sept. 27. 2020

COURT OF APPEAL SUMMARIES (September 21 – September 25, 2020)

Bruno v. Dacosta, 2020 ONCA 602 (CanLII)

[Lauwers, Brown and Nordheimer JJ.A.]


Ian MacLeod and Robert Trenker, for the appellant

Gregory P. McKenna and Sabrina L. Seibel, for the respondents

Keywords: Torts, Negligence, Standard of Care, Crown Liability, Defences, Contributory Negligence, Civil Procedure, Procedural and Natural Justice, Sufficiency Of Trial Reasons, Evidence at Trial, Exhibits, Joint Document Books, Proceedings Against the Crown Act, ss. 5(1)(a) and 5(2), Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(6), Evidence Act, R.S.O. 1990, c. E.23, s. 35, Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, Brochu v. Pond (2002), 62 O.R. (3d) 722 (C.A.), Nemchin v. Green, 2019 ONCA 634, R. v. Sheppard, 2002 SCC 26, R. v. Dinardo, 2008 SCC 24, Girao v. Cunningham, 2020 ONCA 260


The respondent, PB, was an inmate being held at the Niagara Detention Centre (“NDC”). The trial judge found that other inmates at the NDC assaulted the respondent, leaving him with serious personal injuries that he continues to suffer from. The issue before the trial judge was whether the Crown, as represented by the Ministry of Community Safety and Correctional Services, is liable in negligence because NDC employees failed to take reasonable steps to protect the respondent as a vulnerable inmate.

The trial judge found two breaches of the standard of care, but also found that the respondent was contributorily negligent in failing to bring his vulnerability to the attention of NDC employees. The amount of contributory negligence was assessed at 15 percent. The Crown appealed and asked that the action be dismissed, while the respondent cross-appealed and asked that the level of contributory negligence be reduced to zero.


(1) Are the trial judge’s reasons sufficient to permit a meaningful appellate review?

(2) Did the trial judge err in finding liability on a Ministry-level basis not tied to the negligence of specific employees, contrary to the Proceedings Against the Crown Act and case law?


Appeal allowed.


(1) Are the trial judge’s reasons sufficient to permit a meaningful appellate review?

No. The Court began by exploring the functional purposes for good reasons, noting the principle in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 39 that reasons allow parties to see that the applicable issues have been carefully considered, and are invaluable if a decision is to be appealed. The Court then moved on from considering the importance of clear and sufficient reasons in general, to exploring the extent to which appellate courts can appropriately salvage a judgment based on inadequately explained trial reasons.

First, the Court cited various authorities for the principle that a new trial should not be ordered unless the interests of justice plainly require that to be done (Brochu v. Pond (2002), 62 O.R. (3d) 722 (C.A.); Nemchin v. Green, 2019 ONCA 634) and that the court must find a real prospect “that a substantial wrong or miscarriage of justice has occurred” (Courts of Justice Act, s. 134(6)).

In R. v. Sheppard, 2002 SCC 26, Justice Binnie wrote that where the trial decision is deficient in explaining the result to the parties, but the appeal court is able to do so, the appeal court’s own explanation is sufficient to salvage the judgment. However, where the appeal court is not able to do so, a new trial may be needed. Further, when assessing the trial judge’s reasons for sufficiency, the appeal court must examine the evidence and determine whether the reasons for judgment are, in fact, patent on the record (R. v. Dinardo, 2008 SCC 24).

The Court summarized these authorities by finding that appellate courts usually decline to dig too deeply into the record in order to salvage a decision in three particular instances: where the decision turns on (1) issues of conflicting evidence; (2) evaluations of credibility and reliability; or (3) exercises of discretion that are properly within the purview of a trial judge. The Court then used the second issue (the liability of the Crown) considered in this case merely as a tool to illustrate the application of these principles. Ultimately, the Court concluded that there was genuine uncertainty over whether the trial judge properly understood the correct legal test for liability. Among other things, the Court also found that the trial judge failed to assess credibility and reliability, or set out the chains of reasoning applicable to each issue. Therefore, the judgment could not be salvaged upon examining the record, and a new trial was regrettably ordered.

(2) Did the trial judge err in finding liability on a Ministry-level basis not tied to the negligence of specific employees, contrary to the Proceedings Against the Crown Act?

The Court did not reach a direct conclusion on this issue, as it was merely used as a tool to apply the principles listed above pertaining to the sufficiency of trial reasons. The Court did, however, provide a brief review of the law on this issue.

The applicable law in inmate assault cases is that the Ontario Crown can only be held liable for the negligent acts or omissions of an individual correctional officer who, in the course of employment by the Ontario Crown, did or failed to do something, thereby creating a foreseeable risk of harm to the inmate (Proceedings Against the Crown Act, ss. 5(1)(a) and 5(2)); Walters v. Ontario, 2017 ONCA 53). In other words, liability must derive from the actionable negligence of specific correctional officers. On this issue, the Court found ample support for the arguments of both the appellant and the respondents, due to the imprecise language used by the trial judge in his reasons. Therefore, a conclusion on this specific issue could not be provided based on the evidence.


Although not an issue specifically raised by the parties, the Court also elected to provide trial practice notices regarding the admission of use of joint document books at trial. The Court cited the recent decision in Girao v. Cunningham, 2020 ONCA 260, although not released until after this case was decided, as a helpful authority on acceptable trial practice.

The Court chose to emphasize three main points that it felt were overlooked by the parties in this case. First, that it is important to remember that any agreement between counsel as to the admissibility of documents is not automatically binding on the trial judge, who remains the ultimate gatekeeper of the evidence. Nevertheless, the parties would be well-advised to enter their agreement with the joint book of documents at the earliest opportunity as a matter of good practice.

Second, the Court lamented the tendency of trial judges in civil cases of ruling all evidence as admissible, subject only to their later assessment of what weight to give to the evidence. On this point the Court echoed the sentiments of Justice Stratas in Teva Canada Ltd. v. Pfizer Canada Inc., 2016 FCA 161, who labelled this practice as legal heresy.

Lastly, reiterating what has also been said in Girao, the Court maintained that good trial practice is to include any written arguments in the trial as lettered exhibits to which the appeal court can have access, if necessary. In this case, important written submissions were omitted from the trial record, and the Court felt that this greatly contributed to the overall disorganized and insufficient nature of the case.

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