2022 MBKB 209, 2022 MBKB 209

Date: 20221107 Docket: CI 11-01-70799 (Winnipeg Centre) Indexed as: Persaud v. His Majesty the King in Right of the Province of Manitoba et al Cited as: 2022 MBKB 209 COURT OF KING’S BENCH OF MANITOBA B E T W E E N: SURUJ PERSAUD, ) Counsel: ) plaintiff, ) ) DANIEL J. HILDEBRAND AND ANDREW MCDONALD ) for the plaintiff - and - ) ) HIS MAJESTY THE KING IN RIGHT OF THE ) PROVINCE OF MANITOBA, THE PROVINCE OF ) MANITOBA, THE GOVERNMENT OF ) MANITOBA, JOHN DOE and JOHN DOE, ) CORAL LANG AND SARAH ZAGOZEWSKI for the defendant ) defendants. ) ) JUDGMENT DELIVERED: ) NOVEMBER 7, 2022 McKELVEY J. I.

BACKGROUND [ 1 ] The plaintiff alleges that on March 5, 2009, he was assaulted while an inmate at the Winnipeg Remand Centre (“WRC”). The assault was said to be undertaken by the defendants Doe who were on-duty corrections officers (“COs”).

The allegations are (Amended Statement of Claim, para. 6): The plaintiff was assaulted on several occasions by the two John Doe defendants by the said defendants, which assaults included but were not limited to pushing the plaintiff’s face into the concrete wall of one of the jail cells, shoving the plaintiff into a steel door, punching the plaintiff in the back, handcuffing the plaintiff and wrenching the plaintiff’s arm behind his back causing the plaintiff to suffer an extreme pain.

It is alleged that serious and permanent injuries were occasioned. [ 2 ] The plaintiff seeks recovery for ongoing shoulder issues, occasioned as a consequence of the COs’ assaultive conduct. The remaining defendants are contended to be vicariously responsible for the actions of the defendants Doe. The plaintiff seeks general, special, and punitive damages as compensation.

The plaintiff identified the responsible CO (defendant Doe) during the course of trial as being Sean Woods (“Woods”). [ 3 ] The defendants deny the allegations and, particularly, that the plaintiff was assaulted by Corrections staff while a WRC inmate. The defendants also deny any injuries or losses were occasioned by the plaintiff at the hands of WRC staff. [ 4 ] The plaintiff was born in Guyana. At the time of the allegations, he was 38 years old.

Since arriving in Canada at age 22, the plaintiff has been regularly employed, first, as a general labourer, then as a baker, and now as a shipping lead hand and forklift driver. The periods of incarceration at WRC were from February 27, 2009 until March 9, 2009, followed by January 11-28, 2010. The plaintiff was previously at WRC in 2002/2003. The WRC Running Record Report (“Running Record”) documented that he was hearing voices, having visions, had anger management issues, and was agitated, particularly with the justice system (Exhibit 2, Tab 1, pp. 6-9).

[ 5 ] The plaintiff underwent an independent psychiatric examination by Dr. Mark Lander because of a workplace issue in 2003 (Exhibit 2, Tab 2). He was under the care of psychologist Dr. Jackie Walker and general practitioner Dr. C. Chung at that time. Previously, the plaintiff had undergone two other psychiatric assessments with Drs. Ingram and McMaster. Dr. Lander documented that it was Dr. Walker’s opinion that the plaintiff suffered from a psychotic illness, required antipsychotic medication and was in need of anger management classes. The plaintiff had explained to Dr.

Lander that, while working at his bakery employment, he had vivid images of himself inside an oven. These types of symptoms, including hallucinations, were found to be suggestive of a psychosis. Dr. Lander opined at pp. 6 and 7): It is interesting to note that while Suruj gives a long history of what appear to be auditory hallucinations and possibly some paranoid beliefs [sic]. During our interview, there was no evidence of any formal thought disorder, no evidence of lack of self-care or hygiene, and no overt negative symptoms in the history he gave me.

However, it seems as if Suruj has spent long periods of his life on the street, relatively isolated, living perhaps a transient lifestyle, even when he had options to live otherwise. He admits to talking to himself and realizes that many people might think that this is rather odd. I could not elicit any clear evidence of paranoia, although his choice to live in his car rather than a shelter might suggest that (in truth, however, there is a lot of theft that takes place in shelters).

I see no evidence of a current major depression or of a specific personality disorder other than possibly Schizotypal Personality Disorder. ... I think a final diagnostic possibility to be considered is that the head injury at age seven may have led to psychotic symptoms or personality change, which then began to manifest itself when he left home at age eleven. At this point, this is essentially of academic interest only because, if he experienced personality changes as a result of this injury, they have now been present for twenty-five years.

Likewise, if this is the cause of psychotic symptoms, the treatment would be the same as if they were ‘functional’... [ 6 ] In 2007, the plaintiff purchased a 16-acre property in rural Manitoba for development purposes. He continues to reside at that location. A Manitoba business, being AAR Orchard Inc. (Exhibit 2, Tab 3), was incorporated in 2008, but was dissolved by the Manitoba Companies Office on July 16, 2010. The purpose of AAR Orchard Inc. was to be a “u-pick it” apple venture on the 16 acre property.

The plaintiff contends he had a business plan in development (Exhibit 2, Tab 42), a partner, as well as financing for the venture. His dream was to pass the farm to his children. However, the business did not become operational because of injuries to both shoulders which were alleged to be the consequence of events that transpired on March 5, 2009, at WRC. II. TRIAL EVIDENCE A. Suruj Persaud (the “plaintiff”) [ 7 ] The plaintiff’s early life included difficulties in school because of what he referenced as daydreams, stress and a lack of focus.

These difficulties may have been precipitated after being struck on the head with a cricket bat at a young age. The plaintiff left home and school at 11 years old to work as a fisher before coming to Canada when he was approximately 20 years of age. As previously indicated, he has been regularly employed. The plaintiff was married in 1992 and has three children. In 2006, he and his wife were divorced which resulted in him living on the streets or in his car for a period time.

He also contended that he has been the subject of racist attitudes, particularly after the events of September 11, 2001, including being referenced as a terrorist [ 8 ] The plaintiff testified that he was arrested on February 27, 2009. (The charge was that, on February 25, 2009, he knowingly uttered a threat to an employee of the Manitoba Public Insurance Corporation (“MPI”) to cause death or serious bodily harm contrary to s. 264.1(1) (

a) of the Criminal Code , R.S.C., 1985, c. C-46 (Exhibit 2, Tab 9)). The allegations arose as a consequence of a dispute with MPI who alleged that the plaintiff was making a false insurance claim for damage he had personally occasioned to his vehicle. The position of MPI caused him significant stress and anger. He testified that he had relayed his thoughts to the MPI employee, being that he “prayed to God, blow you up”. Those comments were said to be an expression of his thoughts and not a threat. [ 9 ] The plaintiff, after processing, was escorted to the fifth floor of the WRC.

However, he refused to go into the designated cell because others were in it. He was then taken to a cell where he was alone, but soon thereafter indicated that there was a foul smell emanating from the heating ventilation system. This was said to have resulted in him being unable to breathe, and causing feelings of nausea. The plaintiff testified that on February 28, 2009, he banged on the cell door with both hands, not in anger, but to seek help because of the impact of the smell.

As a consequence of his actions, seven COs attended, “grabbed him” and put him on the bunk wherein the plaintiff testified that he said, “Satan brought me here.” A code red was called in response to the plaintiff’s actions, which resulted in the preparation of an Incident Report (Exhibit 2, Tab 7) and comments documented in the Running Record (Exhibit 2, Tab 1). (The Incident Report was prepared by a number of the attending COs who recorded that the plaintiff appeared to be dazed, confused and was stating, “I don’t want to be alone; Satan is in here.” The documentation indicated that the plaintiff had hit his head on the cell door window.) The plaintiff’s actions resulted in a transfer to the third floor Medical Unit for observation purposes (3M).

He denied that he articulated the comment that, “Satan is in here”, nor did he purposely bang his head on the cell door window. [ 10 ] The plaintiff testified that he was taken downstairs by a CO to the Medical Unit and lodged in cell 362. That cell had graffiti on the wall which precipitated the plaintiff adding the word “RANIE”. He was soon told by Woods and another CO to clean the entire wall. He declined to do so as he was not responsible for most of the graffiti. The plaintiff said this refusal resulted in him being denied

breaks from his cell or the ability to shower. As a consequence, he had a “bitter argument” with Woods and called him a number of names. Woods responded that the plaintiff’s comments “had hurt his feelings.” The plaintiff testified that approximately 20 minutes later, Woods and CO Mark Chapman came into his cell to move him to cell 366. He was instructed to kneel on his bunk and face the wall. His face was then “smashed” into the wall. He was told to hold his hands behind his back for handcuffing purposes.

When that was accomplished, the handcuffs were wrenched upwards which resulted in his wrists/hands being cut and shoulder injuries. He then experienced being “smashed” into a steel door during his transport downstairs which also caused injury to his shoulders. Further, the plaintiff testified that he was punched and a knee was placed on his neck. [11] On March 6, 2009, six or seven COs attended at his cell and told him they were taking his money from where it was institutionally stored.

The plaintiff also had a telephone court appearance that day before The Honourable Provincial Judge Michel Chartier (as he then was), wherein he testified that he asked for help as a consequence of the assault. (The transcript of proceedings for that court appearance are at Exhibit 2, Tab 10, with no mention of a request for help.) [12] Shortly thereafter, two COs attended to his cell wanting to hear the plaintiff’s side as to what had earlier occurred. The plaintiff provided his version of events.

These COs, after speaking with him, authorized that he be allowed to shower, clothes were provided, as was the ability to make telephone calls.

He made calls to his employer and to his son. [13] The plaintiff was seen by counsellor Ryan Knight on March 6, 2009, for a suicide risk reassessment. (Upon entering the institution, the plaintiff had been assessed as a medium suicide risk which was raised to a high-level after the code red on February 28, 2009 (Exhibit 2, Tab 1, p. 3).) Knight’s comments documented in the Running Record (Exhibit 2, Tab 1, p. 2) were that the plaintiff was “... quite calm and content overall however, did make note of his main concern being an inability to retain legal counsel.” He “... still appeared quite jovial as he often smiled, joked, and laughed throughout conversation.” The comments also indicated that the plaintiff had, “... no problems eating, sleeping, and appears to be functioning well as he takes advantage of all allotted breaks.” The plaintiff was released on March 9, 2009.

He testified that his shoulders hurt, albeit he iced them and hoped the pain and limitations would resolve. [14] The plaintiff saw a Dr. Ross for a broken thumb in 2011 and mentioned his shoulder issues. This resulted in a referral to Dr. James Langridge. An MRI of both shoulders was performed on September 21, 2011 (Exhibit 2, Tab 13). Dr. Langridge had earlier referred the plaintiff for physiotherapy at the Pan Am Clinic, where 10 sessions were undertaken between March and May 2011 (Exhibit 2, Tabs 17 and 18).

The plaintiff indicated that not all physiotherapy sessions at the Pan Am Clinic were documented as he had also attended in 2010 for treatment. [15] The plaintiff was able to return to work as a forklift operator, but testified that he could not continue with his orchard operation. He testified that his condition worsened and ultimately resulted in surgical intervention in 2016 (Exhibit 2, Tabs 22 and 23). The surgery was performed by Dr. Randa L. Berdusco, who determined that the right arm had a full range of motion with his findings being a type 2 SLAP tear with extension into the posterior labrum.

As a consequence of the surgery, the plaintiff was to avoid overhead work and lift only a maximum of 10 pounds. He was off work for six months, and contends he continues to experience pain on a daily basis. The injury has significantly impacted his life. In 2018, the plaintiff suffered a head injury at work (Exhibit 2, Tab 32) and was placed in the Pan Am Concussion Program where he has since been followed by Dr. Michael J. Ellis, along with general practitioner Dr. Aaron Mellon. [16] Under cross-examination, the plaintiff conceded that his daydreams are hallucinations.

That said, what transpired on February 28, 2009, and resulted in the code red was not a daydream. Further, he never said that Satan had been bothering him. He also indicated that people were regularly assaulted in the third world. The plaintiff acknowledged that there was nothing in the court transcript on March 6, 2009, indicating that he had told Judge Chartier about the events of March 5, 2009, nor did he tell his legal counsel on that day that he had been assaulted in his cell.

He testified that he advised the two COs who came to see him on March 6, 2009, of the assault. (There is no documentation in the WRC records to support the happening of that visit.) As indicated, they then facilitated new clothing, the opportunity to shower, and telephone calls. He also advised his employer and son during those telephone calls what had happened to him. [17] The plaintiff testified that he told counsellor Ryan Knight what had occurred and showed him the injuries, albeit nothing was noted in the Running Record.

The plaintiff acknowledges that no mention was made at his January 28, 2010 bail hearing with respect to having been the subject of an assault (Exhibit 2, Tab 11). The plaintiff said that his children and his wife knew of his injuries, pain, cuts and bruises, as would those at his place of employment and neighbours. The plaintiff affirmed that he saw no doctors for his injured shoulders close in time to the incident, as he thought his condition would resolve. It was not until September of 2011 that the shoulder imaging was done at the request of Dr. Langridge (clinical notes of Drs.

Ross and Langridge have not been provided). The plaintiff also underwent physiotherapy treatments at the Health Sciences Centre in 2012 (Exhibit 2, Tab 20) and at the Transcona Physiotherapy Clinic in 2014 (Exhibit 2, Tab 19). In the Transcona Physiotherapy Clinic notes, the attending physiotherapist indicated at the time of an April 23, 2014 visit, that the plaintiff was, “[n]early painfree – better than usual – hasn’t been painfree in shlder or elbow in over 7 years.” The plaintiff denied the accuracy of that notation.

He also attended for physiotherapy at D’Arcy Bain Physiotherapy (Exhibit 2, Tab 34) subsequent to his post-concussion related injury (there is no indication of a shoulder issue being present in that report). [18] The plaintiff has been recently seen by his family physician, Dr. Mellon, whose August 27, 2019 clinical note indicated that the plaintiff had been engaged in a “tremendous amount of farming” (Exhibit 2, Tab 29, Notes April 5, 2018 – August 19, 2021). The plaintiff denied that was the case as any farming accomplished was extremely limited.

The plaintiff acknowledges that he can drive a forklift without strain. However, his plan had been to terminate his employment at age 55 and engage in the orchard business on a full- time basis. [19] The plaintiff was recalled to testify after the close of the defendant’s case. He testified that it was Woods who administered the assault to his person after seeing that witness provide trial testimony. B. Dr. Douglas Kayler

[20] Dr. Kayler performed an independent medical assessment on behalf of the plaintiff in 2022 (Exhibit 4). He was qualified at trial as an orthopedic expert witness. Dr. Kayler reviewed the plaintiff’s medical history which included being struck on the head by a cricket bat at age 6 and having a number of psychiatric assessments starting in the year 2000. The plaintiff’s diagnoses have included schizophrenia and a personality disorder which resulted in psychiatric admissions to the Health Sciences Centre. The issues with respect to the plaintiff’s shoulders and 2018 head injury were also reviewed in Dr.

Kayler’s medical report and trial testimony. [21] Dr. Kayler testified that the clinical findings in both shoulders are common and, in this case, the SLAP tear could have transpired through pulling, throwing, lifting or reaching activities. The injury occasioned to the left shoulder is described as essentially wear and tear and did not constitute “big findings.” In his view, causation for the right shoulder injury could have resulted from a forcible rotation of the arm.

It was opined to be unlikely that spontaneous improvement with respect to the plaintiff’s shoulder issues will occur. [22] Under cross-examination, Dr. Kayler testified that the shoulder injury could have been caused by overuse, but to a point. Such an injury is often traumatic in nature, and possibly was caused by manual labour. The fact that the SLAP tear was not identified until the 2016 surgery was because it is an easy condition to miss on an MRI. He acknowledged that both MRIs performed in 2011 and 2015 found that the left/right labrums were intact or unremarkable with no SLAP tear detected. C.

Christine Reimer (“Reimer”) [23] Reimer is now WRC’s Chief Correction Officer and Assistant Superintendent of Security. In March 2009, she was a WRC unit supervisor. Reimer had no direct interactions with the plaintiff; however, she reviewed all WRC documentation in preparation for her testimony on behalf of the defendants. [24] The fifth floor of WRC is a general population area which has COs on duty between 7:00 a.m. and 11:00 p.m. The third floor is a medical unit with area 3A also supervised by staff between 7:00 a.m. and 11:00 p.m.

Between 11:00 p.m. and 7:00 a.m., those units are monitored through a master control area. The medical holding cells and treatment area (3M) are staffed on a 24/7 hour basis (Exhibit 2, Tab 45).

During full staffing periods, there will be COs, counsellors, nurses, doctors, and psychiatric specialists on the third floor. [25] In reviewing the work records for the relevant time period (Exhibit 2, Tab 8), Reimer determined that Woods was one of the COs assigned to the third floor. [26] There are video cameras in all living units, recreational areas, and some of the cells that hold inmates assessed as violent or suicide risks. There are also cameras in the 3M and 3A units with a central pod having the ability to see all cells.

Reimer testified that video camera footage is reviewed if an “event” occurs, such as an inmate advising of an assault or a CO use of force. [27] Each inmate is medically assessed upon arrival at the WRC. The plaintiff denied suicidal ideation upon his entry (Exhibit 2, Tab 4). The suicidal risk assessment can be raised at the request of a CO, counsellor or psychiatric nurse as happened in this case. The risk level can only be downgraded by a counsellor or a psychiatric nurse.

In the event someone is assessed as a high suicide risk, there are daily check-ins required, constant supervision, counsellor involvement, along with ensuring that the inmate is sleeping, eating and drinking. The institutional Running Record captures all daily interactions, but only significant contacts, problems or concerns are recorded. Reimer also testified that an Incident Report will be prepared by all involved if a code of any kind occurs. The Running Record would also document any vandalism such as writing on the walls or physical interactions between inmates or with a CO.

Any use of force by a CO would also be noted. Those reports are reviewed by the unit manager, who might then access the available video footage. A code red is a medical emergency which results in an immediate response by nurses, COs, and the shift operations manager. In the event of an altercation between an inmate and a CO, a red flag is added to the inmate’s Running Record. A red flag was not apparent on the plaintiff’s records. Reimer also testified that it is uncommon for an inmate to be handcuffed for movements within the WRC. That would only transpire if a security issue existed.

Further, the inmate would only be cuffed to the front of the body. [28] Reimer testified that the Running Record indicated that the plaintiff would not enter cell 567, claiming that there were too many people in there, “they want to kill me”, being the police (Exhibit 2, Tab 1, p. 4). CO Toole assessed the plaintiff as being very paranoid and was told by him that he was hearing voices all the time. The plaintiff also acknowledged to CO Toole that he was under the care of Dr. Zimmer (psychiatrist), who he had not seen for a while.

As a consequence of these interactions, a referral was made to psychiatry on the third floor (Exhibit 2, Tab 6 and Exhibit 2, Tab 1, p. 3). The Health Service Progress Notes revealed that the plaintiff had a history of a “psychiatric disorder” for which he had seen Dr. Zimmer at the Health Sciences Centre until approximately a year earlier. He signed a release of information to allow WRC staff to secure Dr. Zimmer’s notes (Exhibit 2, Tab 6, p. 1). The plaintiff had been on medication, but discontinued its use as it made him too tired to work.

He also acknowledged that he hears voices and that they tell him to do things, albeit he has not acted on the voices. Further, “... he seemed aware that the voices were part of his illness and not real” (Exhibit 2, Tab 6, p. 2). [29] On February 28, 2009, at 5:30 p.m., the WRC records show that the plaintiff was transferred to unit 3M due to the code red. The code red resulted in the generation of an Incident Report by a number of the COs and others involved (Exhibit 2, Tab 7).

The Incident Report documented that the plaintiff had banged his head on the cell door and was dazed and confused upon Corrections staff’s arrival. He was laying on the cell floor. The Incident Report also noted that the plaintiff articulated, “I don’t want to be alone; Satan is in here.” He also stated that he hit his head because of the devil and wanted Satan to stop bothering him.

The plaintiff’s suicide risk assessment was raised from medium to high. [30] Reimer testified that there were entries in the Running Record, commencing on March 1, 2009, where the plaintiff stipulated that he ran into the cell door because he was unhappy with his current housing situation (Exhibit 2, Tab 1, p. 3). The notation in the Health Services Progress Notes for March 3, 2009, indicated that a chemical smell was causing him difficulty and, as a consequence, “... he saw someone through the cell door window and ran at the door to get out.

States he was knocked out.” There was no documentation in the Running Record for March 4 and 5, 2009, nor was there ever a mention of a physical altercation involving the plaintiff with another inmate or a CO. Further, there was no indication that a use of

force was required. When seen by counsellor Ryan Knight on March 6, 2009, the plaintiff was downgraded to a medium suicide risk, ashe was calm and content with no issues (Exhibit 2, Tab 1, p. 2). There was no mention of an assault or injuries on that date, nor werethere on March 7, 2009, when he spoke with CO Watson (Exhibit 2, Tab 1, p. 1). [31] Reimer acknowledged, under cross-examination, that showers are available and offered daily as are breaks from an inmate’s cell. An individual is not forced to shower, but it is a right.

The fact that there were no entries for March 4 and 5, 2009, on the RunningRecord was not considered to be unusual despite the need for daily check-ins. As previously indicated, only matters of significance orconcern are recorded. D. Sean Woods (“Woods”) [32] Woods acknowledged that he was a WRC CO between 1998 and 2014. In March 2009, he was an acting CO3 with supervisoryresponsibilities. He made three entries in the plaintiff’s Running Record: February 27, 28 and March 1, 2009 (Exhibit 2, Tab 1, p. 3).

On February 27, 2009, the entry was a referral to a psychiatric nurse; February 28, 2009, the code red; and, March 1, 2009, the plaintiff’sdenial of suicidal ideation. Woods testified that only important interactions were to be documented in an inmate’s Running Record. Further, he denied engaging in a physical altercation with the plaintiff and, certainly, never assaulted him. Woods acknowledged thatthird floor inmates could be more challenging because of psychiatric issues.

Additionally, any disciplinary actions would have beenrecorded by him in the Running Record, along with the ability to view events by virtue of the video camera footage. III. POSITIONS OF THE PARTIES A. The Plaintiff [33] The plaintiff’s background, work history, and relationships with others, along with the daydreams he has experienced sincechildhood, caused counsel to portray him as a unique and eccentric individual with an unusual presentation. [34] On the day the fifthfloor code red was called, two different versions of what occurred and what was said were presented before the court.

The plaintifftestified that he was experiencing sensory issues in his fifth floor cell, which resulted in him banging his arms on the door, withoutinjury. Further, he testified to not being delusional that Satan was in the cell. After a transfer to cell 362, he refused to clean the entirewall of graffiti as directed by the CO, which resulted in a standoff. The ultimate ramification of that refusal was the assault inflicted byWoods who shackled his arms behind his back and pulled up on the handcuffs, wrenching his arms.

This was followed by causingshoulder impacts with a steel door during a cell transfer, as well as other assaultive behaviour. The plaintiff maintained that he told theProvincial Court Judge about the assault, and does not know why his comments were not reflected in the court transcript. Further, Dr. Kayler substantiated that the right shoulder injury was consistent with causation from a traumatic event rather than the aging process or arepetitive strain injury. [35] The defendants’ witness Reimer was argued to have no direct knowledge of what occurred during theplaintiff’s incarceration.

She testified that writing on cell walls is against the rules. However, a CO can use discretion as to what isdocumented in the Running Record in terms of discipline. In any event, the Running Record was submitted by counsel to be imperfect asthere was no documentation resulting from the required daily checks of someone on a high suicide alert for March 4 and 5, 2009.

Woodshas no memory of the incident in question. [36] Counsel argues that witnesses such as co-workers, the plaintiff’s ex-wife and children, as well as neighbours, could have beencalled to testify, albeit their evidence would have constituted hearsay and been of little value. Conversely, counsellor Ryan Knightshould have been called by the defence to determine if he had any memory as to why the plaintiff’s injuries were not included in hisMarch 6, 2009 Running Record note.

An adverse inference against the defendants is argued to be an appropriate finding for the failureto call Knight. [37] The plaintiff relies on the Sweeney v. British Columbia, 2018 BCSC 1832 decision in terms of judging credibility. Itis accepted that the plaintiff’s manner of presentation was unorthodox and there were inconsistencies in his testimony.

That said, thismatter occurred over 13 years ago, and, while imperfect, the plaintiff’s evidence should be accepted as credible and reliable. [38] In terms of damages, the plaintiff seeks the following: General Damages $90,000 Special damages $90,204 (being loss of income and loss of future income) Punitive damages $10,000 TOTAL: $190,204 [39] The plaintiff relies on decisions such as Lane v. Wahl, 2015 BCSC 1779 ; Lou Anna Roberts v. Government of Manitoba, 2021 MBQB 43 ; and Stapley v. Hejslet, 2006 BCCA 34, in support of a general damage award in the amount of $90,000.

The injuries to both shoulders are argued to have significantlyaffected the plaintiff’s life and are severe and long lasting with daily limitations. The injuries have impacted his interactions with family,his ability to work, and his legacy dream of an apple orchard business to be passed on to his children. Further, the injuries haveexacerbated his mental health issues. It is also submitted that the plaintiff faces additional shoulder surgeries which serves to increasethe general damage award.

[40] The special damage claim of $90,204 represents $15,204 being time lost from work after the 2016 surgery. The remainder of the claim relates to the orchard enterprise and is based on a $3,000 yearly profit from 2014 for a 25-year period. The orchard’s operation was a real and substantial possibility in that incorporation had taken place, a business partner had been secured, quotes had been provided for apple trees, and equipment bought. It would have required a number of years to become fully operational and an income source.

The concrete steps taken illustrates a viable business that would have resulted in the legacy orchard, “but for” the injuries. [41] In terms of punitive damages, these were exceptional circumstances, with the plaintiff being in the care of the COs who assaulted him. He was entitled to be safe while incarcerated, but instead an assault was inflicted upon him. The COs’ conduct was described as malicious and resulted in severe injuries that require a punitive damage award in the amount of $10,000. B.

The Defendants [42] The defendants submit that the plaintiff, in all likelihood, believes he was injured as a result of an assault at WRC but, in reality, no such assault occurred. The plaintiff has not met the onus of establishing proof of that occurrence on a balance of probabilities.

The plaintiff could have adopted simple steps at the time, or soon thereafter, which might have substantiated what he contends to have occurred: • gone to his family doctor on release from WRC; • made a formal complaint at the time of the incident or shortly after his release; • with his awareness that video cameras existed in the cells, an immediate report on release could have yielded surveillance evidence of an assault; • the plaintiff contends that he had visible cuts and bruising to his hands/arms, yet he chose not to show these to anyone at WRC, nor did he take photos of himself upon his release to document the injuries.

Also, he did not call any witnesses to attest to the existence of such injuries; • he made telephone calls to his employer and son from the WRC and advised them as to what had transpired, yet neither were called as witnesses; • the plaintiff testified he showed his co-workers the injuries on his return to work, again no witnesses were called in support of this contention; • his former spouse was said to be aware and had seen the injuries, yet she was not called, but instead was said to have taken the “government side.” In light of the above, the defendants argue that the plaintiff has not satisfied his onus and, indeed, an unfavourable inference could be drawn by the failure to call relevant witnesses. [43] There were argued to be inaccuracies in the plaintiff’s evidence which include: • saying he was taken down a set of stairs when being moved between cells 362 and 366, when there are no stairs between those areas; • he identified his assailants as Woods and Mark Chapman.

Chapman was not on the 300 floor that day; • he did not recall appearing in court on March 6, 2009, when first questioned, when in fact he did; • he testified to attending the Pan Am Clinic physiotherapy before 2011. However, there are no records of such attendances (Exhibit 2, Tab 41); • his testimony is that the code red occurred after he was banging his fists on the cell door to get attention.

The psychiatric nurse documented in the Health Service Progress Notes that he had hit his head against the cell door, and lost consciousness (Exhibit 2, Tab 6), which is consistent with the evidence of CO McKenzie (Exhibit 2, Tab 7) who entered the cell and found the plaintiff lying on the cell floor; • the varied references to Satan; • possible misperception of events rather than a deliberate attempt to mislead. Dr.

Lander’s report noted that the plaintiff’s perceptions may be varied from those of others (Exhibit 2, Tab 2, p. 2). [44] Both Reimer and Woods testified that all significant interactions with inmates are documented in the Running Record, Health Service Progress Notes, and/or Incident Reports. This would include any use of force, inappropriate inmate behaviour, altercations or codes. All interactions in the Running Record reflected that staff followed procedure in that only significant events were recorded.

The plaintiff’s WRC records showed no evidence of incidents, reprimands, vandalism, altercations with staff, involvement in a use of force, or injuries. This includes comments during his interaction with Ryan Knight (Exhibit 2, Tab 1, p. 2) where the plaintiff was described in terms of being calm, content, jovial and laughing. Such behaviour is argued to be inconsistent with an assault occurring the day before, particularly when the plaintiff testified to having advised Knight of that circumstance.

Further, Level 300 was described in the evidence as being a busy area with eight to 12 staff members present at any given time. Someone would have seen or heard what was alleged by

the plaintiff to have transpired. [45] In the event an assault did occur, the defendants contend that causation is not proven. The medical documentation demonstratesthat this plaintiff attended at doctors, even though he testified it was not within his culture to do so. Further, many of the doctors said tohave been consulted were not asked to provide clinical notes or reports which may have been helpful in the determination of this case. Again, an adverse inference could be drawn. The MRIs of 2011 and 2015 (Exhibit 2, Tabs 13 and 21) do not show a SLAP tear orlabrum tear. Indeed, no abnormalities were identified.

The Transcona Physiotherapy Clinic notes (Exhibit 2, Tab 19) indicated that the plaintiff had not been pain free for over seven years. That noted time period pre-dates the alleged shoulderinjuries in 2009. There is no medical documentation, other than the MRI in 2011, between 2009 and 2012 which speaks to a shoulderinjury. [46] The defendants contend that there are unrelated causes for the shoulder issues, such as an earlier broken clavicle, other incurredinjuries, passing out in the cell after banging his head and/or arms/fists on the door, and the nature of his manual employment, includingfishing as a youth.

There are lifestyle factors that must be considered (Gonzales v. Voskakis, 2013 BCSC 215 ). [47] Dr. Kayler’s evidence is argued to be of limited weight as he was not the initial treating physician, nor did he see the plaintiffuntil 13 years after the allegations arose. Much of his report/testimony was based on the plaintiff’s selfreport to him and, accordingly,reliability must be considered.

A SLAP tear could have occurred at any time up to the 2016 surgical intervention. [48] In the event damages are awarded, the defendants submit that there is a repaired type 2 SLAP injury to the right shoulder with nosignificant shoulder injury on the left side. Further, there is no medical support for the contention that further surgeries are required tothe right shoulder. The plaintiff returned to work after the 2016 surgery. Indeed, it is argued that he could also farm as demonstrated inDr.

Mellon’s notes (August 27, 2019; Exhibit 2, Tab 29). [49] In terms of general damages, the defendants filed a number of cases with a range of $4,000-$35,000 and argue that if an amountis awarded, it should be at the lower end of that scale. The plaintiff’s case law is argued to be distinguishable, as multiple and moresevere injuries are outlined in those decisions. [50] In terms of past loss of earnings, the defendants submit that there is no evidence of a related loss of earnings or that animpairment to earn future income has been established.

There are no vocational assessments in evidence; no reason was provided as towhy his income was down in 2016; and, at the present time, the plaintiff is not working because of a labour dispute. [51] In terms of future damages, the orchard was argued to have been in the very preliminary stages of development in 2009. A solidfinancial backing was not in place, no employees had been hired, no evidence of an apple orchard’s potential profits was provided, andno receipts for costs incurred were filed.

The orchard venture presented as only a possibility that was, at best, speculative. [52] To appropriately claim for punitive damages, there must be evidence of malicious conduct and such a finding is exceptional. Nosuch conclusion can be formulated based on the evidence presented at trial. It was, at all times, argued to be the plaintiff’s delay whichmade evidence in this case unavailable and, as such, no harm can be directly proven. IV. CASE LAW A. The Plaintiff [53] The plaintiff’s filed case law is substantially focused on the issue of damages. The decision in Stapley v.

Hejslet outlinescertain of the factors that influence a general damage award. Those include the age of the plaintiff, the nature of the injury, the severityand duration of pain, disability, emotional suffering and impairment (para. 46). [54] The issue of future earning capacity is discussed in Bieling v. Morris, 2021 BCSC 1905 , which stipulates that aplaintiff is entitled to be placed into the position the individual would have been “but for” the accident insofar as money can compensatefor such a loss. The issue of loss of future earning capacity was said to some extent deal with the unknowable.

An evaluation ofhypothetical events and a consideration of simple probability must take place, but not to the point of speculation. [55] The decision in Sweeney v. British Columbia involved a plaintiff who had entered a Victoria courthouse only to be forciblyescorted to the exit by two sheriff’s officers. One of the sheriff’s actions resulted in a laceration to the plaintiff’s forehead, a concussion,exacerbation of pre-existing injuries to his right arm and shoulder, and a rotator cuff tear to the right shoulder. The plaintiff sued innegligence for the use of excessive force and injuries sustained.

The defendant denied liability on the basis that the sheriff’s officerswere acting within the scope of their prescribed duties. Their interactions were captured on video surveillance footage. The plaintiffwas awarded $70,000 for non-pecuniary damages which was reduced by five per cent for contributory negligence. [56] The Smith v. Wind, 2017 BCSC 342 decision involved injuries to the plaintiff’s shoulder and neck as a result of a rear-end vehicle collision. The plaintiff had a number of pre-existing injuries with the substantive and continuing injuries being to hisshoulder and knee.

The shoulder pain was assessed at a $65,000 non-pecuniary damage award which was meant to fully compensate forhis loss, including the possibility of future surgeries. [57] The decision in Roberts v. Government of Manitoba considered a slip and fall injury as the plaintiff sustained significantinjuries to her right shoulder which she described as “life changing”. That injury resulted in continuing pain and severely limitedfunction. Mr. Justice Dewar (as he then was) held that $90,000 was an appropriate general damage award, inclusive of loss ofopportunity to invest.

B. The Defendants [58] Defendants’ counsel relies on a number of cases related to damages, as well as the need to show a causal connection between aninjury and the cause of the injury. The required assessment of credibility and reliability is argued to be well set out in the decision ofMather v. MacDonald, 2016 BCSC 948 . That decision also considered a claim for future income loss where there were noexpert reports in support, nor were there vocational assessments, or any medical evidence to advance such a claim. The court held thatthere must be a real and substantial possibility of such a loss (para. 61).

Further, the principle that evidence must be scrutinized with careby the trial judge was considered in the decision of F.H. v. McDougall, 2008 SCC 53 , 2008 3 SCC 53, [2008] 3 SCR 41, atpara. 46: [46] Similarly, evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test. But again,there is no objective standard to measure sufficiency. In serious cases, like the present, judges may be faced with evidence of events thatare alleged to have occurred many years before, where there is little other evidence than that of the plaintiff and defendant.

As difficultas the task may be, the judge must make a decision. If a responsible judge finds for the plaintiff, it must be accepted that the evidencewas sufficiently clear, convincing and cogent to that judge that the plaintiff satisfied the balance of probabilities test. [59] The Bevan v. Ontario, 2010 ONSC 3812 decision considered damages for injuries incurred by a plaintiff for an assaultwhile he was an inmate in a detention facility. The injury was a spiral break to his right humerus incurred in an incident involvinghimself and two COs. The circumstances surrounding the incident were contested.

An Accident/Injury Report was signed by theplaintiff during his incarceration, along with Occurrence Reports authored by the involved officers. The decision reviewed the law withrespect to use of force which the trial judge found to be excessive in the circumstances. An award of $50,000 was provided with respectto a significant injury sustained to the plaintiff’s dominant arm. [60] In Gonzales v. Voskakis, the plaintiff sustained a shoulder injury. The shoulder had previously been injured.

As aconsequence, one of the primary issues to be resolved was causation, as the “but for” test demands that compensation for negligentconduct should only be made where a substantial connection between the injury and the defendant’s conduct is demonstrated (para.189). The court determined that the plaintiff’s right labrum had been significantly injured prior to the 2008 accident, but had remainedasymptomatic. The plaintiff relied heavily on records and medical evidence.

The court held: [233] I accept that the evidentiary value of medical records in terms of supporting or refuting other evidence, such as symptoms, mustbe considered in the overall circumstances and, in some cases, considered with some skepticism... In addition, the absence of reportedsymptoms is not necessarily evidence that no symptoms existed. In that case, no lay witnesses provided evidence to confirm that the plaintiff’s right shoulder complaints had been made immediatelyafter the accident or in the months following.

Madam Justice Fitzpatrick was “unable to find that the 2008 motor vehicle accident causedfurther pathology in Ms. Gonzales’ right shoulder...” (para. 242). [61] The decision of Carlson v. Canada, (FC), involved the plaintiff being placed in a special handling unit uponhis arrival in a Saskatchewan penitentiary. He fell in his cell and struck his head which he contended was a consequence of anantipsychotic drug he was required to take by the institution. While in the unit, he had covered his cell window with paper andconversed with imaginary police officers.

At one point, he was forcibly extracted from his cell and searched. The plaintiff claimed hewas struck with a baton and was stripped in the presence of a female staff member. He also contended he was denied medical attention,and normal privileges such as showering, and the cleaning of his cell. The Crown maintained that the plaintiff frequently turned downopportunities to shower or clean his cell. [62] The plaintiff was reviewed by a psychiatrist who prescribed antipsychotic medication which the plaintiff refused to take.

Theplaintiff complained of a sore lower back, but did not indicate pain in the right rib area. The court held that while the guards wereobligated to refrain from activities that would put the plaintiff at a reasonably foreseeable risk, there was no breach of the standard ofcare. There was also a finding that the plaintiff had not met the burden of showing that actual harm was caused by the actions ofCorrections staff. The complaint with respect to the ribs was not identified until almost 1.5 years after the events in the jail cell.

On thebasis of the trial evidence, there was no indication that the plaintiff had made contemporaneous complaints of pain to his ribs/arm orasked for medical assistance. [63] In Blackwater v. Plint, 2001 BCSC 997 , the court evaluated many evidential issues and, importantly, stated thefollowing: [340] In assessing the plaintiff’s subjective evidence, the court need not conclude that the plaintiff has consciously lied before theevidence is not accepted. The plaintiff’s evidence may simply be unreliable...

The court went on to consider that: • the court must exercise care in considering the uncorroborated evidence provided by the plaintiff (para. 343); • both the court and the expert witness must rely upon the plaintiff’s subjective evidence, as their respective roles in the process arequite different (paras. 344-351); • an adverse inference may be drawn where certain medical evidence is not called which would be of assistance to the court,

particularly in the area of causation (para. 352); • the evidence of a treating physician will generally be of great value (para. 354). [64] In the Fong v. British Columbia (Minister of Justice), 2019 BCSC 263 decision, the plaintiff alleged that he wasinjured during an interaction with police officers. He consequently, developed chronic pain and post-traumatic stress disorder. Generaldamages were set at $35,000. [65] The court, in Klyne v. Rae, 2002 SKQB 139 , dealt with an arm fracture that resulted from an interaction between apolice officer and the plaintiff.

Surgery was required to repair the break and pain occurred during cold weather or during periods ofexertion. General damages were set at $8,000. V. ANALYSIS [66] The primary question with respect to this matter is whether the plaintiff has proven, on a balance of probabilities, that he wasassaulted by WRC Corrections staff. The plaintiff testified that it was Woods who perpetrated the assault upon him with consequentialinjuries to his shoulders. Woods and the defendants deny that allegation.

In evaluating this matter, there must be an assessment ofcredibility that involves a determination of the trustworthiness of a witness’s testimony and the accuracy and reliability of that evidence. Included in that consideration must be whether the witness’s evidence “harmonizes” with any independent evidence that has beenaccepted by the court. With respect to credibility and reliability, Mather v. MacDonald held: [18] In R. v.

Perrone, 2014 MBCA 74 (aff’d 2015 SCC 8), the Manitoba Court of Appeal addressed the issues of credibility andreliability as follows: [25] Jurisprudence recognizes that there is a difference between credibility and reliability. In R. v. Morrissey (1995), (ON CA), 22 O.R. (3d) 514 (C.A.), Doherty J.A. wrote (at p. 526): Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness's sincerity, that is, his or her willingnessto speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness's testimony.

Theaccuracy of a witness's testimony involves considerations of the witness's ability to accurately observe, recall and recount the events inissue. When one is concerned with a witness's veracity, one speaks of the witness's credibility. When one is concerned with the accuracyof a witness's testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not crediblecannot give reliable evidence on that point. The evidence of a credible, that is, honest witness, may, however, still be unreliable.

In thiscase, both the credibility of the complainants and the reliability of their evidence were attacked on crossexamination. [26] In R. v. H.C., 2009 ONCA 56, 244 O.A.C. 288, Watt J.A. described the difference between credibility and reliability (at para.41): Credibility and reliability are different. Credibility has to do with a witness's veracity, reliability with the accuracy of the witness'stestimony. Accuracy engages consideration of the witness's ability to accurately i. observe; ii. recall; and iii. recount events in issue.

Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, onthe other hand, is not a proxy for reliability: a credible witness may give unreliable evidence: R. v. Morrissey (R.J.) (1995), (ON CA), 80 O.A.C. 161; 22 O.R. (3d) 514 (C.A.), at 526 [O.R.]. [27] In short, the fact that a witness may be found to be credible does not answer the question of whether the evidence provided isreliable (see R. v. Vickerson (W.) (2005), (ON CA), 200 O.A.C. 87). [19] In Dahliwal v. Greyhound Transportation Corp., 2015 BCSC 2147, Mr.

Justice Silverman summarized the principles to be appliedin assessing credibility in a case such as this: [280] A number of principles emerge from the case law which address the question of assessing credibility in a case such as this, all ofwhich I am guided by: 1 It is well accepted that courts should be careful in assessing compensation where there is little to no objective medical evidencesupporting a plaintiff's self-reported symptoms, particularly where those symptoms persist beyond the usual course of recovery: Price v.Kostryba, (1982) (BC SC), 70 B.C.L.R. 397 (SC), at 399 [Price] Tai v.

De Busscher, 2007 BCCA 371, at para 41 [Tai]. 2. To justify an award of damages in the absence of corroborating evidence, the plaintiff's own evidence must be examined with "askeptical eye": Sevinski v.

Vance, 2011 BCSC 892, at paras 42-46. 3. Where the plaintiff's self-report is in doubt, the court should place the most reliance on objective medical evidence that does notdepend on the credibility of the plaintiff: Sharifi v. Chaklader, 2012 BCSC 685, at paras 97-98. 4. There must be compelling evidence that the plaintiff's complaints are a true reflection of a continuing injury: Price, at p. 398-399. 5. While Mr. Dhaliwal's physicians are entitled to take Mr. Dhaliwal's complaints at face value, this court is required to take a morecritical view: Edmondson v.

Payer, 2011 BCSC 118 at para 77, aff'd 2012 BCCA 114. 6. Credibility involves an assessment of the reliability of a witness' testimony based on their apparent sincerity and truthfulness andthe accuracy of their evidence: Raymond v. Bosanquet (Township) (1919), (SCC), 59 S.C.R. 452, (SCC), 50 D.L.R. 560 (S.C.C.) as cited in Karim v. Li, 2015 BCSC 498 [Karim] at para 88. 7. As a starting point, a witness is presumed to be truthful; however, this presumption is displaced by evidence of deliberatefalsehood: Hardychuk v.

Johnstone, 2012 BCSC 1359, at para 9. [281] The plaintiff acknowledges that when dealing with chronic pain cases, there are few objective symptoms of injury andthat, therefore, the Court must be extremely cautious in assessing the credibility of the claimant. [282] The Court must review the evidence in this case as a whole when looking at Mr. Dhaliwal's credibility, rather than lookingat small inconsistencies here and there. [67] I am urged by plaintiff’s counsel to evaluate the plaintiff’s evidence on the basis of him being a unique, perhaps eccentric,individual, but someone who is both credible and reliable.

At the end of the day, I need not conclude that he, with any sense of purpose,has attempted to mislead the court. I must evaluate the credibility and reliability of his testimony, including whether it is based uponperceptions which are not reality. The impact of the passage of time on the evidence provided must also be considered. The evidence ofall witnesses who testified must be weighed with respect to their credibility and reliability. I had no significant issues in that regard withthe witnesses called, unless noted.

The primary exception to that conclusion is the testimony of the plaintiff. [68] In reviewing the entirety of the evidence, I am not satisfied on a balance of probabilities that I can accept as proven that thisplaintiff was assaulted at the WRC. This conclusion is based upon the following: • absolutely no mention in the contemporaneous WRC records of an injury report by the plaintiff or by any other member of theCorrections staff, or a use of force report. This includes anything witnessed by others on the third floor, together with those at themonitoring station.

I acknowledge an inmate was said by the plaintiff to have witnessed the assault. That said, there was no suchtestimony from that witness provided; • the Running Record raises concerning issues with respect to the plaintiff’s mental health which, in a sense, was substantiated by theraising of his suicide risk from medium to high after the code red was initiated on February 28, 2009. The code red described in theIncident Report documents that the plaintiff appeared dazed and confused while indicating, “Satan is in here”.

The COs and othersattended at this cell after hearing a banging noise where it is possible the plaintiff struck/rammed his head into the cell door as he was noted to be lying on his back, on the cell floor, and claimed he was“knocked out” (Exhibit 2, Tab 6, March 3, 2009 note).

I acknowledge that the plaintiff testified in a contrary manner that he simplybanged his hands/arms on the door as he wanted help because of the foul smell and indicated that, “Satan brought me here.” However,the Incident Report (Exhibit 2, Tab 7) and Health Service Progress Notes (Exhibit 2, Tab 6) document that he hit his head because he wanted Satan to stop bothering him as well as, “I don’t want to be alone; Satan is in here.” As indicated, this resulted in the raising of his suiciderisk to high and is varied from the plaintiff’s recollection in terms of the Satan references.

It is very possible that the plaintiff hasmisperceived the events that occurred in the cell. It was noted by Dr. Lander that the plaintiff has had issues in terms of his perceptionsbeing varied from those of others; • at no time was a recorded complaint made by the plaintiff while at WRC or for a significant period of time thereafter. In the event areport had been made on a timely basis, the video camera footage could have been reviewed, as well as a contemporaneous viewing anddocumentation of injuries; • on February 20, 2012, the plaintiff filed a police report against two “Remand Guards”.

The Report reads as follows (Exhibit 2, Tab 14): It became very obvious, very quickly that PERSAUD has some serious psych issues. The assault that he wished to report had apparentlytaken place in March of 2009 and he was questioned as to why he was coming to report the matter at this time. He went on to state thathis lawyer had told him to come and make an assault report with the Police. The writer then question PERSAUD as to why he had a

lawyer and PERSAUD stated that his lawyer had filed civil charges against the two GUARDS in 2009 but the civil process was nearing an end and he was not getting the remedy from the civil process that he was hoping and now he was going to make a criminal allegation against the officers. The writer informed PERSAUD that the Police would not get involved in any investigation as long as the matter is before the courts.

PERSAUD informed that his lawyer simply wanted him to make a report and he was adamant that he did not want Police involvement in any way but wanted an incident number to give to his lawyer to prove that he had made a report with the Police. Obviously this did not make any sense to reporting officers but it was obvious that if a report was not taken, PERSAUD would simply become more agitated and his mental wellbeing was in question.

This represents the first documented reporting of the allegations, almost three years post-occurrence; • the plaintiff precipitated an Incident Report, by telephone, to the WRC on October 15, 2013 (Exhibit 2, Tab 16). The contents of that contact is concerning as to the plaintiff’s state of mind. He contended that Corrections was endeavouring to cover up his mistreatment while in custody. He stated: ... that he was “brutalized and kicked” by officers while at the WRC because he is “not from this country”. He then stated, ‘I will brutalize you guys and your families”.

When I asked if he was making threats, he stated, “I am schizophrenic, I can say whatever I want to say, that’s the way I talk”. Mr. Persaud then stated that Minister Swan was attempting to “cover up” his mistreatment and sent a “bullshit letter”. He then stated if this continued, he would “come down there and 500 of you people will be dead”... • the plaintiff was under the care of Dr. Chung during this 2009 timeframe. However, no evidence of visits or clinical notes from that physician, or others, were provided, including those from Dr.

Langridge; • upon release from the WRC, the plaintiff could have taken photographs of the alleged visible cuts and bruising, but did not; • the plaintiff testified that he contacted his employer and son from the WRC and advised them that he had been assaulted. Those individuals were not called at trial. Importantly, he indicated that he also showed the injuries to co-workers, his ex-wife, his children and neighbours but, again, no corroborating evidence was called. Those that are alleged to have seen the injuries most certainly could have been called to testify as to what was observed.

When questioned with respect to his former spouse’s awareness of the injuries, the plaintiff testified that “she takes the government’s side”; • there are no stairs with steel doors to proceed through between cells 362 and 366 as testified to by the plaintiff, but denied by Reimer (Exhibit 2, Tab 45); • CO Mark Chapman was not working on the 300 floor on March 5, 2009, according to the WRC work

schedule (Exhibit 2, Tab 8); • the plaintiff indicated that he advised Provincial Judge Chartier of his predicament on March 6, 2009, albeit there is no mention of such an exchange on the court transcript (Exhibit 2, Tab 10); • the plaintiff testified that he had attended Pan Am Clinic for physiotherapy treatments before 2011. The Pan Am Clinic records have no information matching such attendances (Exhibit 2, Tab 41); • Reimer and Woods testified that all significant interactions with an inmate are documented in the inmate’s Running Record, medical progress notes, and/or in an Incident Report.

This would include any use of force, adverse inmate behaviour, altercations or a code being called. The plaintiff’s Running Record shows nearly daily interactions, albeit without mention of a use of force or altercation between Woods and the plaintiff, nor were there any disciplinary notations such as might occur when the plaintiff was instructed to remove graffiti from a cell wall.

The Running Record shows that there were daily entries for the plaintiff, with the exception of March 4 and 5, 2009, where, presumably, nothing of significance transpired; • there was no record of a reprimand for vandalism, altercation with staff, use of force, or injuries documented in any WRC record; • on March 6, 2009, significant documentation was put in the Running Record as a consequence of counsellor Knight’s interaction with the plaintiff. That record included information that the plaintiff denied being suicidal and was considered to be quite calm and content overall.

At times he was said to appear to be jovial, as he often smiled, joked, and laughed throughout the conversation. Additionally, he had no problems eating or sleeping, and appeared to be functioning well, and was able to take advantage of all allocated breaks. There is no indication that injuries were mentioned, despite the fact that the plaintiff testified that he had advised Knight as to what had transpired;

• CO Watson in a note of March 7, 2009, documented an interaction with the plaintiff where no issues were expressed; • the 300 level of the WRC is a busy area, particularly between 7:00 a.m. and 11:00 p.m. If an assault had occurred, it is likely that someone would have either seen it, heard it, or viewed it on the video surveillance cameras from the monitoring pod; • as indicated, the first documented reports of the allegations were the 2012 police report and 2013 Manitoba Corrections Incident Report (Exhibit 2, Tabs 14 and 16).

On both occasions, the plaintiff exhibited psychological issues and was significantly agitated; • the medical exhibits filed do not disclose any mention of a 2009 incident until the Transcona Physiotherapy Clinic’s therapy notes of January 22, 2014 (Exhibit 2, Tab 19). Those notes suggest that the “cops dislocated his shoulder, had to be reduced/relocated”; • the plaintiff was seen by Psychiatrist Dr. Kenneth Zimmer at the request of Dr. Mellon on September 28, 2018. His prior contact with the plaintiff had terminated in 2005 (Exhibit 2, Tab 38). In Dr. Zimmer’s report, he states (p. 1): As noted in the discharge

summary, Suruj had had a few contacts with Psychiatry over the years before seeing me. His situations were mostly seen as trouble coping with stress, with an underlying likely Personality disorder/traits coloring his response. He was seen as being prone to odd thinking, perhaps of a psychotic nature, but not clearly that of Schizophrenia, but rather more related to stress responses. The report documents that the plaintiff’s 2018 presentation was much as it had been earlier with some “soft” psychotic symptoms.

Interestingly, there is no mention in that report of a 2009 WRC incident being, arguably, an occurrence the plaintiff would have reported to the doctor. Dr. Zimmer was seen at the request of Dr. Mellon (Exhibit 2, Tab 35), because of the plaintiff’s history of anxiety, depression, and elements of psychosis when upset. At the time, he was under stress because of interactions with the Workers Compensation Board who was endeavouring to transition him back to work after his head injury.

He was hearing the voice of his brother in the middle of the night; • the plaintiff has on occasion expressed anger and dissatisfaction with those involved in the justice system and authority figures. [69] I accept that it is possible that the events described by the plaintiff transpired. However, I cannot be satisfied, on a balance of probabilities, based upon the evidence that the assaultive conduct, in fact, occurred. This conclusion is founded substantially on those areas outlined in paragraph 68.

I did not find the plaintiff’s evidence to be reliable based upon a consideration of the trial evidence in its entirety. This is particularly so when there is no evidence, other than his testimony, that he sustained an assault with resultant injuries at the WRC. His evidence does not harmonize with much of the independent evidence, particularly the WRC records and testimony of Reimer. Further, there was available witness evidence that could have been called, but was not. I am not prepared to find that the plaintiff consciously misled in the circumstances.

I acknowledge the possibility that he perceives that the event occurred. This could relate to his mental health history. That said, I find his evidence to be unreliable. Woods denied the allegations and, consequently, this is a “he said, he said” situation. Woods had no substantive recollection of his interactions with the plaintiff, beyond testifying that no assault occurred. I accept his evidence to the extent that there is no contemporaneous proof to the contrary. Further, there was no evidence provided, nor the contention made, that the allegations constituted a justified use of force. VI.

CAUSATION [70] In the event that the plaintiff was assaulted by WRC Corrections staff, were injuries caused to both shoulders? The plaintiff asserted that it is not within his culture to seek regular doctor involvement. However, it is apparent from the evidence filed that he had a family doctor and was being followed for mental health issues. The health care assessment, upon his arrival at WRC, noted Dr. Chung to be his family physician, with a psychiatric history of seeing Dr. Zimmer and others. It was Dr. Ross who first was advised by the plaintiff of a shoulder complaint in 2011 with a referral to Dr.

Langridge who he has seen many times. However, it was Dr. Berdusco, who, after the 2016 surgery, documented the existence of a type 2 SLAP tear to the labrum region of the right shoulder (Exhibit 2, Tabs 22 and 23). The MRIs performed in 2011 and 2015 did not evidence a tear, nor were abnormalities identified in the shoulder areas. Further, diagnostic imaging on the right shoulder in 2013 and 2014 was not remarkable (Exhibit 2, Tabs 15 and 21). Dr. Kayler opined that a SLAP tear can be missed by diagnostic MRI imaging.

The plaintiff had physiotherapy treatments at both the Pan Am Clinic and HSC for his right shoulder in 2011, 2012 and 2014 (Exhibit 2, Tab 20, HSC visits), albeit, the clinical notes from those institutions were not provided. As a consequence, it is difficult to determine what the possible cause of the shoulder injury might have been. This plaintiff has been engaged in manual or physical labour from age 11 onwards and has incurred a number of injuries over his lifetime. [71] The Transcona Physiotherapy Clinic notes commence in 2014 for treatment to the right shoulder.

As previously indicated, the April 23, 2014 note indicated that the plaintiff was “nearly pain free – better than usual – hasn’t been painfree in shlder or elbow in over 7 years” (Exhibit 2, Tab 20). The seven-year timeframe pre-dates his incarceration at the WRC by two years. [72] Dr. Berdusco reported to Dr. Langridge on January 14, 2016 (Exhibit 2, Tab 22), that there was no notable shoulder deformity or muscular atrophy. Further, there was: Full range of motion of his right shoulder with a painful arc and asymmetric scapulohumeral rhythym. Significant pain on palpation of his proximal biceps tendon.

Only mild pain on palpation of his AC joint, no increase on cross body adduction. Positive impingement sign. Positive Speed’s and O’Brien’s test. Normal rotator cuff strength.

Previous imaging was reviewed which indicates no significant shoulder pathology. As a consequence of Dr. Berdusco’s examination, the plaintiff was found to be a candidate for a right shoulder subacromial decompression and diagnostic evaluation given the chronicity of the symptoms. As previously indicated, the operative conclusion was a type 2 SLAP tear with extension into the posterior labrum. Subsequent to surgery, there was weakness and some soreness during work days for what was described by Dr.

Langridge as a rotator cuff tear (Exhibit 2, Tab 24). [73] The left shoulder underwent a further MRI in 2017 where moderate AC osteoarthritis was noted along with a degenerative cyst. The long head of the biceps, glenoid labrum and the glenohumeral joint were normal (Exhibit 2, Tab 26). As a consequence of the imaging, physiotherapy at the Pan Am Clinic was, again, prescribed by Dr. Langridge (Exhibit 2, Tab 27). On April 5, 2018, radiographic images were undertaken at the Manitoba Clinic with the result being: “Bilateral shoulders and acromioclavicular joints: imaging was performed with and without weights.

No significant bone or joint abnormality involving the glenhumeral joints or AC joints” (Exhibit 2, Tab 30). An x-ray was also undertaken in 2017, showing, “mild arthrosis of the acromioclavicular joint with small inferior osteophytes. No other significant bony or joint abnormality is identified” (Exhibit 2, Tab 15). [74] Dr. Mellon, in his clinical records (Exhibit 2, Tab 29), noted a chronic right-shoulder pain history that was said to have improved with surgery along with chronic left shoulder pain. Those pain complaints were likely related to Dr. Mellon by the plaintiff. He was substantially seen by Dr.

Mellon for his anxiety, workrelated injury and issues with the Workers Compensation Board. Dr. Mellon expressed, through much of his clinical notes, a concern for the plaintiff’s mental health issues, including the need for a reassessment by Dr. Zimmer, which was accomplished in 2018. [75] The notes or reports of treating physicians or other clinicians would have been helpful in the causation determination with respect to this matter.

Essentially, there is little to document causation other than the plaintiff’s testimony and his reports to clinicians that may have, to a degree, been impacted by the passage of time since these events were said to have occurred. A further cause may well have been an altered perception as to what took place or when injuries were sustained. The records that have been provided confirm that the plaintiff has experienced shoulder symptoms, albeit the source or cause of those symptoms has not been medically documented on a contemporaneous basis with the alleged trauma.

Further, as indicated, there is no documentation of an incurred injury or assault in the WRC records. Indeed, there is virtually no medical evidence between 2009 and 2012, beyond the September 21, 2011 MRI. It is possible that other causes, including his occupations of manual-type labour, could have caused wear and tear injuries, as well as other events/injuries in his life, including what transpired at the time of the code red. Further, there are no medical records predating 2009 to rule out the existence of a pre-existing condition. [76] The testimony and report of Dr.

Kayler has taken place 13 years after the incident described by the plaintiff. Dr. Kayler well outlined the plaintiff’s background and psychiatric history, including the April 18, 2016 surgery and April 2018 head injury. Further, much of Dr. Kayler’s report is based upon the plaintiff’s self-report. He does not address in the report the fact that no issues involving the labrum were identified in either the 2011 or the 2015 MRIs, albeit testified that such an injury was easy to miss.

In his view, the right shoulder injury is consistent with the theory that the plaintiff’s injuries were caused by the reported 2009 incident. Dr. Kayler testified that the left shoulder issues could have developed over time. The left shoulder presented as simple “wear and tear” and there were not “big findings.” [77] I am not satisfied, on a balance of probabilities, that causation has been proven in this matter.

The lack of a contemporaneous documented complaint to a medical clinician or to the WRC, accompanied by the plaintiff’s labour employment, extensive fishing activity as a youth, and other injuries serves to negate a causative link. Further, the medical evidence offers no substantive insight into the causation issue, including the absence of a pre-2009 medical history. VII.

DAMAGES [78] In the event I am in error as regards my liability and causation findings, I am required to make a provisional award with respect to damages. [79] The primary injury was to the plaintiff’s right shoulder, as no significant injury has been determined to exist on the left side. Dr. Kayler opined that damage to the left shoulder was minor and likely occurred over time. Consequently, no award will be made for the left shoulder. I acknowledge Dr. Langridge opined in 2018 that a surgical opinion may be required for the left shoulder, as conservative management has failed.

That said, I am not satisfied that it is related to the allegations before the court and accept the testimony of Dr. Kayler in that regard. [80] The injury to the right shoulder is a type 2 SLAP tear with the development of proximal biceps tendonitis and moderate subacromial bursitis (Exhibit 2, Tab 33). There was the 2016 surgical repair to the right shoulder followed by physiotherapy. A Functional Abilities Form was completed by Dr. Langridge on December 14, 2016, which outlined the plaintiff`s restrictions at that time (Exhibit 2, Tab 25).

His limitations included a need to protect his right shoulder and avoid overhead work. Further, he was to refrain from lifting over 10 pounds or to pull, push or lift with the right shoulder. Those restrictions were said to last for approximately six weeks. Any further functional reassessment of the plaintiff’s condition has not been provided and, as indicated, he was able to return to work. [81] In 2018, Dr. Langridge advised that acromioclavicular osteoarthritis in the right shoulder has developed. An almost complete range of motion was noted, with some perceived weakness. Dr.

Langridge indicated that the plaintiff could experience some range of motion loss over time. He is left-hand dominant. There will be some continuing limitations, albeit the plaintiff has been able to work in his present position of a forklift operator and lead hand. He cannot do overhead work or lift beyond 25-30 pounds. A helper was hired in the workplace to assist the plaintiff with overhead and lifting limitations.

[82] Much of the plaintiff’s case law involves multiple injuries which were more severe in nature, as well as being from an alternate jurisdiction. The defendant’s case law is more persuasive, particularly, the decisions of Blackwater , Carlson , Gonzales , and Mather in terms of evaluating all aspects of this case. [83] In my view, an appropriate award for the right shoulder injury would be $50,000.

While there are some limitations associated with the right shoulder, including weakness, there is no medical evidence that describes a significantly impactful status that precludes an ability to work or perform activities of daily living. Further, a need for further surgical intervention to the right shoulder has not been identified by a medical practitioner. A $50,000 general damage award would reflect the pain and suffering endured by the plaintiff, including the emotional ramifications.

It also recognizes the unlikelihood of a resolution of his condition. [84] In terms of loss of earnings, I am satisfied that the plaintiff lost very little time, if any, from the workplace as a consequence of a right shoulder injury with the exception of a period in and around the time of the 2016 surgery. That loss, as calculated by plaintiff’s counsel, is $15,204.

That time period reflects the loss of income as is shown in the income tax records (Agreed Statement of Facts, para. 19 and Exhibit 2, Tab 39). [85] In terms of a future loss of earnings claim, I am not satisfied that any loss has been established for the orchard venture. The orchard “business” was at a very preliminary stage of development. A business plan was not in place, nor was significant financing, the purchase of trees, the hiring of employees and other necessary aspects to run such an operation.

The business plan (Exhibit 2, Tab 42) was clearly a precedent form not yet adapted for this type of operation, as it mentions bookstores and other non-involved individuals and communities. Additionally, there is no evidence as to what such a venture could potentially earn on a yearly basis beyond counsel’s submission. There was no factual or expert evidence provided as to the potential profit of operating an orchard, including no evidence comparing his “operation” or concept with others.

It is, without question, a speculative claim and an award is untenable because of the early stage of its existence. [86] I am satisfied that if the plaintiff’s allegations were found to have been successful in this action, punitive damages would be appropriate in keeping with the Supreme Court of Canada’s findings in Whiten v. Pilot Insurance Co. , 2002 SCC 18 , [2002] 1 SCR 595. The CO conduct would be regarded as malicious, egregious, reprehensible and arbitrary. That conduct would depart from ordinary standards of the decent behaviour required by those who are involved in the housing of inmates.

Inmates are entitled to a safe and respectful environment. In the event I am in error with respect to my liability conclusion, I would award the sum of $10,000 for punitive damages. VIII. CONCLUSION [87] The plaintiff’s claim is dismissed. In the event I am wrong in that conclusion, the provisional award is as follows: General damages $50,000 Special damages $15,204 Punitive damages: $10,000 Costs and Disbursements: To be determined, along with the appropriate interest calculations. [88] The matter of costs may be spoken to if counsel cannot agree. _________________________ McKELVEY J.