Date: 20030117
Docket: T-579-99
Neutral citation: 2003 FCT 41
Ottawa, Ontario, this 17th day of January, 2003
Present: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
JOSEPH WAYNE ISADORE BENARD
Plaintiff
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
and CORRECTIONAL SERVICE CANADA
Defendants
REASONS FOR ORDER AND ORDER
[1] The defendants, Her Majesty the Queen in Right of Canada and Correctional Service Canada, applied, pursuant to Rules 213(2), 216 and 369 of the Federal Court Rules, 1998 for:
(a) an Order that the defendants be granted summary judgment dismissing the plaintiff's statement of claim;
(b) costs of this motion;
(c) such further and other relief as this Honourable Court may deem just.
[2] For the reasons set out in the following, I am persuaded that the Order requested should be granted.
Background
[3] The plaintiff, Joseph Wayne Isadore Benard, has been an inmate with Correctional Services Canada ("CSC") since 1992. On October 19, 1994 while in custody at Stony Mountain Institution ("SMI"), the plaintiff was assaulted in his cell. On April 21, 1999, the plaintiff filed a Statement of Claim alleging that:
1. SMI failed to provide appropriate medical treatment and failed to transfer the plaintiff to an institution where appropriate treatment was available, in breach of the plaintiff's right to life, liberty and security of the person guaranteed under Section 7 of the Canadian Charter of Rights and Freedom;
2. SMI failed to provide the plaintiff with a safe and secure environment, particulars of which are as follows:
(i) refusing to place the plaintiff into protective custody when requested to do so;
(ii) failing to monitor the plaintiff and Ellery Corbett and others associated with him and ensuring that these non-compatible parties had no contact within the general population of the institution;
(iii) failing to monitor and secure and keep under surveillance the plaintiff's cell at the time of the assault;
(iv) failing to promptly attend the plaintiff's cell in order to terminate the attack within a reasonable period of time;
(v) failing to investigate the allegations of the plaintiff regarding Ellery Corbett and preparing a plan to provide for the plaintiff's security and safety in the event of an attack.
[4] In their Statement of Defence, the defendants admitted that the attack had taken place as alleged by the plaintiff in his Statement of Claim. However, the defendants denied many of the allegations. Specifically, the defendants denied that the Crown's servants were negligent.
[5] Subsequent to the filing of the Statement of Claim on April 21, 1999 and the Statement of Defence on May 26, 1999, a Notice of Status Review was issued on February 21, 2000 by Cullen J. requiring the plaintiff to show cause why the action should not be dismissed for delay. The plaintiff, on March 10, 2000, filed a submission pursuant to Rule 380 of the Federal Court Rules, 1998 advising this Court that he was not yet ready to set this matter down for a pre-trial hearing.
[6] On April 26, 2000, an Order of this Court was issued by Rouleau J. ordering that:
(1) the parties file and serve their respective affidavit of documents by June 30, 2000;
(2) discoveries shall be concluded by September 30, 2000;
(3) the matter should be brought back to the Court's attention on October 15, 2000.
[7] Notwithstanding this Order, as of April 27, 2001, the parties had not complied with the Order of Rouleau J. By letter dated May 2, 2001 counsel for the defendants provided an explanation of the difficulties encountered with respect to the examination for discovery of the plaintiff. A similar letter was received from counsel for the plaintiff by letter dated May 2, 2001. The parties were advised that Rouleau J. had directed that a Status Report be provided as of June 30, 2001. The parties, in separate letters dated June 28, 2001, advised of certain difficulties in proceeding with this claim but, subject to the resolution of these difficulties, expressed the view that they would be ready for a pre-trial conference and setting of a trial date in the near future.
[8] On September 27, 2001, Rouleau J. heard the parties by teleconference regarding the status of this file and ordered that:
(1) the plaintiff shall have until June 30, 2002 to either produce written affidavit detailing the incident which occurred in 1994 and which is the basis for his claim; or be prepared to subject himself to further Examination for Discovery by the defendants at which time he shall provide details surrounding the incident;
(2) the defendants shall be allowed 30 days notice from the date of the plaintiff indicating he is prepared to subject himself to further Examination for Discovery;
(3) if the plaintiff failed to either produce an affidavit in writing or subject himself to further discovery, the Court will be open to entertain, by the defendants, an application for summary judgment.
Examination for discovery of the plaintiff resumed on July 30, 2002.
[9] One year later, on September 27, 2002, Rouleau J. issued a direction that the Court would be prepared to entertain an application for summary judgment by the defendants.
[10] On October 23, 2002, the defendants filed a Notice of Motion for summary judgment.
[11] On October 23, 2002, the Court received a letter from the plaintiff advising that he needed a lawyer and that legal aid would not support him. He requested the Court to appoint a lawyer of his choosing and to pay for such lawyer. On November 12, 2002, McGillis J. directed that the plaintiff serve and file his Motion Record in respect of this motion on or before December 16, 2002. The plaintiff did not comply with this direction.
Submissions of the Defendants
[12] While agreeing that there was no dispute between the parties regarding the fact that the plaintiff was assaulted, the defendants deny the allegations of the plaintiff. The specifics in respect of each of the allegations are as follows:
Allegation that the plaintiff told CSC staff that he would be beaten, assaulted or killed as a result of a "set-up" by his ex-wife.
[13] The defendants presented statements of the plaintiff stating that he did not remember telling anybody that he might be beaten. Further, he was unable to provide specific details of various incidents that he had referred to earlier.
The allegation that the plaintiff requested to be placed in protective custody or to be otherwise protected from a particular inmate.
[14] Notwithstanding this allegation in the Statement of Claim, during examination for discovery, the plaintiff stated that he had no recollection of ever having requested removal from general population or any other kind of protection.
The allegations that the defendants failed to take any steps to protect the plaintiff.
[15] During the examination for discovery, the plaintiff agreed that he had not requested to be placed in protective custody. Further, he was unable to provide any details to support his allegation that the "people in the institution" were aware of the threat against the plaintiff.
The allegation that the plaintiff was assaulted and was not provided with proper medical care and treatment.
[16] During examination for discovery, the plaintiff admitted that he did not sign the "Release of Information Consent Form", the document required to obtain the treatment he was seeking. In addition, the plaintiff was unable to provide any information on how quickly CSC responded to his injuries.
[17] In summary, the defendants argue that there is an absence of reliable evidence to support the plaintiff's case.
Submissions of the Plaintiff
[18] No reply submissions were filed by the plaintiff.
Analysis
[19] Pursuant to Rule 216, on a motion for summary judgment, a defendant must establish that there is no genuine issue for trial with respect to the Statement of Claim. The general principles governing the availability of summary judgment are set out in Granville Shipping Co. v. Pegasus Lines Ltd. S.A., [1996] 2 F.C. 853 (F.C.T.D.). Specifically, Tremblay-Lamer J. stated those principles, at paragraph 8, as follows:
1. the purpose of the provisions is to allow the Court to summarily dispense with cases which ought not proceed to trial because there is no genuine issue to be tried;
2. there is no determinative test ... but Stone J.A. seems to have adopted the reasons of Henry J. in Pizza Pizza Ltd. v. Gillespie (1990), 75 O.R. (2d) 225 (Gen. Div.). It is not whether a party cannot possibly succeed at trial, it is whether the case is so doubtful that it does not deserve consideration by the trier of fact at a future trial;
3. each case should be interpreted in reference to its own contextual framework... ;
4. provincial practice rules (especially Rule 20 of the Ontario Rules of Civil Procedure, R.R.O 1990, Reg. 194) can aid in interpretation;
5. this Court may determine questions of fact and law on the motion for Summary Judgment if this can be done on the material before the Court ... ;
6. on the whole of the evidence, summary judgment cannot be granted if the necessary facts cannot be found or if it would be unjust to do so ... ;
7. in the case of a serious issue with respect to credibility, the case should go to trial because the parties should be cross-examined before the trial judge ... The mere existence of apparent conflict in the evidence does not preclude summary judgment; the Court should take a "hard look" at the merits and decide if there are issues of credibility to be resolved.
(citations omitted)
[20] It is significant that the plaintiff did not file any response to this motion. However, this failure of the plaintiff is not, in my view, determinative. In order to grant summary judgment, I must still satisfy myself that, based on a review of all the material filed, there is no genuine issue for trial with respect to the plaintiff's claim.
[21] The claim of the plaintiff is dependent, almost exclusively, on the facts that he put forward. In this case, I have taken a "hard look" at the merits and am of the view that the record is clear and does not require further examination. The plaintiff's responses during the examination for discovery were in almost complete contradiction to those in the Statement of Claim. The defendants have established that the allegations of the plaintiff cannot be supported by the evidence in this matter. Even if the plaintiff had filed a response to this motion, it would have been very difficult to counter the contradictory statements provided throughout the examination for discovery.
[22] Accordingly, I am satisfied that this case is so doubtful that it does not deserve consideration by the trier of fact at a future trial. There is no genuine issue for trial. The plaintiff's Statement of Claim will be dismissed. However, in the exercise of my discretion, no costs will be awarded in respect of this motion.
ORDER
THIS COURT ORDERS that the plaintiff's Statement of Claim is dismissed.
"Judith A. Snider"
JUDGE
Ottawa, Ontario
January 17, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-579-99
STYLE OF CAUSE: Joseph Wayne Isadore Benard v. Her Majesty the Queen
in Right of Canada and Correctional Services Canada
MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES
REASONS FOR ORDER AND ORDER OF:
THE HONOURABLE MADAM JUSTICE SNIDER
DATED: January 17, 2003
WRITTEN REPRESENTATIONS BY:
Mark G. Mason FOR DEFENDANT
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney General of Canada FOR DEFENDANT
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