.00. With respect to the services of an occupational therapist and rehabilitation support worker, Ms. Brown states they were required prior to his time in segregation. If he is released from prison, he will need psychological intervention for 15-20 sessions at a cost of about $4,500 including transportation.

[117] Mr. Reddock has not worked consistently at any point in his life and is currently incarcerated. He has never established “community life roles” or been involved in leisure and social activity outside of the house. I do not say this in a critical fashion; rather, it is the undisputed evidence in the record. The Plaintiff remains in prison and it is unclear when he will be released. There is no evidence that after he was released from federal incarceration in 2017 he availed himself of any type of therapy or treatment. The Plaintiff bears the onus of proving that there is a real and substantial possibility that Mr. Reddock will incur the expenses being claimed in the future and he has failed to meet this burden. The future care costs report of Ms. Bierbrier is speculative and not based on the idiosyncratic evidence concerning this Plaintiff.

[118] The experts concur that Mr. Reddock likely developed a trauma related disorder arising from his time in administrative segregation which should be treated. It does not appear the Plaintiff has accessed any treatment for this since his release from segregation or at the provincial facility where he is currently incarcerated. It is unclear when Mr. Reddock will be released from prison and it is far from clear that he will avail himself of any treatment. However, because he developed an unspecified disorder from his time in segregation, he should be provided with funds for treatment. In my view, given that psychiatric treatment is covered by OHIP, a generous sum for the treatment arising from his time in segregation is $10,000.

THE CLAIMS OF DAVID KIFT

Background Facts

[119] David Kift (“Mr. Kift”) was born in 1957 and has been married for forty-three years and has 2 daughters. He was an officer with the Royal Canadian Mounted Police (“RCMP”) until he was diagnosed with Post Traumatic Stress Disorder (“PTSD”) in 1991 or 1993 as a result of his employment with the RCMP. He received an honourable discharge from the force in 1996 Following his discharge from the police, he worked in other capacities, but he has not worked since 2003.

[120] Mr. Kift suffered from physical problems as well prior to his placement in segregation. He underwent hip replacements on each side in 2009-2010, and knee replacements in 2017, with further revision surgery of the right knee in 2023.

[121] As a result of convictions for firearms offences, he was sentenced to time in federal custody. His first federal sentence commenced in January 2008 and his second one started in November 2014. He is a member of the Brazeau class. Mr. Kift was placed in segregation in federal prisons for a total of 24 days: 8 days in 2013; and 16 days in September and October 2016. He was released from the penitentiary in 2018 and resides with his wife.

[122] Counsel for Mr. Kift requests general damages (Charter damages) of $100,000, future care costs of $45,000, $150,000 in Charter damages for vindication and deterrence and/or punitive damages, a management fee and tax gross up plus interest and costs.

[123] The Defendant submits that the Plaintiff has not proven any additional damages and states that Mr. Kift has been compensated for his damages through the aggregate damages award. The Defendant argues that causation has not been made out, noting the Plaintiff spent 566 days in provincial administrative segregation prior to his federal sentence. There is no basis on which to award punitive damages. The motion should be dismissed.

Evidence

[124] The Plaintiff filed the affidavit of Mr. Kift as well as the expert reports of the psychiatrist Dr. Gavett-Liu (two reports), Carol Bierbrier and Stephanie Greenwald. The Defendant filed the affidavits of Michael Jensen, Scott Thompson and Sav Bains, all employees of CSC, and the expert report of the psychiatrist Dr. Reznek, the expert reports of Shauna Brown and Matt Mulholland on the issue of future care costs.

[125] In his affidavit, Mr. Kift referenced observing his partner at work being struck and killed by a car driven by a drunk driver as well as diving to the bottom of lakes to retrieve dead bodies as the causes for his PTSD diagnosis. He was diagnosed with a Major Depressive Disorder in 1994. He was discharged from the force in 1996 after being diagnosed with other mental illnesses including anxiety and depression.

[126] He describes his time in segregation in 2013 as excruciating; his PTSD, anxiety and depression were immediately exacerbated. He could not sleep, he was terrified. He deposes that he was more sensitive to the effects of segregation because of the time he had spent in provincial segregation. He states that he is still affected by his experiences in segregation and believes he always will be.

[127] During the September/October 2016 placement in segregation, he describes being in a state of “utter despair and sheer terror for every minute of my time in segregation.” His hoarding illness was exacerbated, something that was known to CSC, and he started to self-harm. The note from Ms. Hudson who assessed him September 28 2016 indicates that Mr. Kift was sobbing and indicating that he “could not take it anymore.”

[128] Mr. Kift describes the condition of his cell in segregation in appalling terms: filthy, with human excrement smeared on the walls. His medications for his mental health problems were discontinued without explanation. He was sobbing on the floor of his cell and his cries for help were ignored by the staff. Mr. Kift says he contemplated suicide constantly.

[129] Following release from segregation, Mr. Kift received treatment at a mental hospital run by CSC. In his affidavit, while he admits that he has had a difficult life and had serious mental health issues prior to his placement in segregation, he deposes that being in segregation was one of “the most difficult experiences of my life.” He expresses uncertainty about whether he will ever achieve the same status he had prior to his time in segregation.

[130] Michael Jensen, whose affidavit is filed by the Defendant, is currently the warden at Joyceville Institution in Kingston but was previously the Deputy Warden at Kingston Penitentiary at the time of Mr. Kift’s first placement in segregation. Mr. Jensen did not have any interaction with Mr. Kift. He confirms that Mr. Kift’s incarcerations in 2008 and 2014 arose from convictions of firearms related offences. He confirms that on two occasions Kift was placed in segregation during his second sentence.

[131] Mr. Jensen deposes that Mr. Kift was placed in administrative segregation at his own request because he was fearful for his own safety because of his history as an RCMP officer. He adds that Mr. Kift hoarded his medication and attempted to send them to his wife. He states that as a result, the case management team felt “justified” in admitting him to segregation and there was concern about a possible escape. Mr. Jensen sets out that at times Mr. Kift requested segregation, although it is unclear to me why these statements were made, given Justice Perell’s finding on the issue of voluntariness of any placement in segregation.

[132] Mr. Jensen states that Mr. Kift’s medication for his mental health illnesses was stopped because of the hoarding of his medications, as if that is some sort of appropriate punishment for an action that is the result of his mental illnesses.

[133] He disputes that the conditions in Mr. Kift’s cell were as he described in his affidavit, noting that the cells were cleaned when an inmate was placed there, and inmates were given the opportunity to exercise and have showers. Mr. Jensen seems to believe that since Mr. Kift did not launch a grievance about the conditions in his cell, that somehow supports the view that the situation was acceptable. He also states that inmates in segregation were given access to treatment for their mental health issues.

Expert Reports

[134] For this trial, the Plaintiff was assessed by the psychiatrist Dr. Gavett-Liu on March 7, 2023 and she authored two reports: the initial report is her assessment of Mr. Kift; and the second report is a commentary on the defence psychiatric report. In her assessment, Dr. Gavett-Liu noted the Plaintiff had no evidence of generalized anxiety and he denied suicidal ideation. He stated that he was living with his wife and described a good social life with some close friends and family.

[135] On testing, Dr. Gavett-Liu found he was moderately depressed and had PTSD. She states that while he had a longstanding history of PTSD at the time he was placed in segregation in 2013, but finds it was exacerbated from his time in segregation, and at the time of her assessment, the exacerbation persisted. She writes in her report, “I am of the opinion that causation is met. I am of the opinion that his time in solitary confinements exacerbated his pre-existing psychiatric symptoms, made him more vulnerable with respect to future stress and traumas and contributed to the persistence of his PTSD and depressive symptoms. Furthermore, I am of the opinion that but for his time in solitary confinement he on a balance of probabilities would not have sustained the level of psychiatric impairment that he is currently faced with. Mr. Kift’s prognosis for psychiatric recovery is poor at this point in time.”

[136] Dr. Gavett-Liu opined that Mr. Kift needs to be assessed and followed by a psychiatrist and requires anti-depressant medication. She notes his physical pain is an additional stressor and suggests medications could be prescribed to address that pain.

[137] The solicitors for Mr. Kift retained Carole Bierbrier who is an occupational therapist and a certified life care planner. The report from Ms. Bierbrier assesses Mr. Kift’s future care costs as a result of his time in segregation.

[138] Ms. Bierbrier identifies a number of recommendations for Mr. Kift to improve his function, quality of life, and future health: cognitive behavioural therapy; treatment by a psychiatrist; medications for depression and pain; treatment with a pain specialist; physiotherapy and other exercises; in addition to the costs of attending these recommended modalities.

[139] The recommendations are cannabis products, medication for depression, psychological counselling, intermittent counselling, psychiatric treatment, treatment from a pain specialist, physiotherapy treatments and travel to and from these various assessments and treatments. Fixed costs are calculated to be $38, 638.93 and annual recurring costs of $6,894.29.

[140] Finally, the expert report of Stephanie Greenwald dated May 15, 2023 calculates the present value of Mr. Kift’s future costs of care as set out in the Bierbrier report. The range is $150,934-$162,330 not including an allowance for financial management. This is based on a life expectancy of an additional 18.38 years.

[141] Canada relies on the expert opinion of the psychiatrist Dr. Reznek, who conducted a virtual assessment of Mr. Kift on July 10, 2023 and authored a report dated July 27. Dr. Reznek summarized the medical documentation he was provided with and noted the Plaintiff’s current complaints of neck, back and joint pain. Mr. Kift did not complain of depression to Dr. Reznek, and said he has a good family and enjoys repairing small engines. He denied suicidal thoughts or nightmares and said he was “pretty laid back”. On examination, Dr. Reznek found Mr. Kift to be pleasant and noted he did not display clinical signs of depression.

[142] Dr. Reznek concluded that he did not have the clinical indicia of depression at the time he assessed the Plaintiff, but he had previously been correctly diagnosed with a major depressive disorder, as far back as 1994, but it was in remission at the present time.

[143] Dr. Reznek noted that Mr. Kift had been diagnosed with PTSD in 1993, but at the time of his assessment, he did not find that Mr. Kift met the clinical criteria for PTSD because he was no longer experiencing the symptoms. The PTSD was in remission.

[144] Dr. Reznek is of the opinion that the first confinement in segregation did not exacerbate Mr. Kift’s pre-existing PTSD. Dr. Reznek noted that after being released from segregation, while he was in the general population at the penitentiary in 2018, Dr. Simourd found that he met all the DSM-5 criteria for PTSD. Dr. Reznek’s opinion is that there is no evidence that the periods in segregation resulted in either a temporary or lasting exacerbation of the pre-existing PTSD.

[145] Dr. Reznek notes in his report that a major depressive disorder is a chronic relapsing condition and Mr. Kift was diagnosed with this long before the time in segregation. During the second period in segregation, Mr. Kift was emotionally distressed, but it was short-lived according to the contemporaneous records. While Dr. Reznek agrees that being in segregation may cause an exacerbation of a pre-existing major depressive disorder, he did not find any evidence that indicated that the first time in segregation resulted in an exacerbation of the pre-existing major depressive disorder. While he did have an exacerbation during the 2016 admission, it settled quickly and his recovery continued into 2017, before a relapse in 2018. At the time of his assessment, Dr. Reznek found that the major depressive disorder was in full remission.

[146] In Dr. Reznek’s view, there was no evidence there was a permanent deterioration in Mr. Kift’s depression as a result of the time in segregation. Dr. Reznek makes the point that incarceration generally may cause depression or exacerbate pre-existing depression. He states, “Major Depressive Disorder is very common in prison populations. It is not surprising that the commonest mental disorders found in prison are major depressive disorder (Because prisons are depressing places). While in many cases the depression is pre-existing, there is also no doubt that much of this increased prevalence is due to the stresses of being incarcerated. A review of the literature supports the view that stress in prisoners is responsible for at least some of the increased prevalence of depression in the prison population.” Dr. Reznek does not agree that the Plaintiff requires future treatment to address any psychological harm suffered from his time in segregation.

[147] Shauna Brown, a registered nurse and a certified Canadian Life Care Planner assessed the Plaintiff at the request of the defence to determine if he will require any future care costs as a result of his placements in segregation. Mr. Kift described to her that presently, he was attending a program for relaxation through Veterans Affairs as well as attending regularly for massages. While he described being “open” to new therapies, Mr. Kift did not express any need to attend them. Ms. Brown disagrees with the recommendations of Ms. Bierbrier on the basis that Dr. Reznek’s opinion that no further mental health treatment is necessary. This was also the opinion of Dr. Kerry who assessed Mr. Kift in 2019.

[148] Finally, the expert report of the forensic accountant Matt Mulholland of the Matsson Driscoll firm dated August 8, 2023 concludes that Mr. Kift has not and will not sustain any loss of income as a result of his placement in segregation.

Analysis

[149] Mr. Kift was placed in segregation for a total of 24 days, 8 days in 2013 and 16 days in 2016. Prior to that, he spent 566 days in segregation in provincial institution(s). While I appreciate that the assessment of damages is not driven by the amount of time spent in segregation, compared to the other bellwether Plaintiffs, Mr. Kift spent a very short period of time in federal segregation.

[150] During cross-examination, Mr. Kift confirmed that while he was in administrative segregation in provincial jail, both his mental health and overall health were negatively impacted. This occurred prior to his placement in segregation at a federal institution in 2013. He served two sentences in federal penitentiaries: one in 2008; and another in 2014. He was released from prison in 2018. Since then, he has taken no formal treatment for his illnesses and takes no prescription medication for his mental health problems and he takes Percocet for his pain from his orthopedic problems.

[151] Justice Perell directed that specific causation was to be determined at the individual issues trial. That is, that the individual Plaintiffs must prove that the time in segregation resulted in additional harm and but for that time in segregation, their damages would not be as severe: Clements.

[152] There is not a great deal of information about Mr. Kift’s state following his release from segregation in 2016 while he was in the general population at the penitentiary. He spent a year getting treatment at a mental health hospital in Bath, Ontario in 2017. The complete records are not contained in the evidence before me. There is a paucity of information as to how Mr. Kift has functioned since his time in segregation, apart from his own report. Interestingly, when Mr. Kift was sent to the mental health facility following his release from segregation, the doctor noted in his discharge summary that “Mr. Kift successfully participated in a cognitive processing therapy group to address trauma symptoms related to incidents that occurred throughout his career as an RCMP officer…” There is no mention of his time in segregation.

[153] In his affidavit, Mr. Kift states that, “I have had a hard life. I have seen a lot and have been through a lot. Administrative segregation in Federal custody was among the most difficult experiences of my life. I was very ill before I went to prison and I continue to struggle with my mental illness. However, my time in segregation pushed me to a place I had never been before. I am sure that I am not the same person I was before segregation.”

[154] Mr. Kift testified during cross-examination that since his release from custody in November 2018, he has not seen a psychiatrist, a psychologist, or a therapist. He has been treated by physiotherapists and massage therapists for his musculoskeletal problems. He is not on anti-depressant medications but uses cannabis oil at night to assist with sleep.

[155] Counsel for Canada made submissions about the credibility of Mr. Kift who testified that he did not know why he was placed in segregation and denied that he asked to go into solitary confinement. I reject this submission because Justice Perell dealt with the issue of voluntariness of a placement in segregation in his judgments. It is an issue estoppel so why counsel included this as an issue in their submissions is unclear to me.

[156] I have reviewed the records of Dr. Ali, Mr. Kift’s family doctor. The appointments since 2018 relate for the most part to orthopedic problems, and there are no referrals for any treatment by mental health professionals. There are no notes that suggest that Dr. Ali has recommended treatment for his mental health problems to Mr. Kift or that he requires care in the future as a result of his time in segregation.

[157] In response to questions from Dr. Gavett-Liu, Mr. Kift stated that prior to his placement in segregation, mentally, he wasn’t doing well. Under cross-examination, Dr. Gavett-Liu was uncertain whether that meant prior to his provincial incarceration or his placement in segregation in federal penitentiary. It is difficult to comprehend when Dr. Gavett-Liu was asked specifically to opine on the effects of the federal segregation placement how she could not have been clear on Mr. Kift’s response to this question during her examination.

[158] Dr. Gavett-Liu’s response to critical questions during cross-examination such as what medical records she reviewed prior to doing her assessment of Mr. Kift was both surprising and unsatisfactory. She was assessing this Plaintiff specifically for the purpose of providing her expert opinion on the effects of the 24 days in administrative segregation on Mr. Kift. She knew he had spent extensive time in provincial segregation, and she was aware that he had pre-existing serious mental health issues dating back many years. To be uncertain whether she reviewed any records dealing to his 566 days in provincial segregation is very surprising. To state, as she did, “I just can’t tell you for sure. Mr. Antman could probably confirm that because he would have sent me whatever records I reviewed. I just don’t know for sure.”

[159] Dr. Gavett-Liu in her report concludes the Plaintiff was suffering from a major depressive disorder with anxiety that was pre-existing and worsened by his time in federal segregation. She also found his pre-existing PTSD was exacerbated. Dr. Gavett-Liu does not set out her opinion on the role of other stressors, such as the long segregation in the provincial facility, being an inmate in the general prison population or his longstanding history of depression and PTSD. I found Dr. Gavett-Liu’s responses to questions on cross-examination of little assistance. She was vague in most of her answers, she could not recall what records she reviewed and she was unwilling to concede points that she ought to have conceded. For example, she did not believe she reviewed the clinical records of Mr. Kift’s family doctor. I would have thought the records of his primary treatment provider, the doctor to whom Mr. Kift would have described his problems, for the time period following his release from prison would have been of great interest to Dr. Gavett-Liu given she was asked to provide her expert opinion on the effect of segregation on Mr. Kift’s pre-existing mental health illnesses. The records of Mr. Kift’s family doctor would have informed Dr. Gavett-Liu about what treatment he had received, what specialists he had been referred to, what problems he described and what medications he was prescribed.

[160] When asked by counsel for the Defendant whether the family doctor’s records would have formed an important part of a medical history, Dr. Gavett-Liu responded, “So, it could be a component of medical history. What I would say is that it’s not possible to review all of the records ever generated in a person’s life when you’re assessing somebody. So, depending on the content of those records, it could be relevant or it might not be relevant. It would just depend on the content of them. Like, if there’s a whole bunch of x-rays and, you know, blood work and stuff like that in the medical records, like, it’s really not going to change my opinion, so I could review it, I guess, if it’s available, but it’s not really that relevant to me generally, unless, I don’t know, if they have syphilis and they’re delirious as a result of it, but usually that kind of information isn’t relevant.” I do not accept Dr. Gavett-Lui’s response concerning the records of Mr. Kift’s primary treatment provider. Rather, her answer suggests she failed to consider proper, relevant records when arriving at her opinion on the effects of the time in federal segregation on Mr. Kift. Instead, she has seemingly concluded that his pre-existing mental illnesses were exacerbated by the 24 days in segregation and that the effects continue up to the present. That conclusion is not supported by Mr. Kift’s own evidence, nor by the records of his family doctor.

[161] Dr. Gavett-Liu went on to say she had received the family doctor’s records about a week prior to her cross-examination and she had reviewed them and they did not change her opinion. I reject Dr. Gavett-Liu’s evidence on this point. She was evasive and defensive in her responses to questions from counsel. I would also add that counsel’s interjections on the record were, for the most part, improper. Dr. Gavett-Liu’s role as an expert on this bellwether case is to assist the Court in determining the damages that flow from Mr. Kift’s time in segregation. If she failed to review proper documents in arriving at her opinion, that is a fair area for cross-examination and counsel’s objections to questions in an attempt to shield the witness were inappropriate.

[162] In her report, Dr. Gavett-Liu states, “I am of the opinion that causation is met.” She was asked what that meant, and she replied, “Basically that he has psychiatric symptoms as a result of federal solitary confinement.” In my view, Mr. Kift was a vulnerable Plaintiff who had prior to 2013 been diagnosed with serious mental illnesses. He had spent a significant amount of time in provincial segregation, the particulars of which Dr. Gavett-Liu did not obtain. He spent time in the general population at the prison. In my view, Dr. Gavett-Liu’s failure to deal with the other stressors in Mr. Kift’s life and the role they may have played in his current presentation is significant and has a negative impact on my view of the strength of her opinion.

[163] In her report, she concludes that the 24 days in federal segregation caused the Plaintiff’s current symptoms, which she found to include major depression and PTSD which continue to persist. Given Mr. Kift’s comments to her, it is unclear the basis for her diagnosis of depression. I also do not understand the foundation for her opinion that presently, Mr. Kift’s mental state is worse than it was prior to the 24 days in segregation. She concludes that the prognosis for improvement is poor. This opinion is difficult to reconcile with the evidence of Mr. Kift and the basis for this opinion is not articulated in her report nor was it explained during her cross-examination. I do not accept her opinion on this point. To the contrary, all of the evidence suggests that since his release from prison 6 years ago, Mr. Kift’s mental health issues have improved, which is not surprising.

[164] For these reasons, Dr. Gavett-Liu’s report and her evidence on cross-examination is of limited value to me in my determination of what additional damages were caused to Mr. Kift by the placements in segregation.

[165] Dr. Reznek concluded that the Plaintiff did not display clinical sings of depression when he assessed him; rather his presentation was appropriate during the examination. He did not find he has the clinical criteria of PTSD or anxiety. Dr. Reznek stated there was no evidence that Mr. Kift was malingering. Mr. Kift had chronic depression prior to his placement in federal solitary confinement. Dr. Reznek reviewed in detail the medical records from both prior to and subsequent to the segregation.

[166] Dr. Reznek agrees and the literature supports the contention that solitary confinement can cause PTSD. In Mr. Kift’s case, his PTSD was diagnosed following a series of traumatic events associated with his job as RCMP officer. Dr. Reznek states that he had symptoms of PTSD and depression during his segregation confinements, but the exacerbation appears to have settled quite quickly. He also notes that Mr. Kift experienced symptoms during his treatment in the mental health facility in 2017 and as well, when he was in the general population of the penitentiary until his release. He notes that is to be expected, given that he had been suffering from these problems for decades prior to his imprisonment. Dr. Reznek concludes the Mr. Kift’s PTSD is currently in remission and he finds no evidence to support the conclusion that the segregation in federal prison resulted in any long-term effects on the Plaintiff’s PTSD.

[167] One of the difficulties in assessing the impact of the 24 days in segregation on Mr. Kift is the fact that following his release from segregation, he went into the general population at the prison. As Dr. Reznek notes, “the very process of incarceration is something that may cause Major depressive disorder or exacerbate pre-existing major depressive disorder. Major Depressive Disorder is very common in prison populations.”

[168] The evidence is clear that Mr. Kift had pre-existing Major Depressive Disorder and PTSD which had waxed and waned over the course of many years. I do accept that as a result of the segregation placements in 2013 and 2016, Mr. Kift suffered an exacerbation of these mental health problems; both of the experts agree on that. I accept the opinion of Dr. Reznek that the exacerbation was temporary and that he returned to the same state he had been in prior to 2013. When exactly this occurred is difficult to pinpoint but the discharge note in 2017 following his treatment at the inpatient facility suggests that he had made significant progress and was doing better than previously. By his own testimony, after he was released from prison in 2018, he has been functioning better, and he has not felt it necessary to seek any treatment for his mental health issues since his release from the penitentiary.

[169] Overall, I prefer the expert opinion of Dr. Reznek over that of Dr. Gavett-Liu. Dr. Reznek did a careful review of the medical records and he reviewed the relevant literature. Dr. Gavett-Lui was not even certain on what medical records she reviewed that were significant to her opinion. During Dr. Reznek’s cross-examination, in my view, he conceded points that he ought to have conceded and he expressed his opinions based on the evidence of Mr. Kift’s prior mental health problems as well as his subsequent course.

[170] Dr. Reznek found Mr. Kift’s depression was better than it had been prior to his placement in segregation, indicating that there has been no permanent deterioration and I accept this opinion as it accords with the contemporaneous medical documentation and the overall evidence of Mr. Kift.

[171] I am not persuaded that Mr. Kift has any ongoing effects arising from his 24 days in segregation in 2013 and 2016. I agree with the opinions of Dr. Reznek and Dr. Kerry that his PTSD and depression issues are under control, and he is effectively managing them at the present time. He is clearly troubled by ongoing orthopedic problems which are not related to his time in segregation, and which are also being treated appropriately through surgeries and the administration of appropriate medication. I agree with Ms. Brown’s comments that Mr. Kift has adjusted to his life after his release from prison in 2018. He continues to reside with his wife, who is supportive, and he has meaningful relationships with his children and grandchildren. I accept the evidence of Mr. Kift that his time in federal segregation was horrible and resulted in an exacerbation of his PTSD and his depression. However, I do not find on the evidence that this exacerbation has resulted in any permanent changes in his complaints or symptomology.

[172] Mr. Sayce makes the submission that the Plaintiff was a thin-skulled Plaintiff, vulnerable to the effects of segregation and therefore, the Defendant is required to compensate the Plaintiff for all of his current medical problems. That is not correct in law: Athey v. Leonati. While I do agree that Mr. Kift had prior PTSD and depression which rendered him vulnerable to further similar mental health problems, a Defendant is responsible only for the damage that he or she causes. Mr. Sayce submits that there is no issue of causation; I do not accept that submission, either. Like all of the Plaintiffs in the bellwether cases, Mr. Kift had been diagnosed with serious mental illnesses prior to his time in federal segregation that continued to plague him at the time of his placements in segregation. He also spent time in the general prison population and a significant period of time in provincial segregation, which cannot be ignored. The issue of causation is critical to the analysis of any additional damages suffered by an individual Plaintiff.

[173] My mandate, following Justice Perell’s various determinations, pursuant to the DIIP, is to hear the evidence on the bellwether cases and determine what compensatory damages, if any, are appropriate for the time these individual Plaintiffs spent in segregation. This requires an analysis of the evidence, taking into account the individual Plaintiff’s condition prior to entering segregation, as well as the evidence concerning his course after being released from segregation. It is an assessment of damages over and above the aggregate damages previously awarded by Justice Perell.

[174] The solicitor for the Plaintiff asks me to award further compensatory damages of $100,000. The solicitor for the Defendant submits that Mr. Kift has been fully compensated by his share of the aggregate damages, which gross figure was $8,411.23. I do not accept either of these submissions. I find that during Mr. Kift’s time in segregation he suffered and deteriorated mentally. The evidence from Ms. Hudson that she had not observed him as upset as he was during his time in segregation is a note made contemporaneously and I accept it as valid. I find on a review of all of the evidence that the effects of segregation were short-lived for Mr. Kift. I have no doubt his time in the penitentiary after he left segregation until his release in 2018 was difficult and during that period, his chronic depression and PTSD continued.

[175] Overall, I accept his evidence; I do not find he is a person who exaggerates his problems, nor does he overstate the effects of segregation on him. To the contrary, he seems to minimize his challenges. I agree with his comment that he has had a hard life. I find on the evidence that he is entitled to additional compensation for his time in segregation. I assess his general damages for the time in federal segregation at $25,000.

[176] I will now address the issue of future care costs. In her affidavit, Carol Bierbrier states, “My colleague, Jay Bierbrier, assisted me with the report. I have reviewed any opinions that are expressed by him and adopt those opinions as my own.” She encloses a Form 53 acknowledging her understanding of the role of an expert.

[177] Ms. Bierbrier states that she is the author of the report, but she notes that “collaboration for file review and assessment was provided by Mr. Jay Bierbrier.” She identifies Mr. Bierbrier as a registered social worker and certified life care planner. I pause to note the manner in which the report is written is odd. Ms. Bierbrier, presumably, is the person who wrote the report, yet at times she refers to herself in the third person. For example, she notes, “Present for the assessment was Ms. Carol Bierbrier and Mr. Jay Bierbrier.” Nowhere in the report does Ms. Bierbrier set out what Mr. Bierbrier did; it is not clear what “collaboration and file review” encompasses.

[178] In cross-examination, Ms. Bierbrier states that Jay Bierbrier is also a certified life care planner who “assisted in portions of the report”. It remains unclear to me what Jay Bierbrier’s contribution was to the report. That is less than satisfactory and does not meet the requirements of Rule 53. There should not be any mystery to the contents of an expert report. While Ms. Bierbrier states on the record that she wrote the report and the opinions are hers, nowhere does she identify what Jay Bierbrier did that formed part of the report. That is not in keeping with the spirit of Rule 53.03 which is directed at ensuring the expert opinion is clearly expressed, and the foundation for it articulated.

[179] The report is signed by Ms. Bierbrier and by Mr. Bierbrier, and it states, “Should you have any questions regarding the content of this report, please do not hesitate to contact me.” It is unclear who wrote the report and whose opinions are set out in the report or who should be contacted if there are questions.

[180] Mr. Kift had been diagnosed with PTSD and depression in the early 1990’s stemming from his work as an RCMP officer. He also had orthopedic problems, which caused him pain and necessitated surgery prior to his segregation admissions, as well as after. In cross-examination, the Ms. Bierbrier testified that she relied on the recommendations of Dr. Gavett-Liu when composing her report. She did not review the records of Mr. Kift’s family doctor. She accepted the recommendations of Dr. Gavett-Liu and did not discuss them with Mr. Kift or ask if they were related to his time in segregation.

[181] Ms. Bierbrier concludes, for example, that Mr. Kift requires consultation with a pain specialist because “his physical pain could act as an added stressor”. Mr. Kift indeed has and has had serious orthopedic issues, for which he has undergone hip and knee replacements and other treatments. Those predated his time in segregation and certainly were not caused by his admissions. Had Ms. Bierbrier bothered to read the notes of Mr. Kift’s family doctor, she would have discovered that Mr. Kift sees Dr. Ali regularly for his orthopedic issues and his treating orthopedic surgeons have sent their consultative notes to Dr. Ali. Surely, his treating orthopedic specialists are in a far better position to offer an opinion on Mr. Kift’s pain problems and further treatment that might alleviate his pain complaints than Ms. Bierbrier is.

[182] In her report, Ms. Bierbrier describes a list of Mr. Kift’s current complaints. She made no effort to distinguish between what complaints pre-existed his time in segregation, or what ones are unrelated to segregation, or what ones arose from his time in provincial segregation, which was 566 days in length as compared to 24 days in segregation. Of the 13 complaints Ms. Bierbrier lists, 9 of them are unrelated to his placements in segregation. The last 4 (PTSD, anxiety, stress and depression) can be described as mental health issues, but all of them pre-existed the segregation placements and she simply states “exacerbated post-incarceration.” That is not helpful to my analysis, given that Mr. Kift was in prison for two further years after being in segregation. She made no effort to identify which complaints were related to his time in segregation and which were pre-existing or perhaps occurred afterwards. Ms. Bierbrier also acknowledged under cross-examination that the list of medications contained on page 13 of her report was not discussed with Mr. Kift and may not have been accurate.

[183] The report of Ms. Bierbrier is of marginal assistance to the Court and I place little weight on her opinions and recommendations. I say this because she simply accepted the opinions of Dr. Gavett-Lui without checking them with Mr. Kift or with the family doctor.

[184] Mr. Kift was candid in his evidence that he has taken no therapy or counselling or psychiatric treatment since being released from prison. His family doctor has not recommended any either. His orthopedic specialists have not recommended general physiotherapy or treatments with kinesiologists, or assessments by pain specialists. The list of medications that Ms. Bierbrier has costed are not medications that Mr. Kift is currently taking. Mr. Kift testified that he takes cannabis oil at night to help him sleep; there is no evidence that the cannabis is required as a result of the time in segregation.

[185] While I accept broadly speaking that exercise promotes relaxation, to suggest that Mr. Kift needs to see a physiotherapist to establish an exercise program and that need is related to his time in segregation is not based on the evidence in this case and is without merit.

[186] The report of Ms. Bierbrier is disappointing and is of little, if any, value to my assessment of the needs of Mr. Kift. She is an occupational therapist whose mandate was to determine what needs, if any, Mr. Kift will have into the future as a result of his time in segregation. Ms. Bierbrier appears to have made no attempt to identify what treatment and/or other goods he needs related to his placements in segregation in 2013 and 2016. While I acknowledge that Mr. Kift’s case is complicated by pre-existing mental health diagnoses and orthopedic problems as well as by prior time spent in provincial custody as well as time in the general population of the prison, that does not relieve her of the duty of an expert pursuant to Rule 53.03. She is obligated to provide the court with an opinion that is based upon her own expertise with reasons set out for her opinion. Her report fails to do this and she has failed to fulfil her role as an expert to the court.

[187] Ms. Brown who conducted the assessment of future care needs for the defence disagrees with Ms. Bierbrier’s opinion and she concludes that while Mr. Kift would not rule out new therapies in the future, she does not find that any are needed as a result of the time spent in segregation. In her report, Ms. Brown notes that she discussed the various treatments suggested by Ms. Bierbrier and Mr. Kift was unaware of what many of them were and expressed little interest in undertaking them at this point in his life, “he is reluctant to participate in therapies but noted that he didn’t think it was a problem...” Ms. Brown’s report is far more reasonable and rooted in the evidence than that of Ms. Bierbrier. Based on all of the evidence, and relying on Mr. Kift’s own testimony, I do not find there are any future care costs causally related to his time in administrative segregation.

[188] It is unclear to me why the report of the forensic accountants Matson, Driscoll and Damico Ltd. was included in the motion record of the Defendant because there is no loss of income claim being asserted for Mr. Kift.

THE CLAIMS OF DARCY LOYIE

Background information

[189] Darcy Loyie was born in 1984 and grew up on a reserve in Alberta; he is an Indigenous man. His family struggled with alcohol and drug addictions and he was raised by his grandmother until she died when he was 10. He then became a Government ward at the age of 12 and lived with foster families.

[190] Mr. Loyie has had two periods of federal incarceration: the first commenced in 2009 and ended in 2012; and the second started in 2014 and ended in 2019. He had four placements in segregation for a total of 231 days: he was in administrative segregation for 117 days between April 28 and August 22, 2009 (the Brazeau class time starting July 20); for 2 days in October 12/13, 2017; for 55 days between March 14 and May 7, 2019; and for 57 days between May 24 and July 19, 2019.

[191] The solicitors for Mr. Loyie ask $150,000 in general damages for compensatory Charter damages, $46,487 in future care costs, $25,000 in punitive damages and/or Charter damages for vindication and deterrence plus management fee, gross-up, interest and costs.

[192] The defence submits that Mr. Loyie has serious substance abuse disorders that long predated his placements in administrative segregation and the Plaintiff has not proven any further damages over and above the aggregate damages that he has received as a class member.

Which class does Mr. Loyie belong in?

[193] While this action was selected as a bellwether case, counsel do not agree which class Mr. Loyie belongs in. The solicitor for the Plaintiff states that he is a member of the Brazeau class because he meets the criteria as set out in the earlier decisions of Justice Perell and he was diagnosed by a doctor with an Axis 1 Disorder prior to and during the time in segregation and he suffered from the disorder. The Defendant disagrees and submits that Mr. Loyie is a member of the Reddock class and argues that Mr. Loyie does not meet the criteria for inclusion as a Brazeau class member because the only reliable diagnosis that can be made for him is substance abuse disorders, which are excluded from Axis 1 Disorders.

[194] Why this matters is because if Mr. Loyie is a member of the Reddock class, certain limitation periods apply and he can only claim for 2 eligible placements in March and May of 2019. If he is deemed to be a member of the Brazeau class, he can claim his time in segregation after July 20, 2009.

[195] I was not asked to determine which class a particular claimant belongs in, nor was I asked to determine applicable limitation periods. I do not believe I am in the best position to make these determinations and in my view, it is inappropriate for counsel to ask me to do so as part of the individual. Counsel selected the bellwether cases for the individual trials; it is unclear to me why they included a case in which they did not concur on which class the Plaintiff belonged in.

[196] Although I am not obligated to, and may not be in the best position to, I will offer my views on which class Mr. Loyie should be placed in, based on the Summary Judgment motion materials.

[197] To be a member in the Brazeau class, an offender must have been placed in segregation before February 24, 2013 for more than 15 days, and must have been diagnosed by a medical doctor with an Axis 1 Disorder (not substance abuse) or Borderline Personality Disorder who suffered from their disorder and reported it during their time in prison, where the diagnosis occurred before or during their incarceration. An Axis 1 disorder includes a number of items, but essentially comprises serious mental health illnesses such as significant impairment in judgment, delusions, depressed mood, manic mood, anxiety, hallucinations, delusions chronic and severe suicidal ideation, chronic self injury and other impairments that interfered with the ability to effectively interact with other people.

[198] A Reddock class member must also have spent more than 15 days in segregation, but there is no requirement to have been diagnosed by a medical doctor with any sort of mental illness.

[199] There are numerous references in the records from the time Mr. Loyie was imprisoned that confirm that he suffered from a number of the mental health issues set out in Appendix A. Attached as exhibits to the Cunha affidavit are numerous medical notes and records that confirm that he was diagnosed with depression and anxiety in 2009. While the psychiatrist Dr. Darlington’s records are not included (and not available), there is a note that she prescribed anti-depressant medication on May 15, 2009. There is a note from Dr. Woods on October 25, 2017 that Mr. Loyie was diagnosed with chronic depressive disorder and had been prescribed Wellbutrin, an anti-depressant medication. There is another note dated October 31, 2018 in which Dr. Woods noted, “Impression-- ASPD; unspecified psychiatric disorder; alcohol and substance use disorder; intellectual disability” There are other notes that he suffered from anxiety, self-harming behaviour and suicidal thoughts.

[200] In short, there is medical documentation emanating from the CSC that demonstrates to me that Mr. Loyie suffered from multiple mental health issues prior to his admission and during his time in segregation and psychologists and psychiatrists were involved in his care. While there is no doubt Mr. Loyie suffered and continues to suffer from serious substance abuse, which is excluded from the definition, he also has other serious mental health problems that predated his time in the penitentiary and which continued during his time in segregation.

[201] The notes dated September 12, 2014 from Brent Taylor indicate that Mr. Loyie reported being treated with antidepressants since August 2008. It was noted that his judgment was impaired. On October 25, 2017, Dr. Curtis Woods noted the Plaintiff had chronic depressive disorder which was resistant to treatment. Later, in early 2018, Dr. Woods wrote that Mr. Loyie had Major Depressive Disorder and questioned whether he had anxiety. The records from his time in segregation clearly depict a person suffering from a variety of serious mental illnesses. From the records, I am persuaded that Mr. Loyie satisfies the criteria for membership in the Brazeau class.

Evidence

[202] The Plaintiff filed Mr. Loyie’s affidavits, the affidavits of Ms. Cunha, a clerk in the office of Koski Minsky, attaching various documents, the expert reports of Dr. Gavett-Liu, Mira Miller and Stephanie Greenwald.

[203] The defence filed the affidavits of Jennifer Hendrick, Brett O’Neill, Scott Thompson, and Carson Gaudet, all employees with CSC, as well as the expert reports of Dr. Valerie Tourjman, psychiatrist, and Laurie Laporte, and Matt Mulholland on future care costs.

[204] Mr. Loyie deposes that he was diagnosed with Axis 1 disorders prior to his imprisonment, including depression and anxiety for which he was prescribed medication, and that CSC were aware of his mental health issues. He saw a psychiatrist during his time in segregation commencing in May 2009 and in the ensuing years, he was diagnosed by CSC psychiatrists with depression, anxiety and an adjustment disorder.

[205] Mr. Loyie states that his time in segregation exacerbated his pre-existing mental health problems. He experienced severe suicidal ideation and profound depression and anxiety. He describes the cells in segregation as filthy, with feces on the floor from plugged toilets. He experienced hallucinations, which he had not had previously. Mr. Loyie deposes that he lost his will to live and was constantly thinking about how to commit suicide.

[206] Mr. Loyie states, “The damage was done after my first placement in segregation.” He tried to kill himself in 2013, 2016 and 2017. He asserts that he bit his fingernails to the quick and developed infections; he scratched at his skin. He was delusional and was placed on high suicide watch. He asked to be transferred so he could get the treatment he needed, but his requests were not granted.

[207] Mr. Loyie states that his mental illnesses were exacerbated by his time in segregation and the effects continue. While he suffered depression for years prior to his incarceration, it was increased during his time in segregation. Now, he feels hopeless and is plagued by thoughts of suicide daily. He is anxious, reluctant to socialize and prefers to be alone. While he admits to using hard drugs from an early age, he notes his drug addiction increased after his time in segregation and he feels he turns to drugs to help deal with his childhood trauma and his memories from his time in segregation.

[208] In his affidavit, Mr. Loyie states, “Segregation made my pre-existing mental health issues worse, and even created new and unprecedented mental health issues. The person I was when I entered segregation for the very first time never came back out.”

[209] On his own evidence, Mr. Loyie has been using hard drugs since the age of 13 and had a spotty work history in construction work. During the assessment with Dr. Gavett-Liu, he advised her that after his release from prison, he started using cocaine on a daily basis after he had completed detox and rehabilitation. He started drinking heavily as well, consuming at least a 26-ounce bottle of hard liquor daily.

Expert Reports

[210] The Plaintiff was assessed for this motion by the psychiatrist Dr. Gavett-Liu who authored a report dated May 8, 2023. Dr. Gavett-Liu assessed the Plaintiff’s mental health status as being severely ill, his cocaine use and alcohol consumption as severe and found he has symptoms of major depressive disorder, which was pre-existing but worsened by his time in segregation, as well as anxiety disorder, which she attributes to his time in segregation. Dr. Gavett-Liu noted that she was unable to confirm that these diagnoses were not due to his substance use. She concluded his prognosis for psychiatric recovery is poor due to his co-morbidities, substance use, psychosocial stressors and the persistent nature of his psychiatric symptoms and related impairments.

[211] On the issue of the causal connection between his time in segregation and his psychiatric injuries, Dr. Gavett-Liu noted Mr. Loyie’s past psychiatric difficulties likely made him more vulnerable to stress and trauma. She states that while he has reported his pre-existing symptoms of depression were worsened after his time in segregation and he experiences persistent symptoms of anxiety which has resulted in increased drug use, she cannot definitively comment on causation. This is because of his ongoing, significant substance use.

[212] She recommends cognitive behavioural therapy and ongoing psychotherapy to treat his depression as well as treatment by a psychiatrist. On the issue of his employability, Dr. Gavett-Liu concludes he is competitively disadvantaged from the workforce from a psychiatric perspective. He would be unable, in all likelihood, to attend work on a consistent basis and he would struggle with the demands of work. However, she also noted that she could not comment on whether his employability is causally related to his time in segregation.

[213] There is a report dated May 15, 2023 from Mira Miller, an occupational therapist and certified life care planner. She was asked by the solicitor for Mr. Loyie to identify the care he requires in the future as a result of his time in segregation. She relies on the recommendations of Dr. Gavett-Lui and quantifies future care costs of $105,773.40 with fixed recurring costs of $1,923.50. The largest items in her report are the psychological counselling on a weekly basis, family counselling, occupational therapy, a rehabilitation support worker and specialized substance abuse rehabilitation. According to the expert Stephanie Greenwald from RSM Canada, the present value of the future care costs range between $135,530 and $187,520.

[214] The defence retained the psychiatrist Dr. Tourjman to review the documentation and the report of Dr. Gavett-Liu and to provide her opinion. She did not conduct her own assessment of Mr. Loyie. She authored a report dated August 2, 2023.

[215] Dr. Tourjman agrees with the comments of Dr. Gavett-Liu that because of Mr. Loyie’s ongoing serious substance abuse, the diagnosis of Major Depressive Disorder and Generalized Anxiety Disorder cannot be confirmed. She also agrees with Dr. Gavett-Liu that the prognosis is poor because of his severe substance use disorder, she expects that he will continue to have psychological, psychiatric and interpersonal troubles as well as work instability.

Analysis

[216] The Plaintiff’s expert opines that while Mr. Loyie displays symptoms of pre-existing depression worsened by his time in segregation as well as generalized anxiety disorder caused by his time in segregation, she cannot comment on whether his reports of increased anxiety and depression are causally related to his time in segregation, because of his substance use. The defence expert Dr Tourjman concurs and states that because of the pervasive substance abuse it is unclear whether his complaints of depression and anxiety were actually caused or induced by his substance use. She states, “The contributions of administrative segregation from the contributions of ongoing substance use would be difficult to disentangle.”

[217] I agree with the submission of the Plaintiff that it is inappropriate for me to consider that the Defendant was correct in placing this Plaintiff in segregation. The issue estoppels are clear that there is no justification in any of the cases for the placement of a prisoner in segregation.

[218] The Plaintiff concedes that Mr. Loyie is suffering “mightily” with substance abuse, but they argue that it is because of the harms he suffered in solitary confinement. In my view, the evidence does not support the causal connection that counsel for the Plaintiff urges me to make in this case. The Plaintiff’s own expert does not find a causal connection between the time in segregation and the Plaintiff’s current constellation of mental health problems.

[219] The jurisprudence is clear that any Plaintiff bears the onus of proving on a balance of probabilities that but for a certain event or series of events, the Plaintiff would not have sustained the injuries or losses that he or she did. In the instant case, the question may be posed, “But for Mr. Loyie’s placements in administrative segregation, would his mental illnesses and substance abuse exist in the state that they are at present?”

[220] Mr. Loyie was in segregation for 231 days using the Brazeau date for commencement. He was an inmate with pre-existing serious mental health issues. While substance abuse problems cannot be considered when determining whether a Plaintiff meets the criteria for inclusion in the Brazeau class medication, they were part of the constellation of his mental health problems when he was placed in segregation.

[221] The positions of counsel are wildly divergent: the Plaintiff solicitor submits that Mr. Loyie should be awarded damages of $150,000 plus a further $25,000 in punitive damages and $46,487 in future care costs; the defence says he is entitled to nothing further in addition to his share of the aggregate damages.

[222] The records available to me disclose that Mr. Loyie had an extremely difficult childhood and he had a lengthy history of substance abuse dating back to age 12. He reported that he was smoking hash or marijuana daily and was regularly drinking alcohol to the point of passing out. Prior to any time in jail, Mr. Loyie was smoking crack cocaine several times a week. During his cross-examination, Mr. Loyie attributed his substance abuse issues to the effects of the traumas he suffered during childhood. As well, he had mental health issues and was treated with anti-depressant medication prior to his admission to segregation.

[223] The notes appended as exhibits to the affidavit of Mr. O’Neill contain records from his incarcerations. For example, in the note dated August 6, 2009 from CSC, there is a summary of psychological and psychiatric assessments. At that time, Mr. Loyie conceded that he had been receiving anti-depressant medication and was experiencing a moderate level of depression. He acknowledged that his drug addition was a major factor in his criminal behaviour and that it severely impaired his judgment.

[224] Sadly, each time Mr. Loyie was released from prison, he returned to using drugs on a regular basis. Presently, Mr. Loyie’s addictions are out of control to the point that he admitted to smoking crack cocaine during his assessment with Dr. Gavett-Liu. His current substance appears to be at the worst level he has experienced.

[225] Mr. Antman submits that Mr. Loyie’s addictions and his mental health difficulties were caused or materially contributed to by his time in segregation. I do not accept this submission and it is not supported on the evidence. To be successful on receiving a damage award to compensate him for his addictions, Mr. Loyie must prove on a balance of probabilities that but for his time in segregation he would not be experiencing the serious addiction issues and other mental health problems that he is today. The test is not “material contribution”. It is only if a Plaintiff cannot prove causation for reasons beyond his or her control or if the Plaintiff’s injury falls within the ambit of risk created by the Defendant’s conduct that the but for test is not applicable: Resurfice Corp. v. Hanke, 2007 SCC 7. That is not the situation with Mr. Loyie’s case.

[226] The Plaintiff’s own expert does not make this finding in her assessment of Mr. Loyie. Dr. Gavett-Lui states that she cannot conclude that his pre-existing substance abuse was worsened because of his time in segregation. To complicate matters further, she notes that while he showed symptoms of anxiety and a worsening of his pre-existing depression from his time in segregation, she also stated, “However, due to Mr. Loyie’s ongoing, significant substance use disorders, I cannot definitively diagnose the depression and anxiety symptoms he experiences as Major Depressive Disorder or Generalized Anxiety Disorder, as both require that the symptoms are not attributable to the physiological effects of a substance. Given that he reported his longest period of recent sobriety is typically no more than 12 hours, this is not sufficient time to determine whether or not the symptoms of depression and anxiety are due to his substance use. In addition, he has experienced pre-existing substance use struggles and though he reports this has worsened following his time in solitary confinement, I cannot confirm this based on the available information. Therefore, though it appears that his symptoms of anxiety and depression have worsened over time, I cannot definitively comment on causation.”

[227] Dr. Tourjman agrees with the prognosis of Dr. Gavett-Lui that it is poor but she is of the opinion that it is due to his severe and active substance use disorder and because of his substance abuse, persistent psychiatric, psychological and occupational instability are to be expected.

[228] Dr Tourjman agrees that Mr. Loyie has a severe cocaine and alcohol use disorder as well as symptoms of Major Depressive Disorder and a Generalized Anxiety Disorder. Both Dr. Gavett-Liu and Dr. Tourjman concur that because of his ongoing substance abuse it is impossible to state whether the depression and anxiety disorder are caused by the substance use. Both experts agree that the causal connection cannot be determined because they see individuals with the same phenomena as Mr. Loyie who have never experienced segregation.

[229] I accept that Mr. Loyie was harmed by his time in segregation, as all class members were. Justice Perell has commented on that and found that all Class Members suffered psychiatric harms from being placed in segregation. As a result, he awarded aggregate damages to the class which were meant to address compensation for what they had suffered as well as vindication and deterrence damages. In the Brazeau Damages Redetermination, Justice Perell noted, “…many if not most of the Class Members… will not need to proceed to individual damages assessments for compensation because they will already have been fully compensated for this head of damages, and vindication and deterrence will also have been achieved on a class-wide basis by the aggregate award.”

[230] The purpose of the individual trials was for class members to seek additional compensation based on their own idiosyncratic facts, to demonstrate that their circumstances were such that the aggregate award did not adequately compensate them for the time spent in segregation. In the case of Mr. Loyie, his evidence is that his mental health problems were exacerbated during his time in segregation and that he experienced additional anxiety and suicidal ideation. The opinion of Dr. Gavett-Lui is that his pre-existing depressive symptomology appears to have worsened over time [emphasis mine]. However, she is very clear that she cannot state that his current problems with addiction, psychiatric issues and inability to work are causally related to his time in segregation. She does offer the opinion that it is his current and active substance abuse issues on their own that preclude his being employed.

[231] Dr. Tourjman states, “It is unclear, given the pervasive substance use whether these periods of dysphoria and anxiety were not induced by substance use. Thus, we agree with Dr. Gavett-Liu’s opinion that it is difficult to attribute the current symptoms to major depression or generalized anxiety disorder given the ongoing use of substances. The contributions of administrative segregation from the contributions of ongoing substance use would be difficult to disentangle….Thus, we can only reinforce Dr. Gavett-Liu’s position that it is difficult to disentangle the effects of administrative segregation from ongoing substance use and the contribution of the two dimensions to Mr. Loyie’s condition.” In my view, this is a fair statement based on the evidence, and both of the psychiatrists concur.

[232] On the issue of future care costs and treatment, Dr. Gavett-Liu agrees that admission to a specialized substance abuse and/or psychiatric rehabilitation program would be an optimal way to manage Mr. Loyie’s persistent substance abuse and psychiatric impairments. Given her inability to relate his addiction issues to his time in segregation, I decline to make an award of future care costs. The evidence suggests that Mr. Loyie’s long-standing problems with alcohol and drugs are his main issues affecting his ability to function and they are not caused by his time in segregation and thus they are not recoverable as a damage in this action.

[233] The report of Ms. Miller who concluded the Plaintiff requires future care costs is of no assistance to me. She completely ignores the issue of causation and simply quantifies the costs she believes would be of assistance to Mr. Loyie, notwithstanding both psychiatrists agree that his substance abuse has been the major aspect of Mr. Loyie’s life prior to his segregation placements and it continues to be his most serious problem. Until the substance abuse is addressed, it is unlikely cognitive behavioural therapy will be effective.

[234] Dr. Tourjman agrees with Dr. Gavett-Liu that Mr. Loyie’s substance abuse disorder needs to be addressed first and until that is done, it is unlikely there will be any change in his mood disorders. She also notes that Mr. Loyie’s motivation to cease substance use is “clearly weak” and it is highly unlikely that treatment for his depression and anxiety will be effective until the substance use is addressed.

[235] On the issue of cognitive behavioural therapy recommended by the expert for the Plaintiff, Dr. Tourjman states that this treatment can only be effective following remission or substantially reduced intensity of the substance abuse disorder.

[236] Being a vulnerable person does not relieve a Plaintiff from establishing the causal connection between an actionable wrong and damages suffered. The Plaintiff has failed to do this on the evidentiary record before me. While the Plaintiff suffered during his time in segregation, he has been compensated for that through the aggregate damage award and he has failed to prove on a balance of probabilities that his placements in segregation caused additional harms. I make no award of further damages to Mr. Loyie as a result of his time in segregation. Similarly, Mr. Loyie has not proven any future care costs that are causally related to his time in segregation.

[237] Finally, for the reasons expressed at the beginning of these reasons, I am not prepared to make an award of punitive damages.

THE CLAIMS OF DAVID MCMATH

Background facts

[238] David Peter McMath (“Mr. McMath”) was born on May 9, 1965 and his heritage is Jamaican and Cree. He had a troubled childhood and was sexually and physically abused at a young age. He became involved in crime at the age of twelve and started using drugs at the age of fourteen; he committed crimes while he was high on drugs. He has a long-standing history of mental health issues dating back to childhood.

[239] He was first incarcerated in a federal institution in 1983; after being convicted of other crimes in 1994, he was incarcerated in a federal penitentiary a second time. In 1995, he was designated a dangerous offender, given an indeterminate sentence and presently, he remains in federal custody. He has spent a total of 709 qualifying days in administrative segregation between 2011 and 2019. He is a member of the Reddock class and has received his share of the aggregate award totalling $8,411.23 minus deductions.

[240] Counsel for Mr. McMath seeks an award of $500,000 for compensatory Charter damages in the nature of general damages, $193,127 for compensatory Charter damages in the nature of future care costs, $200,000 for vindication and deterrence Charter damages including punitive damages, plus a management fee, tax gross-up, interest and costs.

[241] The defence submits that Mr. McMath has not proven any additional damages and the motion should be dismissed.

Evidence

[242] The Plaintiff filed three affidavits of Mr. McMath, the affidavit of Katherine Stubits which essentially provides records, the affidavit of Pastor Oliver Johnson, the affidavit of Lesley-Ann Teape enclosing medical records of the Plaintiff, as well as the expert reports of Dr. Waisman, psychiatrist, and Carol Bierbrier and Stephanie Greenwald on the issue of future care costs.

[243] The Defendant filed the affidavits of Kelly Hartle, Bobbi Sandhu, Scott Thompson and Carson Gaudet from Correctional Service of Canada, as well as the expert reports of Dr. Colleton, psychiatrist, and Monique Besz, and Matt Mulholland on the future care costs issue.

[244] Mr. McMath stated that his cell in administrative segregation was small, dark and filthy. He often spent 23 hours a day in the cell and the temperature was not regulated; it could be sweltering hot or there could be ice on the walls. Mr. McMath asserted that he was the subject of racist comments from the guards and that he was mistreated, made to fight other inmates (a practice known as double dooring) and was unable to access programs and counselling.

[245] Mr. McMath has advised various people that he had a difficult childhood, was sexually abused by his brother and by inmates at a youth detention center, resulting in a diagnosis of PTSD. He engaged in criminal activity by the age of 12. He had a history of depression and anxiety since childhood as well as substance abuse, which started when he was a teenager. The Plaintiff asserts that as a result of his placements in administrative segregation, he suffered severe depression and thought of suicide regularly. He engaged in self-harm by cutting himself.

[246] Oliver Johnson is a pastor who worked for the Correctional Service of Canada and has provided services to Mr. McMath for 20 years. Mr. Johnson deposes that Mr. McMath was frightened for his life while in segregation and he was routinely mistreated by the guards who treated him as if he were an animal, to use Mr. Johnson’s descriptor. He also confirmed that Mr. McMath was subject to racism and his requests were ignored or dealt with in a very slow fashion.

[247] The Defendant submits that the medical records document Mr. McMath has long-standing psychiatric diagnoses including Anti-Social Personality Disorder (“ASPD”), pedophilia, anxiety, and depression and the Plaintiff has failed to prove that any decline in his mental health was as a result of his time in segregation. The Defendant relies on the expert opinion of Dr. Colleton, the psychiatrist who examined Mr. McMath at the request of Canada.

[248] Counsel for the Plaintiff submits that Mr. McMath suffered horribly in segregation, his mental health problems of depression and anxiety escalated, he self-harmed and he had suicidal ideation. They submit that Mr. McMath was in segregation for very long periods of time, noting Justice Perell found that the longer a person was in segregation the more severe the harm suffered. Mr. McMath continues to suffer from the effects of those placements and will continue to suffer from the exacerbation of his pre-existing mental health illnesses.

[249] The Defendant submits that the Plaintiff is not a credible witness and no reliance can be placed on his evidence. The contemporaneous records do not support the contention of the Plaintiff that he suffered grievous harm from his time in segregation. Mr. McMath has been compensated for the harm by the aggregate award.

[250] Again, it is unclear to me why time was devoted to the issue of whether or not Mr. McMath asked to go into segregation for his own safety. Canada argues that many of his placements in segregation were at Mr. McMath’s request or done for his own safety. Justice Perell has found as an issue estoppel that all placements should be treated as involuntary, which was confirmed on appeal: Brazeau Appeal.

Expert Reports

[251] The psychiatrists retained by the parties disagree on the effects of segregation on Mr. McMath. Dr. Waisman acknowledges that Mr. McMath had been diagnosed prior to his time in segregation with serious mental health problems—ASPD, depression, anxiety, substance abuse, borderline personality disorder and PTSD and he agrees that the Plaintiff had severe personality problems and suffered from significant childhood trauma. However, he accepts the Plaintiff’s evidence as reliable and concludes that the placements in segregation triggered various pre-existing vulnerabilities and worsened other problems and that the conditions of segregation greatly aggravated his conditions. Dr. Waisman states that Mr. McMath needs psychological and psychiatric treatment now as a result of the time in segregation and he will require such treatment into the future.

[252] On the other hand, Dr. Colleton does not believe the evidence supports a link between Mr. McMath’s time in segregation and his current problems and he does not conclude his mental health declined significantly as a result of his placements in segregation. Rather, he concludes that Mr. McMath has ASPD and is close to the diagnosis for psychopathy, both of which include deceitfulness and manipulation as criteria, so he questions the reliance of Dr. Waisman on Mr. McMath’s self-report.

[253] The solicitor for the Plaintiff submits that no weight should be given to Dr. Colleton’s opinion because he did not accept the issue estoppels as found by Justice Perell. This same argument was advanced by counsel in relation to another expert, Dr. Klassen. I reject this submission for a number of reasons.

[254] First, the issue estoppels were intended to simplify the individual trials, so that certain issues could not be relitigated by counsel. Second, in my view, the experts retained do not necessarily have to agree with all of the issue estoppels, if they are not supported by their own experience as a psychiatrist. Experts are often provided with certain hypotheses on which to rely, but that is different than being given findings of fact, which may be broad statements in the expert’s area of expertise and which may or may not accord with the expert’s clinical experience. The court expects a medical expert to bring his or her clinical experience to bear when arriving at an opinion in a case. The psychiatrists in these cases were asked to provide an opinion on a narrow issue: the effects of placements in administrative segregation on a particular Plaintiff. Whether or not, for example, the expert agrees with the list of effects from administrative segregation as set out by Justice Perell at item (c) is of no moment to their opinion on these cases. The experts were asked to determine causation in these individual trials; to determine whether there were any additional harms above the general harm Justice Perell found in the Plaintiffs they assessed. In order to do so, the psychiatrists had to consider not only the time spent in segregation but also the pre-existing mental illnesses and the effects of other events, such as time spent in the main prison population.

[255] So, by way of another example, a psychiatrist may find in a particular Plaintiff that the harm was not be measured by the length of time spent in segregation. In my opinion, that is open to the expert, although it does not accord with one of the general issue estoppels. That is because, as Justice Perell noted, the task for the individual trials was to determine the idiosyncratic harm suffered to a particular Plaintiff as a result of time spent in segregation. That is the opinion the Court seeks from the expert. I do not accept the broad suggestion from counsel for the Plaintiffs that an expert opinion is of no value unless the expert agrees with each of the issue estoppels. The Court cannot dictate to an expert what his or her opinion should be, nor can the Court tell the expert what facts he or she must place emphasis on. That would prevent an expert from fulfilling his or her duty pursuant to Rule 53.03. Counsel’s submission may have some superficial appeal, but when the mandate of the expert on these individual trials is scrutinized as well as the opinions provided, the argument is without merit.

[256] As I have noted, it would have benefited the Court if counsel had selected a common expert to conduct the assessments of the Plaintiffs for the bellwether motions. There would have been a credible, impartial expert’s opinion for the Court to consider and rely upon, along with the other evidence on the summary judgment motion. As it stands, in the instant case, Dr. Waisman and Dr. Colleton do not agree on diagnosis or causation and are critical of the other’s opinions. Mr. McMath presents as a complicated patient, given his pre-existing mental health illnesses.

Analysis

[257] Justice Perell made findings of fact concerning the effects of segregation on inmates and awarded aggregate damages as a result, but left it open to individual Plaintiffs to pursue a trial if they felt that there were idiosyncratic effects that justified an additional damages award. One of Justice Perell’s findings and an issue estoppel was that the claimants “suffered horribly” from their time in administrative segregation: Reddock Common Issues. While the evidence from Mr. McMath on this motion confirms that finding, the issue before me is whether Mr. McMath is entitled to additional damages. To be successful, he must demonstrate on a balance of probabilities that but for his time in segregation he would not have suffered the additional harms.

[258] The Plaintiff deposed in his affidavits that his time in segregation was “torture” and he maintained on cross-examination that he was panic-stricken and wanted to hang himself or overdose to put an end to it. He describes appalling behaviour by guards and a dreadful lack of basic caring by managerial staff. Canada, through the affidavit evidence filed, denies the behaviour complained of. Counsel submits that Mr. McMath has an interest in the outcome of the summary judgment motion and consequently, his evidence cannot be viewed as impartial. Similarly, the solicitor for the Plaintiffs argues the sworn evidence of the employees of the Defendant cannot be viewed as impartial, although their interest in the outcome is not a financial one.

[259] As a result, I place more reliance on the sworn evidence of Pastor Oliver Johnson, the pastor who was contracted with CSC from 2003-2014. He is also a nurse and a former police officer. I acknowledge that he remains Mr. McMath’s pastor, but that does not mean that he is biased in Mr. McMath’s favour or that his evidence is unreliable.

[260] Pastor Johnson describes the conditions at the Edmonton Institution as “horrendous” and deposes that the staff treated “many inmates as if they were animals.” For example, the guards would not provide the inmates in segregation with toilet paper, they called Mr. McMath racist names, and mocked him. They told other prisoners personal information about Mr. McMath. They “double doored” him, which meant that they released two inmates on the range together so they would end up fighting.

[261] Pastor Johnson also describes a practice called “shit-bombing” which involved other inmates taking their feces and throwing them under Mr. McMath’s cell door because they labelled him a “rat”. Pastor Johnson confirms that Mr. McMath did not feel safe in segregation and deposes that, in his view, at the present time, Mr. McMath continues to describe the effects from his time in segregation, in the form of anxiety and panic attacks. The Pastor believes his experiences in segregation “continue to haunt him.” Affidavit para 20. This is not a medical opinion, but rather, it is the observation of Pastor Johnson who has known the Plaintiff for twenty years and continues to provide services to him.

[262] There are contemporaneous records that confirm while in segregation Mr. McMath was agitated, and experienced panic attacks and symptoms of depression and he sought treatment from mental health providers.

[263] In cross-examination, Dr. Waisman testified that Mr. McMath was vulnerable to the effects of prolonged segregation, and he had limited access to rehabilitation and treatment. When he requested psychiatric assessment, he did not receive it for prolonged periods of time and similarly, he was not able to obtain his medications such as Wellbutrin to address his mental health problems. Dr. Waisman believes these things contributed to his current poor mental state.

[264] The report of Dr. Waisman fails to persuade me of the role of the time Mr. McMath spent in administrative segregation has had on his current presentation. As I have indicated, Mr. McMath has a complicated history of serious mental health problems, family dysfunction and abuse, substance abuse, deviant behaviour and incarceration. Dr. Waisman asserts that these pre-existing conditions “contributed greatly to an aggravation of Mr. McMath’s mental health conditions” in segregation, but he fails to set out the evidence supporting his conclusion, apart from his reliance on Mr. McMath’s self-report, which is problematic for several reasons. Dr. Waisman states that segregation worsened Mr. McMath’s mental health conditions, which he notes is consistent with the literature on segregation. He does not, however, relate any of Mr. McMath’s reported symptoms specifically to his time in segregation. His opinion that Mr. McMath’s mental health declined significantly following his placements in segregation, in my view, is conclusory and not reasoned from the evidence.

[265] Dr. Colleton’s report is thorough and reviews in detail the medical documentation predating Mr. McMath’s time in segregation, which is essential given the complexity of his mental health problems. He notes, “…the task of considering whether and how segregation placements affected Mr. McMath is very complex. As noted above, there are many sources of stress that affected Mr. McMath over time, related directly to events and circumstances in custody and related to events and circumstances elsewhere. The experience of segregation placement is nested within the larger and more complex milieu of being in custody and serving an indeterminate sentence, which are stressful circumstances. In my view, the challenge is to consider the specificity and significance of segregation placements as a contributor to symptoms and mental health problems, given the influence of so many other pre-existing and concurrent factors.” In my view, Dr. Colleton has fairly set out the task of the medical experts on the individual issues trials and is consistent with the direction of Justice Perell. He examined each of the placements and the symptoms and any effects suffered by Mr. McMath, with a focus on his mental health, and looking at other experiences and circumstances. That was entirely appropriate, given his mandate.

[266] Dr. Waisman opines that segregation was a stressful experience for Mr. McMath and it triggered some of the pre-existing trauma events that occurred for him when he was younger. Dr. Waisman also notes that it is “hard to parse out exactly what caused what”. That is a fair statement. When the records prior to Mr. McMath’s time in segregation are reviewed, it is difficult to discern any difference between the type of complaints made and problems reported prior to the placement in segregation compared to during segregation and afterwards.

[267] Mr. McMath has spent the vast majority of his life in penitentiaries. His childhood was traumatic involving addiction, violence and criminal behaviour at a very young age. His serious mental health issues are long-standing, and he suffers from antisocial personality disorder. Mr. McMath has spent more than 30 years in penitentiary, which in itself is a stressful situation that negatively affects pre-existing mental health problems. Simply because he was not in segregation does not mean that he did not experience poor treatment by other inmates or that he did not feel hopeless, traumatized by his environment, and was anxious and depressed.

[268] Overall, I prefer the opinion of Dr. Colleton, which I find is calibrated and fair and better rooted in the evidence than that of Dr. Waisman. Dr. Colleton reviewed the records from the various placements and considers whether there were effects documented in the contemporaneous records. He found the Plaintiff’s evidence was unreliable and the other records did not demonstrate a deterioration in Mr. McMath’s mental health during his time in segregation. Dr. Colleton concludes, “In my view, the link between Mr. McMath’s administrative segregation experiences and the alleged clinical consequences is not supported by the evidence provided in this report. The review of symptoms and the functional inquiry is insufficiently detailed to support this assertion. There is insufficient information to assert that his mental health declined significantly over time. There was no discussion of other experiences and circumstances that could have contributed to his symptoms over the relevant timeframe.”

[269] In his report, Dr. Colleton makes reference to the documentation including reports from Mr. McMath while he was in segregation that makes it clear that his complaints of suicidal thoughts were related to other factors and experiences while in segregation. Mr. McMath identified other things that contributed to his feelings of stress and depression including problems with other inmates and staff, grief and bereavement arising from his family and problems with being incarcerated generally and being in prison for an indeterminate time as a result of his designation as a dangerous offender. Dr. Waisman fails to do this. I agree with and prefer the opinion of Dr. Colleton over that of Dr. Waisman as it is balanced and takes into consideration a variety of factors when arriving at his opinion on the effects of segregation on Mr. McMath.

[270] I acknowledge that the two affidavits filed by Mr. McMath for this motion contain some bald allegations such as, “I suffer from trauma.” and “Solitary confinement has contributed to my having extreme anxiety attacks and depression.” The voluminous records from CSC filed by the Defendant do not support the Plaintiff’s contention that his requests for treatment were consistently ignored while he was in segregation. As well, the records from Mr. McMath at the time attribute his sense of hopelessness, suicidal ideation and so on to “abuses over the years, as well as all of my family passing away year after each other since 2007.” Exhibit 71 to affidavit of Bobbi Sandhu

[271] While Dr. Waisman opines that Mr. McMath’s prognosis is poor considering the severity of pre-existing mental health conditions, I do not accept that the “triggering impact of segregation” is responsible for his dim prognosis. That is not supported on the evidence and Dr. Waisman does not provide a reasonable explanation for this conclusion. Mr. McMath remains in custody at the present time and his sentence is indeterminate.

[272] I reject the submission that the material contribution to risk test should be applied to Mr. McMath’s case. The analysis in Thompson v. Handler, 2023 ONSC 5042, is not applicable to the instant case. I am not dealing with issues of liability and difficulties proving liability; that has previously been determined. I am assessing the additional damage, if any, caused by Mr. McMath’s placement in segregation and the Plaintiff must prove causation using the “but for” test.

[273] Counsel for the Plaintiff submits that “it is necessary to award additional Charter damages to recognize the power imbalance between the Plaintiff and the Defendant; to ensure that “the rule of law runs within penitentiary walls”: Richards v. Canada, 2022 FC 1763. I do not accept that submission, again, because Justice Perell has already addressed these issues. In his decision on the common issues trial, Justice Perell addressed all heads of damages arising from the unlawful segregation and noted that that for the vast majority of claimants, the damages awarded will compensate the class members for their experiences in segregation.

[274] Mr. McMath, on his own evidence, prior to his placement in segregation, had a lengthy history of anxiety and symptoms of depression. He had substance abuse issues with alcohol and street drugs, telling a nurse in 1987 that “drugs and alcohol are a major problem” in his life. He was diagnosed with antisocial personality disorder. To Dr. Colleton, Mr. McMath reported panic attacks that he had experienced for many years. As well, Dr. Colleton noted that the fact that Mr. McMath had been in custody with concerns about his safety, conflict with correctional staff and with other inmates are all significant stressors.

[275] Dr. Colleton opines in his report, “The custodial setting is inherently stressful and predisposes to a range of negative mental health consequences, even for those without a significant pre-existing history of mental disorder. Stress may present clinically with anxiety, depression, self-harming behaviour, suicidal ideation, and suicide attempts. Sources of stress include loss of liberty and opportunity, separation from loved ones and life experiences, loss of employment and income, direct harm due to threats and violence…confinement ranging from the prison itself to a living cell to a segregation cell…”

[276] Mr. McMath, with his prior serious mental health diagnoses and substance abuse issues, was more vulnerable to the stresses of segregation than the average inmate. However, that does not relieve him of proving additional damages causally related to his time in segregation. Dr. Colleton’s opinion is that “It is not clear that Mr. McMath has experienced persisting harm from the relevant administrative segregation experiences.” In my view, that opinion is borne out by the records concerning his functioning since September 2019 when he was last in segregation. The notes post-release from segregation demonstrate ongoing panic attacks that appear to wax and wane, as well as reports of improved outlook, participation in various activities, and sleeping well. There are also documented complaints of threatening behaviour from other inmates which cause suicidal ideation.

[277] The main difference between the opinions of Dr. Waisman and Dr. Colleton is that the former opines that the time in segregation “triggered” vulnerabilities and exacerbated his mental health problems. Dr. Colleton does not believe the experiences from segregation “caused” the consequences that Mr. McMath now describes. Importantly, Dr. Colleton notes that there is “no discussion of other experiences and circumstances that could have contributed to his symptoms over the relevant time frame.” I agree with this statement. The onus is on the Plaintiff to prove that but for the time in segregation he would not have suffered the exacerbation of his previous mental health issues. I accept that Mr. McMath suffered during his time in segregation, in particular his anxiety and depression, but that has been compensated for by the award of his share of aggregate damages. What is more difficult is to determine what role segregation played in his current presentation, taking into account the fact that he has been in prison with all of the associated stressors, for more than 30 years and that he has serious mental health and substance abuse issues long before he was placed in segregation.

[278] While Canada disputes seemingly all the claims of the Plaintiff concerning his treatment and conditions during his time in segregation and denies that his time in solitary had any effects on Mr. McMath, I do not accept this submission. The evidence of Pastor Johnson is corroborative of some of the evidence of Mr. McMath, although Pastor Johnson is relying on the subjective reporting of Mr. McMath. It supports the finding of Justice Perell that the conditions of segregation were “horrible”, but it does not support the contention that segregation caused additional harm to Mr. McMath. Pastor Johnson can comment on his observations of Mr. McMath from his time in segregation, but he cannot offer an opinion on causation.

[279] While I do find that during his 709 days in solitary confinement from 2011 to 2019, Mr. McMath suffered because of the treatment and conditions of his placements, those damages have been addressed through the aggregate damage award. I do not find on the evidence that Mr. McMath has proven that as a result of his time in segregation, he suffered further harm in addition to the general harm that was caused to all inmates who were placed in administrative segregation.

[280] While the solicitor for Mr. McMath submits that as part of the individual issues trials, I should be awarding punitive damages, I decline to award further Charter damages or punitive damages to Mr. McMath. Justice Perell dealt with the issues of both liability and damages and had a full evidentiary record before him when he was making the awards. He found the conditions in segregation were horrible and that inmates suffered terribly as a result. He condemned the actions of the Defendant and awarded damages for vindication and deterrence. In my view, as I have expressed elsewhere in these Reasons, the issue of the actions of the Defendant has been addressed.

[281] Had I been persuaded that Mr. McMath had proven additional damages, I would not have based the award for damages on a calculation of the number of days Mr. McMath spent in segregation. In my view that is an inappropriate manner in which to fix damages, because, as Justice Perell noted, the response to segregation depends on the individual inmate and is not necessary tied to the length of time spent in administrative segregation. As well, the assessment is idiosyncratic and is driven by the particular circumstances of an inmate. There are no two inmates who suffered the exact same response to placement in administrative segregation. Nor are there two inmates who entered segregation in exactly the same condition. The submissions from the Plaintiff fail to take into account the evidence specifically related to Mr. McMath.

[282] In their submissions, counsel for Mr. McMath urged me to award, future care costs of $193,127. The Plaintiff’s expert, Carol Bierbrier, in her report recommends treatment expenses, medication costs, occupational therapy and counselling. This is quantified on a present value basis at between $163,867-$183,930. The Plaintiff also seeks a management fee. The defence expert, Monique Besz, is of the opinion that there are no future care costs directly attributable to his time in segregation.

[283] The onus is on the Plaintiff to prove that there is a substantial risk that he will incur the costs outlined in Ms. Bierbrier’s report as a result of his time in segregation. The evidence is that Mr. McMath remains a dangerous offender with no release date predicted at the present time. It is unclear to me on what basis the Plaintiff accounting expert Stephanie Greenwald relied on a release date of October 2023. There is no evidence that Mr. McMath will be released from prison in the near future or that he will seek counselling and other treatment that would require him to make payment. He has incurred no care expenses in the past, given that he has been in prison for in excess of 30 years. I do not find on the evidence that Mr. McMath suffers from injuries that were caused by his placements in segregation and that require treatment presently and into the future. The Plaintiff has not met the burden of proof of establishing a reasonable prospect of incurring costs in the future for treatment of mental health problems caused by his time in segregation and I decline to make such an award.

THE CLAIMS OF CHRISTOPHER BRAZEAU

Background Facts

[284] Christopher Brazeau (“Mr. Brazeau”) was born in 1981. He was first incarcerated in a federal penitentiary on November 17, 2004 as a result of convictions for robberies, break and enters and possessing stolen goods. He was released from prison on November 16, 2016. He spent 15 placements in administrative segregation commencing on August 20, 2009. He spent a total of 772 days in administrative segregation during the class period, with the longest placement being 182 days. While the Agreed Statement of Facts indicates that Mr. Brazeau is not currently incarcerated, I note that he advised Dr. Klassen at his assessment in August 2023 that he had been in prison again since April 2023. It appears after his release from federal incarceration in 2016, he has been incarcerated in 2018, 2019, 2020, 2022, and 2023. It is not clear the basis for these more recent incarcerations. He is not employed, having last formally worked in 2017, although he did some casual work doing renovations with his roommate more recently. Mr. Brazeau is a member of the Brazeau class, and his claim is proceeding as a Track 3 matter.

[285] The Plaintiff seeks $500,000 in general damages; $911,741 for past and future loss of income; $104,850 for management fees; $123, 783 in future care costs plus an additional $14,235 for management fees; $1,000,000 in Charter damages for vindication and deterrence and/or punitive damages. The Plaintiff submits that Mr. Brazeau’s existing serious mental illnesses cascaded out of control and new illnesses developed during his time in solitary confinement. He continues to struggle and cannot maintain employment and needs care and treatment for his PTSD and depression.

[286] The Defendant submits that the evidence is wildly divergent because Mr. Brazeau has serious credibility issues and cannot be believed. Some of his evidence was fabricated and the Court cannot rely on it.

[287] The Defendant argues that while Mr. Brazeau suffered some harm on longer segregation placements, any damages flowing from them are modest. There should be no award for punitive or vindication damages. The Plaintiff has not proven any need for future care costs, he is able to take care of himself and has not taken any therapy. There should be no award for loss of income, as administrative segregation did not affect his ability to be employed.

Evidence

[288] The Plaintiff filed the following evidence for the motion: Mr. Brazeau’s affidavits; the affidavits of Tiffany Bogdan, Kenneth Allen and Joseph Nicholson; the expert reports of Dr. Gavett-Liu dated May 5, 2023 and September 8, 2023, of Carol Bierbrier dated May 13, 2023 and August 31, 2023, of Stephanie Greenwald dated May 15, 2023, and of Josh Campbell dated May 10, 2023 and August 31, 2023.

[289] The Defendant filed the following evidence: the affidavits of Scott Thompson, Carson Gaudet, Brooke Kassen, Kathy Neil, William McCormick, Carol-Ann Reynen, and Anne Connell, all employees from CSC; the expert reports of Dr. Philip Klassen dated August 5, 2023, of Mr. Egarhos dated August 8, 2023, of Monique Besz dated August 9, 2023, and of Matt Mulholland dated August 9, 2023.

[290] Filed at the hearing of the motion as Exhibit 1 is the email exchange between counsel dated October 24, 2023, in which the Defendant acknowledged that Mr. Brazeau “suffered specific harm due to certain longer segregation placements, lack of access to medication for his ADHD, the onset of anxiety and insomnia and the onset of a new, unspecified trauma disorder.”

The Expert Reports

[291] In her assessment, the psychiatrist retained by the solicitor for the Plaintiff, Dr. Gavett-Liu, concludes that Mr. Brazeau has the following psychiatric diagnoses: Major Depressive Disorder; PTSD; Generalized Anxiety Disorder; and ADHD. She notes that he was he was not psychiatrically stable at the time he was placed in segregation and perhaps this made him more vulnerable to stress and trauma. His time in segregation has “compounded Mr. Brazeau’s psychiatric impairments.” She opines that “but for his time in solitary confinement, and on a balance of probabilities, he would not have sustained the level of psychiatric impairment that he is currently faced with.” (page 16 of her report). She opines that while Mr. Brazeau has a history of both ADHD and GAD, his Major Depressive Disorder and PTSD arose from the trauma experienced while in solitary confinement. She notes his prognosis is “guarded” and recommends cognitive behavioural therapy to treat his PTSD and psychotherapy to treat his depression. He requires ongoing psychiatric treatment and should try antidepressant medication.

[292] Dr. Gavett-Liu offers her opinion that from a psychiatric perspective, he would be competitively disadvantaged in the workforce because it is unlikely he would be able to attend work on a consistent and reliable basis.

[293] Dr. Klassen conducted an examination of the Plaintiff in July 2023 at the request of the Defendant. Dr. Klassen opines “the principal diagnosis giving rise to this gentleman’s distress, and dysfunction, is antisocial personality disorder.” Although he notes that Mr. Brazeau may meet the criteria for chronic anxiety and chronic depression, they are included in the ASPD diagnosis. Dr. Klassen notes that Mr. Brazeau reports anxiety but he believes he has traits of feeling alienated, suspicious and anti-authority which he states are related to Mr. Brazeau’s very troubled childhood. Dr. Klassen does not diagnose the Plaintiff with major depression; rather, he has had complaints of low mood and anxiety since he was a child and describes this as chronic low-grade depression. He does not diagnose Mr. Brazeau with PTSD but rather, “historically with an unspecified trauma and stressor related disorder or in the alternative, an adjustment disorder with depression and anxiety during periods of distress in segregation at CSC.”

[294] Dr. Klassen opines that Mr. Brazeau suffered psychological difficulties while in prison and placement in segregation was likely a salient factor. However, he concludes that Mr. Brazeau has likely returned to his baseline, and he does not believe that the harms that are related to segregation have persisted. His current state is similar to that reported prior to his time in prison. His ongoing problems, both psychologically and in terms of function, are related to his ASPD. Dr. Klassen expands on his opinion by noting that Mr. Brazeau’s current constellation of symptoms is “likely a combination of pre-existing impairments, the longitudinally of his personality disorder, and the cumulative and weighty impact of a dysfunctional life course.”

[295] Dr. Klassen does not attribute Mr. Brazeau’s difficulties in employment to his time in segregation. He does not believe he needs any assistance with the activities of daily living.

Analysis

[296] Again, I confirm that at the common issues trial, general causation of harm was found and for the individual trials, it is to be determined whether the Plaintiff has proven additional harm caused by the placements in administrative segregation and if so, the quantum of damages that is appropriate.

[297] Mr. Brazeau had serious mental illnesses from the time he was very young. He was diagnosed with ADHD and Oppositional Defiant Disorder as a child and was prescribed medication. He also suffered from anxiety, depression and was diagnosed in 1992 with a conduct disorder. When he was approximately eleven years of age, he set his family home on fire. This led to a psychiatric admission at a children’s hospital. Dr. Gavett-Liu noted that he reported as a child that he was diagnosed with PTSD, Generalized Anxiety Disorder, Anti-Social Personality Disorder and Dependent Personality Disorder, all of which are serious mental health illnesses.

[298] Mr. Brazeau deposes that segregation “led to new manifestations of my pre-existing mental illnesses.” He describes his time in segregation as akin to water torture. He deposes he suffered hallucinations, panic attacks and he self-harmed. He was denied medication and therapy for these problems. He attempted suicide. He described three instances of “double dooring” where he was put into a place with another inmate so a fight would erupt.

[299] In cross-examination, Mr. Sayce questioned Dr. Klassen about whether or not he agreed with certain findings of Justice Perell from the common issues trial, specifically the issue estoppels. Dr. Klassen responded that he did not apply some of the estoppels when he prepared his report because some were absolute statements and he noted that in the face of trauma and adversity, people have very different responses, so it is not “an all or nothing kind of mentality” [Transcript question 95]

[300] While counsel for the Plaintiff submits that because Dr. Klassen did not adopt all of the issue estoppels, his opinion should be given little weight, I do not accept this submission. The Court expects and demands impartiality from experts who offer their opinions. If the foundation on which the opinion is based is not solid, then the weight to be given to the expert opinion is similarly affected.

[301] In my view, when a medical expert is asked to provide an opinion to the Court on causation, as was done in these bellwether cases, the opinions rendered on the idiosyncratic cases must be based on the evidence concerning a particular Plaintiff, as well as on the expert’s own experience in the field.

[302] Dr. Klassen, and perhaps other experts on the bellwether cases, may disagree with some of the issue estoppels because they may not accord with their own experience in practice. In my opinion, that does not necessarily negatively affect the reliability of the opinion rendered. The fact that an expert does not agree with an issue estoppel may be irrelevant to the opinion arrived at.

[303] It is one thing for an expert to be given hypotheses by counsel on which to rely when arriving at an opinion. It is a different thing for an expert to be advised that there are certain facts that must be accepted, particularly if they do not accord with his or her own experience in their area of expertise. Justice Perell made findings at the common issues trial based on the evidence that was before him, including the expert opinions. From my perspective, Dr. Klassen’s opinion is not undermined simply because he may not agree with the evidence that was accepted by Justice Perell on the common issues motion or certain findings that he made.

[304] For example, asking Dr. Klassen whether or not he agreed that Canada contravened the Charter rights of class members, which is one of the issue estoppels, is a question that is irrelevant to Dr. Klassen’s ultimate opinion on the issue of Mr. Brazeau’s damages arising from segregation. In an action claiming damages for injuries sustained, the Court demands of an expert that he or she provides an impartial opinion on an issue based on a review of documentation, perhaps an examination of the person, together with the expert’s experience in the area in which he or she is providing the opinion. In the bellwether cases, the psychiatrists were asked to provide opinions on the effects of placements in administrative segregation on the individual Plaintiffs. In my view, the psychiatrists do not necessarily have to agree with all of the issue estoppels as Justice Perell found them, unless the disagreement with an issue estoppel impacts or undermines the ultimate opinion of the expert.

[305] Dr. Klassen testified under cross-examination that he did not apply the issue estoppels that were absolute statements because “when it comes to human behaviour and when it comes to outcomes of trauma and adversity, people fall on a continuum, from very minimal to no outcome of a negative kind, to significant problems and one of the things I really object to in these findings is the notion of sort of an all or nothing kind of mentality.”

[306] For example, the issue estoppel that the harm from segregation does not stop with the end of the placement but continues long after the inmate returns to the general population is, according to Dr. Klassen, an absolute statement which he does not agree with. That is because, in his experience, it may be true for some inmates but not for others. That is a fair comment and, in my view, does not affect his ability to assess Mr. Brazeau and render an opinion on the damages sustained from segregation.

[307] If, on the other hand, Dr. Klassen opined that a Plaintiff had suffered no effects from the time in segregation because Dr. Klassen believed, generally, administrative segregation did not cause harm to inmates, that would be a different situation which could and likely would impact the weight to be attributed to his opinion.

[308] Dr. Klassen and the other experts were asked to examine an individual Plaintiff and determine the effect of segregation placements on that unique person. I understand Dr. Klassen’s response from his own experience as a psychiatrist and in my view, it does not negatively impact his role as an expert in this case.

[309] In Dr. Klassen’s cross-examination, he answered questions directly, conceded matters that were appropriate, but was not shaken in his opinions. The fact that Dr. Klassen referred to a study done by Dr. Morgan who testified under cross-examination at the common issues trial that his study could not be applied to the class members in this proceeding does not mean that Dr. Klassen ought not to have referred to it in his report. As he stated at his cross-examination, the issue before Justice Perell was what the definition of a serious psychiatric illness meant.

[310] Dr. Gavett-Liu is a psychiatrist who works with children and adults. She acknowledged that she has no previous experience dealing with inmates who were placed in administrative segregation in a federal penitentiary in Canada. In her two reports, she relied on Mr. Brazeau’s self-reports; at no point did she find any discord between what he told her and the records she reviewed.

[311] Dr. Gavett-Lui was shown Mr. Brazeau’s affidavit in which he deposed he tried to commit suicide in June 2013 by slashing his wrists. This was contrasted with the contemporaneous record from CSC which stated that he superficially slashed his left wrist with a paperclip. The affidavit evidence from Ms. Kassen and Ms. Connell with the contemporaneous records disputes Mr. Brazeau’s version of events. The affidavit of Kathy Neil who was working at the penitentiary at the time refers to Mr. Brazeau admitting he had done so to avoid being transferred back to the Saskatchewan Penitentiary and because he wanted to be assessed by a psychiatrist. There is another note from a nurse who described that Mr. Brazeau stated he was upset at being transferred back to the penitentiary and so he scratched his wrist with a paperclip and said he was suicidal in order to avoid a transfer.

[312] When counsel for the Defendant asked Dr. Gavett-Liu whether she was aware of the contradictions in the records compared to the self-reporting of Mr. Brazeau, her response was unsatisfactory. Instead of dealing with the differences between the records and Mr. Brazeau’s self-report, Dr. Gavett-Liu answered that what the nurse noted might not have been what Mr. Brazeau experienced. That response does not appropriate deal with the issue of the Plaintiff’s self-report compared to the contemporaneous records which dispute what the Plaintiff reported.

[313] Another example of the disparity between Mr. Brazeau’s evidence and the contemporaneous records was the note concerning a PlayStation that was found in Mr. Brazeau’s cell. Mr. Brazeau indicated that he was trying to fix it for another inmate. The records from CSC security indicated that Mr. Brazeau had modified the unit into an improvised explosive device. When examined by the explosives disposal unit, there were traces of chlorine and Vaseline on it as well as other items in his cell that could be used with a bomb. It was noted that he had in his possession a large number of unauthorized items that could be manipulated to cause harm to a person.

[314] On both occasions when counsel for the Defendant asked Dr. Gavett-Liu questions concerning the difference between what Mr. Brazeau told her and what the records showed, there was an objection from counsel for the Plaintiff. In my view, given it was cross-examination, the objection was not proper. Dr. Gavett-Liu acknowledged she relied on the reporting from Mr. Brazeau. It was entirely proper for counsel to ask about the different description contained in the CSC record. That was inappropriate intervention by counsel for the Plaintiff during cross-examination on an important issue. Surely counsel is entitled to test on cross-examination an expert’s acceptance of the Plaintiff’s self-reporting which might be contradicted by the contemporaneous records. The point isn’t whose version is correct; the point is to test the expert on whether that affects or undermines her opinion in any way. Dr. Gavett-Lui responded that she could not say which version was more believable, which I would describe as a disappointing, non-responsive answer.

[315] Overall, I found Dr. Klassen to be a more impressive witness than Dr. Gavett-Liu and his report is more balanced and reliable than Dr. Gavett-Liu’s. Counsel for Mr. Brazeau submits that Dr. Gavett-Liu’s report is comprehensive and was based not only on his self-reporting but also the fact that it was consistent with the contemporaneous records. I do not agree with this submission, and it is not supported by the cross-examination of the expert. Rather, Dr. Gavett-Liu accepted what Mr. Brazeau told her about his time in segregation, and when it conflicted with the contemporaneous records, she simply preferred his version over that of CSC.

[316] Dr. Klassen was asked to assess the Plaintiff and render an opinion on the harm caused by his time in segregation. He was asked to do that because of his expertise as a psychiatrist. I do not agree there was any obligation on Dr. Klassen to read the common issues judgments and be familiar with the expert evidence called in those cases. The issues before Justice Perell were different than the matters on the individual trials, including on the Brazeau matter. Justice Perell received expert evidence on the common issues trial, and that evidence is not before me on the individual issues trials. I am not bound to refer to that evidence in the course of my decisions on the individual trials. I am bound as the trier of fact to accept the issue estoppels. Receipt of expert opinion and determination of its value and the weight to be attributed to it is squarely within the purview of the trial judge. In the case of the individual issues trials, that is in my bailiwick.

[317] The solicitor for the Plaintiff urges me to reject the documentation from the CSC files, although it is not clear on what basis this request is made. Mr. Sayce submits “…the descriptions of the documents [the CSC records concerning Mr. Brazeau] are not admissible.” The affidavits filed on the motion by the Defendant are from employees of CSC and the documents attached as exhibits to the various affidavits are contemporaneous records that were done at the time of Mr. Brazeau’s placements in segregation. They may contain a different description of the events from that Mr. Brazeau describes, but that is not a basis for refusing to consider them. They are records made at the time of an event by employees of CSC in the usual and ordinary course of business.

[318] In determining whether Mr. Brazeau suffered any additional harm because of his time in segregation, the issue of his credibility must be addressed. In his affidavits, the Plaintiff makes such statements as: “Segregation exacerbated my pre-existing mental illnesses. I suffered greatly during every placement in segregation…Each time I was placed in segregation, my mental illness snowballed.”; “Segregation led to new manifestations of my pre-existing mental illnesses.”; “I could only hold this job for six months until the effects of segregation became too much for me.”; “Had it not been for my experience in segregation, I would have returned to full-time work as an asphalt rake man.”; and “My mind is now twisted, and my body is wrecked from segregation. The lingering effects of segregation have changed my day-to-day life.”

[319] These are just some examples of statements in the affidavits of Mr. Brazeau that are self-serving. In the records from CSC, Mr. Brazeau is described repeatedly as someone who engaged in manipulative behaviour and whose accounts of events were not credible. The solicitor for the Defendant submits that there are numerous incidents where Mr. Brazeau’s statements of what transpired during segregation are not accurate and that he admitted to some of them.

[320] For example, in December 2009, while in segregation he was found with a rope ladder that he had constructed from bed sheets. Although he now describes this a suicide attempt, he told CSC staff a variety of stories about what he was doing: that he was trying to attract the attention of a female CSC officer; that he was trying to avoid being transferred to a different facility; and that he was upset about the death of his sister a couple of days earlier and was trying to commit suicide.

[321] The note dated July 13, 2012 from the Mental Health Intervention Plan Report notes “Mr Brazeau states that he has never attempted suicide, but a file review indicates that Mr. Brazeau attempted to hang himself at Kent Institution by tying a rope to the gun post bars after the passing of his sibling. Mr. Brazeau personally explained the incident stating that he had never attempted suicide, but instead fabricated this story as a suicide after being caught. Mr. Brazeau stated that he tied the rope to the gun post bars in order to climb up there as he was having a romantic relationship with one of the female guards who held that posting.” Affidavit of Anne Connell August 10, 2023 exhibits BG/ BH/ BI/ BJ. Later, he admitted that his sister had died two years prior to the ladder incident, not two days.

[322] The Plaintiff submits that the evidence from the Defendant is “problematic” and ought not to be accepted. I do not agree. The evidence from the employees of CSC filed on these motions is from various employees, some of whom had direct contact with Mr. Brazeau both when he was in the general population and when he was in segregation. The solicitor for the Plaintiff submits that the evidence of Dr. Connell should be deemed inadmissible, as she provides opinion evidence without being a Rule 53 expert. I do not accept this submission.

[323] Dr. Connell filed an affidavit in which she confirmed that she is a forensic psychologist employed with the CSC. In her previous roles, she provided mental health services to federally incarcerated offenders, did assessments, recommended individualized mental health programs or treatment for inmates Dr. Connell reviewed the records concerning Mr. Brazeau and provides explanations from the perspective of someone who has worked at the CSC specifically in the area of mental health services. She describes Mr. Brazeau as someone who engaged in manipulative behaviour in order to achieve an objective and attaches the records to support the statement. For example, there is a report from a psychologist Dr. Alexander dated September 24, 2009 done as part of the determination of Mr. Brazeau’s suitability for parole. In her assessment, she comments that from the file information, Mr. Brazeau was described as not participating in his correctional plan, he was noted to be narcissistic and manipulative in his efforts to get what he wanted during segregation. There were inconsistencies in his self-report, and deceptiveness.

[324] Many of the documents appended to Dr. Connell’s affidavit dispute the evidence in Mr. Brazeau’s affidavits. While Mr. Brazeau asserts that he was not assessed or treated for his mental illnesses while in segregation, the records dispute this. There are many notes of assessment for mental health issues, treatment for his pre-existing ADHD, and reports from Mr. Brazeau that he was not suicidal and had no specific concerns during segregation.

[325] The records from CSC indicate that Mr. Brazeau was a difficult inmate. There are multiple incidents of fights with other inmates, altercations with CSC staff, flooding of his cell, concealing a weapon, and so on.

[326] The records document reports from Mr. Brazeau during segregation of feeling increased stress, frustration, anger and anxiety. He “reported traumas, experienced while incarcerated, as exacerbating issues with anxiety.” Exhibit J affidavit of Dr Connell. Mr. Brazeau had longstanding behavioural problems commencing at a young age with a diagnosis of ADHD, an Axis 1 diagnosis. He has a criminal record dating from the time he was 13 years old. He has been incarcerated in provincial and federal institutions. The records indicate that most of his periods on probation