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Monday, May 04, 2020 @ 9:31 AM  

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Appeals by Canada from summary judgment in two class actions awarding damages for breach of Charter rights to inmates in federal penitentiaries who were held in administrative segregation. In the Reddock action, the motion judge found that Canada was also liable for systemic negligence, although he awarded one set of damages to account for both the breach of Charter rights and negligence. In both cases, the motion judge awarded a base level of aggregate damages and directed that a process to deal with additional individual claims by class members be established. In both cases, he assessed the aggregate damages at $20 million. In Reddock, he ordered that the aggregate damages, less approved legal fees and disbursements, be distributed to the class members. In Brazeau, he ordered that the aggregate damages, less approved legal fees and disbursements, be appropriated for additional mental health or program resources for structural changes to penal institutions.

HELD: Appeals allowed in part. The trial judge did not err in proceeding by way of summary judgment rather than ordering a trial. His ruling that the case was appropriate for summary judgment was well supported and was entitled to deference on appeal. While the six-year federal limitation period applied to these claims, the motion judge erred in how he dealt with the potential tolling of the limitation period for particular individuals. If the federal limitation period applied, the tolling of that limitation period could not be determined by provincial law. The Charter claims in both cases were governed by the federal limitation period and the jurisprudence relating to the tolling of that limitation period. The motion judge did not err by granting Charter damages in Reddock despite the alternative tort remedy in negligence. The mere existence or possibility of a tort claim did not preclude the motion judge from awarding Charter damages. Canada was not insulated from liability for Charter damages by countervailing good governance considerations.

As these actions dealt with a regulatory regime premised on administrative segregation of indeterminate duration rather than legislation requiring that result, the minimum fault threshold required to overcome the claim of good governance immunity was a clear disregard for Charter rights. For over 30 years, Canada’s correctional authorities had steadfastly refused to heed warnings about the harm caused by administrative segregation and the need for independent review. Canada’s failure to alter its administrative segregation policies in the face of this mounting and concerted criticism from the medical profession, a Royal Commission, a coroner’s inquest, the Correctional Investigator, and various international agencies met the standard of a clear disregard for Charter rights. The motion judge erred in the Brazeau action in ordering the $20 million damage award be used by Canada for additional mental health or program resources for structural changes to penal institutions. He did so on his own motion and without submissions from the parties as to the appropriateness of such an order. The rights of both the class members and Canada were affected by the order and they should have been given the opportunity to argue the point. The motion judge also erred in his interpretation of s. 26 of the Class Proceedings Act as empowering the court to order that the aggregate damages not be distributed to individual Class Members but rather distributed for the benefit of all Class Members. The motion judge erred in Reddock in his analysis of the duty of care in relation to systemic negligence. The damages awarded by the motion judge were, however, sustainable as Charter damages. Both the duty pleaded by the respondent and the duty found by the motion judge differed significantly from the established general duty of care that correctional institutions were to take reasonable care for a prisoner’s safety as a person in their custody. The duty identified by the motion judge was a novel duty that required careful scrutiny, particularly in the context of this class action.

Brazeau v. Canada (Attorney General), [2020] O.J. No. 1062, Ontario Court of Appeal, R.J. Sharpe, R.G. Juriansz and G.T. Trotter JJ.A., March 9, 2020. Digest No. TLD-May42020002