Date: 20081014
Docket: T-1761-05
Citation: 2008
FC 1158
Toronto, Ontario, October 14,
2008
PRESENT: Kevin R. Aalto, Esquire, Prothonotary
BETWEEN:
GREGORY J. MCMASTER
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER AND ORDER
I. Introduction
[1]
“If the
shoes fit - wear them” or so goes the old adage. In this case, the new running
shoes provided by the Defendant did not fit. Thus, the Plaintiff, an inmate at
the Fenbrook Institution (“Fenbrook”), did not wear them.
[2]
The shoes
were not size 13-4E width. As an inmate he is entitled to receive a new pair
of shoes each year. The new running shoes which were ordered for him did not
fit and so he continued wearing his old running shoes. One day when the Plaintiff
was in the middle of his regular exercise regime his feet went out from under
him, he fell on his right knee and tore his medial meniscus ligament. He was
wearing his old running shoes which were significantly worn down. As a result,
he suffered pain in his knee and a lack of mobility. The injury which he
suffered also caused him to fall in the shower and further exacerbate the
injury. For these injuries he claims damages.
[3]
The cause
of action is founded in misfeasance in public office. The facts of this case
also raise issues of contributory negligence, quantification of damages and
adverse inferences arising from the failure of the Defendant to call an
available key witness.
[4]
This is a
simplified action. Four witnesses gave evidence and their evidence in chief
was filed by way of affidavit. The witnesses were the Plaintiff who filed a
lengthy and detailed affidavit with many exhibits. In support of the Plaintiff’s
case, Cristol Smith D. Ch., a chiropodist, gave expert evidence regarding the
state of the shoes that the Plaintiff was wearing at the time of the injury.
On behalf of the Defendant, two witnesses were called, one being Susan Groody, the
Director of Health Services at Fenbrook and Annette Allan, the Assistant
Warden, Management Services at Fenbrook. Notably, Cathy Wherry, the Acting
Head of Institutional Services and the person with the most direct knowledge
regarding the ordering of new shoes for the Plaintiff, although still an
employee of Corrections Canada and apparently available, was not called as a witness.
[5]
The Defendant
chose to cross-examine only the Plaintiff and then only very briefly on a few narrow
points. In particular, there was no cross-examination on the exercise regime
of the Plaintiff which resulted in the injury nor was there any cross-examination
regarding the scope or cause of the injury. Thus, almost the entirety of the Plaintiff’s
evidence in chief was uncontradicted.
II. Background
[6]
Much of
the following factual scenario is taken from the Plaintiff’s affidavit, which,
as noted, is almost entirely uncontradicted. The facts are set out at some
length to support the conclusions and findings relative to the tort of
misfeasance in public office.
[7]
The Plaintiff
is an inmate of Fenbrook near Bracebridge, Ontario. He has been incarcerated for some 26
years, 15 in the United States and a subsequent 11 years in Canada. The Plaintiff is a muscular
individual who has large feet. His shoe size is size 13-4E width.
Notwithstanding that his shoe size appears to be an unusually large size, the
evidence was that it is a standard size that is manufactured by at least two running
shoe manufacturers.
[8]
As an
inmate, the guidelines and directives issued under section 70 of the Corrections
and Conditional Release Act require that inmates of federal institutions
receive certain minimal clothing allotments including one pair of shoes per
annum. Specifically, the Commissioner’s Directive 352 (the “Directive”),
issued under the authority of the Commissioner of the Correctional Service of
Canada provides as follows:
Each Regional Director Deputy
Commissioner shall determine any restrictions, and the quantity and frequency
of issue, for these items.
[. . .]
Shoes, running (general purpose shoes)
Further, subsection 83(2) of
the Corrections and Conditional Release Regulations provides:
Physical Conditions
83(2) The Service shall take all
reasonable steps to ensure the safety of
(a) every inmate and that every inmate is
adequately clothed and fed;
[. . .]
(d)
given the
opportunity to exercise for at least one hour every day outdoors, weather
permitting, or indoors where the weather does not permit exercising outdoors.
[9]
Throughout
his years as an inmate in Canada, prior to the incident giving
rise to this claim, the Plaintiff had always been issued on an annual basis a
pair of size 13-4E running shoes.
[10]
In July 2003,
the Plaintiff was transferred from the Collins Bay Institution to Fenbrook, a
medium security facility. He had been issued in January, 2003, a pair of running
shoes which were the correct size. The evidence is that while incarcerated at
Collins Bay Institution he was issued annually a pair of size 13-4E New Balance
running shoes almost routinely within two weeks of him submitting his
requisition. There were no issues regarding the requisite size or the issuance
of the shoes to the Plaintiff.
[11]
In March
2004, after he had been transferred to Fenbrook he put in his request for his
annual new pair of size 13-4E running shoes. Because New Balance was the
manufacturer of the shoes he had he referred to New Balance in his request.
However, it was not until December 2004 that he received proper fitting shoes –
a period of almost two years after the pair he received in January 2003.
III. The Ordering of the Shoes
[12]
A
department called Institutional Services (“IS”) provides all institutionally
issued items to inmates, including shoes. The Acting Chief of IS at Fenbrook at
the time of these events was Cathy Wherry. In a note sent to the Plaintiff on
March 4, 2004 in response to the Plaintiff’s request for new shoes dated March
2, 2004, Ms. Wherry requested that he come and have his feet measured as there
is “no record on our file to indicate any other footwear besides the
Institutional Issue”. The Plaintiff duly attended at the IS Office and his
feet were measured as size 13-4E. It is surprising that there was no record on
file at Fenbrook as every institution in which the Plaintiff was incarcerated
maintained an Offender Clothing Record Card and a medical chart, which records
the foot size of the Plaintiff. Further, there was a label on the tongue of
the shoes the Plaintiff was wearing which clearly stated the size as 13-4E. Nonetheless,
the Plaintiff’s evidence was that Ms. Wherry told him that size 13-4E running
shoes would be ordered and that he should check back within two weeks to see if
they had arrived.
[13]
The Plaintiff
checked back with IS after two weeks time to see if his new shoes had arrived.
They had not. During a meeting with Ms. Wherry he was again informed that the
shoes were on order and that Ms. Wherry would call him back to IS when the
shoes arrived.
[14]
After a
further two weeks without hearing anything, the Plaintiff again contacted IS
and was again informed by Ms. Wherry that the shoes had not yet arrived and was
once again assured that the order had been placed. Apparently, in the
conversation with Ms. Wherry, the Plaintiff questioned whether or not the shoes
had in fact been ordered and whether Ms. Wherry was waiting for the new annual
budget to come into effect in late April. Ms. Wherry assured the Plaintiff
that she was not waiting for the April budget and that the running shoes had
been ordered.
IV. The First Pair of Shoes
[15]
In early
May, the Plaintiff again inquired about his running shoes. He met with Ms.
Wherry who produced a pair of size 13 Brooks running shoes for the Plaintiff.
The shoes were not a 4E width but were a standard size 13. The box in which
the shoes were taken did not indicate a 4E width. During this meeting, Ms.
Wherry attempted to convince the Plaintiff that the shoes were in fact a 4E
width as she had been assured by her supplier that they were. There was no
indication on the shoes or on the box they came in that they were in fact a 4E
width. The Plaintiff adduced evidence in the form of sizing labels from boxes
of a Brooks size 13-4E and a New Balance size 13-4E running shoe that the
sizing labels clearly indicate a 4E width. No such label appeared on the box of
shoes that Ms. Wherry offered to the Plaintiff. Ms. Wherry insisted that the Plaintiff
accept the shoes. However, they did not fit as they were not wide enough. Ms.
Wherry then made a comment to the effect “my budget does not allow me to
purchase New Balance and if you want New Balance you can purchase them
yourself”. Ms. Wherry concluded the meeting by informing the Plaintiff that
she would go back to her supplier and re-order size 13-4E.
[16]
Later in
May, the Plaintiff again attended at IS to try on another pair of shoes. At
this meeting, Ms. Wherry produced a pair of Brooks size 14 running shoes.
During the meeting Ms. Wherry attempted to convince the Plaintiff to take these
shoes as she was assured by her supplier that they were extra wide. The Plaintiff
tried the shoes on but they did not fit properly. On the Plaintiff’s foot measuring
chart maintained by IS, there is a notation reading “reorder Brooks 4E 04/05/07
rec’d 14 instead of 13-4E”.
[17]
Ms. Wherry,
during this meeting, again reassured the Plaintiff that she had ordered a size
13-4E but said that her supplier had sent the wrong size, the size 14. She
acknowledged that size 14 was the wrong size although she did attempt to
convince the Plaintiff to accept them as his annual pair of running shoes.
[18]
On June 7th,
the Plaintiff again attended at IS and Ms. Wherry produced yet another pair of
Brooks size 13 running shoes with no indication they were extra wide or a 4E
width as required. Ms. Wherry noted that the box which the shoes were in were
a size 13W. The W on the box had been hand written in a black felt pen and
were not part of the original printing of the manufacturer. The Plaintiff
tried on these shoes. Again, they did not fit.
[19]
During
this meeting, Ms. Wherry again tried to convince the Plaintiff to accept the
shoes and stated “you’ll be lucky to get a pair that fits before you’re
released”.
[20]
The Plaintiff
adduced much evidence in the form of various copies of order forms
demonstrating that size 13 and size 13 wide appeared to have been ordered but
at least through June 2004, several months after the Plaintiff requisitioned
his new shoes, Ms. Wherry had not put in a specific order for a size 13-4E
shoe.
[21]
During
June 2004, the Plaintiff went through a grievance process regarding his shoes.
Unfortunately, that did not lead to a satisfactory resolution. The Plaintiff
pursued with some vigour his efforts to obtain new shoes and was met by
resistance from Ms. Wherry and others within Fenbrook. The Plaintiff gave
evidence that he had a number of other discussions with Ms. Wherry and during
one of these discussions she said that Health Services should purchase the
shoes. In an e-mail from another employee at Fenbrook, the employee stated that
“he was told that we are not ordering from another company as we don’t have the
funding.”
V. The Knee Injury
[22]
The Plaintiff
maintains a vigorous workout routine and works out on average of one hour per
day five days per week. His workouts include weight training, stretching,
aerobics, asymmetric core basic training, heavy bag (boxing), speed bag
(boxing) and cardio vascular endurance training. Apparently, the Plaintiff is
well known for his dedication to working out and his comprehension of training
principles. He has worked out regularly throughout his incarceration. During
these years until July 2004 he had not incurred an exercise related injury.
[23]
One of the
exercises which the Plaintiff engages in at his workout sessions is with a
heavy bag. In order to properly carry out the exercise involving the heavy bag
he must plant his feet, particularly his rear foot in order to throw punches at
the heavy bag. He has been doing this particular workout since he was a
teenager.
[24]
In his
evidence, the Plaintiff stated that on July 1, 2004, during his regular workout,
he was working on the heavy bag as he always has. While doing the workout with
the heavy bag, his foot gave out, he dropped to the ground, heard a loud crunch
and began experiencing searing pain in his right knee joint. Apparently, the
lower half of his right leg from the knee downward was pointing at a 90-degree
angle towards the left side of his body.
[25]
Because it
was Canada Day, there were skeleton services available at Fenbrook particularly
in Health Services. The Plaintiff chose not to go to Health Services but
returned to his living quarters and applied ice to his injured knee for the
remainder of the day.
[26]
On July 2nd,
as he was unable to walk, he sought assistance in being taken to Health
Services. He was told by a Correctional Officer in his living unit who spoke
to Health Services that “they said it’s a holiday weekend and you have to be
dying before they’ll see you”. After some further communication with Health
Services, he was taken there and reviewed by the on-duty nurse who then
referred him to the South
Muskoka Memorial Hospital where he was examined by an
Emergency Room Physician. During the examination, the attending physician
manipulated the right knee of the Plaintiff, which caused him severe pain. The
doctor asked questions about how the injury occurred and the Plaintiff stated
that he was working out on a heavy bag and doing flying tackles.
[27]
The doctor
did not appear to understand what a heavy bag was and the Plaintiff tried to
use analogies to assist the doctor in understanding the exercise that the Plaintiff
was doing. However, the Plaintiff now emphatically states that flying tackle analogy
was a misnomer and in fact what he meant to say to the doctor through the pain
he was enduring was that he pushes the heavy bag away and when it comes back,
it is like two boxers shoulder to shoulder in a boxing ring and with his feet
planted he throws punches at the bag. As the Plaintiff has a weight of some
270 pounds a real flying tackle would have carried the Plaintiff past the bag
and would not have caused him to fall on his knee in the manner he described.
The Plaintiff states that he has not executed a flying tackle since he played
organized football well over 15 years ago.
[28]
The Plaintiff,
subsequent to the date of the knee injury, had a number of medical appointments
to ascertain the extent of his injury. In May, 2005 at the Hospital in Barrie, an MRI was taken on his
right knee and it was determined that there was a displaced flapped tear on the
posterior horn of the medial meniscus with lateral displacement of the
minuscule tissue. It was noted that it was a “complex tear”. The note from a
follow-up to the MRI in June, 2005 notes that he should be put on the waiting
list for a right knee scope and that it would be approximately 1-2 years before
his knee could be operated on to remedy the flap tear.
[29]
The Plaintiff
continued to live with the residual effects of the flap tear in the medial
meniscus and followed a therapy program. However, no steps were taken by the
authorities to ensure that he had any operation to deal with the problem with
the knee. In a further examination by an orthopaedic surgeon, it appears that
his knee had healed somewhat on its own and the Plaintiff conceded that he did
not want anything done with his knee. To compensate for the problems with his
right knee he began more weight bearing on his left knee with exacerbated an
old injury to his left knee. The Plaintiff’s evidence is that in his last
meeting with the orthopaedic surgeon it was the surgeon who suggested that the Plaintiff
give serious consideration to voluntarily postponing any surgery on his right
knee until symptoms which he was incurring such as locking of the knee joint
and floating cartilage left no other options. The Plaintiff agreed to follow
this advice. The Plaintiff will require surgical intervention in the future.
VI. Meetings with Annette Allen
[30]
When the Plaintiff
still had not received his shoes by July 2004, he received a notice of appointment
to meet with Annette Allen, Assistant Warden, Management Services at Fenbrook.
He met with Ms. Allen and during the meeting Ms. Allen produced what appeared
to the Plaintiff to be the exact same pair of Brooks size 13 running shoes that
had previously been refused when proffered by Ms. Wherry. The Plaintiff tried
on the shoes and told Ms. Allen that they did not fit. The Plaintiff explained
to Ms. Allen the background of the matter and that IS had measured his shoe
size to be a 13-4E. At this meeting, Ms. Allen tried to convince the Plaintiff
to accept the shoes because she had a fax from her supplier which stated “after
inquiring with our design and fabrication department they have stated that this
particular shoe does not have a gauge for width. They also stated that it
could comfortably fit a wide foot with ease because it was a wider width that (sic)
all our usual specs”. The Plaintiff rejected the shoes.
[31]
During
this same time frame, the Plaintiff made inquiries of Brooks Canada Customer
Service regarding size 13 shoes and was advised that size 13 are for a standard
width and not intended for extra wide feet. Apparently, there were further
meetings concerning the proper shoes for the Plaintiff and at one point Ms.
Allen e-mailed a direction to a Correctional Investigator that they should go
back to the manufacturer of Brooks and obtain a statement that clearly says “these
shoes are equivalent to a size 13EEEE”. It was during this series of meetings
that the Plaintiff told Ms. Allen and a Correctional Investigator that he had
suffered a knee injury and he was concerned about the fact that he was wearing
worn out running shoes. The Correctional Investigator noted that the shoes the
Plaintiff was wearing were in fact worn out. The worn out running shoes were a
further concern to the Plaintiff because he believed they were exacerbating his
knee injury.
[32]
There is
documentation and evidence regarding further meetings, grievances and
correspondence as to whether or not the size 13 shoes were the proper width and
when the Plaintiff would be issued his new shoes. By September 2004, the Plaintiff
had ascertained that Brooks Canada manufactures two styles of shoe both in size
13-4E. This information was shared with Ms. Allen. Nothing appears to have
taken place with respect to the Plaintiff’s new shoes until November. In an e-mail
dated November 22, 2004 Ms. Allen e-mailed Ms. Wherry and stated “can we order
another pair of shoes for Mr. McMaster from a different supplier? Please
action and let me know when this is complete.” There does not appear to have
been any response to this e-mail from Ms. Wherry. In a further e-mail dated
November 23, 2004 Ms. Allen states the following to the Correctional
Investigators Office who was inquiring on behalf of the Plaintiff:
I apologize again for the delays and
duration it has taken to bring this issue to resolution. Although I have no
excuse, I have been struggling with a resource problem in SIS. Our
Acting Chief was not extended passed September 30th. I have been
without a Chief since that date. The two staff operating in that department
are occupied with weekly critical requirement for cleaning supplies, hygiene
items and inmate clothing. We have not had the opportunity to order Mr.
McMaster’s shoes. I have confirmation that one of the SIS staff will pick
up the New Balance running shoes this week and they will be issued to Mr. McMaster.
The size labelling of shoes has contributed to this problem, there are only two
companies that use the 13EEEE labelling of their shoes. Other companies claim
their shoes fits a wide foot but do not specify EEEE width. I would like to
put this issue to rest so I have directed SIS to purchase the New Balance
shoes. [emphasis added]
That e-mail is dated November 23, 2004 but it is not until
almost a further month has elapsed before the Plaintiff gets his shoes.
[33]
The
correct size of shoes for Plaintiff was not ordered until November 24, 2004
some eight months after they were requisitioned by the Plaintiff. On November
26, 2004 Ms. Wherry signed a receipt for the delivery of the shoes at
Fenbrook. In what is a further appalling delay in getting the shoes to the Plaintiff,
it was not until December 16, 2004 that Ms. Allen’s office finally issued a
statement that “Running shoes have been purchased. To be issued this
afternoon”. The Plaintiff did not know of this direction until December 17 and
endeavoured to pick up his running shoes. When he attended at the IS Office he
was informed by an officer that indeed a pair of size 13-4E New Balance running
shoes were in the IS Department and were designated to be given to the Plaintiff
but, as Ms. Wherry was not in the office, this officer did not wish to become
involved and requested that the Plaintiff return when Ms. Wherry was back.
[34]
On
December 20, 2004, the Plaintiff once again attended at the IS office and met
with Ms. Wherry who provided to him the new pair of New Balance running shoes
size 13-4E. Both the tongue of the shoe and the box in which they arrived
indicated that the shoe size was13-4E. The Plaintiff accepted this pair of
shoes.
[35]
In
subsequent years, the Plaintiff ordered his annual pair of running shoes size
13-4E and received the shoes in a timely fashion after his request was made.
VII. The Expert Evidence
[36]
The only
expert evidence called was that of Cristol Smyth, D.Ch, a chiropodist. She
examined the old running shoes (Exhibit 5) and submitted a report dated July
25, 2007. Ms. Smyth’s report was attached to her affidavit as well as her curriculum
vitae. She was not cross-examined nor was any issue taken with her
qualifications. Based on the information contained in her curriculum vitae
and given the fact that the Defendant did not oppose her being qualified as an expert
in the field of foot health care, I am satisfied and so find that she is an
expert in foot health care as a doctor of chiropody. Her report analyses the old
running shoes. She describes the state of the shoes and also states that the Plaintiff’s
measured shoe size is not unusually large and is a common size seen in her
practice. She notes that this size should be readily available. She concludes
that there was substantial wear and tear of his old shoes which was evident and
that the shoes showed lack of rigidity, stability and support.
[37]
Based on
her observations, she concludes that the “excessively worn sole and lack of
support and stability of the footwear could have caused Mr. McMaster to invert
his foot excessively, placing strain on the right knee”. Her report does not
go so far as to say that the shoes were the cause of the knee injury but it
does provide some evidence to assist the Plaintiff in his assertion that his
feet gave out because the shoes were significantly worn. It is to be noted
that the Plaintiff wore the shoes for some 5 months after the accident and that
Ms. Smyth examined the shoes in July, 2007. Some of the wear of the shoes
would have occurred between July and December 2004 but it is reasonable to
conclude that the shoes were significantly worn down in July 2004 given that
the Plaintiff is approximately 270 pounds, worked out regularly, and wore the
shoes daily for almost 18 months prior to the injury.
[38]
Without
the benefit of an expert, even a cursory examination of the shoes indicates
that they are indeed large shoes and are worn out on the outside sole of the
shoes. There is also a noticeable significant wearing out of the tread on the
heel of the shoes and in the ball section of the shoes. On the inside of the
shoes one can see that the weight of the plaintiff has compressed the insoles and
there is virtually no support or padding to the insoles. Notably, the tongues
of the shoes have a label which states they are a size 13-4E.
VIII. The Defendant’s Evidence
[39]
The
Defendant filed affidavits of Susan Groody, the Chief of Health Services at
Fenbrook and Beaver Creek Institutions and of Ms. Allen. No evidence was given
by Ms. Wherry although she is still employed by Corrections Canada.
[40]
The
evidence of Ms. Allen focuses on three areas: the shoe supply policy and procedure
of Correctional Services Canada; the multiple priorities of IS; and, the
ordering of the Plaintiff’s shoes. With respect to the shoe supply policy, Ms.
Allen speaks throughout her evidence of “non-standard sizing” and “non-standard
issue shoes”. There is no evidence that the Plaintiff’s shoes was a
non-standard size. Indeed, the evidence is to the contrary that the size of
the Plaintiff’s shoes was a standard size manufactured by at least two well-known
shoe manufacturers. Ms. Allen does state in her evidence that “if the inmate
requires a non-standard size of the shoe, SIS will make attempts to obtain the
required size of shoes from community suppliers. Phone calls will be made to
determine what suppliers have stock available and at what cost.”
[41]
Ms. Allen
also makes the point in her evidence that in mid to late 2004, due to funding
issues, the IS Department was short staffed and Ms. Wherry had higher
priorities than clothing for new inmates.
[42]
With respect
to the Plaintiff’s shoes, Ms. Allen’s evidence relies in large part on
information and belief from Ms. Wherry. She refers to conversations, meetings
and steps taken by Ms. Wherry. During the course of the trial it became
evident that Ms. Wherry was still an employee of Corrections Canada. Thus, to
the extent that Ms. Allen has relied upon information and belief from Ms.
Wherry, I discount that evidence and prefer the evidence of the Plaintiff. Further,
I found that Ms. Allen was somewhat defensive in giving her evidence and
somewhat evasive during cross-examination.
[43]
Ms. Allen endeavoured
to justify the delay in getting new shoes for the Plaintiff on the basis that IS
had other priorities, i.e. that there was labour action within Corrections
Canada and that IS was understaffed. However, while this is the work
environment in which Ms. Allen and her staff were operating, in the end result
it took a simple phone call to a supplier to acquire the proper size of shoes.
[44]
The other
witness on behalf of the Defendant was Susan Groody, the Chief of Health
Services at Fenbrook and Beaver Creek Institutions. Her evidence focused
primarily on the injury suffered by the Plaintiff on July 1, 2004. Her
evidence was to the effect that he reported that while working out his “right
leg gave out” and “hit the ground”. Her evidence also reviews the Plaintiff’s
report to medical staff that he had been working on the heavy bag doing “flying
tackles” into the bag.
IX. The Issues
This case raises the following issues:
1.
Have the
tests to make out the tort of misfeasance in public office been met?
2.
Is the
plaintiff contributorally negligent in continuing to exercise in shoes that
progressively became more and more worn out?
3.
Should an
adverse inference be made respecting the failure of the Crown to call Ms.
Wherry as a witness?
4.
If the
tort has been made out, what is the quantum of damages that the plaintiff
should receive?
X. Analysis
A.
Misfeasance
in Public Office
[45]
The tort
of misfeasance in public office is an intentional tort. In Odhavji Estate
v. Woodhouse, [2003] 3. S.C.R. 263 the Supreme Court of Canada most
recently considered the elements of this tort. Justice Iacobucci made the
following observation:
22. What then are
the essential ingredients of the tort, at least insofar as it is necessary to
determine the issues that arise on the pleadings in this case? In Three
Rivers, the House of Lords held that the tort of misfeasance in a public
office can arise in one of two ways, what I shall call Category A and Category
B. Category A involves conduct that is specifically intended to injure a
person or class of persons. Category B involves a public officer who acts
with knowledge both that she or he has no power to do the act complained of and
that the act is likely to injure the plaintiff. This understanding of the
tort has been endorsed by a number of Canadian courts: see for example Powder
Mountain Resorts, supra; Alberta (Minister of Public Works,
Supply and Services) (C.A.), supra; and Granite Power Corp. v. Ontario,
[2002] O.J. No. 2188 (QL) (S.C.J.). It is important, however, to recall that
the two categories merely represent two different ways in which a public
officer can commit the tort; in each instance, the plaintiff must prove each of
the tort’s constituent elements. It is thus necessary to consider the
elements that are common to each form of the tort.
23. In my view,
there are two such elements. First, the public officer must have engaged in
deliberate and unlawful conduct in his or her capacity as a public officer. Second,
the public officer must have been aware both that his or her conduct was
unlawful and that it was likely to harm the plaintiff. What distinguishes
one form of misfeasance in a public office from the other is the manner in
which the plaintiff proves each ingredient of the tort. In Category B, the
plaintiff must prove the two ingredients of the tort independently of one
another. In Category A, the fact that the public officer has acted for
the express purpose of harming the plaintiff is sufficient to satisfy each
ingredient of the tort, owing to the fact that a public officer does not have
the authority to exercise his or her powers for an improper purpose, such as
deliberately harming a member of the public. In each instance, the tort
involves deliberate disregard of official duty coupled with knowledge that the
misconduct is likely to injure the plaintiff.
24. Insofar as the
nature of the misconduct is concerned, the essential question to be determined
is not whether the officer has unlawfully exercised a power actually possessed,
but whether the alleged misconduct is deliberate and unlawful. As Lord
Hobhouse wrote in Three Rivers, supra, at p. 1269:
The relevant act (or
omission, in the sense described) must be unlawful. This may arise from a
straightforward breach of the relevant statutory provisions or from acting in
excess of the powers granted or for an improper purpose.
Lord Millett reached a
similar conclusion, namely, that a failure to act can amount to misfeasance in
a public office, but only in those circumstances in which the public officer is
under a legal obligation to act. Lord Hobhouse stated the principle in
the following terms, at p. 1269: “If there is a legal duty to act and the
decision not to act amounts to an unlawful breach of that legal duty, the
omission can amount to misfeasance [in a public office].” See also R. v.
Dytham, [1979] Q.B. 722 (C.A.). So, in the United Kingdom, a failure to act can
constitute misfeasance in a public office, but only if the failure to act
constitutes a deliberate breach of official duty.
[. . .]
32. To summarize, I
am of the opinion that the tort of misfeasance in a public office is an intentional
tort whose distinguishing elements are twofold: (i) deliberate unlawful conduct
in the exercise of public functions; and, (ii) awareness that the conduct is
unlawful and likely to injure the plaintiff. Alongside deliberate unlawful
conduct and the requisite knowledge, a plaintiff must also prove the other
requirement common to all torts. More specifically, the plaintiff must prove
that the tortuous conduct was the legal cause of his or her injuries, and that
the injuries are compensable in tort law.
[46]
Odhavji concerned a fatal shooting by
police officers. The police officers involved in the incident did not comply
with certain requests from the Special Investigation Unit (“SIU”) which requests
included remaining segregated, providing shift notes, blood samples etc. While
the officers did not comply with the requests, the SIU nonetheless cleared them
of any wrongdoing. The estate of the deceased commenced an action against the
officers involved as well as the chief of police and others. The causes of
action included misfeasance in public office and negligence. The plaintiffs
alleged that the officers’ failure to cooperate with the SIU and comply with
its requests amounted to misfeasance in public office. This cause of action
was struck out by the motions judge and the decision was upheld by the Court of
Appeal for Ontario. The Supreme Court allowed
the appeal on that point and permitted the action to proceed as it was not
plain and obvious that it could not succeed.
[47]
Misfeasance
in public office first requires that there be an unlawful exercise of a
statutory or prerogative power by a public officer, in this case Ms. Wherry.
She was in a position of authority and had a statutory obligation to comply
with the Directive. Indeed, her department was the one responsible for providing
the required shoes to the Plaintiff. There can be no doubt that she is a
public officer. The more difficult question is whether she unlawfully
exercised the statutory power with which she was clothed. In my view she did.
[48]
The
evidence has been summarized at length. The common thread to the ordering of
the Plaintiff’s shoes was that it was acknowledged throughout that the
Plaintiff required a size 13-4E. It was Ms. Wherry who did the measurement of
the Plaintiff’s shoe size because the Plaintiff’s records were not in Ms.
Wherry’s possession although she did not need to measure as the size of the
Plaintiff’s shoes was clearly labelled on the Plaintiff’s old shoes. She knew
from the outset that he required that specific shoe size which was readily
available. However, rather than simply ordering the right pair from the outset
she deliberately tried to force the wrong size on the Plaintiff and made
threats to him during the course of meetings he had with her. There was no
explanation or evidence from Ms. Wherry.
[49]
Rule 81(2)
of the Federal Courts Rules provides as follows:
Where an affidavit is made on belief, an
adverse inference may be drawn from the failure of a party to provide evidence
of persons having personal knowledge of material facts.
[50]
Neither of
the affidavits of either Ms. Groody or Ms. Allen provided any explanation of
why Ms.Wherry was not available and why the best evidence was not before the
Court. Thus, to the extent that Ms.Groody and Ms. Allen relied on information
and belief from Ms. Wherry I give no weight to that evidence. Further, I make
an adverse inference as I am entitled to do that Ms. Wherry’s evidence would
not support the lawfulness of her actions. Thus, based on the evidence, I have
no reservation concluding that Ms. Wherry was acting unlawfully in
contravention of the statutory obligations placed on her as a public officer.
[51]
Counsel
for the Defendant argued that the Plaintiff had to prove that both Ms. Allen
and Ms. Wherry must have had the intent to act unlawfully. In my view, there
is no such requirement. The actions of Ms. Wherry are sufficient to ground the
cause of action.
[52]
Counsel
for the Defendant argued vociferously that the Defendant made reasonable efforts
to satisfy the Plaintiff’s request for shoes as they were ordered three times
and that the Defendant did not know the old shoes were worn out. I disagree.
The evidence shows that the Defendant dragged its feet in ordering the correct
shoes for the Plaintiff and improperly tried to convince the Plaintiff to
accept the ill-fitting shoes when it obviously knew they did not and could not
fit. Further, the Directive requires that the Plaintiff be issued new shoes on
an annual basis. The Plaintiff requisitioned his new shoes because his old
ones were over a year old. Ms. Wherry knew this to be the case.
[53]
Further, Ms.
Wherry and Ms. Groody were well aware of the need for new shoes for inmates and
that there was an obligation to provide new shoes. In addition to dealing with
Ms. Wherry, the Plaintiff also had a number of meetings and discussions with Ms.
Groody. Subsequent to the Plaintiff’s injury, in a key memorandum dated
February 21, 2006 entitled “Shoes and Injury to right knee July 1/04” Ms.
Groody wrote:
As per our conversation February 21,
2006, we discussed the matter of shoes. It is documented that you have size
13-4E shoes. As these shoes are regular footwear and do not require
orthopaedic type shoes, in the Spring 2004 I directed you to SIS. It is their
responsibility to provide proper fitting footwear as per CD-352.”
[54]
In a
subsequent memorandum dated February 27, 2007 Ms. Groody again wrote:
You and I had numerous conversations
relating to your efforts to try and obtain proper fitting footwear. I advised
you at those times that providing proper fitting footwear did not fall into the
Health Services Department. Clothing and shoes were to be issued by SIS. I
advised you to return to SIS on this matter and advised SIS that Correctional
Service of Canada is mandated to provide proper footing footwear to all
offenders.
The second part of the test is whether the public officer
must be aware that she is acting unlawfully and that the result of such conduct
will result in harm to the Plaintiff. Does the evidence adduced support this
part of the test? In my view of the evidence, it does.
[55]
The Defendant
through its officers knew the correct shoe size of the Plaintiff. They also
knew that they had an obligation to provide shoes as one of the necessities
prescribed by the Directive. By failing to order the correct sized shoes and
trying to force the wrong size on the Plaintiff, Ms. Wherry was acting
unlawfully. The evidence also allows the conclusion, and I so find, that the
Defendant was also aware that the unlawful conduct of not ordering the proper
shoes would result in harm to the Plaintiff. In the memo dated February 27,
2007, Ms. Groody also notes:
It is noted through out [sic] your files
that you require a 13 EEEE shoe. This is not orthopaedic footwear but a shoe
sizing issue. In the community you would have your feet sized properly and be
advised that you should wear shoes that fit. You do not need a health care
professional to advise you that by wearing a pair of shoes that do not fit, you
will have foot problems. It only goes to say that shoes should be fitted
properly.
[56]
It cannot
be argued by the Defendant that there was no awareness that the unlawful
conduct could result in harm to the Plaintiff. The old shoes were
significantly worn which could and did cause harm and the various pairs of new
shoes were not the right size.
[57]
Defendant’s
counsel argued that the tort of misfeasance in public office was meant to
remedy grave and intentional abuses of power. I do not read Odhavji as
supporting that proposition. Justice Iacobucci in his description of the
elements of the tort does not require that there first be a finding of “grave
and intentional abuses” but simply intentional abuse. On the evidence before
me the intentional abuse is made out.
[58]
Another
argument put forward by the Defendant was that the failure to acquire the
correct shoes was a result of budgetary constraints and other priorities facing
Ms. Wherry at Fenbrook. Thus, the failure to order the shoes in a timely way did
not amount to unlawful conduct as it was based on factors beyond Ms. Wherry’s
control. Justice Iacobucci in Odhavji made the following observation:
26 . . . Nor is the tort directed at a
public officer who fails adequately to discharge the obligations of the office
as a consequence of budgetary constraints or other factors beyond his or her
control. A public officer who cannot adequately discharge his or her duties
because of budgetary constraints has not deliberately disregarded his or her
official duties. The tort is not directed at a public officer who is unable to
discharge his or her obligations because of factors beyond his or her control
but, rather, at a public officer who could have discharged his or her public
obligations, yet wilfully chose to do otherwise.
[59]
There are
significant evidentiary hurdles to give this argument any credence, however. The
Defendant’s witness, Ms. Allen, conceded that the shoes were a “small dollar”
issue and a “small item”. Ordering a pair of shoes can hardly be a budgetary
constraint when the ultimate cost according to the evidence was something in
the range of $123.00. Further, the evidence of the Defendant does not explain
why Ms. Wherry simply failed to order the shoes initially after she met with
the Plaintiff in March and why some time later she ordered what she clearly
knew were the wrong size of shoe.
[60]
Thus, on
the evidence before me, the failure to order the correct shoe size in a timely
way was an unlawful act and did not result from circumstances beyond the
control of Ms. Wherry.
XI. Cause of the Knee Injury
[61]
Is there a
causal connection between the failure to provide the Plaintiff with the correct
size of new shoes and his knee injury? Again, based on the evidence before me,
I find there is a causal connection.
[62]
It is to
be observed that there was no cross-examination of the Plaintiff on the
question of how the injury occurred. The only evidence was the medical records
and the direct evidence of the Plaintiff. Both parties conceded that the
medical reports could be accepted for the truth of their contents. The medical
reports refer to a “flying tackle” as being the cause of the injury. However,
there is no explanation in the reports of what is meant by this. The
Plaintiff, who gave his evidence in a straightforward and direct manner,
described his recollection of the events surrounding the injury. He admits to
using the phrase “flying tackle” but has explained that what he was trying to
do when being examined and suffering from the pain associated with the injury was
use an analogy that the doctor might understand. As part of his regular
routine he pushes the heavy bag away and then steps into it as a boxer would
do. His explanation is plausible that when stepping into the bag his foot gave
out because there was little tread on his shoe. In the circumstances, this
evidence provides a nexus between the injury and the old worn out shoes he was
wearing.
[63]
Counsel
for the Defendant argues that there is no nexus between the act and the injury
as the Plaintiff is not an expert and more weight should be given to the
medical evidence. However, it is not “expert” medical evidence on causation
and the Defendant did not challenge the Plaintiff on causation and relied
solely on the medical reports, which, while accepted as true, have been
explained away by the Plaintiff. The medical reports do not describe how the
injury was incurred, but provide merely a descriptive that came from and which
has been explained in greater detail by the Plaintiff and not challenged by the
Defendant. I accept the evidence of the Plaintiff.
XII. Contributory Negligence
[64]
Was the Plaintiff
contributorily negligent in working out in his worn shoes? Should he have
known to reduce the level of intensity of his workout, knowing that he was
wearing significantly worn out shoes? In my view, based on the evidence, the
Plaintiff should have been aware that there was some likelihood that the
vigorous workouts in which he engaged required solid footing. Thus, there is
some blame to be attributed to the Plaintiff in engaging in this kind of
activity in worn shoes. I assess the contributory negligence at 33%.
XIII. Damages
[65]
The
remaining consideration is the amount of damages to be awarded to the Plaintiff.
Little guidance was provided other than the Defendant’s position that no amount
should be paid to the Plaintiff who sought general and exemplary damages in the
amount of $50,000.00.
[66]
There do
not appear to be any cases which assess damages for misfeasance in public
office. In my view, when the tort has been proved, as here, the measure of
damages is the amount the Plaintiff should receive for pain and suffering which
flows directly from the unlawful conduct. While the conduct causing the injury
is unlawful it does not necessarily incur a punitive element.
[67]
The
Plaintiff was in severe pain immediately following the injury. He was unable
to walk. He was also unable to receive immediate medical help. He has had
several examinations and while the tear has improved the indications from the
doctors who examined him is that he will still need surgical intervention.
Further, his evidence is that because of the injury he has put more stress on
his other knee and because of the injury he fell in the shower and further
exacerbated in the injury.
[68]
I have
reviewed several cases concerning the range of general damages for these types
of injuries including Maher v. Beaton, [1999] N.B.J. No. 33, Coffey
v. Dalin Investments Ltd. (1997), 176 N.B.R. (2d) 148 and Hickey v.
Canada Safeway, 1998 CanLII 4874 (B.C.S.C.). In all of the circumstances it
is my view that $9,000.00 is the appropriate amount of damages that the
Plaintiff should receive for his pain and suffering. When reduced by the
contributory negligence component of 33%, the amount payable is $6,000.00. The
Plaintiff is also entitled to pre-judgment interest and costs to be assessed in
accordance with the middle column of Tariff B unless there are other factors
unknown to the Court that should be considered. If there are factors which
affect the costs award the parties may provide written submissions to the Court
limited to three pages within 30 days of the date of this decision.
ORDER
THIS COURT ORDERS
that:
1.
The
Plaintiff shall receive the sum of $6,000.00 for general damages for pain and suffering.
2.
The
Plaintiff is entitled to receive pre-judgment and post-judgment interest on the
amount awarded.
3.
The
Plaintiff is entitled to his costs of this proceeding to be assessed at the
middle column of Tariff B. If there are matters which affect this award of
costs of which the Court is unaware, the parties may make brief written
submissions, limited to three pages, within 30 days of the date of this order.
“Kevin
R. Aalto”
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