McMaster v. Canada, 2009 FC 937

• Judge: Mandamin, J.
• Court: Federal Court (Canada)
• Case Date: March 03, 2009
• Jurisdiction: Canada (Federal)
• Citations: 2009 FC 937;(2009), 352 F.T.R. 255 (FC)

McMaster v. Can. (2009), 352 F.T.R. 255 (FC)

MLB headnote and full text

Temp. Cite: [2009] F.T.R. TBEd. SE.026

Gregory J. McMaster (plaintiff) v. Her Majesty The Queen (defendant)

(T-1761-05; 2009 FC 937)

Indexed As: McMaster v. Canada

Federal Court

Mandamin, J.

September 21, 2009.

Summary:

The plaintiff inmate's running shoes were worn out. The new running shoes provided by the defendant did not fit, so he continued wearing his old running shoes. One day, in the middle of his regular exercise regime, the plaintiff's feet went out from under him. He was wearing his old running shoes which were significantly worn down. He fell on his right knee and tore his medial meniscus ligament. The injury also caused him to fall in the shower and further exacerbate the injury. He sued the defendant for damages based on misfeasance in public office. The defendant claimed contributory negligence.

A Prothonotary of the Federal Court, in a decision reported at 336 F.T.R. 92, allowed the action and assessed damages at $9,000. The Prothonotary held that the plaintiff was 33% contributorily negligent and awarded him $6,000 general damages, pre-judgment and post-judgment interest and costs. The defendant appealed.

The Federal Court dismissed the appeal and awarded costs to the plaintiff.

Crown - Topic 5145

Officials and employees - Liability of officials in tort - Misfeasance - [See second and third Prisons - Topic 1105.1 ].

Damage Awards - Topic 130

Injury and death - Leg injuries - Knee - The plaintiff inmate's running shoes were worn out - The new running shoes provided by the defendant did not fit, so he continued wearing his old ones - One day, in the middle of his regular exercise regime, the plaintiff's feet went out from under him - He fell on his right knee and tore his medial meniscus ligament - The injury also caused him to fall in the shower and further exacerbate the injury - Further, his evidence was that because of the injury he had put more stress on his other knee - He sued the defendant for damages based on misfeasance in public office - A Prothonotary allowed the action, assessed damages at $9,000, held that the plaintiff was 33% contributorily negligent in working out in his worn shoes, and awarded him $6,000 general damages - The Federal Court declined to disturb the Prothonotary's findings on causation and damages - See paragraphs 64 and 65.

Damage Awards - Topic 136

Injury and death - Leg injuries - Ligament injuries - [See Damage Awards - Topic 130 ].

Evidence - Topic 2401

Special modes of proof - Presumptions - Specific presumptions - Inference from failure to call or adduce available evidence - Between March and June 2004, CSC Acting Chief of Institutional Services officer Wherry offered the plaintiff inmate three different pairs of running shoes of differing sizes - Wherry tried to persuade the plaintiff that the shoes were his size - The plaintiff refused them all because they did not fit - He kept wearing his old running shoes - In June 2004, the plaintiff commenced a grievance - He wrote to Allen, the Assistant Warden Management Services on June 14, 2004: "... my current running shoes are worn and offer little support." - Allen met with the plaintiff on July 22, 2004 and had him try on the last pair that Wherry had presented to him - The plaintiff tried them on and told Allen they were not his size, they did not fit, and refused them - The plaintiff finally received the correct sized pair of shoes on December 20, 2004 - Wherry acquired them after Allen directed her to purchase the size 13-4E running shoes from another footwear supplier - Earlier, on July 1, 2004, the plaintiff 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 - He sued the defendant for damages based on misfeasance in public office - A Prothonotary gave no weight to Allen's evidence where she relied on information and belief from Wherry - The Federal Court upheld the ruling - The Prothonotary's adverse inference was that Wherry's testimony would not support the lawfulness of her actions - Rule 81(2) of the Federal Courts Rules provided that an adverse inference could be drawn from the failure to call a witness - There still had 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 - That existed here - See paragraphs 56 to 60.

Prisons - Topic 1105.1

Administration - Prisoners' rights - Property - Clothing and footwear - The Federal Court held that a Prothonotary erred in deciding that the Correctional Services of Canada (CSC) was under a statutory obligation to ensure that "inmates of federal institutions receive certain minimal allotments including one pair of shoes per annum." - The practice of providing inmates with shoes on a yearly basis was a Directive guideline which did not rise to the level of a statutory obligation - The correct statutory duty upon the CSC was an obligation to provide inmates with adequate footwear and replace footwear when it was inadequate (Corrections and Conditional Release Act, sect. 70; Regulations, sect. 83(2)) - See paragraphs 28 to 32.

Prisons - Topic 1105.1

Administration - Prisoners' rights - Property - Clothing and footwear - The Federal Court held that the Correctional Services of Canada (CSC) had a statutory duty to provide inmates with adequate footwear - It appeared that the CSC reviewed the adequacy of footwear at the time that an inmate brought the issue to an institution's attention - Where it did not assess the footwear, it replaced them on a yearly basis in acceptance of an assumption that after a year the footwear was worn - Given that s. 83(2)(d) of the Corrections and Conditional Release Regulations directed that an hour of exercise time had to be provided every day, adequate footwear had to provide support during periods of authorized physical exertion - A CSC officer could be liable for misfeasance in a public office if the officer deliberately or knowingly failed to provide adequate footwear to an inmate when necessary, such as when the inmate's footwear was too worn and inadequate to provide proper support during an inmate's allotted time for exercise - See paragraphs 33 to 37.

Prisons - Topic 1105.1

Administration - Prisoners' rights - Property - Clothing and footwear - Between March and June 2004, CSC Acting Chief of Institutional Services officer Wherry offered the plaintiff inmate three different pairs of running shoes of differing sizes - Wherry tried to persuade the plaintiff that the shoes were his size - The plaintiff refused them all because they did not fit - He kept wearing his old running shoes - In June 2004, the plaintiff commenced a grievance - He wrote to Allen, the Assistant Warden Management Services on June 14, 2004: "... my current running shoes are worn and offer little support." - Allen met with the plaintiff on July 22, 2004 and had him try on the last pair that Wherry had presented to him - The plaintiff tried them on and told Allen they were not his size, they did not fit, and refused them - The plaintiff finally received the correct sized pair of shoes on December 20, 2004 - Wherry acquired them after Allen directed her to purchase the size 13-4E running shoes from another footwear supplier - Earlier, on July 1, 2004, the plaintiff 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 - He sued the defendant for damages based on misfeasance in public office - The Federal Court held that the Correctional Services of Canada (CSC) had a statutory duty to provide inmates with adequate footwear - The tort of misfeasance in a public office concerned the unlawful conduct or omission by a public official who knew his or her actions were unlawful and likely to harm a specific person or group of people - It was different from a claim of negligence or even gross negligence - It contemplated an element of bad faith which was established here by the unexplained and excessive delay - The plaintiff had established misfeasance in public office by 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 supported 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 - See paragraphs 28 to 63.

Prisons - Topic 2521

Negligence - Prison authorities and staff - Standard of care - [See third Prisons - Topic 1105.1 ].

Prisons - Topic 2523

Negligence - Prison authorities and staff - Breach of statutory duty - [See third Prisons - Topic 1105.1 ].

Prisons - Topic 2525

Negligence - Prison authorities and staff - Damages - [See Damage Awards - Topic 130 ].

Torts - Topic 6603

Defences - Contributory negligence - General - Apportionment of fault - General - [See Damage Awards - Topic 130 ].

Torts - Topic 9162

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Misfeasance in or abuse of public office - [See second and third Prisons - Topic 1105.1 ].

Torts - Topic 9164

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Prison authorities - [See second and third Prisons - Topic 1105.1 ].

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, appld. [para. 20].

Uni-Jet Industrial Pipe Ltd. et al. v. Canada (Attorney General) et al. (2001), 156 Man.R.(2d) 14; 246 W.A.C. 14; 2001 MBCA 40, refd to. [para. 30].

O'Dwyer v. Ontario Racing Commission (2008), 238 O.A.C. 364; 2008 ONCA 446, refd to. [para. 38].

Odhavji Estate et al. v. Woodhouse et al., [2003] 3 S.C.R. 263; 312 N.R. 305; 180 O.A.C. 201; 2003 SCC 69, refd to. [para. 45].

Three Rivers District Council et al. v. Bank of England, [2000] 2 W.L.R. 1220; 257 N.R. 1 (H.L.), refd to. [para. 49].

Statutes Noticed:

Corrections and Conditional Release Act, S.C. 1992, c. 20, sect. 70 [para. 22].

Corrections and Conditional Release Act Regulations (Can.), Corrections and Conditional Release Regulations, SOR/92-620, sect. 83(2) [para. 23].

Corrections and Conditional Release Regulations - see Corrections and Conditional Release Act Regulations (Can.).

Authors and Works Noticed:

Canada, Correctional Service of Canada, Commissioner's Directive 352, generally [para. 24].

Counsel:

John L. Hill, for the plaintiff;

Natalie Henein and Susan Keenan, for the defendant.

Solicitors of Record:

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

John H. Sims, Q.C., Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

This appeal was heard at Toronto, Ontario, on March 3, 2009, by Mandamin, J., of the Federal Court, who delivered the following decision on September 21, 2009.