Hermiz v. Canada, (2013) 436 F.T.R. 63 (FC)

• Judge: Hughes, J.
• Court: Federal Court (Canada)
• Case Date: June 27, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2013), 436 F.T.R. 63 (FC);2013 FC 764

Hermiz v. Can. (2013), 436 F.T.R. 63 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2013] F.T.R. TBEd. JL.022

Imad Hermiz (plaintiff) v. Her Majesty the Queen (defendant)

(T-828-09; 2013 FC 764; 2013 CF 764)

Indexed As: Hermiz v. Canada

Federal Court

Hughes, J.

July 9, 2013.

Summary:

Hermiz was on day parole. Less than one month later, an inmate at the prison where Hermiz had been incarcerated told a correctional officer that Hermiz had threatened the inmate's wife. Hermiz's day parole was immediately suspended and he was incarcerated for a further 83 days, until the Parole Board of Canada again released him to continue his day parole. Hermiz had been gainfully employed when his day parole was suspended. He brought an action for damages based on the torts of misfeasance in public office, false imprisonment and negligence. He also alleged that his Charter rights had been breached and that Correctional Services Canada (CSC) was therefore liable for damages.

A Prothonotary of the Federal Court, in a decision reported at (2013), 429 F.T.R. 255, held that there had been no misfeasance by the CSC officers, and the case did not sufficiently engage a breach of Charter rights that warranted an award of damages. However, Hermiz was entitled to damages for false imprisonment. Alternatively, he was entitled to damages for the officers' negligence. Hermiz was awarded damages of $20,000. The Crown appealed.

The Federal Court allowed the appeal and dismissed Hermiz's action.

Crown - Topic 5142

Officials and employees - Liability of officials in tort - Negligence - [See Prisons - Topic 2521 ].

Damages - Topic 106

General principles - Evidence and proof - Onus of proof - Hermiz was out on day parole following his imprisonment for manslaughter - He had secured a job and was working - Following allegations that he had threatened a woman and asked her to smuggle drugs into the prison, his day parole was revoked - Hermiz was interviewed about the allegations three days later, and the revocation was confirmed - Hermiz lost his job - Two months later, the matter was reviewed by the Parole Board of Canada and Hermiz's day parole was restored - Hermiz brought an action for damages based on, inter alia, the parole officers' negligence and false imprisonment - A Prothonotary allowed the action and awarded Hermiz damages of $20,000 - The Federal Court allowed the Crown's appeal and dismissed Hermiz's action - Hermiz bore the burden of proving that the damage claimed was caused by the parole officers' actions - There was no evidence as to whether Hermiz's employer fired him, suspended him, temporarily suspended him, etc. - Hermiz failed to lead evidence as to causation - As to false imprisonment, Hermiz was imprisoned for three days before he was interviewed and the decision to revoke parole was confirmed - No basis for damages was established - See paragraphs 43 and 44.

Damages - Topic 2441

Torts affecting the person - False or unlawful imprisonment - General - [See Damages - Topic 106 ].

Prisons - Topic 443

Actions against prison officers and authorities - Tort - False or arbitrary imprisonment - [See Prisons - Topic 2521 ].

Prisons - Topic 41

General - Duties of prison officers - General - [See Prisons - Topic 2521 ].

Prisons - Topic 2521

Negligence - Prison authorities and staff - Standard of care - Hermiz was convicted of manslaughter and incarcerated - While incarcerated, he was involved in the use and selling of drugs - Hermiz was granted day parole in May 2008 - In June 2008, a fellow inmate (Bolan) was stabbed - Bolan told a correctional officer that his stabbing was related to his wife's refusal to smuggle a package of drugs into the prison - Bolan accused Hermiz of having threatened his wife - Hermiz's parole officer and parole supervisor were advised of Bolan's allegations - Based on the unsubstantiated allegations, the officers suspended Hermiz's day parole - The Parole Board of Canada released Hermiz again in September 2008, concluding that there was no reliable or persuasive information to substantiate the suspension of his parole - Hermiz brought an action for damages based on, inter alia, negligence and false imprisonment - A Prothonotary allowed the action, finding that the officers were overzealous in their response to Bolan's uncorroborated story and failed to take reasonable steps to inquire into and determine whether Hermiz was involved in the incident - The fact that they believed they were acting to protect society did not answer their negligence - The Federal Court allowed the Crown's appeal - A duty of care existed between the officers and Hermiz - However, their duty to the public was paramount - The officers followed the procedures for revoking parole provided for in the Corrections and Conditional Release Act and the Commissioner's Directive - Hermiz did not establish that the officers' actions fell below the standard of care - See paragraphs 17 to 42.

Prisons - Topic 2525

Negligence - Prison authorities and staff - Damages - [See Damages - Topic 106 ].

Torts - Topic 49.25

Negligence - Standard of care - Particular persons and relationships - Prison authorities and staff - [See Prisons - Topic 2521 ].

Torts - Topic 65

Negligence - Causation - Evidence and proof - [See Damages - Topic 106 ].

Torts - Topic 9164

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Prison authorities - [See Prisons - Topic 2521 ].

Cases Noticed:

McMaster v. Canada (2009), 352 F.T.R. 255; 2009 FC 937, refd to. [para. 15].

Hill et al. v. Hamilton-Wentworth Regional Police Services Board et al., [2007] 3 S.C.R. 129; 368 N.R. 1; 230 O.A.C. 260; 2007 SCC 41, refd to. [para. 18].

Syl Apps Secure Treatment Centre v. B.D. - See B.D. et al. v. Children's Aid Society of Halton Region et al.

B.D. et al. v. Children's Aid Society of Halton Region et al., [2007] 3 S.C.R. 83; 365 N.R. 302; 227 O.A.C. 161; 2007 SCC 38, refd to. [para. 19].

River Valley Poultry Farm Ltd. v. Canada (Attorney General) et al. (2009), 248 O.A.C. 222; 95 O.R.(3d) 1; 2009 ONCA 326, refd to. [para. 20].

Turner v. Halifax (Regional Municipality) et al. (2009), 274 N.S.R.(2d) 304; 874 A.P.R. 304; 2009 NSSC 28, refd to. [para. 21].

Turner v. Halifax (Regional Municipality) et al. (2009), 283 N.S.R.(2d) 239; 900 A.P.R. 239; 2009 NSCA 106, refd to. [para. 22].

Tsoutsoulas v. Canada (Attorney General), [2006] O.T.C. 256 (Sup. Ct.), refd to. [para. 23].

Tehrankari v. Canada (Attorney General), [2012] F.T.R. Uned. 190; 2012 FC 332, refd to. [para. 31].

Counsel:

John L. Hill, for the plaintiff;

Shain Widdifield, for the defendant.

Solicitors of Record:

John L. Hill, Cobourg, Ontario, for the plaintiff;

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the defendant.

This appeal was heard at Toronto, Ontario, on June 27, 2013, before Hughes, J., of the Federal Court, who delivered the following judgment and reasons for judgment on July 9, 2013.