Court File and Parties
Court File No.: CV-23-00093794
Court: Superior Court of Justice
Between:
Shawn Balla (Plaintiff)
-and-
John Doe #1 et al. (Defendants)
Before: Justice P. Roger
Heard: January 7, 2025, at Ottawa, Ontario
Decision Released: January 15, 2025
Appearances:
- M. Forget, Counsel for the Crown
- J. Obagi, Counsel for the Plaintiff
Reasons for Decision
Introduction
The plaintiff brings this motion seeking to lift the stay of this action imposed by section 17 of the Crown Liability and Proceedings Act. This motion was heard on January 7, 2025.
Background Facts
For purposes of this motion, the evidence indicates that the plaintiff was arrested and placed in the custody of the Quinte Detention Centre on November 10, 2021. In his affidavit, the plaintiff states that he was arrested for breach of his bail conditions. He says that he was stripped and searched and placed in a holding cell by himself, and that the last thing he remembers is feeling tired, laying down on the concrete floor, and losing consciousness.
The documents indicate that on November 11, 2021, a Health Care Observation Form of the Quinte Detention Centre required that the plaintiff be checked upon every 20 minutes. The form apparently required that the plaintiff be woken for every assessment and asked various questions, including his name, the year, where he was, and that he be asked to move his arms and legs. The form further provides that the health care department of the institution or the sergeant be contacted if the plaintiff is having difficulties, including remaining unconscious, difficulty waking up or being confused.
According to the forms, monitoring of the plaintiff started at 14:20 on November 11, 2021, and continued thereafter every 20 minutes with apparently three exceptions until 06:40 on November 12, 2021. On each occasion, the plaintiff is noted to have been “responsive”. At 06:50 in the early morning of November 12, 2021, it is noted that the plaintiff did not get up and that on checking on the plaintiff, his right arm is black and blue. The plaintiff was transported to the hospital where his right arm had to be amputated.
In addition to his two affidavits, the plaintiff filed an affidavit and a report from an orthopedic surgeon. The opinion of this doctor is that the plaintiff’s right arm had to be amputated “due to a missed compartment syndrome as a result of being immobilized for a prolonged period of time and developing venous thrombosis of the affecting arm”. The doctor explains that this would require complete immobilization, such as being at or near unconsciousness, for a minimum of three hours and likely longer in this case because the plaintiff also had muscle necrosis at the time of his surgery. The doctor said that such a state of unconsciousness can result from any reasons, including from substance abuse.
Other than its draft list of documents and listed Schedule A productions, some of which are redacted, the defendants did not file any evidence on this motion, nor did they seek to cross-examine the plaintiff or the orthopedic surgeon.
The defendants argue that the plaintiff has not met his onus of establishing what is required at section 17 of the Crown Liability and Proceedings Act. The defendants rely heavily on a recent decision of this court, Phixaykoune v. Ontario, 2024 ONSC 3860.
Issue
The principal issue on this motion is whether the plaintiff has met the test for leave provided at subsection 17(7) of the Crown Liability and Proceedings Act.
Analysis
The Crown Liability and Proceedings Act (“CLPA”) replaced the Proceedings Against the Crown Act. Relevant to this motion, section 17 of the CLPA establishes a screening procedure for claims against the Crown, or against an officer or employee of the Crown, for misfeasance in public office or for a tort based on bad faith for things done in the exercise of duties or functions. Such proceedings are now deemed stayed, unless leave to bring the proceeding is granted.
On a motion seeking leave under section 17 of the CLPA, the plaintiff must serve and file an affidavit or other documents setting out a concise statement of the material facts on which the plaintiff intends to rely and an affidavit of documents and relevant documents. This screening process distinguishes earlier decisions which usually involve a motion to strike brought under Rule 21 of the Rules of Civil Procedure, and its different test, including accepting, unless patently ridiculous, the facts pleaded as true.
To obtain leave and lift the stay, the plaintiff must meet the two-part test provided at subsection 17(7) of the CLPA. That section provides that the court shall not grant leave unless it is satisfied that:
(a) the proceeding is being brought in good faith; and
(b) there is a reasonable possibility that the claim described in subsection (1) would be resolved in the claimant’s favour.
As indicated in Vecchio Longo Consulting Services Inc. v. Aphria Inc., 2021 ONSC 5405, at paragraph 83 and also at paragraph 15 of the Phixaykoune decision, “good faith” has been interpreted to mean that the plaintiff brought the action in the honest belief that he or she has an arguable claim for reasons consistent with the statutory remedy, not for an oblique or collateral purpose, and with a genuine intention and capacity to prosecute the claim. The plaintiff must establish “good faith”, under the first part of the test, on a balance of probabilities.
Meeting the second part of the test requires the plaintiff to establish that there is a reasonable possibility of success in the claim the defendants acted in bad faith. As indicated by my colleague, as he then was, at paragraph 84 of Vecchio, the reasonable possibility of success requirement of the leave test is “a meaningful but low threshold, merits-based test that is more than a superficial examination of the merits of the plaintiff’s cause of action, but a meaningful examination of the evidence to ensure that the action has some merit. It is meant to create a robust deterrent screening mechanism with a reasoned consideration of the evidence such that cases without merit are prevented from proceeding.”
“Bad faith” includes intentional fault, such as intending to cause harm or the conscious doing of a wrongful act. However, bad faith has also been interpreted more broadly. In Finney v. Barreau du Québec, 2004 SCC 36, para 39, the Supreme Court indicates, in a unanimous decision, that “the concept of bad faith can and must be given a broader meaning that encompasses serious carelessness or recklessness.” It adds, “recklessness implies a fundamental breakdown of the orderly exercise of authority, to the point that absence of good faith can be deduced and bad faith presumed. The act, in terms of how it is performed, is then inexplicable and incomprehensible, to the point that it can be regarded as an actual abuse of power”.
This broader interpretation of bad faith was applied in Sparks v. Ontario, 2010 ONSC 4234, paras 22-25, and in Phixaykoune at paragraphs 21-25.
Applying these decisions, whether bad faith is disclosed could include:
- reckless conduct can amount to bad faith;
- bad faith can be inferred by inexplicable conduct;
- bad faith can be presumed from a fundamental breakdown of the orderly exercise of authority;
- where a victim is unable to present direct evidence of bad faith, no more is required than the introduction of facts that amount to circumstantial evidence of bad faith.
This reasoning was followed in another decision of the Supreme Court of Canada in Entreprises Sibeca Inc. v. Frelighsburg (Municipality), 2004 SCC 61, para 26, and by the Ontario Court of Appeal in Bennett v. Bennett Environmental Inc., 2009 ONCA 198.
Application to the Facts
At the outset, I point out the obvious that any findings that I make or statements about the facts on this motion are made only for the purposes of determining this motion, which was heard on limited evidence, and designed to be a screening process. When I assess the evidence presented on this motion, and the law that was provided to me by both counsel in their helpful factums and submissions, I find that the first part of the test has been met. As was the case in Phixaykoune, this is not a strike suit. The plaintiff was seriously injured, and his medical outcome is inconsistent with the defendants’ documents suggesting that he was assessed regularly every 20 minutes. This inconsistency suggests that he was not assessed for a prolonged period of time or worse, that his poor condition was intentionally ignored or disregarded by those who assessed him, in breach of the institutional policies and procedures.
This supports the plaintiff’s stated belief that he has such a claim. Whether pursuing such a claim for bad faith may give the plaintiff additional discovery opportunities is not an “oblique or collateral purpose”, but one that is consistent with the statutory remedy. Further, I see nowhere at section 17 or in the CLPA that a bad faith claim cannot be in addition to a negligence claim. As well, I note that the first part of the test is directed at “the proceeding” being brought in good faith. As such, it is not directed at the merits of his claim of bad faith against each of the defendants, but rather at the proceeding being brought in good faith.
The plaintiff has retained a lawyer and demonstrated an intention to prosecute the claim for bad faith to recover damages for the very serious injuries he sustained. He clearly believes that he has an arguable case as he states in his unchallenged affidavit that he has no recollection of being woken or assessed by prison staff, which appears to be corroborated, at least in part, by the opinion of the orthopedic surgeon. I am therefore satisfied that the plaintiff commenced the bad faith action on a good faith basis.
With regards to the second part of the test, whether the plaintiff has established a reasonable possibility of success in the claim the defendants acted in bad faith, I find that he has but only against some of the proposed defendants.
The facts in Phixaykoune are significantly different from the facts of this case. Although both plaintiffs were seriously injured, in Phixaykoune the correctional officers provided an explanation as to why they did not meet the requirements of expected patrols, which the judge accepted as not sufficiently supporting a claim of bad faith. Here, we have an amputated right arm with no evidence disputing that this resulted from the plaintiff being unconscious and somehow laying on his right arm in such a way that completely blocked the blood flowing to his right arm for a minimum of three hours and likely longer. We have undisputed evidence from the plaintiff that after being placed in a holding cell by himself, the last thing he remembers was feeling tired, laying down on the concrete floor, and then losing consciousness. His next memory, he says in his affidavit, is on November 24 when he regained consciousness and first learned that his right arm had been amputated.
What distinguishes this case from Phixaykoune is that here we have no explanation how this could have happened when the defendants’ documents indicate that the plaintiff was monitored every 20 minutes and always noted to have been “responsive” right up to the time when his deteriorating condition was noticed and acted upon. On the evidence presented on this motion, it is impossible that the plaintiff was always responsive and able to move his arms and legs right up until his right arm was essentially dead and needed to be amputated. On the evidence presented, it is clear that the completed forms do not accurately record the plaintiff’s ongoing condition during his detention. Knowing that at least parts of the forms indicating “responsive” are false, it is impossible for me to determine which parts or even to assess when these forms were completed and by whom. It seems clear that the plaintiff was not assessed for more than the last three hours of his detention, but knowing that parts of the forms are false or incorrectly describe his condition, I do not see on the evidence presented how I could assume that the rest of the forms are not also false.
The above could constitute reckless conduct amounting to bad faith. Similarly, bad faith could be inferred by the inexplicable conduct outlined above, which could also constitute a fundamental breakdown of the orderly exercise of authority, or circumstantial evidence of bad faith. The plaintiff was apparently a repeat offender known to this institution. It was apparently known to this institution that he was at risk because he was to be monitored every 20 minutes. Notwithstanding this knowledge, it appears that the plaintiff was not monitored for a yet unknown but significant period of time. As such, the facts of this case are also different from those in Swayze v. Kingston Penitentiary. The evidence presented on this motion could reasonably imply the conscious doing of a wrong – why else would someone write “responsive” when, for some considerable period of time, the plaintiff was not “responsive”?
Consequently, considered as a whole, the evidence presented on this motion satisfies me that the plaintiff has a reasonable possibility of successfully proving at trial that some of the defendants acted in bad faith. However, such a finding does not lift the stay against all of the proposed defendants.
Unlike the first part of the test which refers to the “proceeding”, the second part of the screening process refers to “the claim”. While “proceeding” at the first part of the test is defined to mean the action or application, “claim” is not defined in the CLPA. Looking at the CLPA as a whole, it is apparent that “claim” is to be given its usual or ordinary meaning, including cause of action. As such, for the second part of the test, the plaintiff must establish a reasonable possibility of success not only at large, but against specific defendants. Otherwise, the screening process would fail as sufficiently establishing a claim of bad faith against one Crown employee would allow a plaintiff to also include all or some of that employee’s supervisors and superiors, going up in this case to the warden or superintendent of the institution, and in others, for example, going up to the responsible minister or premier of Ontario, which cannot have been the intention of the legislation.
Considering the evidence presented on this motion, a reasonable possibility of successfully proving bad faith has been established against all defendants who wrote “responsive” on the Health Care Observation Forms found at pages B-1-631 to B-1-636, from 14:40 at B-1-631 and following right up to and including at 07:40 at B-1-636. That is essentially all the supervision except at the outset. According to the evidence, the plaintiff was conscious when he entered the cell following which, at some unknown time, he became unconscious. I would be speculating if I tried to be more accurate as to when the plaintiff might have been unconscious when “responsive” was noted on the forms, which cannot be the purpose of this screening process.
Leave is consequently granted against the above-noted defendants on a without prejudice basis for the plaintiff bringing a further motion for leave should there be evidence pointing to a reasonable possibility of bad faith being successfully asserted against other defendants.
To achieve the above, the defendants in the consolidated action shall, within the next 10 days, disclose to the plaintiff the unredacted version of the forms at B-1-631 to B-1-636 and, thereafter, at some convenient time, shall allow inspection of the original of these forms by plaintiff’s counsel or his agent. The defendants in the consolidated action shall also indicate the name of each person who wrote “responsive” and shall provide for each an address for service.
Once the plaintiff has disclosure of the above, the plaintiff may amend his statement of claim to substitute the names as applicable. Time to serve the amended statement of claim is extended to three months after the defendants in the consolidated action have provided the information ordered above.
Leave is also granted to the plaintiff to consolidate his two actions into one, with the appropriately amended style of cause and content of the statement of claim. It is obvious that these two actions meet the test for consolidation, and this was not argued when the motion was argued.
If the parties are unable to agree on the form of the consolidated statement of claim or if they need assistance to implement this order, they may return before me by contacting the civil trial coordinator.
On consent of the parties, for purposes of avoiding any issues resulting from the application of subsection 17(10) of the CLPA, it is not disputed, considering my reasons, that the 2023 action against the defendants for which leave has not yet been granted, is not a nullity but remains stayed as against these other defendants until such time as a further motion for leave is brought and the court renders a decision on the leave issue against these other defendants.
The CLPA provides that there are no costs on such a motion, and consequently none are ordered.
Certification
FORM 3
ELECTRONIC CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))
EVIDENCE ACT
I, Christine Sauvé, certify that this document is a true and accurate transcript of the recording of Balla v. John Doe #1 et al. in the Superior Court of Justice held at 161 Elgin Street, Ottawa, Ontario taken from Recording CD# 0411_MR53_20250109_082422 10_ROGERP.dcr, which has been certified in Form 1 by Lisa Paterson.
January 15, 2025
(Date) Christine Sauvé
ACT #1070099798
(Ottawa, Ontario)
This certification does not apply to the (Rulings, Reasons for Judgment, Reasons for Sentence, or Charge to the Jury) which was/were judicially edited.