Court of Appeal orders new trial due to lower-court judge’s insufficient reasons

Case addresses proper approach to Crown liability, says lawyer

Court of Appeal orders new trial due to lower-court judge’s insufficient reasons
Ian MacLeod

The Court of Appeal has ordered a new trial in a civil case concerning Crown liability, finding the lower-court judge’s reasons too short, unclear and insufficient for a meaningful appellate review.

“The reasons, at a mere 14 pages, do not do justice to the record, nor to the arguments,” said Court of Appeal Justice Peter Lauwers, writing the decision on behalf of his colleagues Justices David Brown and Ian Nordheimer.

Bruno v. Dacosta, 2020 ONCA 602 was a rare occurrence of a civil appeal being sent back for a new trial, says Ian MacLeod, who acted for the Crown.

“Over the last decade, there's only been a handful of civil trial decisions that have been sent back for another trial In Ontario,” says MacLeod, a lawyer with Lenczner Slaght Royce Smith Griffin LLP.

MacLeod says the decision also reinforces the correct approach to Crown liability: examining the conduct of individuals, rather than the institution or organization as a whole, when determining if there was negligence by the Crown.

“From the perspective of the Crown, the most important thing here is just having another precedent from the Court of Appeal, which emphasizes the correct approach to crown liability,” MacLeod says.

On Aug. 25, 2006, four inmates at the Niagara Detention Centre assaulted Paul Bruno in the washroom of the wing where they were all housed together. In a coma nearly a month, with injuries that affect him to this day, Bruno and his family sued the Crown – represented by the Ministry of Community Safety and Correctional Services – arguing the NDC employees were negligent for failing to take reasonable steps to protect a vulnerable inmate. Bruno’s father was a retired police officer.

Expert witness Dr. Michael Weinrath testified that the NDC breached the standard of care for failing to keep Bruno separate from the inmates who assaulted him and for failing to consult with inmates about possible incompatibilities.

At trial, Superior Court Justice Paul Sweeny found that but for the NDC’s breach of duty, the assaulters could not have acted together and Sweeny was also satisfied that if the NDC officers investigated with whom they were housing Bruno, the assault would not have occurred.

But Sweeny put 15 per cent of the contributory negligence on Bruno’s plate, as he had failed to speak up when he realized he was being housed with an “old enemy,” who was among the inmates who assaulted him.

The Crown appealed, requesting the action be dismissed and Bruno’s side cross-appealed, arguing his level of negligence should be zero.

The Crown argued Sweeny erred in – among other things – placing the negligence at the Ministry level, rather than attaching it to specific employees, contrary to caselaw and the Proceedings Against the Crown Act.

The Court of Appeal found that Sweeny’s “loose language” provided “ample evidence” for both the Bruno’s and the Crown’s arguments. The Court was left with “genuine uncertainty about whether the trial judge fully understood and properly applied the correct legal test for liability.” Sweeny’s reasons were insufficient for a meaningful appellate review and the Justices came to the “regrettable conclusion that there must be a new trial.”

“The reasons provided by the trial judge, at the end of the day, were very short. He didn't really delve into what specific findings he had made on a number of key points. And so, on the appeal, it was really difficult for the appellate court to dig into it and to determine whether the correct legal approach had been taken,” says MacLeod.

“Reluctantly, the Court of Appeal determined that the only fair thing to do in the circumstances was to send the case back down to another trial judge to do a second trial.”

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