Court of Appeal dismisses appeal regarding finding of liability on Crown for assault at a provincial jail
Released January 23, 2017 | Full Decision [CanLII]
This action was brought by a prisoner who was injured in an attack by a fellow inmate that was allegedly facilitated by correctional officials. The injured person, Jason Walters, was a member of the Malvern Crew gang. He was incarcerated at the Don Jail and suffered a severe beating at the hands a fellow inmate in 2008. It is alleged that the beating was at the hands of a member or members of the Galloway Boyz gang. Walters sued the provincial government alleging that correctional officers failed to prevent the assault. In the assault, Walters suffered a severe brain injury and ended up being hospitalized for almost two years at St. Michael’s Hospital and Toronto Rehabilitation Institute.
The trial judge, Justice Arthur Gans, held that the Don Jail’s policy of separating members of the same gang negated neither the correctional officers’ common law duty of care to persons in their custody nor Ontario’s vicarious liability for any breach by the correctional officers (“CO’s”) of that duty of care. He found that the officers knew that the gang member who injured Walters was likely to attack members of rival gangs and that the officers were negligent in housing Walters and his rival gang member in the same unit. Walters conceded that he was 15% responsible for the damage caused because he did not request placement in protective custody. The parties agreed to an amount for damages.
Ontario appealed on the grounds that the trial judge erred in applying the duty of care owed by CO’s to inmates, in concluding that the CO’s at the Don Jail were negligent and in concluding that the CO’s caused Walter’s injuries.
Laforme J.A., writing for a unanimous panel, dismissed the appeal. The Court held that the trial judge’s duty of care analysis disclosed no legal error. With regard to Justice Gans’ findings of a breach of that duty and causation, the Court held that there was no palpable and overriding error or error concerning an extricable question of law in relation to the finding of negligence and causation.
Appeal dismissed with costs payable to the plaintiffs in the amount of $35,000 inclusive of HST and disbursements.