Date: 20090921
Docket:
T-1761-05
Citation:
2009 FC 937
Ottawa, Ontario, September 21,
2009
PRESENT: The
Honourable Mr. Justice Mandamin
BETWEEN:
GREGORY J.
McMASTER
Plaintiff
and
HER MAJESTY
THE QUEEN
Defendant
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an appeal by the Defendant from an October 14, 2008 judgment by Prothonotary
Aalto finding the Correctional Services of Canada (CSC) liable for misfeasance
in public office. The Defendant asks this Court, pursuant to Rule 51(1) of the
Federal Courts Rules, SOR 98-106 to grant the appeal, set aside the
Prothonotary’s decision, dismiss the Plaintiff’s action and award costs.
[2]
The
Plaintiff, Mr. Gregory McMaster, is serving a sentence of life imprisonment for
second degree murder. He requested a replacement pair of running shoes, size
13-4E from CSC. He received a replacement pair nine months later. In the
interim, he incurred a knee injury while exercising wearing his old running
shoes. He successfully sued CSC for misfeasance in public office for its delay
in providing replacement footwear.
[3]
The
Defendant appeals the decision of the Prothonotary on a number of grounds
including errors of law and errors of mixed fact and law.
BACKGROUND
[4]
Collins
Bay Institution issued Mr. McMaster a pair of size 13-4E New Balance running
shoes in January 2003 while he was incarcerated there. On July 17, 2003 he was
transferred to Fenbrook Institution, a medium security facility. In March of
the following year Mr. McMaster requested a replacement pair of New Balance
running shoes. On March 10, 2004, CSC Acting Chief of Institutional Services
officer Ms. Cathy Wherry confirmed Mr. McMaster’s shoe size as 13-4E and
advised she would order his running shoes. He did not receive the replacement
size 13-4E running shoes until December 20, 2004.
[5]
Ms.
Wherry was the Acting Chief of Institutional Services at Fenbrook Institution
between January and September 2004. She had a range of responsibilities,
including procuring clothing and footwear for inmates.
[6]
Between
March 2004 and June 2004, Ms. Wherry offered Mr. McMaster three different pairs
of running shoes of differing sizes, size 13 Brooks in early May, size 14
Brooks at a later meeting, and a third pair of Brooks on June 7. Ms Wherry
tried to persuade Mr. McMaster the shoes were his size. Mr. McMaster refused
them all because they did not fit. At the last meeting on June 7 the Plaintiff
says Ms. Wherry told him, “you’ll be lucky to get a pair that fits before
you’re released.” During this time, he kept wearing his old running shoes.
[7]
In
June 2004 Mr. McMaster commenced a grievance. He wrote to Ms. Annette Allen,
the Assistant Warden Management Services on June 14, 2004, “…my current running
shoes are worn and offer little support.” Ms. Allen met with Mr. McMaster on
July 22, 2004 and had him try on the same Brooks running shoes Ms. Wherry
presented on June 7. Mr. McMaster tried them on and told Ms. Allen they were
not his size, they did not fit, and refused them.
[8]
Mr.
McMaster finally received the correct sized pair of shoes on December 20, 2004.
Ms. Wherry acquired them after Ms. Allen directed her to purchase the size
13-4E running shoes from another footwear supplier.
[9]
Earlier,
on July 1, 2004, Mr. McMaster injured his right knee while engaged in a
vigorous exercise workout. He attributed the cause of his injury to the lack
of adequate support provided by his old running shoes that caused his right
foot to invert when stepping back in the course of his exercise regime.
[10]
After
his injury, Mr. McMaster pursued this lawsuit against the CSC. He claimed
damages for misfeasance in a public office. He accused institutional staff of
the CSC of “ignoring the plaintiff’s need for special shoes when the staff at
Fenbrook Institution knew or should have known that the plaintiff would suffer
as a result of the refusal or neglect to order special shoes.”
[11]
Mr.
McMaster proceeded by way of a simplified action under Rule 50(2) Federal
Courts Rules. In a simplified action, the parties present evidence by
affidavit. Affiants may be cross-examined on their respective affidavits in
the trial before a prothonotary.
[12]
The
Plaintiff presented affidavit evidence and was briefly cross-examined at
trial. His one witness, Ms. Cristol Smyth, a chiropodist, gave expert evidence
about the worn condition of his old running shoes and provided an opinion on
the lack of support for the foot provided by the worn shoes. This affidavit
was accepted at trial and admitted for the truth of the matters stated without
cross-examination.
[13]
Two
witnesses provided affidavits for the Defendant and they were cross-examined
during the trial. The witnesses were Ms. Annette Allen, Assistant Warden, and
Ms. Susan Groody, Chief of Health Services at Fenbrook and the neighbouring
Beaver Creek Institution. The Defendant did not call on Ms. Wherry to provide
affidavit evidence for the Defendant even though she was still an employee of
the CSC.
[14]
The
parties also agreed the documentation in the file can be taken for the truth of
the matters stated. The running shoes worn by the Plaintiff at the relevant
times were admitted as an exhibit after identification by Mr. McMaster.
DECISION
UNDER APPEAL
[15]
The
Prothonotary found the CSC liable for damages arising from the tort of
misfeasance in public office. He gave no weight to the evidence of Ms. Groody
and Ms. Allen where they relied on information and belief from Ms. Wherry
because she was not called to provide affidavit evidence. Pursuant to Rule
81(2) of the Federal Courts Rules, Prothonotary Aalto drew an adverse
inference, concluding Ms. Wherry’s evidence would not support the lawfulness of
her actions. Based on the evidence, the Prothonotary found Ms. Wherry acted
unlawfully in contravention of her statutory obligations as a public officer.
He further found the Defendant was aware the failure to provide the proper
running shoes could cause harm to Mr. McMaster.
[16]
Prothonotary
Aalto also found Mr. McMaster’s injury could be attributed to inadequate
support from his worn sneakers. He also found the Plaintiff contributed to his
injury by engaging in vigorous workouts when he was wearing worn out shoes.
[17]
The
Prothonotary awarded Mr. McMaster damages for pain and suffering, pre and post
judgment interest on the amount, and costs. Because he found Mr. McMaster was
partially liable due to contributory negligence, the Prothonotary lowered the
damages award to $6,000 from $9,000.
ISSUES
[18]
The
Defendant raises the following issues in this appeal motion:
a.
Did
the Prothonotary err in law by:
i.
finding
there was a statutory obligation to provide replacement shoes to federal
inmates, including the Plaintiff, on an annual basis;
ii.
drawing
an adverse inference against the Defendant for not calling Cathy Wherry as a
witness in defence of the actions;
iii.
discounting
the entirety of the Defendant’s evidence sworn on information and belief;
iv.
applying
an incorrect legal test for misfeasance in a public office;
b. Did the
Prothonotary err in fact and law by:
i.
failing
to correctly apply the elements required for the tort of misfeasance in a
public office to the evidence before him;
ii.
inferring,
in the absence of evidence to support such inference, that Cathy Wherry had the
requisite awareness of an unlawful act and awareness that harm was likely to
result from that act to make out misfeasance, and
c. Did the
Prothonotary err in law and in fact by finding that the Defendant’s conduct
caused the Plaintiff’s injury?
[19]
In
my view, the issues which are dispositive of this appeal are:
1. Did
the Prothonotary err in law by failing to correctly identify the elements
required for the tort of misfeasance in a public office?
2. Did
the Prothonotary err in findings of fact?
3. Is
the Defendant otherwise liable for misfeasance in a public office on the
evidence before the court?
STANDARD
OF REVIEW
[20]
The
Prothonotary’s decision in this case is a decision on the substantive merits of
the action. It is, stated simply, a judgment rendered after a trial, albeit a
simplified one. As such the decision is subject to the standard of review set
out in Housen v. Nikolaisen, 2002 SCC 33.
[21]
In
Housen, Justice Iacobucci and Justice Major writing for the Supreme
Court of Canada found with regard to an appeal of a trial judge’s findings the
standard of review on a question of law is correctness. On findings of fact,
they stated, “…where the issue on appeal involves the trial judge's
interpretation of the evidence as a whole, it should not be overturned absent
palpable and overriding error.” Housen at para 36. Finally, when the
application of facts to that legal test is the subject of review, they held the
more stringent standard of review applies. That is, when the question involves
mixed fact and law, it should not be overturned absent palpable and overriding
error.
LEGISLATION
[22]
The
CSC is required by legislation to provide for a safe and healthful environment
for inmates in Canada’s penitentiaries. Section 70 of the Corrections
and Conditional Release Act, 1992, c. 20 (CCRA) states:
|
Living conditions, etc.
70. The Service shall take all reasonable steps to
ensure that penitentiaries, the penitentiary environment, the living and
working conditions of inmates and the working conditions of staff members are
safe, healthful and free of practices that undermine a person’s sense of
personal dignity.
|
Conditions de vie
70. Le Service prend toutes mesures utiles pour que le
milieu de vie et de travail des détenus et les conditions de travail des
agents soient sains, sécuritaires et exempts de pratiques portant atteinte à
la dignité humaine.
|
[23]
By
regulation, the CSC is tasked with providing adequate clothing for inmates.
Section 83(2) of the Corrections and Conditional Release Regulations,
(SOR/92-620) (CCRR) states:
|
83.(2) The Service shall take all
reasonable steps to ensure the safety of every inmate and that every inmate
is
(a)
adequately clothed and fed;
(b)
provided with adequate bedding;
(c)
provided with toilet articles and all other articles necessary for personal
health and cleanliness; and
(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.
|
83.(2)
Le Service doit prendre toutes les mesures utiles pour que la sécurité de
chaque détenu soit garantie et que chaque détenu :
a) soit habillé et nourri convenablement;
b) reçoive une literie convenable;
c) reçoive des articles de toilette et tous autres objets nécessaires à
la propreté et à l'hygiène personnelles;
d) ait la possibilité de faire au moins une heure d'exercice par jour, en
plein air si le temps le permet ou, dans le cas contraire, à l'intérieur.
|
[24]
Included
in the clothing allowance are shoes provided to the inmates. The
Commissioner’s Directive 352 provides:
Each Regional Deputy Commissioner shall
determine any restrictions, and the quantity and frequency of issue, for these
items. … shoes, running (general purpose shoes)
[25]
The
evidence of the Plaintiff is that he has been provided shoes annually.
Assistant Warden Ms. Allen indicated at Fenbrook Institution the annual
replacement of shoes is the usual practice.
ANALYSIS
Did the Prothonotary err in law by
failing to correctly identify the elements required for the tort of misfeasance
in a public office?
[26]
The
CSC submits there is no statutory obligation to provide shoes on an annual
basis to inmates. It asserts Directive 352 is a policy document which serves
as a guideline for the CSC. The statutory scheme only requires the CSC take
reasonable steps to ensure inmates’ health and safety.
[27]
The
CSC submits the Prothonotary erred by concluding new shoes are required
annually; it insists this conclusion is not supported by the legislative
provisions. The CSC submits the Prothonotary drew an erroneous conclusion that
there was a statutory obligation to provide replacement shoes to federal
inmates on an annual basis when he stated:
“The guidelines and directives issued under
section 70 of the Corrections and Conditional Release Act, require that
inmates of federal institutions receive certain minimal allotments including
one pair of shoes per annum.”
The CSC
submits the regional interpretation of the Commissioner’s Directive cannot have
any force of law and consequently rise to a required statutory obligation.
Statutory
Obligation
[28]
Section
70 of the CCRA require the CSC take “all reasonable steps to ensure that ... the living and
working conditions of inmates … are safe, healthful and free of practices that
undermine a person’s sense of personal dignity.” Subsection 83 (2)(a) of
the CCRR directs the CSC to “take all reasonable steps to ensure the safety of every
inmate and that every inmate is … adequately clothed”. The repeated use of the
words “reasonable steps” provides the CSC a measure of discretion within the
parameters of safe living conditions and, more specifically, adequate clothing.
[29]
The
Commissioner’s Directive 352 does not unequivocally require institutions to
issue new shoes annually. Each region has the authority to decide how often
shoes are replaced and how many pairs of shoes are issued.
[30]
In
order to prove a breach of authority, the authority and obligation must be
found in a statute: Uni-Jet Industrial Pipe Ltd. v. Canada (Attorney
General),
2001 MBCA 40, at paragraphs 37 and 38. In that decision Justice Kroft
for the Manitoba Court of Appeal stated:
“There is, however, nothing that gives
the manual or any part thereof the status of a regulation or a Commissioner’s
standing order. It does not have the force of law and cannot be the basis of
the torts that were alleged by the plaintiffs. … By itself, it cannot be taken
either as a definition of the standard of care required or as a description of
statutory authority.”
[31]
I
agree the practice of providing inmates with shoes on a yearly basis is a
Directive guideline. It is a guideline that does not rise to the level of a
statutory obligation. But this does not mean the Plaintiff is precluded from
raising a claim of misfeasance in a public office on the facts of this case.
[32]
As
I have already noted, the CSC is required by statute to “take all
reasonable steps to ensure that penitentiaries, the penitentiary environment,
the living and working conditions of inmates … are safe, healthful and free of
practices that undermine a person’s sense of personal dignity.” Further, the
regulations provides “The Service shall take all reasonable steps to
ensure the safety of every inmate and that every inmate is … adequately clothed
and fed”. The effect of the statutory and the complementary regulatory
provisions requires CSC officers take all reasonable steps to provide inmates
with adequate clothing.
[33]
Who is to
decide the adequacy of used footwear? It would appear the CSC reviews its
adequacy at the time an inmate brings the issue to the institution’s attention.
Where it does not assess the footwear, it replaces them on a yearly basis in
acceptance of an assumption that after a year the footwear is worn.
[34]
What
criteria are used to assess if used footwear is inadequate? Given subsection 83 (2)(d)
CCRR directs an hour of exercise time must be provided every day, adequate
footwear must provide support during periods of authorized physical exertion. Shoes
that can’t provide support, because of wear, are inadequate.
[35]
The statutory duty of a CSC officer is to take reasonable
steps to provide replacement footwear when the officer is aware that an
inmate’s footwear is inadequate. That event does not necessarily occur annually.
[36]
A CSC officer may be liable for misfeasance in a public
office if the officer deliberately or knowingly fails to provide adequate
footwear to an inmate when such is necessary, such as when the inmate’s
footwear is too worn and inadequate to provide proper support during an
inmate’s allotted time for exercise.
[37]
I
conclude the Prothonotary erred in law in deciding the CSC was under a
statutory obligation to provide “inmates of federal institutions receive
certain minimal allotments including one pair of shoes per annum.” The correct
statutory duty upon the CSC was an obligation to provide inmates with adequate
footwear and replace footwear when it is inadequate.
[38]
Notwithstanding
the Prothonotary’s error, it is still necessary to examine whether the
Defendant is otherwise liable for misfeasance in public office. In O’Dwyer v. Ontario (Racing Commission) 2008 ONCA 446 Justice
Rouleau decided the trial judge erred in finding misfeasance arising from the
conduct of an official but found that all the necessary elements for
misfeasance in public office were made out when the correct legal test was
applied to the findings of fact made by the trial judge. Here too, the
question arises whether the Defendant is liable for misfeasance in public
office on the facts of this case.
Findings of Fact
[39]
The Parties agreed the documentary evidence was accepted
for the truth of its contents and the expert affidavit of Ms. Smyth, the
chiropodist, was accepted for the truth of its contents.
[40]
The Prothonotary had the benefit of viewing the witnesses
when they were cross-examined. He conducted a thorough and careful review of
the evidence.
[41]
The standard of review for the trial judge's
interpretation of the evidence as a whole is “…it should not be overturned
absent palpable and overriding error.” Housen at para 36.
[42]
On
review of the evidence, I do not find palpable and overriding error in the Prothonotary’s
findings of fact. I differ in his conclusion with regard to whether the Acting
Chief of Institutional Services, Ms. Wherry, was singly responsible for an
unlawful exercise of statutory power for reasons I will set out later.
[43]
I
now turn to the question of whether the Plaintiff has succeeded in his claim
for misfeasance in public office on the facts of this case.
Misfeasance
in a Public Office
[44]
To find an individual official knowingly committed an
unlawful act with the knowledge it would cause harm to an inmate is a serious
allegation. It requires a close and careful examination of the evidence
proving each element of the tort of misfeasance in a public office.
[45]
Justice Iacobucci writing for the Supreme Court of Canada
set out the defining elements of the tort of misfeasance in a public office in Odhavji
Estate v. Woodhouse 2003 SCC 69. The required elements stated in Odhavji
at para. 23 are:
·
to
identify a particular public officer for which each element of the claim is
proven on a balance of probabilities, including;
·
that
the public officer engaged in deliberate and unlawful conduct;
·
that
the public officer was aware that his or her conduct was unlawful; and
·
that
the public officer was aware that his or her conduct was likely to harm the
plaintiff.
[46]
Justice Iacobucci categorized the tort of misfeasance: the
first involves conduct by a public officer specifically intending injury to a
person or class of people; the second involves a public officer acting with
knowledge that he or she has no power to do the act complained of and that act
is likely to injure someone. Justice Iacobucci identified two elements common
to both. He stated:
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.
[47]
Justice Iacobucci also noted:
“… misfeasance in a public office is an
intentional tort that requires subjective awareness that harm to the plaintiff
is a likely consequence of the alleged misconduct. At the very least,
according to a number of cases, the defendant must have been subjectively
reckless or wilfully blind as to the possibility that harm was a likely
consequence of the alleged misconduct.” Odhavji at para 38
[48]
Justice
Iacobucci limited the extent “subjectively reckless or wilfully blind” may
extend misfeasance in public office by deciding the phrase “ought to have
known” should be struck the from the Odhavji statement of claim. The
terms “subjectively reckless or wilfully blind” require an element of knowledge
which is recklessly disregarded or ignored to have application in a claim of
misfeasance against a public official.
[49]
Finally, Justice Iacobucci noted Lord Millett, in Three
Rivers District Council v. Bank of England (No. 3) [2000] 2 W.L.R. 1220, found a failure to
act can amount to misfeasance in a public office in circumstances in which the
public officer is under a legal duty to act. Justice Iacobucci expressly endorsed inclusion in the tort of misfeasance
in a public office the conduct of an officer who “wilfully injures a member of
the public through … a deliberate failure to discharge a statutory duty.” Odhavji
at para 30.
[50]
There is conduct which may give rise to a failure to perform a public duty
but does not reach the level of misfeasance in a public office. The tort is
not directed at a public officer who inadvertently or negligently fails to
discharge the obligations of the office. Nor is the tort directed at a public
officer who because of budgetary constraints has not deliberately disregarded
his or her official duties. Odhavji at para. 26.
[51]
Finally, misfeasance in a public office by an institution
can arise even where the conduct of an individual member of that institution is
lawful. In O’Dwyer, above, an official of the Ontario Racing Commission
told a race track manager that the Plaintiff would not be approved if employed as
a track official. Justice Rouleau found the official’s informal conduct was
not “illegal” since he was obligated to deal with such situations. It was his
action in combination with the Commission’s denial of the plaintiff of any
means of appealing the official’s decision that constituted the unlawful act.
Justice Rouleau found that while the individual official’s conduct did not
constitute an intentional “illegal act”, the conduct of the corporate
Commission taken together with the conduct of the individual officer could form
the basis for a finding of misfeasance in a public office by the corporate
entity.
[52]
The
evidence at trial clearly establishes Ms. Wherry, acting Chief of Institutional
Services and Ms. Allen, Assistant Warden, Management Services are public
officials. They were staff employed at Fenbrook Institution, part of
Corrections Services Canada.
[53]
The
public officials, Ms. Wherry and Ms. Allen, were engaged in the process of
responding to the Plaintiff’s request for replacement footwear. The statutory
obligation upon Ms. Wherry and later assumed by Ms. Allen was to “take all
reasonable steps to ensure that penitentiaries, the penitentiary environment,
the living and working conditions of inmates … are safe, healthful and free of
practices that undermine a person’s sense of personal dignity” and “take all reasonable steps to ensure the safety of every inmate and that
every inmate is … adequately clothed and fed”. The effect of the statutory and
the complementary regulatory provisions requires CSC officers ensure inmates
are provided with adequate clothing including shoes. The obligation to provide
adequate footwear includes replacing an inmate’s shoes when inadequate from wear.
[54]
I am satisfied the Plaintiff’s shoes were worn and in need
of replacement. The expert opinion of Ms. Smyth, the chiropodist, was the Plaintiff’s
shoes were worn and inadequately provided necessary support. Although the
Plaintiff had worn the shoes some six months after his accident, that was due
to the Defendant failing to provide replacement shoes. Ms. Allen acknowledged
during cross-examination the shoes looked much the same as when she saw them at
the meeting in July. Further, the Plaintiff informed Ms. Allen in his June 14th
letter that his shoes were worn. All of which establishes the shoes were worn,
inadequate and in need of replacement. Ms. Allen knew the shoes were worn. I
am satisfied that Ms. Wherry would also know. She met the Plaintiff and would
have observed the condition of his shoes. She placed three orders for
replacement shoes. Accordingly the Defendant’s CSC officials were under an
obligation to provide replacement shoes for the Plaintiff.
The Public
Officer was Aware that Her Conduct was Unlawful
[55]
The
letter of the Chief of Health Services, Ms. Groody, stated wearing a pair of
shoes that do not fit will cause foot problems. However, the documentation does
not demonstrate Ms. Wherry ordered the right size replacement running shoes for
the Plaintiff. Since Ms. Wherry herself measured the Plaintiff’s shoe size,
determined the proper size was 13-4E, and placed the various purchasing orders,
the absence of documentation showing that proper size shoes were ordered for
the Plaintiff can only be explained by her. The handwritten notations on
documents and statements to the Plaintiff that she would order the correct size
shoes do not suffice. The Defendant’s failure to have Ms. Wherry give evidence
is inexplicable. It would seem that she is the one person who could explain
why no documentary evidence exists for a timely order of proper sized
replacement shoes. She was still an employee of the Defendant and could have
been called. The Defendant chose not to call her and is now bound by the
consequences of that decision.
[56]
I
agree with the Prothonotary in giving no weight to the evidence of Ms. Allen
where she relies on information and belief from Ms. Wherry. Prothonotary
Aalto’s adverse inference was that Ms. Wherry’s testimony would not support the
lawfulness of her actions. Rule 81(2) of the Federal Courts Rules
provides that an adverse inference may be drawn from the failure to call a
witness. There still needs to be some evidence, if only prima facie, to
support a finding of fact that the Defendant’s officials were aware that their
actions were unlawful. In my view, the evidence supports an inference that
they were aware their actions were unlawful.
[57]
Ms.
Allen was aware the shoes were worn and inadequate. The Plaintiff’s letter to
her on June 14, 2004 directly informs her:
“… As Ms. Whirry [sic] pointed out in her
attempts to have me take ill fitting shoes my current running shoes are worn
out and offer little to no support.
…
Although I’m fairly confident that Ms.
Whirry [sic] will not appreciate that I have contacted you on this matter I
have been left with little to no choice. Three full months have passed since I
initially requested my annual pair of running shoes. It is my sincere hope
that not only will I be provided with a pair of running shoes A.S.A.P.
but I will not experience any unwarranted antagonism for having pursued this
matter.” (emphasis added)
Ms. Allen would have been aware the
Plaintiff required replacement shoes yet she did not meet with the Plaintiff
until July 22, three weeks after his injury. She presented him with shoes
previously presented by Ms. Wherry which the Plaintiff had previously refused because
they do not fit. She took no further steps to obtain proper sized replacement
shoes until November 2004.
[58]
Ms.
Allen testified to meeting with the Plaintiff on July 22, 2004 and observed him
try on the shoes she says were size 13W. These were the size 13 shoes he says
Ms. Wherry provided to the Plaintiff earlier in June. In her estimation the
shoes fit. The Plaintiff thought otherwise on the two occasions he tried them,
and refused them again because they did not fit.
[59]
The
Prothonotary preferred the evidence of the Plaintiff. He had the benefit of
observing the Plaintiff and Ms. Allen testify. I see no reason to differ from the
Prothonotary in his assessment of their evidence. The shoes in question did
not fit.
[60]
I
am satisfied on the evidence that Ms. Wherry and Ms. Allen were well aware that
the Plaintiff’s footwear was worn and inadequate. Yet, they took nine months
to replace a pair of old shoes. The Defendant’s officers’ prolonged delay in
obtaining adequate replacement footwear of the correct size was contrary to the
statutory obligation and they would know such excessive delay was unlawful.
The Public
Officer Was Aware That Her Conduct Was Likely To Harm the Plaintiff
[61]
I have
concluded Ms. Wherry was aware the Plaintiff’s shoes were inadequate; she
should have known the Plaintiff was risking injury by exercising on inadequate
shoes. If she was not, it was only because she was subjectively reckless or
wilfully blind to the likelihood the plaintiff would injure himself if the
situation persisted. However, the responsibility of securing running shoes for
the Plaintiff passed to Ms. Allen who took over in June 2004.
[62]
The
Plaintiff advised Ms. Allen in his June 14 letter that his shoes were worn and
did not provide adequate support. He asked for replacement shoes A.S.A.P.
which presumably means as soon as possible. Ms. Allen was therefore aware of
the condition of his footwear and the need for replacement.
[63]
Ms.
Allen acknowledged on cross-examination that worn out shoes provide less
support and could cause damage. In these circumstances, Ms. Allen’
acknowledgement suffices to establish she had the requisite knowledge the delay
in provision of adequate footwear for the Plaintiff was likely to cause him
harm.
Causation and Damages
[64]
The
medical evidence indicated the Plaintiff incurred a tear in the medial meniscus
in his right knee. His medical diagnostic confirming the nature of the injury.
He did have an intervening slip in the shower after his injury on July 1, 2004.
The Defendant had the opportunity to cross-examine the Plaintiff on causation
but did not. As a result, the Defendant cannot complain that the Prothonotary
accepted the Plaintiff’s explanation of how and when his injury occurred.
[65]
Given
the care the Prothonotary took in his detailed review of the evidence, the lack
of any cross-examination of the Plaintiff at trial by the Defendant on the
question of causation, and the higher standard for review required for setting
aside a finding of mixed fact and law at trial, I would not disturb the
Prothonotary’s findings on causation and damages.
CONCLUSION
[66]
The
tort of misfeasance in a public office concerns the unlawful conduct or
omission by a public official who knows his or her actions are unlawful and
likely to harm a specific person or group of people. It is different from a
claim of negligence or even gross negligence. It contemplates an element of
bad faith which has been established in this case by the unexplained and
excessive delay.
[67]
The
Plaintiff presented sufficient evidence to establish the misfeasance in public
office on the part of the CSC. The Defendant’s officers were public
officials. They were aware the Plaintiff was in need of replacement footwear
and they had a statutory duty to act. The unexplained excessive delay supports
the inference that they were aware they were acting unlawfully in not complying
with the statutory obligation. The CSC officers knew harm could result and it did.
[68]
The
appeal of the Defendant is dismissed.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1. the Defendant’s
appeal is dismissed;
2. the Plaintiff is
granted costs of this motion.
“Leonard
S. Mandamin”
Email this Content