Abbott v. Canada, (1993) 64 F.T.R. 81 (TD)

• Judge: Cullen, J.
• Court: Federal Court (Canada)
• Case Date: June 30, 1993
• Jurisdiction: Canada (Federal)
• Citations: (1993), 64 F.T.R. 81 (TD)

Abbott v. Can. (1993), 64 F.T.R. 81 (TD)

MLB headnote and full text

Kevin Abbott (plaintiff) v. Her Majesty The Queen in right of Canada (respondent)

(T-1788-87)

Indexed As: Abbott v. Canada

Federal Court of Canada

Trial Division

Cullen, J.

June 30, 1993.

Summary:

An inmate at a federal penitentiary sued the federal Crown for damages, alleging assault and battery, negligence, unlawful confinement and cruel and unusual punish­ment.

The Federal Court of Canada, Trial Divi­sion, allowed the action and assessed dam­ages accordingly, including a $10,000 award of exemplary damages against the Crown.

Crown - Topic 1531

Torts by and against Crown - Liability of Crown for acts of servants - Prison offi­cials - Abbott, a penitentiary inmate, was struck by shotgun pellets fired by a prison guard in an altercation - Abbott was not involved in the incident, but was nearby - A guard fired a warning shot, then hit Abbott with a second shot - Abbott was sprayed with mace - The Federal Court of Canada, Trial Division, held that the Crown was liable for the assault and bat­tery of Abbott, and for the negligent actions of its servants - The guards could not rely on s. 25 of the Criminal Code to justify the use of force because the force used was excessive - The defence of volenti non fit injuria was also rejected - See paragraphs 131 to 143.

Damage Awards - Topic 628

Torts - Injury to the person - Assault and battery - A 21 year old prison inmate was shot in the feet and legs with shotgun pellets by a prison guard during an alter­cation - He suffered no permanent damage - After pellets removed from his joints he was able to resume his normal activities, including sports - The Federal Court of Canada, Trial Division, held the Crown liable for the assault and battery and awarded $1,000 general damages for initial pain and discomfort - See paragraph 161.

Damage Awards - Topic 630

Torts - Injury to the person - False or unlawful imprisonment - A 21 year old prison inmate was unlawfully placed in segregation for 100 days - The Federal Court of Canada, Trial Division, awarded the inmate $1,000 general damages plus $10,000 punitive damages - See para­graphs 162 to 164.

Damage Awards - Topic 2012

Exemplary or punitive damages - False imprisonment - A prison inmate was shot in the feet and legs with shotgun pellets by a prison guard during an altercation - He was then sprayed with mace - The inmate was not involved in the incident but was nearby at the time - Following the shoot­ing he was unlawfully segregated for 100 days - The Federal Court of Canada, Trial Division, found the Crown liable for un­lawful confinement and awarded the inmate $10,000 exemplary damages - See paragraphs 165 to 170.

Damage Awards - Topic 2022

Exemplary or punitive damages - Crown - [See Damage Awards - Topic 2012 ].

Prisons - Topic 443

Actions against prison officers - Tort - False imprisonment - Abbott, a peniten­tiary inmate, was struck by shotgun pellets fired by a prison guard in an altercation - Abbott was not involved in the incident, but was nearby - Upon his return from hospital he was placed in segregation for a month while an investigation into the incident was being conducted - He was again placed in segregation for over three months when he was charged with a weapons offence respecting the peniten­tiary altercation - He was kept in segrega­tion 15 days after the charge was with­drawn - The Federal Court of Canada, Trial Division, held that the first period of segregation was justified under s. 40 of the Penitentiary Service Regulations, but that the second period of segregation was unlawful and constituted cruel and unusual punishment - See paragraphs 151 to 159.

Prisons - Topic 444

Actions against prison officers - Torts - Assault and battery - Excessive force - [See Crown - Topic 1531].

Prisons - Topic 2520

Negligence - Prison authorities - General [See Crown - Topic 1531 ].

Prisons - Topic 2521

Negligence - Prison authorities - Standard of care - The Federal Court of Canada, Trial Division, held that there is a legal duty of care between prison guards and inmates - Further, there is a sufficient relationship in terms of proximity and neighbourhood to the extent that careless­ness by a guard through acts or omissions would likely cause damage that was rea­sonablly foreseeable - See paragraph 134.

Torts - Topic 3182

Trespass - Assault and battery - Assault - What constitutes - [See Crown - Topic 1531 ].

Torts - Topic 3191

Trespass - Assault and battery - Battery - What constitutes - [See Crown - Topic 1531 ].

Torts - Topic 3252

Trespass - False imprisonment - What constitutes - [See Prisons - Topic 443 ].

Torts - Topic 3253

Trespass - False imprisonment - Defences - Justification - [See Prisons - Topic 443 ].

Torts - Topic 6725

Defences - Consent - Assumption of risk - General - [See Crown - Topic 1531 ].

Cases Noticed:

Frey v. Fedorchuk & Stone, [1950] S.C.R. 517, refd to. [para. 153].

LeBar v. Canada, [1987] 1 F.C. 585; 8 F.T.R. 250 (T.D.), affd. [1989] 1 F.C. 603; 90 N.R. 5 (F.C.A.), refd to. [para. 162].

R. v. MacIntyre, [1983] 1 F.C. 603; 44 N.R. 361 (F.C.A.), refd to. [para. 162].

Saint Jacques v. Canada (1991), 45 F.­T.R. 1 (T.D.), refd to. [para. 163].

Broom v. Cassel & Co., [1972] A.C. 1027 (H.L.), refd to. [para. 166].

Statutes Noticed:

Criminal Code, R.S.C. 1970, c. C-34, sect. 25 [para. 144].

Crown Liability Act, R.S.C. 1985, c. C-50, sect. 2, sect. 3(a) [para. 131]; sect. 9, sect. 10 [para. 132].

Federal Court Rules, rule 482 [para. 10].

Penitentiary Act Regulations (Can.), Peni­tentiary Service Regulations, C.R.C. 1978, c. 1251, sect. 40 [para. 154].

Penitentiary Service Regulations - see Penitentiary Act Regulations (Can.), Penitentiary Service Regulations.

Authors and Works Noticed:

Linden, Canadian Tort Law (4th Ed. 1988), pp. 43 [para. 143]; 46, 47 [para. 152]; 450, 451, 452 [para. 149].

Martin's Annual Criminal Code 1993 (1992), pp. 62, 63 [para. 145].

Counsel:

Timothy Chudy, for the plaintiff;

Charleen Brenzall and Bridget O'Leary, for the defendant.

Solicitors of Record :

Codina & Pukitis, Toronto, Ontario, for the plaintiff;

John C. Tait, Deputy Attorney General of Canada, for the respondent.

This case was heard in Napanee, Ontario, on April 27-30, 1993, before Cullen, J., of the Federal Court of Canada, Trial Division, who delivered the following decision on June 30, 1993.