



COURT OF APPEAL FOR ONTARIO

CITATION: Bruno v. Dacosta, 2020 ONCA 602

DATE: 20200923

DOCKET: C66667

Lauwers, Brown and Nordheimer
    JJ.A.

BETWEEN

Paul
    Bruno,
Martha Bruno
, Mary Catherine Bruno,

Paul John Bruno
,
    and
Jake Bruno
under the age of 18 by

his Litigation Guardian Martha Bruno

Plaintiffs
    (
Respondents
/

Appellants by way of cross-appeal
)

and

Joshua
    Dacosta, Guy Gibson, Daniel Ashenden, Terry Empey,

Her Majesty the Queen in the Right of Ontario
Represented by the

Ministry
    of Community Safety and Correctional Services
, the
    Niagara

Detention
    Center, Wendy Southall as the Chief of Police of the

Niagara
    Regional Police Service, Police Officers Jane Doe and

John
    Doe, the Niagara Regional Police Services Board, the

Corporation of the Regional Municipality of Niagara and William
    Shilson

Defendants
    (
Appellant
/

Respondent by way of cross-appeal
)

Ian MacLeod
    and Robert Trenker, for the appellant Her Majesty the Queen in Right of Ontario

Gregory P. McKenna
    and Sabrina L. Seibel, for the respondents Paul John Bruno, Martha Bruno and
    Jake Bruno

Heard: August 28,
    2020 by video conference

On appeal
    from the judgment of Justice Paul R. Sweeny of the Superior Court of Justice,
    dated February 7, 2019, with reasons reported at 2019 ONSC 99, and from the
    costs decision dated February 26, 2020, with reasons reported at 2020 ONSC 1258.

Lauwers
    J.A.:

A.

Overview

[1]

On August 25, 2006, the respondent, Paul Bruno,
    was an inmate being held in protective custody at the Niagara Detention Centre
    (NDC).

[2]

The trial judge found that inmates Joshua Dacosta,
    Guy Gibson, Daniel Ashenden, and Terry Empey assaulted Bruno in the washroom of
    3-Wing, in which they were all housed. Bruno suffered serious personal injuries
    and was found unconscious. He was in a coma for nearly a month and continues to
    suffer from the sequelae of his injuries.

[3]

The issue before the trial judge was whether the
    Crown, represented by the Ministry of Community Safety and Correctional
    Services, is liable to Bruno in negligence because NDC employees failed to take
    reasonable steps to protect him as a vulnerable inmate. He was vulnerable for
    several reasons, the most prominent being that his father was a retired police
    officer. The trial judge was not required to assess damages because the parties
    had agreed on the quantum at $1.5 million.

[4]

Dr. Michael Weinrath provided expert evidence
    for Bruno and Dr. Ralph Serin for the Crown. The trial judge relied on the
    evidence of Dr. Weinrath and rejected that of Dr. Serin. He found two breaches
    of the standard of care: first, the standard required that inmates Ashenden,
    Gibson, and Empey be kept separate from Bruno and not be housed together; and,
    second, the standard required NDC staff to consult with inmates about potential
    incompatibilities before Bruno was placed into protective custody in 3-Wing.

[5]

With respect to the first breach of the standard
    of care, the trial judge said he was satisfied that the gang assault would not
    have occurred had NDC staff separated Empey and Gibson and Ashenden or any of
    them. He found that: But for the NDCs breach of duty, Gibson, Empey, and Ashenden
    would not have been together and could not have acted in concert.

[6]

As for the second breach of the standard of care,
    the trial judge stated: had the [officers] made any inquiries of the inmates
    in 3-Wing prior to placing Bruno there, I am satisfied the assault would not
    have occurred.

[7]

However, because Bruno did not speak up when he
    noticed the presence of an old enemy, Gibson, in the wing, the trial judge
    found Bruno contributorily negligent. In his view, it was not foreseeable to [Bruno]
    that a gang assault would have occurred. He assessed Brunos contributory
    negligence at 15 percent.

[8]

The Crown appeals and asks that the action be
    dismissed. Bruno cross‑appeals and asks that the level of contributory
    negligence attributed to him be reduced to zero.

[9]

The appellant argues that the trial judge made numerous
    serious errors, in particular:

1.

finding liability on a Ministry-level basis not
    tied to the negligence of specific employees, contrary to the
Proceedings
    Against the Crown Act
, R.S.O. 1990 c. P.27 and case law;

2.

finding that the four named inmates assaulted
    Bruno in the washroom, particularly given the presence of a fifth inmate whose
    actions, if any, were not mentioned in the reasons;

3.

preferring the expert evidence on the standard
    of care advanced by Brunos expert witness over the evidence of the Crowns
    witness;

4.

finding that the breaches of the standard of
    care caused the assault because the causation finding was speculative, based on
    hindsight, and not supported by the evidence; and

5.

assessing Brunos contributory negligence too
    low at 15 percent (the Crown had argued at trial for 50 percent).

[10]

Bruno cross-appeals and asserts that the
    contributory negligence should be set at zero.

[11]

In considering the evidence and arguments on these
    issues, I have come to the regrettable conclusion that there must be a new
    trial. For the reasons set out below, I would allow the appeal on the basis
    that the reasons for decision are insufficient to permit meaningful appellate
    review. I would remit the case to the Superior Court for trial by another
    judge. Because the case must be tried anew, I will avoid unnecessary comment on
    the live issues.

B.

Analysis

[12]

I begin with a discussion of the governing
    principles on the sufficiency of reasons of trial judges and when an appellate
    court can salvage a judgment despite insufficient reasons, and then apply the
    governing principles to this case.

(1)

The Governing Principles on the Sufficiency of Trial
    Reasons

[13]

The Supreme Court explored the functional
    purposes for good reasons in
Baker v. Canada (Minister of Citizenship and
    Immigration)
, [1999] 2 S.C.R. 817, at para. 39,
per
LHeureux-Dubé J.:

Reasons  foster better decision making by
    ensuring that issues and reasoning are well articulated and, therefore, more
    carefully thought out. The process of writing reasons for decision by itself
    may be a guarantee of a better decision.
Reasons also
    allow parties to see that the applicable issues have been carefully considered,
    and are invaluable if a decision is to be appealed
, questioned, or
    considered on judicial review:  Those affected may be more likely to feel
    they were treated fairly and appropriately if reasons are given. [Emphasis
    added; citations omitted.]

See also
Canada (Minister of Citizenship
    and Immigration) v. Vavilov
, 2019 SCC 65, at
    paras. 79-81.

[14]

Beginning with the Supreme Courts decision in
R. v. Sheppard
, 2002 SCC
    26, [2002] 1 S.C.R. 869

and most recently in
Vavilov
, there has been a continuing
    judicial conversation about the duty of judges and tribunals to give reasons
    that properly explain a decision. The cases speak about accountability,
    intelligibility, adequacy, and transparency. In
Vavilov
, the court invoked
    the need to develop and strengthen a culture of justification: at paras. 2,
    14, 79 and 99; see also
Vancouver International Airport Authority v. Public
    Service Alliance of Canada
, 2010 FCA 158, [2011] 4 F.C.R. 425, at para.
    16, considering a decision of the Canada Industrial Labour Board,
per
Stratas J.A. I do not see this project of justification, which originated in
    several seminal criminal law decisions, as limited to administrative law:
Vavilov
,
    at paras. 79-80.

[15]

In
Sheppard
, the court noted at para.
    55 that [t]he delivery of reasoned decisions is inherent in the judges role [and]
    is part of his or her accountability for the discharge of the responsibilities
    of the office. The court continued, at para. 55:

The trial judges duty is satisfied by reasons
    which are sufficient to serve the purpose for which the duty is imposed, i.e.,
    a decision which, having regard to the particular circumstances of the case, is
    reasonably intelligible to the parties and
provides the
    basis for meaningful appellate review of the correctness of the trial judges
    decision
. [Emphasis added.]

[16]

A meaningful right of appeal must not be an
    illusory right:
R. v. Richardson
(1992), 9 O.R. (3d) 194 (C.A.),
    [1992] O.J. No. 1498, at para. 13.

[17]

In
R. v. R.E.M
., 2008 SCC 51, [2008] 3
    S.C.R. 3, McLachlin C.J. focussed on intelligibility, stating at para. 35 that
    [t]he basis for the trial judges verdict must be intelligible, or capable
    of being made out. She was referring to the trial judges duty to lay out the
    chain of reasoning, in which a logical connection between the verdict and the
    basis for the verdict must be apparent. She explained, at para. 35, that in
    discerning whether there is such a logical connection, one looks to the
    evidence, the submissions of counsel and the history of the trial to determine
    the live issues as they emerged during the trial. In that task of
    discernment, the appellate court reads the reasons as a whole, in the context
    of the evidence, the arguments and the trial, with an appreciation of the
    purposes or functions for which they are delivered: see also
Vavilov
,
    at para. 85.

[18]

Drilling down to the practical elements, in
    order to provide for a meaningful right of appeal,
trial
    judges must identify the key issues; find the facts relevant to the issues;
    assess credibility and reliability where there is conflict; set out the chain
    of reasoning; make the decision; and then write the reasons to clearly
    communicate the decision:
Welton v. United Lands Corp.
, 2020 ONCA 322,
    at paras. 57 and 58. Appellate courts rely on trial judges to find the facts and
    to assess credibility and reliability where there are live witnesses, as in
    this case. Appellate courts recognize that trial judges attend to these tasks
    from a privileged vantage point.

[19]

But the principles governing the sufficiency of
    the reasons of trial judges do give rise to a difficult issue: To what extent should
    appellate courts work to salvage inadequately explained or conclusory trial reasons?

(2)

When Appellate Courts can Salvage a Judgment for
    which there are Insufficient Trial Reasons; the Governing Principles

[20]

I begin with the observation that this court is
    reluctant to order a new trial in civil matters. A
new
    trial "should not be ordered unless the interests of justice plainly
    require that to be done":
Brochu v. Pond
(2002), 62 O.R. (3d) 722
    (C.A.), at para. 6; see also
Nemchin v. Green
, 2019 ONCA 634, 147 O.R.
    (3d) 530, at para. 71. The court must find a real prospect "that a
    substantial wrong or miscarriage of justice has occurred":
Courts of
    Justice Act
, R.S.O. 1990, c. C.43, s. 134(6);
Vokes Estate v. Palmer
,
    2012 ONCA 510, 294
O.A.C. 342,
at para. 7; see also
Iannarella v. Corbett
, 2015 ONCA 110, 124 O.R. (3d)
    523, at para. 23.

[21]

Insufficient reasons necessitate a new trial
    where the appellate court is unable to salvage the decision based on the
    available record.
On what basis is that determination
    made?

[22]

In
Sheppard
, Binnie J. wrote, at para.
    55: Where the trial decision is deficient in explaining the result to the
    parties,
but the appeal court considers itself able to do
    so
, the appeal courts explanation in its own reasons is sufficient.
    There is no need in such a case for a new trial (emphasis added).
[1]
But the converse is also true.
    To paraphrase: Where the trial decision is deficient in explaining the result
    to the parties, and the appeal court does not consider itself able to do so, a
    new trial may be needed. This is a case-specific assessment.

[23]

In assessing the trial judges reasons for
    sufficiency, the reviewing court must examine the evidence and determine
    whether the reasons [for judgment] are, in fact, patent on the record:
R.
    v. Dinardo
, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 32,
per
Charron J., who ordered a new trial. An appellate court must review the record
    to determine whether the trial decision can be rendered more comprehensible
    when read in the context of the record: see
Maple Ridge Community
    Management Ltd. v. Peel Condominium Corporation
, 2015 ONCA 520, 389 D.L.R.
    (4th) 711, at para. 30,
per
Hourigan J.A., citing
Hill v.
    Hamilton-Wentworth Police Services Board
, 2007 SCC 41, [2007] 3 S.C.R.
    129, at para. 101.

[24]

However, there are limits on the appellate
    courts ability to fairly and justly salvage a trial decision: Where the trial
    judges reasoning is not apparent from the reasons or the record  the appeal
    court ought not to substitute its own analysis for that of the trial judge:
Dinardo
,
per
Charron J., at para. 32. She added that the need to review the
    record is not an invitation to appellate courts to engage in a reassessment of
    aspects of the case not resolved by the trial judge.

[25]

This court usually declines to dig into the
    record in order to salvage a decision where the trial decision turns on instances
    of conflicting evidence, evaluations of credibility and reliability, and
    exercises of discretion that are properly within the purview of a trial judge. I
    discuss each situation in turn.

(a)

Conflicting Evidence

[26]

This court does not attempt to reconcile critical
    conflicting evidence that could affect the outcome. In
R. v. Prokofiew
,
    2008 ONCA 585, Borins J.A. reviewed the reasons of a trial judge following a
    trial for conspiracy, fraud, and theft over $5,000. The trial had taken place
    intermittently over seven months. Nearly one year later, the trial judge
    released very extensive reasons for conviction. Borins J.A. noted, at para. 30:
    
My main problem with the trial judges reasons is that
    she made so few findings of fact on her way to the conclusory finding that each
    appellant was guilty as charged. He added: Because reasons for conviction
    were not patent on the record, I am unable to determine the analytical path she
    followed in convicting the appellants.

[27]

Similarly,
R. v. Capano
, 2014 ONCA 599
    concerned a trial judges consideration of the test for finding an accused to
    be not criminally responsible (NCR). The trial judge had not specifically
    articulated whether the accuseds mental disorder rendered the accused
    incapable of appreciating the nature and quality of the criminal act, on the
    one hand, or whether it rendered the accused incapable of knowing that the act
    was wrong, on the other hand. Faced with conflicting evidence in the trial
    record and the trial judges failure to expressly resolve this conflict in the
    evidence, this court ordered a new trial. Epstein J.A. noted, at para. 73: Given
    the two possible ways in which Mr. Capanos mental disorder may have affected
    his ability to understand that failing to report to CAMH was wrong, it was
    critical that the trial judge analyze and resolve how he found Mr. Capano
    NCR. She stated, at para. 74, relying on
Dinardo
, that it is not
    appropriate for this court to attempt to discern that route and explain it.

(b)

Credibility and Reliability

[28]

This same appellate
    reluctance applies to critical determinations of credibility and reliability. A
trial judges failure to sufficiently articulate how
    credibility and reliability concerns are resolved may constitute reversible
    error:

R. v. A.M.
, 2014 ONCA 769, 123
    O.R. (3d) 536, at para. 18, citing
R. v. Vuradin
, 2013 SCC 38, [2013]
    2 SCR 639, at para. 11, and
Dinardo
, at para. 26.

[29]

In
R. v. Slatter
, 2019 ONCA 807, 148
    O.R. (3d) 81, Trotter J.A. commented on a trial judges reliability findings,
    at para. 66:

Although the trial judge relied on Dr. Jones
    evidence in this context, he failed to mention her evidence concerning J.M.s
    suggestibility. The issue was clearly grounded in the evidentiary record. It
    was emphasized in defence counsels closing submissions.
Yet,
    because there is no attempt to address or reconcile this evidence in the trial
    judges reasons, we are left to speculate whether the trial judge appreciated
    the significance of this evidence and the role (if any) that it played in his
    ultimate findings
. [Emphasis added.]

(c)

Discretionary Decisions

[30]

Finally, this court is reluctant
    to make discretionary decisions that are properly within the purview of the
    trial judge.
In
R. v. Sahdev
, 2017 ONCA 900,
    356 C.C.C. (3d) 137,
per
Trotter J.A., the trial judge did not provide
    adequate reasons for refusing to sever counts in a criminal indictment. This court
    rejected the Crowns request to decide the issue. The severance issue was
    complicated by a similar fact issue and required a trial judges exercise of
    discretion in a new trial.

[31]

I now turn to apply these governing principles
    to the trial judges reasons.

(3)

Application

[32]

To provide context for the application of these
    principles, I will address the first issue raised by the Crown, which is that [t]he
    Trial Judge conflated the concepts of direct and vicarious liability, and erred
    by finding that institution-level conduct could ground liability. In doing so
    I do not mean to suggest that the trial judges reasons on the other issues
    were otherwise pristine and free of error; they were mostly conclusory.

(a)

The Law on
    Liability for Inmate Assaults

[33]

With respect to harm to an inmate, the
    applicable law is that Ontario can only be held liable for the negligent acts
    or omissions of an individual correctional officer who, in the course of
    employment by Ontario, did or failed to do something, thereby creating a
    foreseeable risk of harm to the inmate:
Proceedings Against the Crown Act
,
    R.S.O. 1990 c. P.27, ss. 5(1)(a) and 5(2);
MacLean v. R.
, [1973]
    S.C.R. 2;
Timm v. R.
, [1965] 1 Ex. C.R. 174;
Walters v. Ontario
,
    2017 ONCA 53, at para. 34;
Iwanicki v. Ontario
, [2000] O.T.C.
    181, O.J. No. 955 at para. 15. In
Walters
, this court held, at para.
    34:

Generally, the provincial Crown can be liable
    in tort to inmates of correctional facilities only in the form of vicarious
    liability for torts that specific Crown employees or agents commit, and only if
    the plaintiff could have sued the employee or agent for that tort  [Citations
    omitted.]

[34]

In inmate assault cases, Ontarios liability,
    if any, must derive from actionable negligence of specific [correctional
    officers] under subsections 5(1)(a) and 5(2) of the
Proceedings Against
    the Crown Act
:
Walters
, at para. 34. The federal law is to the
    same effect: see the federal
Crown Liability and Proceedings Act,
R.S.C.,
    1985 c. C-50,

and
Hinse v. Canada (Attorney General)
, 2015
    SCC 35, [2015] 2 S.C.R. 621, where the trial judge found liability based on institutional
    inertia and indifference. The Supreme Court held, at para. 92 of
Hinse
,
    that the trial judge should instead have analyzed the individual conduct of
    each of the successive Ministers acting in his or her capacity as a servant of
    the federal Crown.

(b)

The Crowns Argument Regarding the Trial Judges
    Reasoning

[35]

The appellant Crown points out that the trial
    judge did not identify any specific negligent acts or omissions by any specific
    correctional officer or other NDC employee. The Crown submits that the trial
    judge erred by expressing the issue before him in general terms only, namely 
whether the Ministry is liable to Bruno because correctional
    officers ("COs") failed to take reasonable steps to protect him. The
    Crown argues that the trial judge maintained this generic approach throughout
    his reasons,
failed to address the conduct of any
    individual employee, and instead used institution-level references to the conduct
    of the NDC, the Ministry, NDC staff, and the COs. The Crown points to
    the
following examples in the trial judges reasons:

NDC had knowledge
of the history of Ashenden, Empey, and Gibson. (Para. 34)

Although Dr. Weinrath acknowledged that Empey,
    Ashenden, and Gibson were appropriately in protective custody on the basis that
    they requested protective custody,
in my view, that does
    not relieve the Ministry of appropriately monitoring
of the placement of
    these inmates in the institution to address the issue of the worrisome assaults
    occurring in 3-Wing. (Para. 47)

NDC was aware
that Bruno was not wanted in the general population F-Dorm.
NDC was also aware
that his peers rejected him in
    2-Wing. He had been involved in assaults on his prior stays at NDC. Brunos
    vulnerability included the fact that his father had been a police officer. Tom
    Dykstra, during discovery, confirmed that
NDC knew this
    fact
. (Para. 51)

NDC had a history of
    communicating
with inmates about issues that
    arose. []
The COs of NDC
fell below the
    applicable standard of care. (Para. 52)

Had the COs
separated Empey and Gibson and Ashenden or any of them, I am
    satisfied that the gang assault would not have occurred. But for
the NDCs breach of duty
, Gibson, Empey, and Ashenden
    would not have been together and could not have acted in concert. []
NDC staff was aware
[] (Para. 53)

Had the COs
made any inquiries of the inmates in 3-Wing [...] (Para. 54)

Given
NDCs knowledge of
    Brunos vulnerability
[] (Para. 57)

In the result,
I find
    that the Ministry fell below the standard of care
. (Para. 62) [Emphasis
    added by the appellant.]

(c)

The Respondents Argument Regarding the Trial
    Judges Reasoning

[36]

The respondents submit that, read fairly, the trial judges liability
    findings were not grounded on institution-level conduct. Instead, the trial
    judge found liability to have flowed through the negligence of Ontarios
    employees, whose conduct breached the standard of care. The respondents name
    specifically as negligent employees: NDC Superintendent Barry McDonnell, Operational
    Manager Dennis Dutkus, other Operational Managers (OM), and correctional
    officer (CO) Alison Sorley.

[37]

The respondents submit that the reasons must be read
    holistically. So read, the trial judge must be seen to have found negligence
    by NDC employees for whose conduct Ontario is vicariously liable. The
    respondents pick out language in the reasons that supports their preferred
    reading:

The issue I must determine is whether the Ministry is liable to
    Bruno
because correctional officers
    (COs) failed to take reasonable steps to protect him
. (Para. 2)

The Plaintiff says the
Ministry
    personnel

fell below the appropriate
    standard of care in two ways  (Para. 3)

Dr. Weinrath posited two breaches of the standard of care  and
the COs
should have
    consulted with the 3-Wing inmates before placing Bruno there. (Para. 45)

The COs of NDC
fell below the applicable standard of care. (Para. 52)

Had the COs
separated Empey, Gibson and Ashenden or any of them, I am satisfied that the
    gang assault would not have occurred. (Para. 53)

NDC staff was aware
Empey had acted with other inmates in assaults and that he had assaulted an
    inmate out of loyalty to Gibson. Notwithstanding this information,
the COs of NDC

placed
    Gibson and Empey in the same cell in 3-Wing. (Para. 53)

Had the COs
made any enquiries of the inmates in 3-Wing prior to placing Bruno there, I am
    satisfied the assault would not have occurred. (Para. 54)

Either the inmates would have rejected Bruno, or if not  he
    would likely be closely monitored
by the
    COs
. (Para. 54) [Emphasis added by the respondents.]

[38]

The respondents point out that the trial judge did not base his
    liability finding on institution level conduct such as a negligent policy or the
    lack of a procedure. They point to individual instances of negligence that flowed
    through the conduct of Ontarios employees. The first claimed negligence is
    that staff chose to allow these problematic inmates to remain housed together
    and not to move any of them out of 3-Wing on the day of the assault. Second, staff
    chose not to consult with the 3-Wing inmates before Bruno, a particularly
    vulnerable inmate, was placed there. These decisions were made by individual
    staff members, not at an institutional level.

[39]

The respondents acknowledge that the trial judge did not identify
    the employees who were at fault by name but argue that his failure to do so is
    not a reviewable error and it is not required by the legislation. The basis of
    this submission is that the staff at fault can be identified from the
    evidentiary record, and the trial judge, consistent with
Housen
    v. Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 72,

should be presumed to have based his conclusions on a review
    of the entirety of the evidence.

[40]

The respondents undertake a deep excavation of the evidence to
    substantiate this argument, which they urge this court to adopt. They assert
    that the responsibility to separate Ashenden, Empey and Gibson rested on
    Superintendent Barry McDonnell and the Operating Managers working under him. In
    his evidence, Dr. Serin referred to an OM16 as being the acting Superintendent
    at the relevant time. This, the respondents argue, would be consistent with the
    Superintendents legislated authority to delegate his duties.

[41]

The Superintendent and the OMs were responsible for inmate
    discipline, which included transferring problematic inmates to other areas of
    the NDC or to another institution. Superintendent McDonnell was statutorily
    responsible for the administration of the institution and for the custody,
    supervision, care and safety of every inmate.

[42]

Further,
the respondents
    point out that
Superintendent McDonnells ongoing
    responsibility for the placement and management of inmates is reflected in
    NDCs internal documentation, the Adult Institutions Policy and Procedures
    manual, and the legislation. Occurrence Reports and Misconduct Reports were all
    to be addressed and forwarded to the Superintendent or his designate. The
    Superintendent or his designate was obliged to interview inmates being
    investigated for misconduct, determine whether a misconduct had been committed,
    and decide on a penalty if appropriate. The Superintendent was required to
    monitor misconduct dispositions made by designated employees. Only the Superintendent
    could order an inmate to be held in segregation. A Protective Custody Decision
    or Review required the Superintendents or his designates signature. The
    transfer of an inmate to another institution required the Superintendents or
    his designates authorization.

[43]

Moving down a level, the respondents explain that t
he
    placement of inmates, including their internal placement within the facility, was
    a continuous process to be adjusted as the need arose. The relocation of an
    inmate to a different cell or unit required an OMs authorization. The OM or Shift
    Supervisor on duty managed the shift and was effectively in charge of the NDC.
    All employees reported to him or her. The respondents argue that the names of
    the individuals on duty at the relevant time are in the record. It is
    noteworthy that none of these named individuals were called to testify at trial.

[44]

The second claimed breach of the standard of care was the failure
    to consult with 3-Wing inmates about possible incompatibilities before Bruno
    was placed there. According to the respondents, this was the responsibility of
    OM Dutkus and CO Sorley. OM Dutkus made the final decision to place Bruno in
    3-Wing on August 25, 2006, upon CO Sorleys recommendation. OM Dutkus was required
    to affix his signature, the date, and any relevant notations on Brunos Unit
    Notification Card (UNC), which contained extracts from Brunos file in the
    computerized Offender Tracking Information System. OM Dutkus made no notations in
    Brunos UNC or in his Protective Custody Decision/Review, also signed by OM Dutkus,
    that 3-Wing inmates had been consulted about Bruno. He made no notation that
    there were any institutional or resource issues that prevented Bruno from being
    placed anywhere else, and he did not indicate that Brunos father was a retired
    police officer, which the respondents assert made Bruno a target within the
    facility and which OM Dutkus knew at the time.

[45]

Accordingly, the respondent argues, each of the claimed breaches
    of the standard of care can in fact be traced to named individuals on the
    evidence before the trial judge. The respondents urge this court to find that
    the evidentiary omissions in the trial judges reasons can be filled by
    evidence that is patent on the record, and to make those findings.

[46]

The respondents characterize the trial judges use of the terms
    Ministry and NDC as the type of loose short forms talk that comes to be
    used during trials, not an indication of fundamental error. The respondents
    state that even the Crowns expert, Dr. Serin, used the same language in his report
    when he wrote: in my opinion,
the Crown
met
    the standard of care (emphasis in original). The respondents urge the court
    to give no weight to this use of language.

(d)

Discussion

[47]

There
    is ample support for the arguments of both the appellant and the respondents in
    the loose language used by the trial judge in his reasons. Seen one way, the
    reasons can be read as the trial judge focusing on institution-level liability,
    contrary to the legal test set by this courts decision in
Walters
. Seen another way, the reasons can be read as the
    trial judge recognizing the legal necessity of finding negligence on the part of
    individual employees despite his failure to identify them by name or their
    negligent actions by description.

[48]

I
    am left with genuine uncertainty about whether the trial judge fully understood
    and properly applied the correct legal test for liability. The reasons do not
    record his self-instruction. His reference to
Walters
was not in the body of his liability discussion but only in his discussion of
    the contributory negligence claim. He did not refer to this courts
    specification of the legal test for liability in
Walters
but only to the
Walters

trial
    judges figure for contributory negligence.

[49]

I
    note that the issues were fully joined in the parties lengthy and pertinent written
    submissions (exceeding 130 pages each) filed with the trial judge along with
    the transcripts. The reasons, at a mere 14 pages, do not do justice to the
    record, nor to the arguments. The excessive delays in the case probably did not
    help the trial judge to remain engaged. Transcript preparation took about four
    months. The plaintiffs written argument was followed by the Crowns argument a
    month later, and the reply two weeks later. After cancelling a planned
    conference call to address questions arising from the arguments, the trial
    judge took four months to render judgment and provide his reasons.

[50]

In
    the parties written arguments the legal test in
Walters
was plainly explicated, the responsible individuals were named, and the parties
    respective positions were fully and carefully contested. It is unfortunate that
    the trial judge gave the material such short shrift.

[51]

In
    this context the trial judges reasons are not intelligible or transparent. Read
    as a whole, they do not adequately justify the result he reached. The trial
    judge did not clearly and consistently identify the key issues, find the
    relevant facts, assess credibility and reliability, or set out the chains of reasoning
    applicable to each issue free of gaps and assumptions.

[52]

It
    is not our function as an appellate court to undertake these tasks in order to
    salvage the judgment. Because the reasons do not provide the basis for
    meaningful appellate review, there must be a new trial.

C.

Some Trial Practice Notes

[53]

There
    were errors made in the admission and use of the joint document book that
    further frustrated appellate review and that should not happen in other cases. I
    laid out some elements of acceptable trial practice in
Girao
    v. Cunningham,
2020 ONCA 260, at paras. 21-35. At paras. 33 and 34,
    I said:

In my view, counsel and the court should have
    addressed the following questions, which arise in every case, in considering
    how the documents in the joint book of documents are to be treated for trial
    purposes:

1. Are the documents, if they are not
    originals, admitted to be true copies of the originals? Are they admissible
    without proof of the original documents?

2. Is it to be taken that all correspondence
    and other documents in the document book are admitted to have been prepared,
    sent and received on or about the dates set out in the documents, unless
    otherwise shown in evidence at the trial?

3. Is the content of a document admitted for
    the truth of its contents, or must the truth of the contents be separately
    established in the evidence at trial?

4. Are the parties able to introduce into
    evidence additional documents not mentioned in the document book?

5. Are there any documents in the joint book
    that a party wishes to treat as exceptions to the general agreement on the
    treatment of the documents in the document book?

6. Does any party object to a document in the
    document book, if it has not been prepared jointly?

It would be preferable if a written agreement
    between counsel addressing these matters were attached to the book of documents
    in all civil cases. In addition, it would be preferable if the trial judge and
    counsel went through the agreement line by line on the record to ensure that
    there are no misunderstandings.

[54]

Even
    though
Girao
was released after the trial
    decision in this case, this situation presents an opportunity for further
    reflection on trial practice.

[55]

The
    most obvious point, which nonetheless bears emphasis, is that any agreement
    between counsel as to the admissibility of documents is not automatically
    binding on the trial judge, who remains at all times the gatekeeper of the
    evidence. I now turn to the problems experienced in this case.

[56]

At
    the opening of the trial, Mr. McKenna read the parties initial agreement with
    respect to evidence into the record:

The documents contained in the Joint Document
    Brief are relevant, authentic and the dates of the documents are accurately
    reflected on their face. Neither of the parties are to be considered as having
    accepted the truth of the contents of all of the documents. Further, both
    parties reserve their rights to challenge what is stated in the documents, lead
    further evidence which may or may not be inconsistent with the documents and
    argue as to the interpretation and weight to be given to the documents.

[57]

This agreement was not helpful to the trial
    judge because of its ambiguity, which he should have probed immediately and
    carefully with some obvious questions, among them: If a document is not
    challenged, is its hearsay content deemed to be admitted? If not all documents,
    then which?

[58]

The approach taken by counsel and permitted by
    the trial judge only invited further contention, which inevitably emerged. On
    the second day of trial, counsel for the Crown, Mr. MacLeod, attempted to enter
    a Niagara Regional Police Service Supplementary Report into evidence, leading
    to the following exchange:

Mr. McKenna: Just maybe my friend can clear 
    is this going in as a business record, is that sort of the basis of the admissibility
    of it?

Mr. MacLeod: Your Honour, this is one our
    productions. I don't intend to have this marked as, and go in as, a business
    record as an exception to the hearsay rule. It is a document. I don't think
    there's any issue between the parties as to its authenticity. I don't think
    there's any issue as to its relevance. The witness has been questioned about
    these events, but it does provide evidence of some objective things that were
    happening at this time.

Mr. McKenna:  It's the officer's document,
    it's not Mr. Bruno's document. It probably sounds like I'm trying to be
    difficult, but if we're going to deal with this piece by piece and lead to a
    bigger problem later on, then I'd like to deal with this issue, you know, as a
    whole if we can.
I just don't
    want to be seen to be agreeing to letting records just go in and then I'm going
    to be faced with some argument that I didn't dispute it at this time and I'm
    going to be faced with the opposite argument with their actual Ministry
    documents.
[Emphasis added.]

[59]

After seven days of trial, and at the beginning
    of the Crowns evidence, Mr. MacLeod stated that the parties wished to
    make a further stipulation with respect to some documents and that this new
    stipulation would be in addition to what was already stipulated as the
    agreement between the parties. Mr. MacLeod then read the following statement into
    the record:

The parties agree that the records of the
    Ministry of Community Safety and Correctional Services contained in the joint
    document brief (Exhibit 1), as well as exhibits A, B, C, F, and G are business
    records pursuant to Section 35 of the
Evidence Act
. However there is no agreement that statements recorded in these
    records are admissible for the truth of their contents. [] For example, for an
    occurrence report that states that inmate X said Y, is evidence of the fact
    that the statement Y made was made by inmate X, [but it is not evidence that it
    is true.] The standing orders of the Niagara Detention Centre and the adult
    institutions policies and procedures are not technically business records, but
    are in evidence and can be referred to by the parties when examining witnesses
    and in argument.

[60]

This agreement is more specific than the first,
    but it raises problems of its own concerning the proper application and reach
    of s. 35 of the
Evidence Act
, R.S.O. 1990, c. E.23, which should have been canvassed and
    resolved at the outset of the trial. This last agreement came too late; it
    implies that the statements had to be proved by other means but, by this point,
    the plaintiffs had referenced and relied on numerous documents involving
    various degrees of hearsay.

[61]

A party properly invoking s. 35 of the
Evidence Act
is entitled to introduce
    certain limited forms of double hearsay contained in business records, such as
    statements made and recorded by two people who are each acting in the ordinary
    course of business, even if those statements are ultimately accorded little
    weight:
Evidence Act
,
    s. 35(4);
Parliament et. al. v. Conley and Park
, 2019 ONSC 2951, at para. 36;
Setak
    Computer Services Corporation Ltd. v. Burroughs Business Machines Ltd., et. al.
, [1977] 15 O.R. (2d) 750; [1977] O.J. No. 2226, at para. 63. In
    dealing with police reports and occurrence reports, however, trial judges have
    generally refused to admit business records in which a person, acting in the
    course of their duty, records unreliable third-party statements or other forms
    of hearsay: see for example
DeGiorgio v. DeGiorgio
, 2020 ONSC 1674, at paras. 50 and 54. The parties agreement simply
    stipulated that double hearsay is not admissible for the truth of its content.
    In my view this issue required argument and an evidentiary ruling.

[62]

I add an observation about the respondents s.
    35
Evidence Act
notice. It seriously overreached and, in so doing, created the uncertainty that
    set the context for uncertainty about the permissible use of documents. The s.
    35 notice, a copy of which this court requested after oral argument, ends with
    the following description under the heading Liability Documentation: All
    other business and medical records listed in the parties affidavits of
    documents and produced subsequently in this proceeding in response to
    undertaking or production requests. The idea seems to have been to extend the
    s. 35 cloak to other documents as yet unidentified. As convenient as this might
    be, it is unacceptable trial practice and invites contention at trial over the
    status of individual documents, as transpired here. The rigorous approach set
    out in
Girao
as
    modified in these reasons is a good way to avoid such problems.

[63]

As a matter of ordinary trial practice, the
    parties agreement should be entered with the joint book of documents at the
    earliest opportunity. In this case, the need for a timely agreement or
    resolution of the issues regarding documentary evidence was greater because of
    the unusually heavy role played by the documents. The fact that the parties
    felt the need to clarify their agreement so late in the game simply illustrates
    the inadequacy of the initial agreement and the effect of the absence of
    judicial scrutiny.

[64]

This was a case of far too little, far too late,
    which left the trial judge in a quandary about the admissibility and use of the
    business records. This became apparent when he dealt with the factual issue of
    who assaulted Bruno. The appellant takes issue with the trial judges factual
    finding on the assault, at para. 36 of the decision, where he stated: 
Having reviewed all the evidence including the photos of the other
    inmates, the video, and the records of the NDC including the report prepared by
    CO Tom Bradley, I am satisfied that DaCosta, Gibson, Ashenden and Empey
    undertook the assault. Despite the parties reservation in their agreement on
    the hearsay value of statements in the documents, the trial judge effectively
    accepted the hearsay content of what was known in the trial as the Bradley
    Report, which the Crown produced. CO Bradley did not testify.

[65]

This case highlights the deplorable tendency in
    civil cases of admitting evidence subject only to the weight to be afforded by
    the trial judge: 
Seduced by this trend towards
    [evidentiary] flexibility, some judges in various jurisdictions have been tempted
    to rule all relevant evidence as admissible, subject to their later assessment
    of weight:
Teva Canada Ltd. v. Pfizer Canada Inc.
, 2016 FCA 161,
per
Stratas J.A. at para. 83.
This is legal
    heresy, as Stratas J.A. noted, citing

R. v. Khelawon
, 2006 SCC 57, [2006] 2
    S.C.R. 787
,

at para. 59. I agree with his trenchant comments.

[66]

Finally, as I noted in
Girao
, at para. 22: 
The goal of a trial judge in supervising the assembly of a trial
    record is completeness and accuracy, so that the panel of this court sitting on
    the appeal can discern without difficulty exactly what was before [the trial
    judge] at any moment in the course of the trial. In this case it was necessary
    for this court to look at the written closing submissions of counsel to the trial
    judge, but they were not in the trial record. They were sent after oral
    argument on the appeal at our request. In my view, good trial practice is to
    include any written arguments in the trial record as lettered exhibits to which
    the appeal court can have access if necessary.

D.

Disposition

[67]

I would allow the appeal on the basis that the
    reasons for decision are insufficient to permit meaningful appellate review and
    remit the case to the Superior Court for trial by another judge. In the
    circumstances, I would not address the other grounds of appeal. This is truly a
    regrettable outcome, particularly for the respondent who lacks the resources of
    the state.

[68]

The court will accept written costs submissions
    of no more than five pages in length relating to the appeal costs and the trial
    costs in view of this disposition, beginning with the appellant. These
    submissions are to be served and filed with the court at coa.e-file@ontario.ca
    within two weeks of the release of this decision, followed one week later by
    the respondents submissions, and any reply within another week.

Released: P.L. September 23, 2020

P.
    Lauwers J.A.

I
    agree. David Brown J.A.

I
    agree. I.V.B. Nordheimer J.A.





[1]

While many cases dealing with insufficient reasons have come
    out of the criminal context, this Court has had no difficulty applying them in
    the civil context. See
Canadian
    Broadcasting Corporation Pension Plan v. BF Realty Holdings

(2002), 214 D.L.R. (4th) 121, at para. 64. The same
    applies, albeit with different considerations, to the overlap between civil and
    administrative law. Indeed Binnie J. relied on
Baker
in formulating his
    reasons in
Sheppard
.


