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Digest: Walters (Litigation guardian of) v. Ontario


[2017] O.J. No. 306

Ontario Court of Appeal
G.R. Strathy C.J.O., H.S. LaForme
and K.M. van Rensburg JJ.A.



January 23, 2017.
(67 paras.)


   Government law — Crown — Actions by and against Crown — Crown liability for acts of servants — Appeal by Ontario from decision finding it vicariously liable for breach of duty of care of corrections officer, resulting in assault on inmate, dismissed — Officer applied jail policy of separating inmates from same gang and housed Walters with rival gang member, knowing rival member's propensity for violence — Evidence from another inmate established that rival member committed assault on Walters — Officer's breach of duty of care established by his failure to consider compatibility of inmates, which was not precluded by jail policy — Basis of Ontario's liability was vicarious, flowing through officer's breach of duty of care.

   Tort law — Negligence — Duty and standard of care — Duty of care — Appeal by Ontario from decision finding it vicariously liable for breach of duty of care of corrections officer, resulting in assault on inmate, dismissed — Officer applied jail policy of separating inmates from same gang and housed Walters with rival gang member, knowing rival member's propensity for violence — Evidence from another inmate established that rival member committed assault on Walters — Officer's breach of duty of care established by his failure to consider compatibility of inmates, which was not precluded by jail policy — Basis of Ontario's liability was vicarious, flowing through officer's breach of duty of care.

   Tort law — Vicarious liability — Liability of employer for acts of employee — Appeal by Ontario from decision finding it vicariously liable for breach of duty of care of corrections officer, resulting in assault on inmate, dismissed — Officer applied jail policy of separating inmates from same gang and housed Walters with rival gang member, knowing rival member's propensity for violence — Evidence from another inmate established that rival member committed assault on Walters — Officer's breach of duty of care established by his failure to consider compatibility of inmates, which was not precluded by jail policy — Basis of Ontario's liability was vicarious, flowing through officer's breach of duty of care.

   Appeal by Ontario from a finding of liability in Walters' negligence claim, arising out of injuries he sustained in a beating by a fellow inmate in the Don Jail. Walter was a low-level member of a gang, while his assailant Riley was a high-level member of a rival gang. Upon his arrival at the jail, Walters was placed on the same range as Riley, as part of the jail's policy of separating members of the same gang. The goal of the policy was to prevent gang members from gaining power through association. The officer in charge did not consider whether Riley was a threat to Walters, applying the policy strictly and noting that neither had non-association alerts on their files with respect to the other. The judge found that this policy did not negate the correctional officer's common law duty of care to persons in their custody, nor did it negate Ontario's vicarious liability for any breach by the officers of their duty. He found that housing Walters and Riley together was negligent and caused Walters' injuries. Walters conceded that he was 15 per cent liable for failing to request placement in protective custody at the jail.

   HELD: Appeal dismissed. The judge did not hold Ontario directly liable for the negligence of the corrections officer. Ontario's liability flowed through the officer's negligence in housing Walters with Riley. The officer was not precluded by the jail's policy on housing gang members to consider the possible incompatibility of Walters and Riley as members of rival gangs. He knew that Riley had a propensity for violence from the extraordinary security measures that had to be taken for Riley's court appearances and his own interactions with Riley. There was sufficient evidence to support the judge's conclusion that the officer breached the standard of care. The judge gave due consideration to the evidence from another inmate, who identified Riley as Walters' assailant. This evidence established that the decision to house Walters with Riley was the cause of his injuries.