Law Times

Law Times • November 22, 2010 NEWS PAGE 5 $500K ruling involving child advocate appealed Defamation lawsuit stems from report during 1996 strike by prison guards BY MICHAEL McKIERNAN Law Times award to two former jail man- agers wrongly accused of abus- ing young off enders during a bitter strike by prison guards. Ontario Superior Court Jus- T tice Lynne Leitch found that a 1996 report by former child advocate Judy Finlay libelled the men by claiming managers on duty at the Elgin-Middlesex Detention Centre in London, Ont., had beaten, kicked, and humiliated prisoners moved there following a riot at another detention centre in Goderich. Rowland Carey, an opera- tional manager with the El- gin-Middlesex centre's young off ender unit, was one of 10 managers criminally charged in the aftermath of the report. He was eventually acquitted of six assault charges in 1999. As superintendent of the facility, George Simpson was accused of being complicit in the al- leged assaults. Th e confi dential report pre- pared for the government was leaked to the media shortly af- terwards and ignited a fi restorm in the press and the provincial legislature. Two years later, the Law Commission of Canada published quotations from the report in an article by lawyer Ronda Bessner on the abuse of children in institutions. Twelve years later, Leitch found Finlay's report suggested an investigation had occurred, when in fact it was an account of unverifi ed allegations. "I have concluded that Ms. Finlay acted outside the scope of her mandate by writing an inves- tigative report with reckless dis- regard for her offi cial duties and the injury she would cause the plaintiff s," Leitch wrote. "Th e plaintiff s were dedicated public servants who would not abuse young off enders or tolerate that behaviour from others." Lorne Honickman, who rep- resented Simpson and Carey, says his clients were "thrilled" with Leitch's judgment. "Mr. Simpson lost his job, and both of them have never really Marketplace LAW PRACTICE FOR SALE GENERAL Law Practice for sale in cottage country. Very lucrative. Turnkey. Call 613- 332-0016. bancroftlawpracticeforsale.ca To advertise call 905-841-6481 LT1122 www.lawtimesnews.com canadalawbook.ca For a 30-day, no-risk evaluation call: 1.800.565.6967 Canada Law Book, a Thomson Reuters business. Prices subject to change without notice, to applicable taxes and shipping & handling. he provincial govern- ment has appealed a $500,000 defamation recovered from it. Th at's why the ruling and her careful analy- sis was so important." Honickman wanted the judge to go further and fi nd that Finlay had acted with mal- ice when she wrote the report. Finlay never spoke to either of his clients before writing it. "She writes this report with broad conclusions without checking, without doing any- thing, and [Simpson and Car- ey] had no idea about the al- legations that were going to be written in the report," he says. "It was just so far-reaching. It had many misleading aspects in it. It quoted on the side as if staff had been interviewed, but staff were never interviewed." Th e government has fi led a notice of appeal asking the court to reduce the damages. It also says the claim should have been barred by employment set- tlements signed by the plaintiff s or limitations under the Public Authorities Protection Act. Leitch rejected both argu- ments and instead ruled the settlements the plaintiff s reached with the government only barred further action related to employ- ment and grievance hearings. While the act requires plain- tiff s to bring lawsuits within six months after the cause of action arose, Leitch found it could be defeated by Finlay's recklessness in performing her public duties. Honickman says the appeal didn't surprise him. "Th ey've basically got their clients a stay with respect to the payment of the judgment. We'll see what happens down the road." Neither Finlay nor the Ministry of Community Safety and Correctional Ser- vices responded to requests for an interview. Th e whole episode start- ed in February 1996, when prison guards began a 37-day strike. Days after the start of the action, a riot broke out at Goderich's Bluewater Youth Centre that caused $500,000 in damage. More than 50 youth had to be transferred to other facilities, including 40 who went to the Elgin- Middlesex centre. Simpson testifi ed that dur- ing the strike, managers at the facility were under incredible stress, essentially living there while working 16 to 20 hours a day. When the Bluewater youth arrived, only adult cells were available. According to Simpson, the only complaints he heard from those transferred involved an alleged assault by a young off ender while in transit and several others from youth who had no access to mattresses or blankets. Finlay came in two days after the transfer with three staff from her offi ce. Her report, delivered to the government on May 31, 1996, showed her team received a very diff erent set of complaints. "Th ey were subjected to exces- sive force and intimidation un- der a number of circumstances: during the admission process they were verbally and physically intimidated, prodded, struck, kicked, humiliated, many of them sustaining injuries," the document alleged. Lorne Honickman says he's not sur- prised the government is appealing. Finlay continued to stand by her report during her testimo- ny, insisting it was an accurate and truthful account of what happened that night. "Th ey were advocates for youth and believed the young people," Leitch said in her judgment. "It was not their role to inves- tigate the allegations nor did they have the training or ex- pertise to do so." Th e report was leaked to the media and immediately became ammunition for opposition MPPs criticizing former premier Mike Harris' government for its handling of the strike. Simpson was named in newspaper reports, while former NDP MPP Marion Boyd asked in the legislature for him to be reassigned. Th e government removed Simpson from his post in June 1996 and terminated him a year later, nine weeks before he was eligible to claim his pension. It reas- signed Carey from his posi- tion in June 1996 and fi red him a year later. In December 1996, he found out he was to be charged with assault dur- ing a press conference by London police. In 1998, Bessner met Finlay to discuss a paper she was writing on the abuse of children in institutions. Her paper appeared on the Law Commission of Canada's web site that fall complete with quotes from Finlay's report. "Right after things had set- tled down somewhat for Mr. Carey and Mr. Simpson, it was reliving it all over again," Honickman says. "To us, that spoke volumes as to what we said was malice." Finlay claimed she had given Bessner the report but warned her not to quote from it. But Bessner testifi ed she never knew it was a confi dential document, a position Leitch accepted. "I accept Ms. Bessner's evidence completely," Leitch wrote. "She is highly experi- enced in the area of research. She would not have used a con- fi dential report in her publica- tion. I fi nd that the fact that she did reference and quote from the EMDC report was because Ms. Finlay gave the EMDC re- port to her, as Ms. Bessner tes- tifi ed, with 'no strings attached' and without informing her that it was confi dential." LT Franchise Legislation in Canada Peter Dillon Whether you represent franchisees or franchisors, Franchise Legislation in Canada is a must-have resource for any franchise lawyer. 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• Cover
• Libel Ruling Appealed
• Double-dipping
• Focus On Environmental Law