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Jailhouse Torts

"An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises." This one sentence excerpted from section 3(1) of the Occupiers' Liability Act, is responsible for a significant amount of litigation in Ontario today. It produces widely divergent claims that range from plummets in pot holes to slips on sidewalks to bar room brawls. The Defendants targeted in these claims are just as varied.

This article will focus on a particular Defendant, Her Majesty the Queen in right of the Province of Ontario as represented by the Minister of Community Safety and Correctional Services. More specifically, and in short, these are claims against a jail.

An Occupier is defined as either a "person who is in physical possession of premises" or "a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises." Obviously in the context of a jail setting the Crown exercises a serious amount of control over the premises, the persons present and the activities which take place there. Accordingly there is little question that the Crown, in the role of jailer, is an occupier under the Act and is thus subject to its provisions.

The Notice Provisions
Prior to a claim being issued against a provincial correctional facility, one must ensure compliance with the notice provisions found in the Proceedings Against the Crown Act.

The 10 Day Notice
The Proceedings Against the Crown Act, make these cases a somewhat more difficult by imposing onerous notice requirements. The Act states that, with respect to claims regarding a breach of duty respecting property, "no proceeding shall be brought against the Crown under clause 5 (1) (c) unless the notice required by subsection (1) is served on the Crown within ten days after the claim arose." It is similar to the notice requirements found in the Municipal Act. These notice periods are difficult to deal with in the best of circumstances, but consider the difficulties which arise when one is dealing with an individual who is incarcerated; chances are they are not going to have the occasion to stop by a law office to seek advice about starting a claim. This ten day window of opportunity to give notice can pass very quickly and many claims can be lost as a result.

But it's not fair! Appleyard v. Ontario
The Appleyard case involved an inmate who was injured when he slipped on a wet floor. Notice was not given to the Crown until 56 days after the incident took place. The Plaintiff stated that he was unable, despite attempts, to contact legal counsel in a timely manner because he did not have free access to a telephone. The Crown moved to have the claim dismissed on the argument that the failure to provide notice barred the claim.

Justice Karam found as a matter of fact that the Plaintiff, being incarcerated, did not have the same opportunities available to an unincarcerated person to satisfy the notice requirements. He dismissed the Crown's motion for summary judgment. In doing so, he relied on principles of fairness to dispense with adherence to the 10 day notice period. He states that:

The Federal Court of Appeal has stated it is "trite law that there can be no right without a remedy" (MacBain v. Canada (Human Rights Commission) , [1985] 1 F.C. 856 (Fed. C.A.)). Surely the legislation at hand should be interpreted in such a fashion that would give the plaintiff a reasonable possibility of obtaining a remedy, and therefore would have to be construed in such a way to permit him reasonable time to give notice. If the legislation is construed in such a fashion that the plaintiff is denied access to a remedy, then for all practical purposes his right to bring an action is removed. It follows that the limitation period should not begin to run until the plaintiff, or a reasonably diligent, similarly situated person would have been able to serve the notice contemplated in the legislation. In that respect, all facts considered, the Plaintiff was effectively prevented from giving notice within the time period in question, despite being reasonably diligent.

Creative 10 Day Notice: Latta v. Ontario
The 10 day notice period was the subject of another Crown motion for summary judgment in the case of Latta v. Ontario. In this case the Plaintiff, a prison inmate, was injured when he tripped over a bucket that had been left on the landing of a staircase. After the accident, Latta was asked to fill out an internal incident report. Following his release from jail, Latta brought a claim against the province for his injuries. The province defended and denied liability on the basis that his claim was barred because the he did not provide proper notice to the province under the Proceedings Against the Crown Act.

At first instance, the Crown was successful in having the matter dismissed on a summary judgement motion based on the failure to comply with section 7 (3).

The decision was appealed and the Court of Appeal took a decidedly different approach. The Appeal Court found that the internal incident report completed by Latta and provided to the prison officials contained sufficient information to comply with the section 7(3) requirements. Namely that it identified the time, place, nature and consequences of the incident and it contained an element of complaint. A detailed analysis can be found at paragraphs 31 to 34 of the decision.

The Court also confirmed that notice periods in the Proceedings Against the Crown Act are applicable to actions framed in terms of the Occupiers' Liability Act.

This decision, wherein the internal complaint was sufficient to discharge the notice requirement under 7(3), can easily be extended beyond the scope of prison litigation to any other situation with similar notice periods.

The 60 Day Notice
If your claim involves circumstances that do not relate to property, then there are additional notice provisions to be aware of in the Proceedings Against the Crown Act. These are found a section 7 (1). A prerequisite to issuing a claim is that one must give 60 days notice to the Crown. As per section 10, this notice must be served on the Crown Civil Law Office. The Crown Civil Law Office is located at 720 Bay Street, 8th Floor Toronto, ON M5G 2K1. The notice must contain sufficient particulars so that the occasion of the injury can be identified and investigated.

But he started it! Assaults in the Prison Context
The Occupiers' Liability Act is often invoked to clean up the aftermath of assaults in bars, interestingly enough however it does not seem to have been used to deal with assaults behind bars.

The reported cases involving injuries to prisoners by way of assault tends to be rooted in common law principles of negligence using the traditional Anns v. Merton London Borough/Kamloops v. Neilson tests. See for example the cases of Pete v. Axworthy, Hodgin v. Canada , Corner v. R., Rhora (Litigation Guardian of) v. Ontario, McLellan v. Canada.

The common law standard of care analysis works fine for most of these cases, but there does not seem to be any particular reason why, on the correct fact scenario, that they could not be addressed in terms of Occupiers' Liability.

The atmosphere of a prison is a peculiar one. There are constant situations of danger both to inmates and to guards inherit in housing a large number of often violent and disturbed persons together. As such the duty owed by guards and prison administrators to inmates must be looked at in this light.

The courts have generally found that there will be no findings of negligence on behalf of the prison for an assault or injury to an inmate where it is not reasonably expected. So called 'random acts of violence' then, are excluded from the range of injuries that prisons are expected to guard against. On the other side of the coin the courts have found that where it is reasonable for prison officials to suspect a situation of danger ie: threats, issues with known troublemakers, then they should intervene and take steps to prevent it. As with any case facts and the knowledge of the parties involved will drive the conclusion.

Honour Among Thieves - Credibility Issues
Credibility is an issue with any person standing before the court. Counsel for the plaintiff has an even more difficult task the plaintiff starts out being identified as a convicted criminal. This is an obvious and inescapable conclusion when bringing a claim for jail injuries.

The subject of credibility was addressed in the trial decision of the Latta case. The defence appeared to have a field day with the fact that plaintiff had a lengthy criminal record - including crimes involving dishonesty. The key to the successful trial verdict in this case, and in any case with similar credibility issues, was the presence of objective pieces of evidence that corroborated the Plaintiff's version of events. Marshalling this sort of objective evidence will help alleviate the inevitable credibility issue inherent in these prison negligence claims.

Conclusion
There is ample room for claims against the province and their correctional facilities for damages sustained by people while in their care. The central points to consider when developing these claims is first to ensure that notice provisions are complied with and second to frame your evidence and issues in such a way that there is a credible and compelling story to bring before the courts. Fro more information visit http://www.gluckstein.com

About the Author
Angela Currie completed her Honours Bachelor of Arts in political and classical studies at Queen's University in 2002. In 2005 she received her Bachelor of Laws from the University of Windsor's Faculty of Law. Angela was called to the Bar in July 2006 and is with the firm of Gluckstein & Associates LLP. Her practice is focused on personal injury matters, medical malpractice, disability law, criminal injuries compensation and work safety matters. Angelia can be reached through the website at http://www.gluckstein.com