Hamm v Canada (Attorney General), 2019 ABQB 913

Court of Queen’s Bench of Alberta Citation: Hamm v Canada (Attorney General), 2019 ABQB 913 Date: 20191129 Docket: 1603 18759 Registry: Edmonton Between: Matthew Christopher Hamm, Shawn Curtis Keepness, and Taylor James Tobin Plaintiffs - and - The Attorney General of Canada Defendant _______________________________________________________ Reasons for Decision of W.S.

Schlosser , Master of the Court of Queen's Bench of Alberta _______________________________________________________ [1] This is the Crown’s application for a Stay because there are two Class Actions in Ontario. [2] The Plaintiffs were placed in involuntary segregation to head off a plot to harm three prison guards. A substantive habeas corpus application was heard July 26, 2016. Madam Justice Veit rendered her decision August 9, 2016 (reported at 2016 ABQB 440 ). The Respondents were placed back into the general population August 10, 2016. [3] The Plaintiffs started this action as a result.

It is a bid to turn the facts underlying the writ into a cause of action and damages. [4] This approach is essentially novel; though I acknowledge that some Federal Court decisions have awarded nominal damages in these circumstances (eg see the cases cited at Hamm v Canada (Attorney General) , 2018 ABQB 206 at paras 20-23 ; and contra, the cases cited at para 11). The case came before me as a

Summary Judgment application. [5] I declined to allow the Plaintiffs’ application for

Summary Judgment (reported at 2018 ABQB 206 ). This decision was

affirmed at 2019 ABQB 247. There is an appeal to the Court of Appeal that has been stayed pending this decision. [6] In my view, the appeal presently before the Court of Appeal should be permitted to proceed. List of Authorities By the Parties 1. Brazeau v Canada, 2016 ONSC 7836; 2. Brazeau v Attorney General (Canada), 2019 ONSC 1888; 3. Reddock v Canada (Attorney General), 2018 ONSC 3914; 4. Reddock v Canada (Attorney General), 2019 ONSC 5053; 5. Yee v Aurelian Resources Inc, 2007 ABQB 368; 6. Alberta v Alberta Union of Provincial Employees, 1984 ABCA 130; 53 AR 277; 7.

Reddock v Canada (Attorney General), 2019 ONSC 3196; 8. Adams v Canada (Attorney General), 2015 ABQB 527; 9. RJR-MacDonald Inc v Canada (Attorney General), (SCC), [1994] 1 SCR 311; 10. Canada Labour Code, RSC 1985, c L-2; 11. Alberta Rules of Court, Alta Reg 124/2010; 12. Judicature Act, RSA 2000, c J-2; 13. Class Action Proceedings Act, SA 2003 c C-16.5; 14. Class Proceedings Act, 1992, SO 1992 c 6; 15. Hamm v Attorney General of Canada (Edmonton Institution), 2016 ABQB 440; 16. Hamm v Canada (Attorney General), 2018 ABQB 206; 17. Hamm v Canada (Attorney General), 2019 ABQB 247; 18.

Jardine Lloyd Thompson Canada Inc v Western Oil Sands Inc, 2006 ABQB 933; 406 AR 23; 19. UCANU Manufacturing Corp v Calgary (City), 2015 ABCA 22; 20. Queeneville v Volkswagen Group Canda Inc, 2018 ONSC 1020; 21. Durling v Sunrise Pro-pane Energy Group Inc, 2011 ONSC 266; 22. Vancouver (City) v Ward, 2010 SCC 27, 2 SCR 28; and, 23. Aziga v Attorney General (Canada), Federal Court, T-1978-18, Order, April 23, 2019, Annis J. Analysis

i) Brazeau and Reddock [7] The class actions in Ontario: Brazeau and Reddock, have passed the Certification stage. Both have gone to

SummaryDisposition on the general issues. The Plaintiffs argue that they are not class members in Brazeau (though, to my mind, that is not clear.)The Plaintiffs say that they fit into Reddock. There is, at the very least, some overlap between what is being claimed here and the claimsin Brazeau and Reddock but this claim is wider and approaches the matter from a different angle. The issues in Brazeau and Reddock(taken from the judgments of Perell

J) are detailed below. [8] In Brazeau, 2019 ONSC 1888 (Summary Judgment) we find: [7] … Messrs. Brazeau and Kift are the Representative Plaintiffs for the following class: All offenders in federal custody, who were placed in administrative segregation in a federal institution situated outside Québec afterFebruary 24, 2013, or who placed in administrative segregation in a federal institution anywhere in Canada before February 24, 2013were diagnosed by a medical doctor with an Axis I Disorder (excluding substance use disorders) or Borderline Personality Disorder, who

suffered from their disorder, in a manner described in Appendix A, and reported such during their incarceration, where the diagnosis by a medical doctor occurred either before or during incarceration in a federal institution and the offenders were incarcerated between November 1, 1992 and the present, and were alive as of July 20, 2013. [10] On consent, the following common issues were certified: 1. By its operation and management of the Federal Institutions from November 1, 1992 to the present, did the Defendant breach the Class Members' rights under

section 7 of the Charter ? 2. If so, were its actions saved by

section 1 of the Charter ? 3. By its operation and management of the Federal Institutions from November 1, 1992 to the present, did the Defendant breach the Class Members' rights under

section 9 of the Charter ? 4. If so, were its actions saved by

section 1 of the Charter ? 5. By its operation and management of the Federal correctional facilities from November 1, 1992 to the present, did the Defendant breach the Class Members' rights under

section 12 of the Charter ? 6. If so, were its actions saved by

section 1 of the Charter ? 7. If the answer to any of common issues (1), (3), or (5) is "yes", and the answer to any of (2), (4) and (6) is no, are damages available to the Class under

section 24 of the Charter ? 8. If the answer to common issue (7) is "yes", can the Court make an aggregate assessment of the damages suffered by all Class Members as a part of the common issues trial [summary judgment motion]? [17] The answers to the common issues are as follows: a. By its operation and management of the Federal Institutions from November 1, 1992 to the present, the Federal Government breached the Class Members’ rights under

section 7 of the Charter by the absence of an adequate review process for placements in administrative segregation. In other words, there is a class-wide breach of

section 7 (misdescribed by Messrs. Brazeau and Kift as a breach of s. 9) of the Charter because the review process for administrative segregation contravened the Charter . Without prejudice to any individual Class Member’s claim at an individual issues trial to assert that his or her treatment was contrary to

section 7 of the Charter in his or her particular circumstances, by its operation and management of the Federal Institutions from November 1, 1992 to the present, the Federal Government breached the rights under

section 7 of the Charter of those Class Members: (

a) who were involuntarily placed in administrative segregation for more than thirty days; and (

b) who were voluntarily placed in administrative segregation for more than sixty days. i. In other words, while individual Class Members may have suffered a violation of

section 7 of the Charter by his or her placement in administrative segregation for less than thirty days, there was only a common or systemic breach suffered by two subclasses comprised of Class Members: (

a) who were involuntarily placed in administrative segregation for more than thirty days; or, (

b) who were voluntarily placed in administrative segregation for more than sixty days. ii. As the discussion below will explain, involuntary placements include both placements made at the request of the inmate (genuine voluntary placements) and also placements in which the inmate contrives or engineers an involuntary placement into administrative segregation. b. For the subclasses (which may also be represented by Messrs. Brazeau and Kift as representative plaintiffs), the breach of

section 7 of the Charter is not saved by

section 1 of the Charter . c. By its operation and management of the Federal Institutions from November 1, 1992 to the present, the Federal Government did not breach the Class Members’ rights under

section 9 of the Charter . d. There being no breach, the question of whether the breach of

section 9 of the Charter is saved by

section 1 of the Charter need not be answered. e. Without prejudice to any individual Class Member’s claim at an individual issues trial to assert that his or her treatment was cruel and unusual, by its operation and management of the Federal Institutions from November 1, 1992 to the present, the Federal Government breached the rights under

section 12 of the Charter of those Class Members (

a) who were involuntarily placed in administrative segregation for more than thirty days; and (

b) who were voluntarily placed in administrative segregation for more than sixty days. i. In other words, while individual Class Members may have suffered a cruel and unusual treatment by his or her placement in administrative segregation for less than thirty days, there was only a common or systemic breach suffered by the two subclasses comprised of Class Members: (

a) who were involuntarily placed in administrative segregation for more than thirty days; or, (

b) who were voluntarily placed in administrative segregation for more than sixty days. f. For the subclasses, the breach of

section 12 of the Charter breach is not saved by

section 1 of the Charter . g. Notwithstanding the principles from Mackin v. New Brunswick (Minister of Finance), vindication and deterrence damages are available to the whole class under section 24 (1) of the Charter for the breach of

section 7 of the Charter regarding the inadequate review procedure for placements in administrative segregation (misdescribed by Messrs. Brazeau and Kift as a breach of s. 9). In any event, vindication and deterrence damages are available to the subclasses that suffered a breach of sections 7 and 12 of the Charter .

h. The court can make an aggregate assessment of the Charter damages suffered by the whole class for the breach of

section 7 of the Charter and of the Charter damages of the subclasses that suffered a breach of sections 7 and 12 of the Charter . The court assesses those damages as $20 million, which is to be distributed, less Class Counsel’s approved legal fees and disbursements, in the form of additional mental health or program resources for structural changes to penal institutions as the court on further motion may direct. i. The Federal Government is not liable for punitive damages on a class-wide basis but may be liable for punitive damages after the Charter damages are determined at the individual issues trials. ii.

How the $20 million, less Class Counsel’s approved fees and disbursements, shall be distributed for the benefit of the class and the subclasses shall be determined by a distribution motion brought by Class Counsel. ... (emphasis added, footnotes omitted) [9] In Reddock , 2019 ONSC 5053 , Justice Perell held: ... [14] To complete this introduction and by way of an overview, I foreshadow my decision. For the reasons that follow, I grant the Class Members’

summary judgment motion. I make the following answers to the common issues that are the precise subject matter of this

summary judgment motion: i. Subject to individual Class Members rebutting the statute-bar, there is a six-year limitation period that applies to all claims, and, thus, the start date for the Class Period is March 3, 2011. This means that without prejudice to the claims of Class Members that have an individual rebuttal to the tolling of the limitation period, their claims arising from a placement in administrative segregation before March 3, 2011 are statute-barred. ii. By its operation and management of the Federal Institutions from November 1, 1992 to the present, the Federal Government did not breach the Class Members’ rights under 11 (

h) of the Charter iii. By its operation and management of the Federal Institutions from March 3, 2011 to the present, the Federal Government breached the Class Members' rights under s. 7 of the Charter by the absence of an adequate review process for placements in administrative segregation. iv. By its operation and management of the Federal Institutions from March 3, 2011 to the present, the Federal Government breached the Class Member’s rights under s. 7 of the Charter by placing inmates in administrative segregation for more than fifteen days. v.

By its operation and management of the Federal Institutions from March 3, 2011 to the present, the Federal Government breached the Class Member’s rights under s. 12 of the Charter by placing inmates in administrative segregation for more than fifteen days. vi. The Federal Government’s contraventions of sections 7 and 12 of the Charter are not saved by s. 1 of the Charter . vii. The Class Members are entitled to damages under s. 24 (1) of the Charter . Notwithstanding the principles from Mackin v.

New Brunswick (Minister of Finance), damages are available under s. 24 (1) of the Charter for the breaches of sections 7 and 12 of the Charter . viii. The court can make a partial aggregate assessment for Charter damages for the breaches of sections 7 and 12 of the Charter . The value of the partial Charter damages award, which incorporates a partial award for systemic negligence damages, is $20 million. ix. Pursuant to sections 24 (2) and 24 (8) of the Class Proceedings Act, 1992, I order the aggregate damages award to be applied so that all Class members share in the award equally. x.

The damages award is without prejudice to the Class Member’s claiming at individual issue’s trials: (

a) punitive damages, and (

b) additional Charter damages for the contraventions of the Charter or for systemic negligence. xi. For the systemic negligence claim, it has been proven on a class-wide basis that: (

a) the Federal Government has a duty of care in its operation and management of the Federal Institutions from March 3, 2011 to the present; (

b) that it breached the duty of care; (

c) that the Federal Government’s breach caused damages; and (

d) each Class Member suffered a base level of compensable damages. xii. The Federal Government is not liable for punitive damages on a class-wide basis but may be liable for punitive damages after the Charter damages or the damages for systemic negligence are determined at the individual issue’s trials. ... [30] The class definition is as follows: All persons, except Excluded Persons, as defined below, who were involuntarily subjected to a period of Prolonged Administrative Segregation, as defined below, at a Federal Institution, as defined below, between November 1, 1992 and the present, and were alive as of March 3, 2015 (“the Class”);

Excluded person are: i. All offenders incarcerated at a Federal Institution who were diagnosed by a medical doctor with an Axis I Disorder (excludingsubstance abuse disorders), or Borderline Personality Disorder, who suffered from their disorder in a manner described in Appendix “A”,and reported such during their incarceration, where the diagnosis by a medical doctor occurred either before or during incarceration in afederal institution and the offenders were incarcerated between November 1, 1992 and the present and were alive as of July 20, 2013; and ii.

All persons who were involuntarily subjected to Prolonged Administrative Segregation, as defined below, only at a Federal Institutionsituated in the Province of Quebec after February 24, 2013.

Persons who were involuntarily subjected to Prolonged AdministrativeSegregation at Federal Institutions situated in Quebec and another Canadian province, or at a Federal Institution situated in Quebec priorto February 24, 2013, are not Excluded Persons. “Administrative Segregation” is defined as sections 31 to 37 of the Corrections and Conditional Release Act, S.C. 1992, c. 20. “Prolonged Administrative Segregation” is defined as the practice of subjecting an inmate to Administrative Segregation for a period ofat least fifteen (15) consecutive days. “Federal Institutions” are defined as the system of Federal correctional facilities across Canada that is administered by the CorrectionalService of Canada, a Federal Government body. ... (emphasis added, footnotes omitted) [10] The case now before the Alberta Courts is not about systemic abuse.

Rather, it is about whether an individual decision toplace an inmate in administrative segregation, impugned by a successful habeas corpus application, becomes actionable per se as the tortof false imprisonment.

The outcome could have far-reaching consequences but this is a test case, not a class action. ii) The test for a stay [11] There are two tests that invite our attention: 1) The three-part for an injunctive stay (eg RJR-MacDonald Inc v Canada (Attorney General), (SCC), [1994] 1SCR 311, and, 2) The test that applies to a stay pending the outcome of another proceeding (eg Alberta v Alberta Union of Provincial Employees,1984 ABCA 130; 53 AR 277, Jardine Lloyd Thompson Canada Inc v Western Oil Sands Inc, 2006 ABQB 933; 406 AR 23, (botharbitration proceedings). [12] The remedy is discretionary. [13] This case has two components.

The first is the Plaintiffs’

Summary Judgment application presently before the Court ofAppeal. If the appeal is allowed, that will be the end of the case. The subject matter of the appeal is not something that Reddock orBrazeau will decide. In general terms, those cases have to do with systemic issues and Charter damages, not individual decisions andtort damages. [14] The second component is whether the action ought to proceed if the

Summary Judgment appeal is dismissed. There is a defacto stay of the balance for the action while the

Summary Judgment application plays out. [15] In my view, the

Summary Judgment appeal should be allowed to proceed. This portion of the case is not disqualified on the‘substantial similarity’ analysis, which is the starting point for the second test mentioned above. There is enough difference between theappeal and the issues in Brazeau and Reddock that one would not determine the other. Similarly, there is no irreparable harm under theRJR test. The balance of convenience favours having the appeal proceed. [16] Depending on the outcome of the appeal, the issue of a Stay for the balance of the action can be revisited.

In this event, thePlaintiffs will have to demonstrate that an individual issues trial in the Reddock class action (for example) won’t substantially address theremedies claimed here despite Reddock’s somewhat different ambit. Disposition [17] The Crown’s application is dismissed in part. The balance of the application is adjourned pending the outcome of the appeal. Heard on the 28th day of October, 2019. Dated at the City of Edmonton, Alberta this 29th day of November, 2019.

W.S. Schlosser M.C.Q.B.A. Appearances: Avnish Nanda Mintz Law for the Plaintiffs James Elford/Amy Martin-LeBlanc Department of Justice Canada for the Defendant