Law Times

Law Times • June 4, 2018 Page 5 www.lawtimesnews.com Plaintiffs had sought damages from feds after injuries in jail OCA overturns ruling in case involving beaten inmate BY GABRIELLE GIRODAY Law Times T he Ontario Court of Appeal has overturned a summary judgment ruling that found Cor- rectional Service Canada liable for negligence after a man was injured in a 2013 jail beating. The ruling in Fontenelle v. Canada (Attorney General), 2018 ONCA 475 states that the motion judge, Ontario Superior Court Justice David Price, "greatly exceeded his authority in granting summary judgment in this case in favour of the respondent" in terms of deter- mining liability in the case. James Fontenelle Jr. had launched a claim after he was attacked at Millhaven Institu- tion in October 2013 by other inmates during a prisoner strike at the facility. He alleged he had suffered life-threatening head injuries as a result of the beating. Fontenelle alleged that prison staff with Correctional Service Canada — and the Attorney General of Canada — failed him by not responding to a cell alarm that was activated the night he was beaten. In a ruling made last Novem- ber, Price found in Fontenelle's favour when it came to liability, and he bifurcated the proceed- ing to hold a trial at a later date on damages. However, the OCA ruling reversed this and ordered the matter to proceed to trial for both liability and damages. "It is readily apparent from the nature of the allegations made in this case, and the fac- tual findings made by the mo- tion judge, that the evidentiary record was woefully inadequate to make a proper determination whether any duty of care owed by the appellant to the respondent in this case had been breached," said the Court of Appeal ruling made by justices Peter Lauw- ers, Mary Lou Benotto and Ian Nordheimer. "The motion judge erred in a number of respects in concluding otherwise." Price had made the determi- nation about liability after the Attorney General of Canada brought a motion to dismiss the action by Fontenelle. "I find that there is no genuine issue as to liability, not because the evidence does not support a finding of liability, but because the evidence leads to the inescap- able conclusion that the CSC was negligent, and that, but for its neg- ligence, the injuries to Mr. Fon- tenelle would not have occurred," said Price in the 2017 ruling. "There is no necessity for a trial, as the CSC's own records establish its liability. A trial would also serve no purpose, as the only witnesses who are ca- pable of adding anything have refused to co-operate and will likely continue to do so." James Sayce, an associate with Koskie Minsky LLP's class action group, says the main takeaway of the Ontario Court of Appeal ruling is that lawyers must recall that they're required to put their best foot forward in presenting evidence during a summary judgment motion. Sayce says the Court of Ap- peal ruling clearly shows that justices felt "that the lower court judge went too far" with his find- ing of liability and that the OCA ruling "makes sense." "I agree with the Court of Appeal because the [lower court judge] appeared to be frustrated with the attorney general for not leading key pieces of evidence on its own summary judgment motion. . ." says Sayce, which he says led the judge to rule against them. "This wasn't a motion that was being brought by the plain- tiffs in the case . . . the plaintiff was really just looking for a ruling that the matter needed to proceed to trial and that the damages and liability shouldn't be bifurcated, and the judge went much, much further." Sayce says the initial ruling by Price "might have been a bit too good to be true for the plaintiffs." "At the end of the day, they're getting what they [wanted]. The Court of Appeal ruled in favour of their position on the lower court motion, which was 'Let's have a trial and let's not bifurcate damages and liability,'" he says. Deepa Negandhi, an associ- ate with Brauti Thorning Zibar- ras LLP, says the ruling reaffirms the notion that when issues are brought on a summary judg- ment motion, it's necessary "to put your best foot forward if you want the motion judge to make a decision either way." "This case is interesting be- cause the respondents actually didn't want it to be decided on summary judgment and actu- ally wanted it to go to trial, but it seems interesting that at least the motion judge thought that they could decide based on the record that was put forward," she says. Correctional Service Canada said it could not provide com- ment on the case because it is before the courts. LT NEWS TRUE CASES BY & ABOUT CANADIAN WOMEN AND THE LAW TRUDELL & SHYBA EDITORS DURVILE WOMEN IN CRIMINAL JUSTICE TRUE CASES BY & ABOUT CANADIAN WOMEN& THE LAW WOMEN IN CRIMINAL JUSTICE Durvile Publications TRUE CASES SERIES BOOK 4 Edited by William Trudell & Lorene Shyba Partial proceeds of Women in Criminal Justice go to Indigenous youth writers workshops in the Northwest Territories. " The reader emerges from reading Women in Criminal Justice with pictures in mind ... women who work without respite to achieve just outcomes for the people they deal with, often in the face of difficulty and at considerable personal cost." — The Right Honourable Beverley McLachlin From her Foreword Hon. Susan Lang on flawed forensic evidence Hon. Nancy Morrison on a horrendous case of sexual abuse Hon. Lise Maisonneuve on emergence of women in criminal law Hon. Danielle Côté on the pressures of Judging Hon. Iona Jaffe on the Toronto 18 terrorism Senator Kim Pate on Indigenous women in prison Jennifer Briscoe on the Northern Fly-in Squad Catherine Dunn on Indigenous victims of violence Kaysi Fagan on a woman in the world of drug trafficking Deborah Hatch on ubiquitous wrongful convictions Karen Hudson on the gallery of criminal justice Barbara Jackman on immigration and human rights Lucie Joncas on interacting with a population at risk Susan Kyle on being a Crown and a mother Jill Presser on the fight for LGBTQ+ justice Rosellen Sullivan on a 13-year-old's loss of innocence Jennifer Trehearne on interaction of courts and mental disorders To purchase Ask your local bookseller or order from Indigo.ca or Amazon.ca Untitled-6 1 2018-05-30 9:47 AM James Sayce says a recent Ontario Court of Appeal ruling clearly shows that justices felt 'that the lower court judge went too far' with his finding of liability. [It's necessary] to put your best foot forward if you want the motion judge to make a decision either way. Deepa Negandhi

• Cover