Law Times

Page 12 September 9, 2013 Law Times • BRIEF: PERSONAL INJURY LAW New case shows challenge of litigating prison assaults BY CHARLOTTE SANTRY Law Times A ssaults among prisoners at Ontario jails are common, but a recent case demonstrates the challenges lawyers face in proving liability for inmate incidents. For a start, successfully proving prison officials failed in their duty of care and are liable for injuries can be challenging, especially given the resources at the Crown's disposal. And while bringing a personal injury case against an attacker could be straightforward to prove, imprisoned defendants — by the nature of their situation — may be unable to pay significant damages. The recent Ontario Superior Court of Justice decision, Melvin v. Ontario (Correctional Services), demonstrates the challenges involved in litigating Our Services to assist you include: toll free 1.866.314.7335 cbafuturecare.com Berbrier_LT_May6_13.indd 1 a prisoner-on-prisoner assault. It also shows, however, that those prepared to take on the Crown against the odds can achieve considerable success for their clients. The case stemmed from an incident in 1997 when two inmates, David Ogima and John Davis, assaulted Thomas Melvin, an inmate at the district jail in Thunder Bay, Ont. Melvin suffered a serious head injury and had to undergo a craniotomy, a procedure that involves removing part of the bone from the skull to expose the brain. An action against Ogima, Davis, and the Crown began in 2003. Lawyer Richard Courtis and law firm Thomson Rogers represented Melvin as co-counsel. The Crown agreed to a $750,000 settlement in June 2012. On Aug. 23, 2013, the Ontario Superior Court of Justice released a decision that ordered payment 13-04-29 10:35 AM What do your clients need? The means to move on. Guaranteed. ™ Baxter Structures customizes personal injury settlements into tax-free annuities that can help your clients be secure for life. » Pre- and post- settlement consultation and support Need more information? » Caring professionalism for over 30 years » No fee to you or your clients Contact us at 1 800 387 1686 or baxterstructures.com Melvin v. Ontario provides an important lesson for lawyers considering taking on a case against the Crown, says Gillian Hnatiw. as a structured settlement. It also approved the legal fees charged by Melvin's counsel that amounted to about $240,000. Justice Douglas Shaw praised the lawyers for taking on a file that lasted nine years "with no guarantee that they would ever recover their time or disbursements." The disbursements had come to about $80,000 and the legal fees represented a 29-per-cent reduction from the docketed time. The lawyers had faced "an uphill battle on liability" but "achieved a very good result," Shaw stressed in his decision. Underlining the victory, he stated: "The case was vigorously defended by the Crown, with virtually unlimited resources." One of Melvin's lawyers, Thomson Rogers partner Craig Brown, acknowledges that persistence is important when it comes to representing plaintiffs assaulted by fellow inmates. "It's a hothouse area in that there aren't many cases," he says. There were three mediations before the case settled. Part of the challenge was showing that the harm sustained by Melvin was due to the assault and didn't relate to his extensive pre-accident medical history, says Brown. To prove the Crown was liable, he and Courtis had to show the province had failed to behave reasonably in its duty to look after the people in its care. Luckily, a prison supervisor who had left his position was willing to write a statement. The lawyers were also able to find a record revealing that Ogima was a known dangerous offender. "He'd beaten up an elderly prisoner seven to 10 days before the assault [on Melvin]," says Brown. Gillian Hnatiw, a personal injury lawyer at Lerners LLP, says this kind of information can be key in proving that the Crown has failed in its duty of care. "You're putting a vulnerable person in a cage with someone who's known to be extremely violent. It's a perfect recipe for an assault of this nature," she says. Because prisoners are relatively See Structured, page 13 Baxter_LT_Jan7_13.indd 1 www.lawtimesnews.com 13-01-02 10:11 AM

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