Miclash v. Canada, 2003 FCT 113

Date: 20030131

Docket: T-1639-00

Neutral Citation: 2003 FCT 113

BETWEEN:

                                                                 DAVID MICLASH

                                                                                                                                                          Plaintiff

                                                                              - and -

                                                        HER MAJESTY THE QUEEN

                                                                                                                                                      Defendant

                                      REASONS FOR JUDGMENT AND JUDGMENT

ARONOVITCH, P.

        On March 2, 2000, David Miclash was assaulted in his cell by two fellow inmates. At the time, he was serving a five year sentence at Joyceville Institution, a medium security penitentiary near Kingston, Ontario. His claim is essentially, that Correctional Services of Canada (the "CSC") was negligent and failed in its duty to ensure Mr. Miclash's safety while resident at Joyceville.

        To provide some context for the events of March 2, Joyceville conducts formal inmate counts, 5 times a day, one of them at 4:30 o'clock in the afternoon. These counts are important events in the daily prison routine, described by one witness as one of the "holy grails" of prison security.

        During the count, inmates are required to be in their cells. Two corrections officers within sight of a third corrections officer, check to verify that each cell's occupants are accounted for.

The count takes roughly half an hour to complete. Once the count is taken, it is tallied by the "keeper" and certified as correct.    The tallying of the count takes place in the guard post or security office, colloquially referred to as the "bubble".     A "range", is a discreet unit of rows of cells. There is, as I understand it, video surveillance of the ranges, from the "bubble".

        Against that background here, in their own words, are the facts agreed to by the parties.

"The plaintiff returned to his cell in the afternoon of March 2, 2000 to find that his cell had been entered by a person or persons unknown to the plaintiff. Certain of the plaintiff's cell effects has been stolen.       

The plaintiff first reported the theft to inmate Boston who was the range representative to the inmate committee. It was decided that the inmate committee would take steps to investigate the incident and determine who perpetrated the theft as an informal method of disposing of the situation.

The inmate committee was unable to determine the identity of the cell thief. On March 2, 2000 the plaintiff decided to approach the CSC directly. He did so by approaching CSC officers in the vestibule of the security office with the full knowledge of inmate Boston at approximately 16:30 hrs.

Inmate Boston approached both the plaintiff and CSC Officer, Tammy Vankoughnett, saying he would deal with the matter.

The plaintiff voluntarily agreed to resolve the matter with inmate Boston.

The inmates were returned to their cells for the inmate count at 16:30 hrs. The plaintiff was single bunked.

After completion of the count, at approximately 16:55 hrs. inmate Boston advised CSC staff that the plaintiff was no longer wanted on the range by other inmates and that the plaintiff should be

removed. Inmate Boston was advised by CSC that the matter would be discussed following the certification of the count.

When the count was completed CSC learned that the plaintiff's cell had been entered and the plaintiff was struck in the face. The plaintiff alleges the assault was perpetrated by two inmates, inmate Boston and a second inmate known to be plaintiff only as "Johnny".

The plaintiff was then given medical attention and placed in voluntary segregation for his own protection. He was later removed from Joyceville Institution, then to Bath Institution and subsequently he was transferred voluntarily to Mountain Institution.

The plaintiff continued to receive medical attention provided by CSC. The plaintiff was referred to medical specialists by CSC doctors. The Health Care staff at the various institutions maintained logs of the plaintiff's medical progress and reports of specialists were included in the plaintiff's CSC Health Care file. The plaintiff accepts the accuracy of the medical reports on file with the CSC.

The plaintiff has been treated for injuries to his left jaw, hearing loss (fully recovered by December 2000), tinnitus and problems with his equilibrium.

The plaintiff never reported inmates Boston and "Johnny" to be incompatible and he had no knowledge until the assault that he had incompatibility with them.

Subsequent to these incidents Mr. Miclash was transferred to Mountain Institution, a medium security penitentiary in Agassiz, British Columbia where he now resides."

       This being a simplified action and no leave having otherwise been granted, the evidence- in-chief of the witnesses is adduced by means of affidavits, sworn in advance of the trial. The affidavits of Mr. Miclash and of Mr. Matthew G. Yeager were filed on behalf of the plaintiff. The Crown filed the affidavits of Mr. Karl Niemann, Regional Project Officer, Security for CSC, in Ontario; Ms. Tammy Vankoughnettt, a Corrections Officer at Joyceville Institution and Mr. Jean Pellerin a Correctional Supervisor, also at Joyceville.

Preliminary Issues                               

        The Crown raised two preliminary issues. First, the Crown objected to medical reports that the plaintiff has appended to his affidavit and were not independently attested to by the doctors whose opinions were being tendered.    The objection having been noted, by agreement of the parties, the matter was left for argument as to the weight, if any, to be given to the medical reports.

        The second objection is in respect of the expert evidence of Mr. Matthew Yeager. The Crown took issue with Mr. Yeager's qualifications as an expert as well as the substance of his report adduced in support of the plaintiff.

        Mr. Yeager is a criminologist who holds a bachelor's and master's degree in criminology and criminal justice respectively. As of the date of the trial he was a doctoral candidate in sociology, with a concentration in criminology and penology, at Carleton University, at Ottawa.

       The plaintiff sought to qualify Mr. Yeager in the field of criminology, a speciality of penology to report to the Court as to the " inmate code". Having distilled counsel's submissions on point, Mr. Yeager's evidence was being tendered specifically as to "in inmate/staff relations", the inmate code and incidents of violence that attach to breaches of the code and "CSC's knowledge of the code".    Mr. Yeager was cross-examined, on his curriculum vitae. I then heard submissions as to whether Mr. Yeager ought to be qualified as an expert for the purpose for which his evidence was being tendered.    For the following reasons, I ruled that Mr. Yeager's evidence would not to be admitted.

      The criteria to be applied in determining the admissibility of expert evidence are enunciated by the Supreme Court of Canada, in R. v. Mohan [1994] 2 S.C.R. 9. In order to be admissible, the opinion evidence must be relevant to an issue in the case and necessary to assist the trier of fact. The evidence must not violate an exclusionary rule.    The witness whose evidence is tendered must be properly qualified as an expert.

      To begin, I accepted the Crown's challenge to Mr. Yeager's expertise. While Mr. Yeager may be qualified as an expert in the areas of sentencing and parole to which his resume and scholarship attest, I found no basis to qualify him as an expert on prison security, or inmate and staff relations. He has not worked as a corrections officer, nor indeed at all in a penitentiary. While he testified to having extensively interviewed inmates and corrections officers, I was unable to ascertain in what context or to what effect.    Mr. Yeager did not point to either data produced from the interviews, or publications attesting to his work in the area. On the other criteria of Mohan, I found that Mr. Yeager's affidavit would be of little, if any, assistance to the Court, as his "expert" definitions of the "con code" and "ratting" are essentially as reported in the jurisprudence to which Mr. Yeager refers. In addition, a substantial part of Mr. Yeager's report consists of argument, including, a brief diatribe on the subject of the judiciary's unwillingness to hold correctional institutions accountable, thereby leading to the fostering of further violence in prisons.    The report is topped off with Mr. Yeager's conclusion as to CSC's liability in the case at bar, a matter that I take to be in the purview of the Court.

The Evidence

     Mr. Niemann, the Crown's first witness, has been employed with CSC since 1974 in various

positions. He started as a Corrections Officer, then became Senior Corrections Officer and occupied the posts of Preventative Security Officer ("PSO"), Regional Coordinator of Security Investigation, and is currently Regional Project Officer, Security for Ontario. In his present capacity, Mr. Niemann attends various institutions to follow-up on incidents of violence, he coordinates PSO's in the region, and deals with incident reporting and investigation.

      Mr. Niemann spoke to the nature of the inmate population at Joyceville and strategies employed by the staff to maintain security and prevent incidents of violence. Joyceville is a medium security institution and has an integrated population. The institution endeavours to integrate inmates who might have been "protective cases" in other institutions.    Mr. Neimann notes that the policy or orientation to integrate inmates, to the extent possible, rather than maintain them in segregation works well.    For example, individuals who have actually testified against other inmates in Court have later been successfully integrated into the general population, in other institutions.   

     Security measures employed by the staff at Joyceville include "static" and "dynamic" measures. Static measures consist of physical structures, fencing, video monitoring, locks and bolts. Dynamic measures comprise information gathering by staff and an institutional PSO, coupled with what Mr. Niemann believes to be the best dynamic tool, namely the interaction of front-line corrections officers with inmates and the identification of predicators of violence.    There are known predicators of violence, that the staff will look out for, for instance, cases of inmates that are known to be incompatible, and conduct on the part of inmates that alert the officers to the possibility of violence such as inmates hoarding food in cells, or avoiding certain areas of the institution.

     CSC attempts to use several options to protect inmates and to resolve conflicts where there are "incompatibilities" between offenders. Mr. Niemann points out that corrections officers are trained to mediate and negotiate differences where they can. Occasionally, the staff involves the "inmate committee". This is a group of inmates who are elected to represent the inmate population in recreational and social matters. "Inmate representatives" are also involved from time to time. If

separation is advisable it is done by the least intrusive method such as cell or unit changes. Segregation is a last resort. Its consequences are said to be "rough". It suggests to the inmate population that the segregated inmate is in fact a "rat".

     Mr. Niemann's definition of a "rat" is the same as is judicially noted, namely an inmate who informs on others. In his opinion, however the "con code" is "flexible" and "dynamic" and the consequence of breaches of the inmate code are not set.    According to Mr. Niemann, the consequences of being labelled a "rat" will depend on particular circumstances, including the nature of the prison population, with incidents in maximum security institutions proving the more difficult to manage.    At Joyceville, staff and inmate interaction is encouraged and common. Inmates do not automatically assume, for example, that all conversations with staff are about informing on others, unless says Mr. Niemann, the inmate himself makes it known that he has complained to the staff about other inmates.

      Mr. Niemann concedes that there is potential for concern when an inmate makes even a general complaint to staff about the conduct of other inmates, by general, is meant a report that

doesn't name or identify a particular inmate. According to Mr. Niemann, in such situations staff would go on to follow up and investigate the validity of the complaint and essentially keep an eye on the situation. The staff may choose to involve the inmate committee. If, an officer were to know of a failed attempt by the committee to resolve a conflict, that would warrant watching the situation more closely.

     As to what Mr. Niemann would do in similar circumstances, namely, the report of a cell theft by an inmate to a corrections officer, and a subsequent request by his fellow inmates for his removal, Mr. Niemann responded that he would "certainly" remove the inmate in question. As to how swiftly this ought to be done, one would have to take account of the time of day, the availability of staff to respond and so on.    Mr. Niemann would rely on the judgment of the officer on the scene as to how immediately the individual should be segregated.    He agreed that in such situations, there may not be much time for reflection, and added that if necessary, a removal and segregation can be effected in minutes.

The Plaintiff's Account

      Turning to the evidence of Mr. Miclash and Ms. Vankoughnett, the only significant discrepancy has to do with what Mr. Miclash would have told Ms. Vankoughnett in their conversations following the theft.

      The substance of Mr. Miclash's affidavit evidence is as follows. Following Mr. Boston's failure to identify a perpetrator of the theft. Mr. Miclash decided to take the matter to the staff of Joyceville Institution. This, with Mr. Boston's knowledge and within sight of some of the inmates in his unit who would have seen him speaking to the staff in the "bubble".

      By reporting the theft, Mr. Miclash expected that he would be removed from the range but the thefts would cease. Rather than take the situation seriously, the staff of Joyceville had simply told him to be more careful in future. No attempt was made to keep him separate from other inmates in the range even though, says Mr. Miclash, it is common knowledge among inmates and staff that an

inmate is marked for perhaps life-threatening repercussions if incidents between inmates are reported to staff.

      Mr. Miclash says he insisted on being placed in protective custody but was told to return to his cell for the count, failing which, he would be charged for delaying it. He returned to his cell, rather than be charged.

      On cross-examination, Mr. Miclash reiterated that he was tired of having his "house" broken into.    He was adamant that he wanted off the unit, and that he had made this clear to Ms. Vankoughnett, insisting to her that he be removed from the range. He also explained that when he decided to report the theft to staff, inmate Boston was not pleased with Mr. Miclash's proposed course of action. Mr. Miclash testified that he knew from Mr. Boston's "look", that Mr. Boston was unhappy that he was reporting the theft to the staff.    Mr. Miclash said nothing of this to Ms. Vankoughnett.

      At the time of the assault Mr. Miclash was in his cell, single bunked. His cell door was closed; a leather patch over the door. The door was, as it is called, "closed to the pin". He replied as follows as to the timing of the incident.

"Q. Okay. And, again, it was after the count was conducted that you were assaulted?

A. Right after the count happened they locked the door. Three minutes later, or a couple of minutes, not even 6:30, about a minute, a minute-and-a-half, that's when Boston came into my house."

The Evidence of the Corrections Officer

      Ms. Vankoughnett's account of what transpired between herself and Mr. Miclash differs in one important respect. Ms. Vankoughnett arrived at Joyceville in February 2000, a month before the incident at issue. A corrections officer since 1994, she had come to Joyceville from Millhaven, a maximum security institution. In contrast with Millhaven, where contact with staff was rare and no inmate would ever step into the security office, she found that inmates at Joyceville more readily had contact with the staff. They interacted and spoke with staff more often including coming to the "bubble"to do so.

      The report of the thefts was the first such incident that Ms. Vankoughnett had had to deal with at Joyceville. She was not however surprised or alarmed when Mr. Miclash approached her along with another inmate, Mr. Ouimet.    Mr. Miclash reported that his "meds" had been stolen from his cell. Mr. Ouimet stated that his had been stolen as well. Mr. Miclash asked why his cell was not double-locked in his absence. Ms. Vankoughnett undertook to Mr. Miclash to make a note in her logbook to have his cell door double-locked when he was absent, and to notify Health Care that his medication was stolen. She then asked Mr. Miclash to see the nurse at the 17:30 "med line". According to Ms. Vankoughnett's incident report following the departure of the first inmate, Mr. Miclash reported to Ms. Vankoughnett that it was not the first time that his belonging had been stolen, and proceeded back to the range.

      At approximately 4:30 p.m. Mr. Miclash returned to see Ms. Vankoughnett with two empty blister packs, to show her what medication had been stolen.    It was during that exchange that Mr. Boston entered the office to speak to Mr. Miclash and offered to deal with the matter. The two men then left the "bubble" together, to return to the range where the count was started. Ms. Vankoughnett was not aware at the time of Mr. Boston's prior implication with the thefts or his failed attempt to find the culprit.

      By roughly 4:55 p.m., when the count had been completed, but not yet certified, Mr. Boston came to the security office and requested to speak to the "I/C" of the Unit. He informed the officers that his fellow inmates wanted Mr. Miclash removed from the range. Mr. Boston was told that once the count was cleared or tallied, CS J. Pellerin, would come to the unit to discuss the problem with the inmates involved.

      The count was certified shortly thereafter (by 5:10) following which Ms. Vankoughnett and CS Pellerin met with Mr. Miclash. By all accounts the encounter occurred at the security office at 5:15.    Mr. Miclash was there, some few belongings already packed. " I almost died in there" he told the officers. One inmate had threatened him with a shank, (a home-made weapon) while the other had beaten him up. Mr. Miclash did not name his assailants. The officers noted some facial trauma on the right side of his face.    Mr. Miclash was offered to be moved to another unit but felt that he would not be safe. He also declined to have the inmate committee attempt to resolve the situation. The officers having concluded that there was no other available option, Mr. Miclash was taken to the segregation unit.    He was checked in at roughly 5:30 p.m.

      Ms. Vankoughnett, maintained on cross-examination, that Mr. Miclash had not asked to be removed from the range. He had not, in any exchange with her, indicated that he felt threatened, or feared for his safety.    Ms. Vankoughnett also says that she did not put Mr. Miclash off, or send him back to the range for the count.

      Asked why no effort was made to keep Mr. Miclash at the "bubble" until the count was tallied, Ms. Vankoughnett responded that a count requires that inmates be in their cells. What is more, she had no reason to believe the situation was serious or would interfere with the count. Mr. Miclash appeared pleased to have his medication replaced and to have his door double-locked. For Ms. Vankoughnett, that was the end of the matter. Mr. Miclash went back to his cell voluntarily. He did not appear to be threatened or "present" to Ms. Vankoughnett, that he felt threatened. It did not cross her mind, at that point, that he might be in difficulty. She also testified that when Mr. Boston appeared at the end of the count to report that the other inmates wanted Mr. Miclash off the range, she still didn't understand that Mr. Miclash was potentially in trouble. She found Mr. Boston's tenor and demeanour, matter of fact, not threatening.

    Under further cross-examination Ms. Vankoughnett did however admit that by 5:00 p.m., that is following the visit from Mr. Boston, she did see a need for action and accordingly she and Mr. Pellerin met with Mr. Miclash, to see if the problem could be resolved. Admittedly, no attempt was made in the interim to contact Mr. Miclash, or to monitor the range from the security office with any focus on Mr. Miclash.

      Based on the evidence, I make the following findings of fact:

     First, I am satisfied, in respect of the assault, that it resulted from Mr. Miclash's report of the cell theft, to prison officials.

     As to the time of the assault; Mr. Miclash's evidence alone is adduced on point.    Mr. Miclash was vague about the timing of events during the afternoon in question, but testified as I have noted, that the assault took place shortly after the count. One has to assume when Mr. Miclash says it was "not even 6:30", he means to say it was not yet 5:30. It is common ground that by the time Mr. Boston appeared at the security office, at roughly 5:00 p.m., the count had ended but was not yet tallied. I conclude therefore that the assault occurred sometime between the end of the count, which I put at 5:00 and 5:10, the time at which the count was certified to be correct.

      As to how much Mr. Miclash told Ms. Vankoughnett, I accept Ms. Vankoughnett's account that Mr. Miclash did not tell her that he wanted to be removed from the range, let alone insist on it. Ms. Vankoughnett, was forthcoming, and consistent in her account of events which withstood cross-examination, and in every respect, corresponds to the account of the events in her incident report made contemporaneously with the events. I also conclude that Mr. Miclash, told Ms. Vankoughnett, of prior thefts but did not inform her of his having sought the assistance of Mr. Boston on at least one of those occasions. We already know that Mr. Miclash did not tell Ms. Vankoughnett that Mr. Boston, knew that Mr. Miclash would be reporting the theft to a corrections officer and that Mr. Boston was visibly hostile to the notion.

Analysis and Conclusions

      That there is a duty of care owed by CSC to inmates in its custody, is readily conceded by the Crown. The question for determination is whether on the balance of probabilities, the harm that befell Mr. Miclash was reasonably foreseeable, that is to say, whether the staff of Joyceville knew or ought to have known that Mr. Miclash was likely in harm's way and if so, whether reasonable steps were taken to protect him. (see: Coumont v. Canada (Correctional Service) [1994] F.C.J. No. 655 and Eng v. Canada et al (1997) 129 F.T.R. 25)

      The plaintiff says that the risk to Mr. Miclash ought to have been evident as of the plaintiff's breach of the "con code", by reason of his informing on his fellow inmates. By reporting the theft to the staff, Mr. Miclash was "ratting" on his fellow range-mates. As a result says the plaintiff, CSC ought to have moved to segregate him immediately, in order to protect him from injury, which it is argued CSC ought to have known was inevitable.

      Mr. Niemann's and Ms. Vankoughnett both concede that a general complaint to prison staff, that is, one that implicates, as in this case, the inmates of the range generally without naming names, can be viewed as informing, in contravention of the "con code", with potential for conflict and violence. Mr. Niemann added a gloss that I noted in particular, namely that inmates at Joyceville would not necessarily infer that an inmate going to the security office to speak to a corrections officer was informing, unless the inmate himself made that known. That is, in our case, unless the inmates found out that Mr. Miclash was reporting to a corrections officer, that there was a cell thief on the range.

      I agree with Mr. Niemann that the CSC are not and cannot be guarantors of the safety of inmates, in a prison environment that has inherent potential for violence. CSC cannot be expected to protect inmates from dangers that are unpredictable. It is also agreed that one of the most common predicators of violence, namely, the incompatibility of inmates, notably of Messrs. Miclash and Boston, was not at issue here.

     I also take the point that the consequences of breaches of the "con code" may not be fixed and invariable; that situations may be resolved or diffused through the intervention of staff, and finally that there has to be some reliance on the judgment of front-line officers in assessing the degree of risk to a particular inmate at a given time. That said, while these events transpired in a relatively short time frame, and in the absence of factors like inmate incompatibility, I find that the possibility of harm to Mr. Miclash in the circumstance, was not unpredictable, to the contrary.

      Ms. Vankoughnett is capable, I am sure. She was however, new to Joyceville, to a medium security culture and contextual experience does a great deal to inform judgment.    On the afternoon in question, she had been at Joyceville for a month. This was her first experience of the report of a cell theft, by an inmate, at Joyceville. While she was unaware of prior attempts by Mr. Boston to intervene, she was told by Mr. Miclash of the multiple prior thefts. I accept that Mr. Miclash did not ask her to be removed from the range or tell her that he felt threatened.    She concluded too readily however, that she had resolved the problem by offering to double lock the cell and that there was no more to be said or done. Mr. Niemann's evidence is to the effect that in such circumstances, an experienced officer would pursue the matter further and investigate the complaint. Ms. Vankoughnett apparently was not live to any potential fallout from Mr. Miclash's complaint. She made nothing of the fact that Mr. Boston, who conveniently turned up at the security office while Mr. Miclash was there, was also an inmate of the range, who knew first hand, that Mr. Miclash was reporting a cell theft at the range. She apparently relied completely on Mr. Miclash's demeanour and Mr. Boston's gratuitous offer.

      Indeed, Ms. Vankoughnett first testified that she did not make much of Mr. Boston's report to her that Mr. Miclash's range-mates wanted him removed. There was, she said, nothing menacing in his tone. In a matter of fact way, he had reported that he wasn't able to do anything and the inmates wanted Mr. Miclash removed. It was not until she was pressed further that Ms. Vankoughnett admitted that, following Mr. Boston's visit, she did know there was an issue to be attended to. This is in sharp contrast to Mr. Niemann's reaction that following Mr. Boston's eviction notice, he would "certainly" have removed Mr. Miclash from the setting.

      Mr. Niemann was unequivocal in his response as to the importance of Mr. Boston's message from the inmates on the range. He did concede that the timing of the response had to yield to exigencies such as the count, the availability of resources and so on. Ms. Vankoughnett clearly felt the count was important but she also had "no idea" that there was a potential hazard to Mr. Miclash. She insisted, a number of times on his demeanour and the fact that Mr. Miclash did not alert her to danger. It is however her judgment that is at issue here. I find that in the circumstances Ms. Vankoughnett had reason to and ought to have been live to the possibility of conflict and further incident, as of the report to her, as a corrections officer, of repeated incidents of theft and ought to have viewed it as a situation that warranted watching.

      I find that she placed undue reliance on the fact that Mr. Boston, who knew first hand of Mr. Miclash's report, happened to be the inmate representative; that these men were not known to be "incompatible"; that Mr. Miclash voluntarily walked back to the range with Mr. Boston. At the time, he could hardly have done otherwise. The fact that Mr. Boston was a perpetrator and likely the cell thief, bears out her undue reliance.

      I conclude that Ms. Vankoughnett, in the circumstances, ought to have known as of being advised of the multiple thefts, that the circumstances called for vigilance, all the more so when Mr. Miclash's report of the theft became, as it were, public by virtue of Mr. Boston's knowledge of it. Her vigilance ought to have become acute on hearing that the other inmates wanted Mr. Miclash out.

      As to whether Ms. Vankoughnett could have been justified in putting off dealing with the matter, until after the tallying of the count, the Crown adduced no evidence as to how many persons were in the security office at the time, or how many were required to be present for the tallying of the count. There is no evidence that resources were not available that could be dispatched to the range to keep a watch-full eye or advise Mr. Miclash of the wishes of his range-mates that he be removed or indeed to more closely or specifically monitor the area. By all indications, no one set their minds to what could be done in the period following the end of the count until Mr. Pellerin and Ms. Vankoughnett were available to meet with Mr. Miclash. I conclude therefore that in the circumstances CSC failed in its duty of vigilance and did not take reasonable care to protect Mr. Miclash.

Damages

      There is consensus between the parties that in consequence of being assaulted, the plaintiff suffered a broken jaw, with temporary loss of hearing, and was treated thereafter for vertigo and tinnitus. The temporary loss of hearing has cleared up as of December 2000.

       Exhibits A and B to the plaintiff's affidavit are dated May 3, 2001 and May 24, 2001, from Doctors Ho and Steinberg respectively. Dr. Ho notes ongoing dizziness such as to preclude Mr. Miclash from working around heavy machinery and states there may be improvement in time. Dr. Steinberg also notes vertigo which he describes as a condition that tends to be intractable, along with tinnitus of the left ear that is stated to be ongoing as at the date of the letter. Dr. Steinberg's advice is for Mr. Miclash to avoid working at heights, if the dizziness persists.

       There is no doubt that the two reports, as tendered, constitute hearsay. Their contents is not the personal knowledge and belief of Mr. Miclash. Doctors Ho and Steinberg are not available to be cross-examined on their reports. I am therefore unable to give them great weight.    The letters attest to some curtailment of Mr. Miclash's activities as at the date of the correspondence. That said, the reports are equivocal and do not attest to the permanent impairment, restriction or curtailment of the activities of the plaintiff. In the absence of evidence of permanent effect to the injuries sustained, I would assess the plaintiff's damages at $12,000.00.

JUDGMENT

1.                    The plaintiff is granted judgment against the defendant for general damages in the amount of $12,000.00.

2.                    In the event the parties are unable to agree, they may make brief representations as to interests and costs within twenty (20) days from the date of judgment.

"Roza Aronovitch"

Prothonotary

Ottawa, Ontario

January 31, 2003

                                                    FEDERAL COURT OF CANADA

                                                                 TRIAL DIVISION

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                             T-1639-00

STYLE OF CAUSE:                           DAVID MICLASH

Plaintiff

- and -

             HER MAJESTY THE QUEEN

Defendant

PLACE OF HEARING:                     TORONTO, ONTARIO

DATE OF HEARING:                       JUNE 3, 2002

REASONS FOR JUDGMENT

AND JUDGMENT BY:                    ARONOVITCH P.

DATED:                                                JANUARY 31, 2003

APPEARANCES:

MR. J. L. HILL                                                                              FOR THE PLAINTIFF                         

MR. D. EDWARDS                                                                      FOR THE DEFENDANT

SOLICITORS OF RECORD:         

Barrister and Solicitor

127 Bishop Avenue

Toronto, Ontario, M2M 1Z6                                                         FOR THE PLAINTIFF

Morris Rosenberg

Deputy Attorney General of Canada

Department of Justice

FOR THE DEFENDANT