



COURT OF APPEAL FOR ONTARIO

CITATION: Fontenelle v. Canada (Attorney General), 2018 ONCA
    475

DATE: 20180523

DOCKET: C64634

Lauwers, Benotto and Nordheimer JJ.A.

BETWEEN

James
    Fontenelle Jr., Tanya Brown, James Fontenelle Sr.

and Margina Fontenelle

Plaintiffs (Respondents)

and

The Attorney General of Canada
, Leonard Ballantyne, Terrance
    Bent

and Nickoma Cottrelle

Defendants (
Appellant
)

M. Sean Gaudet and Joel Levine, for the appellant

Doug Wright, for the respondents

Heard:  May 17, 2018

On appeal from the judgment of Justice David Price of the
    Superior Court of Justice, dated November 2, 2017, with reasons reported at
    2017 ONSC 6604.

REASONS FOR DECISION

[1]

The Attorney General of Canada appeals from the summary judgment granted
    by the motion judge who found in favour of the plaintiffs on the issue of
    liability but ordered the issue of damages to proceed to trial.

[2]

The action arises out of an assault that was committed on the
    respondent,
James Fontenelle Jr., (who we will
    refer to as the respondent) by the three named individual defendants, none of
    whom defended the underlying action.  The assault occurred while the respondent
    and the three individual defendants, were all inmates at Millhaven Institution,
    which is a maximum security penitentiary located in Bath, Ontario. The
    respondent was seriously injured.

[3]

The underlying action alleged that the Attorney
    General of Canada, as the representative of the Federal Crown, was negligent and
    breached a statutory duty of care by failing to keep the respondent reasonably
    safe while he was an inmate of the penitentiary.

[4]

The background facts can be stated fairly briefly.  At the time of the
    assault on October 8, 2013, the inmates in the unit in which the respondent was
    housed, were on strike in protest over the transfer of inmates from Kingston
    Penitentiary, which was being closed.  This strike had been ongoing for approximately
    a month.

[5]

As a consequence of the strike, the inmates were not being allowed
    outside into the yard or the gym.  Rather, they were only allowed outside of
    their cells for limited range activities, and then only at limited times.  There
    are surveillance cameras that cover the range but the cameras do not cover the
    insides of any of the cells.  Further, each cell is equipped with an alarm.  As
    part of the protest, inmates, including the respondent, would press the alarm
    even though there was no emergency.  Inmates would also cover their cell door windows
    and prop open the doors of their cells when out on the range. Prison staff were
    obligated to respond to any alarm.

[6]

On the evening of October 8, the respondent activated his cell alarm
    even though there was no emergency.  Prison staff attended and reset the
    alarm.  A few minutes later, six cell alarms were pressed at the same time,
    including the respondents.  Apparently this was to show the displeasure of the
    inmates that they had not, as yet, been allowed out of their cells.  Prison
    staff again attended and reset three of the six alarms.  They did not reset the
    respondents cell alarm.  There was no evidence why only three alarms were
    reset.

[7]

A few minutes later, the cell doors were opened to allow the inmates out
    onto the range.  For the next 30 minutes or so, the inmates on the range engaged
    in various activities. During this time, the respondent passed the defendant, Ballantyne,
    on the range a number of times, without incident.

[8]

At the end of this period, Ballantyne entered the respondents cell and
    left 14 seconds later. A couple of minutes later, the respondent popped his
    head out of his cell and appeared to speak to Ballantyne. The respondent tried
    to kick away the object propping open his door, but Ballantyne appeared to
    lunge to keep it open. Ballantyne then entered the respondents cell. The
    defendants, Cottrelle and Bent, stood outside the door. Ballantyne left a few
    minutes later. The motion judge found that the assault occurred at this time. 
    The assault was not observed by prison staff because none of the staff are on
    the range when the inmates are out of their cells.  Rather, prison staff
    observe the activities on the range through the surveillance cameras.

[9]

About 15 minutes later, the prison staff and the inmate range
    representative reached an agreement by which the inmates returned to their
    cells.  At this point, the prison staff reset the other three cell alarms,
    including the respondents. About an hour later, staff conducted a patrol but
    did not observe any issues with the respondent.  About a further hour later,
    staff entered the range and observed that the respondent was in apparent
    distress. An ambulance was called and he was taken to Kingston General Hospital.

[10]

In
    his statement of claim, the respondent asserts negligence on behalf of the
    appellant, the particulars of which are pleaded as follows:

(a)

It failed to take reasonable care for the Plaintiffs safety;

(b)

It allowed the assailants to gain access to the Plaintiffs cell;

(c)

It failed to monitor the Plaintiffs cell properly to ensure that
    persons did not gain access to it;

(d)

It knew or ought to have known that an assault was occurring and it
    failed to intervene in a timely manner, or at all;

(e)

It failed to supervise the other Defendants properly, or at all;

(f)

It failed to have adequate policies in place to ensure the prisoners
    safety;

(g)

In the alternative, it failed to enforce its policies;

(h)

It failed to instruct its staff properly or at [
sic
] on safety
    matters;

(i)

It knew or ought to have known that the Plaintiffs safety was at risk
    and it did nothing to minimize the risk; and

(j)

It failed to make any reasonable assessment of the risk to the Plaintiff
    of being housed close to the other Defendants.

[11]

The
    appellant brought a motion for summary judgment seeking to have the action
    dismissed on the ground that there was no genuine issue requiring a trial.  In
    the alternative, the appellant sought an order bifurcating the action as
    between liability and damages.  There was no cross-motion by the respondent for
    summary judgment.

Analysis

[12]

In
    our view, the motion judge greatly exceeded his authority in granting summary
    judgment in this case in favour of the respondent.  In doing so, he made
    unjustified findings of fact.  The appellant also submits, with some warrant,
    that the motion judge proceeded contrary to the principles in
Rodaro v.
    Royal Bank of Canada

(2002), 59 O.R. (3d) 74 (C.A.), at paras.
    61-63. What is clear, given the factual issues that are in issue in this case, is
    that a trial is required to resolve whether the appellant is liable for the
    injuries sustained by the respondent.

[13]

In
    awarding summary judgment, the motion judge found, at para. 11 of his reasons,
    that the evidence leads to the inescapable conclusion that [Correctional Service
    Canada] was negligent, and that, but for its negligence, the injuries to [the
    respondent] would not have occurred.

[14]

The
    motion judge correctly cited the law that applies to summary judgment motions,
    particularly the decision in
Hryniak v. Mauldin
, 2014 SCC 7, [2014] 1
    S.C.R. 87.  More specifically, the motion judge quoted from
Hryniak
,
    at para. 49, where Karakatsanis J. said:

There will be no genuine issue requiring a trial when the judge
    is able to reach a fair and just determination on the merits on a motion for
    summary judgment. This will be the case when the process (1) allows the judge
    to make the necessary findings of fact, (2) allows the judge to apply the law
    to the facts, and (3) is a proportionate, more expeditious and less expensive means
    to achieve a just result.

However, he failed to properly apply that law in
    reaching his decision.

[15]

After
    this quotation, the motion judge said, at para. 56, that I am satisfied on
    the evidence tendered in the motion, that I have a full appreciation of the
    facts and am able to reach a fair and just determination on the merits  While
    the decision to exercise summary judgment powers is discretionary, deference is
    not owed to that decision where the motion judge comes to a decision that is
    so clearly wrong that it resulted in an injustice:
Hryniak
,
at para. 83.  That is what occurred in
    this case.

[16]

The
    motion judge made the following liability findings, at para. 70:

For the reasons that follow, I find that there was a
    foreseeable risk of harm to Mr. Fontenelle arising from CSCs placement of him
    in a tough unit within a maximum-security prison, among inmates, including
    Mr. Ballantyne, who had a known history of institutional violence against other
    inmates. That risk was heightened when CSC failed to dis-arm and re-arm Mr.
    Fontenelles call alarm, and permitted inmates, including Mr. Ballantyne, to
    enter Mr. Fontenelles cell, outside the range of surveillance cameras. I find
    that CSC failed to meet the standard of conduct that applied to it, that served
    to deter such violence and enable its staff to respond promptly and effectively
    if it occurred. In particular, CSC:

1.

Failed to
    install and maintain proper surveillance of the cell interiors;

2.

Failed to
    respond promptly and effectively to the activation of Mr. Fontenelles cell
    alarm;

3.

Failed to
    respond effectively to Inmates' propping open cell doors, and thereby allowed
    dangerous inmates to enter Mr. Fontenelles cell outside the range of security
    cameras;

4.

Failed to
    ascertain Mr. Fontenelles condition promptly following the assault and secure
    timely medical treatment for his injuries.

[17]

It
    is readily apparent from the nature of the allegations made in this case, and
    the factual findings made by the motion 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.  The
    motion judge erred in a number of respects in concluding otherwise.  It is not
    necessary to review each of those errors.  The following will suffice.

[18]

Regarding
    the placement of the respondent in the tough unit, the motion judge
    acknowledged that he did not have evidence respecting available institutional
    resources or whether there were alternative placements available to the
    appellant that would have been more appropriate for the respondent, given his
    inmate profile. He should not have proceeded to make a finding on this issue.

[19]

The
    motion judge also found that the appellant had been negligent because it failed
    to ensure that doors to the cells were kept closed while inmates were on the
    range (para. 93).  He found that this failure contributed substantially to
    the injuries that the respondent sustained.  In reaching this conclusion, the
    motion judge does not appear to have given any consideration to the fact that
    there was an inmate strike, that the inmates (including the respondent) were blocking
    their cell doors from being closed, and the safety risk posed to prison staff if
    they were to enter the range while the inmates were out of their cells.  Given those
    factors, the motion judge does not explain how the prison staff could
    reasonably be expected to ensure that the cell doors were kept locked.

[20]

The
    same factors ought to have been taken into account when the motion judge found
    that the appellant was negligent in not resetting the respondents cell alarm. 
    There was no evidence why only three of the six alarms were reset.  The absence
    of that evidence ought to have concerned the motion judge in respect of any
    conclusion he might make about this issue.  In any event, given that at the
    time of the assault, the alarms still had not been reset, and yet the inmates
    were out on the range, it is not clear how the motion judge thought the prison
    staff were supposed to be able to then reset the alarms.  We repeat that the
    other three alarms had been reset prior to the inmates being allowed out on the
    range.

[21]

The
    motion judge also criticized the appellant for the failure to have surveillance
    cameras in each of the cells so that the authorities could monitor the
    activities in each cell.  The motion judge made this criticism without there
    being any evidence on this issue, including the costs associated with installing
    all of those cameras and the privacy concerns that the installation of such
    cameras would give rise to.

[22]

The
    motion judge also faulted the appellant for the delay that occurred in
    ascertaining the condition of the respondent after the assault.  On this point,
    it should be noted that the motion judge did not have any evidence from the two
    staff members who observed the respondent about an hour after the assault.  He
    also did not have any evidence from the respondent on this point.  Still
    further, the motion judge did not have any evidence that any delay in treatment
    had any impact on the respondents injuries.

[23]

Further,
    on more than one occasion, in the course of his reasons, the motion judge said
    that, but for a failing he identified on the part of the appellant, the assault
    would likely not have occurred.  That is not the correct legal standard for
    finding negligence.  Rather, the correct legal standard is that but for the
    negligence of the defendant the injuries would not have occurred.  As McLachlin
    C.J.C. said in
Clements (Litigation Guardian of) v. Clements
, 2012 SCC
    32, [2012] 2 S.C.R. 181, at para. 8:

The plaintiff must show on a balance of probabilities that but
    for the defendant's negligent act, the injury
would not
have occurred.

[Emphasis added.]

[24]

In
    the end result, the motion judge concluded that a trial was not necessary to
    determine liability in this case.  Rather, he determined that the appellant was
    liable to the respondent. We note that he reached that conclusion
    notwithstanding that the respondents position on the summary judgment motion
    was that a trial was necessary.  In reaching his conclusion, the motion judge
    pointed to the lack of evidence from certain staff members who had been
    involved in the incident and the failure of the three individual defendants to
    defend the action.  It is not clear what the significance of the latter is to
    the issue.  If the concern was that their evidence was not before the court, then
    that was another reason to send the matter to trial.  Whether or not the
    individual defendants defended the action, they are still subject to being
    called as witnesses at the trial.

[25]

The
    motion judges conclusion that a trial on liability was unnecessary cannot be
    sustained.  The evidentiary record before the motion judge was insufficient to
    reach a fair and just determination that any duty of care owed by the appellant
    to the respondent had been breached.  There was a need for much more evidence
    than the motion judge had on a variety of issues, such as the impact of the
    actions of the inmates on the ability of the prison staff to take certain steps,
    the actions surrounding the cell alarms, the liability consequences of finding
    that individual cells should have surveillance cameras, and so on.

[26]

It
    follows from that conclusion that the appellant was not entitled to summary
    judgment either.  This is an action that will have to proceed to trial absent
    the parties reaching any other resolution.  On that point, we do not see any
    reason to bifurcate the liability issues from the damages issues.  It would
    seem that the factual findings in the liability phase will assist in
    determining what, if any, damages are appropriate.

Conclusion

[27]

The
    appeal is allowed.  The summary judgment granted by the motion judge is set
    aside.  The appellants motion for summary judgment is dismissed.  The action
    is ordered to proceed in accordance with the
Rules of Civil Procedure
,
    R.R.O, 1990, Reg. 194.  The appellant is awarded its costs of the appeal, fixed
    in the agreed amount of $20,000, in the cause as also agreed between the
    parties.  The motion judges order reserving the costs of the motion to the
    trial judge remains.

P. Lauwers J.A.

M.L. Benotto J.A.

I.V.B. Nordheimer J.A.


