I. OVERVIEW
This case arises as a result of the alleged inexplicable treatment of an inmate who was imprisoned alone in a jail cell at Quinte Detention Centre (QDC) and left lying in the cell lifeless without intervention until muscle necrosis set into his arm. When guards finally intervened, and arranged emergency transportation to the hospital, doctors had no choice but to perform several amputations, progressively higher on the plaintiff’s arm, to save his life. The plaintiff’s entire arm was amputated.
The plaintiff sought to hold the persons in charge of his care and supervision responsible for their conduct by bringing an action against them in their legal capacity as individual persons, in addition to bringing an action against them in their legal capacity as Crown employees in his companion action against the Crown. However, generally, guards, sergeants, superintendents and similar persons enjoy statutory immunity pursuant to s. 12 of the Ministry of Correctional Services Act, R.S.O. 1990, c. M.22. Such immunity, however, does not extend to acts done in bad faith, as alleged in these proceedings, in light of the alleged facts.
Where bad faith is alleged as against a Crown officer or employee, s. 17 of the Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7, Sched. 17 (CLPA) operates to impose an automatic stay on the action until a motion for leave to proceed is granted. The procedure and test for the motion to lift the automatic stay is set out comprehensively in s. 17. Ultimately, the plaintiff must demonstrate:
- the proceeding is being brought in good faith, and
- there is a reasonable possibility that the claim would be resolved in the plaintiff’s favour.
In this decision, Justice Roger examined this legal framework and granted the plaintiff leave to proceed with his claim against some of the defendants in their legal capacity as individual persons.
II. UNDERLYING FACTS
The plaintiff was arrested and placed in the custody of QDC on November 10, 2021. He was placed in a holding cell by himself, and the last thing he remembers is feeling tired, lying down on the concrete floor and losing consciousness.
A Healthcare Observation form of QDC required that the plaintiff be assessed every 20 minutes. It specified that the plaintiff must be woken for every assessment, asked various questions and be asked to move his arms and legs. The Sergeant or Healthcare Department was to be notified if the plaintiff was having any difficulties with compliance. On the form, prison officials wrote “responsive” every 20 minutes until the morning of November 12, 2021, when they purport to have first noticed the plaintiff’s arm had turned black. Effectively, they essentially claimed they did nothing wrong, and the plaintiff developed a black and blue arm spontaneously within 20 minutes.
At the motion, the plaintiff filed an affidavit from a treating orthopaedic surgeon, who opined that the plaintiff’s arm was amputated due to a missed compartment syndrome. According to this physician, for such a condition to develop, it would require complete immobilization for a minimum of three hours (which is obtained only while at or near a state of unconsciousness), but likely longer in this case given the plaintiff was found to have muscle necrosis.
III. LAW & ANALYSIS
In his reasons, Justice Roger clarifies that s. 17 of the CLPA is fundamentally a screening procedure for claims against the Crown, or an officer or employee of the Crown, for torts based on bad faith.
With respect to the first prong of the test, whether the proceeding is being brought in good faith, Justice Roger affirmed that “good faith” has been interpreted to mean 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 to prosecute the claim. The plaintiff must establish they brought the bad faith action in good faith on a balance of probabilities.
In this case, the plaintiff met the first prong of the test. Justice Roger reasoned that the plaintiff was seriously injured and his medical outcome was “inconsistent with the defendants’ documents suggesting that he was assessed regularly every 20 minutes.” This inconsistency suggested “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…” The plaintiff had retained a lawyer and demonstrated an intention to prosecute the claim to recover damages for the serious injuries he sustained. Together, this was sufficient to satisfy His Honour that the bad faith action was brought in good faith. Notably, Justice Roger added that whether pursuing such a claim may give the plaintiff additional discovery rights did not mean the action was brought for an “oblique or collateral purpose.” Instead, this is consistent with the statutory remedy.
With respect to the second prong of the test, Justice Roger affirmed that the reasonable possibility of success requirement is a “meaningful but low threshold” that involves a meaningful examination of the evidence to ensure the case has some merit.
In order to determine whether a claim based in bad faith had a reasonable possibility of success, Justice Roger necessarily had to carefully examine the law relating to “bad faith.” While bad faith certainly and traditionally includes intentional fault, such as intending to cause harm or the conscious doing of a wrongful act, this decision reaffirms that “bad faith” has also been interpreted more broadly to encompass serious careless or recklessness. Justice Roger affirmed that (a) reckless conduct can amount to bad faith; (b) bad faith can be inferred by inexplicable conduct; (c) bad faith can be presumed from a fundamental breakdown of the orderly exercise of authority; and (d) 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.
Justice Roger accepted the plaintiff met the second part of the test, but only as against some of the defendants. He reasoned, “we have an amputated right arm with no evidence disputing that this resulted from the plaintiff being unconscious and somehow laying (sic) 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.” Justice Roger distinguished the cases relied upon by the defendants on the basis that, in this case, there was no explanation from the defendants as to how this could have happened when the documents indicated the plaintiff was monitored every 20 minutes and was noted to be responsive.
Justice Roger found on the evidence before him that it was “impossible” that the plaintiff was always responsive and able to move him limbs up until his arm needed to be amputated.
Addressing the defendants reliance on the health care observation sheet, Justice Roger remarked: “[o]n the evidence presented, it is clear that the completed forms do not accurately record the plaintiff’s ongoing condition during his detention…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.”
Justice Roger ultimately held that the facts as outlined above could constitute reckless conduct amounting to bad faith, that bad faith could be inferred by the inexplicable conduct in this case, and that the evidence presented could constitute circumstantial evidence of bad faith. QDC knew the plaintiff was at-risk and was to be monitored every 20 minutes. Notwithstanding this knowledge, the plaintiff was not monitored for a significant period of time. Furthermore, Justice Roger added, “[t]he 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?”
Justice Roger went on in his reasons to clarify that while the first prong of the test refers to the “proceeding”, the second prong of the test refers to the “claim.” Consequently, he held for the second part of the test, the plaintiff must establish a reasonable possibility of success against specific defendants, rather than at large. In this case, the plaintiff established a reasonable possibility of success against all defendants who wrote “responsive” on the healthcare observation sheet, which Justice Roger found had been falsified. Accordingly, leave was granted against these defendants on a without prejudice basis to the plaintiff bringing a further motion for leave should there be evidence pointing to a reasonable possibility of bad faith being successfully asserted against the other defendants.
Plaintiff’s counsel, both OTLA members, were Joseph Obagi and Wayne Fryer.
The Defendants were represented by Martin Forget.
