COURT OF APPEAL FOR ONTARIO

CITATION: Becker v. Toronto (City), 2020 ONCA 607

DATE: 20200928

DOCKET: C67292

Watt, Trotter and Zarnett JJ.A.

BETWEEN

Stephanie
    Becker, Nicole Becker,

Gerry Becker and Mark
    Becker

Plaintiffs

(Respondent)

and

City of Toronto, John Doe #1 and John Doe #2

Defendants

(Appellant)

Rebecca L. Bush and Ruby Egit, for the appellant, City
    of Toronto

Jason F. Katz and Ari Singer, for the respondent, Stephanie
    Becker

Heard: in writing

On appeal from the judgment of Justice Janet Wilson of
    the Superior Court of Justice, dated June 28, 2019, with reasons reported at
    2019 ONSC 3912.

Zarnett J.A.:

OVERVIEW

[1]

The appellant, City of Toronto (the City), appeals a trial judgment
    that found it liable to the respondent, Stephanie Becker (Ms. Becker), under
    the
Occupiers Liability Act
, R.S.O. 1990 c. O.2 (the
OLA
).

[2]

Ms. Becker was fourteen years old in 2009, when she was injured at the
    Irving W. Chapley Community Centre, a City-operated community centre located
    near to her home. A person who had been using the telephone in a staff office
    at the community centre either tripped into the glass portion of the office
    door, or punched it (the trial judge found it was probably the latter). Ms.
    Becker was close to the door when this happened. The glass shattered and struck
    Ms. Becker. She required four surgeries on her left eye and was rendered
    legally blind in that eye.

[3]

The trial judge found that (i) the City breached the duty of care it
    owed as an occupier of the community centre, since the glass portion of the
    door was not made of the type of safety glass required by the 1990 Ontario
Building
    Code
, O. Reg 413/90, which was in place at the time of the accident
[1]
;
    (ii) causation was established, since Ms. Beckers injuries would not have
    occurred if the required safety glass had been used; and (iii) foreseeability
    was established, since the damage that occurred was a reasonably foreseeable
    result of the failure to use the required safety glass. Given her finding of
    liability, the trial judge awarded damages to Ms. Becker in the agreed sum of
    $500,000.

[4]

At the time of the accident, laminated glass, wired glass, or tempered
    glass (tempered safety glass) would have met the minimum
Building Code

requirements of a safety glass. Although at trial the City maintained that
    the door was made of the required tempered safety glass, the trial judge found
    as a fact that it was made of ordinary annealed glass, which did not meet
Building
    Code
requirements. For the purpose of this appeal, the City does not
    contest the trial judges findings of fact. Nor does it contest her findings with
    respect to causation or foreseeability.

[5]

Instead, the City argues that the trial judge erred by treating the
    absence of tempered safety glass as sufficient, in law, to support the
    conclusion that it breached its duty of care as an occupier under s. 3(1) of
    the
OLA
. Section 3(1) of the
OLA

provides that:

An occupier of premises owes a duty to take such care
    as in all circumstances of the case is reasonable to see that persons entering
    on the premises, and the property brought on the premises by those persons are
    reasonably safe while on the premises.

[6]

The City argues that since the
OLA
imposes a standard of
    reasonable care, not a strict liability standard, it could have properly been
    found to have breached its duty of care under the
OLA
only if there was
    both an absence of tempered safety glass, and a failure on its part to have
    taken reasonable care to try to have tempered safety glass installed. In other
    words, if the City undertook reasonable efforts to have the required type of
    glass installed, it should not have been found liable, regardless of whether or
    not that kind of glass was actually installed. The City submits that the trial
    judge was required, in law, and because of the evidence led at trial, to
    consider the matter from that perspective.

[7]

For the reasons that follow, I would dismiss the appeal.

[8]

At trial, the parties expressly characterized what was at issue and what
    the trial judge needed to determine with respect to whether the City breached
    its duty of care. The trial judge characterized, approached, and decided the
    issue of whether the City had breached its duty of care in accordance with the
    way the parties put the case to her. There are strong reasons, rooted in policy
    and trial fairness, to hold parties to the characterization of issues and the
    theories they assert at trial.

[9]

In their opening and closing submissions at trial, the parties described
    the issue about whether the City breached the occupiers duty of care as
    turning upon whether the City installed tempered safety glass to meet the
    minimum requirements under the
Building Code
. As the failure to follow
    a statutory standard can be evidence of a failure to take reasonable care, this
    characterization of the issue did not depart from the reasonable care standard
    under the
OLA
.

[10]

The
    City could have chosen to articulate its theory concerning whether it breached the
    occupiers duty of care at trial to include the additional question of whether
    its efforts to have the required kind of glass installed amounted to reasonable
    care, even though those efforts were unavailing. However, the City points to
    nothing in the record to indicate that it did so. The trial judge cannot be
    criticized for failing to address, or consider evidence from the perspective of,
    a theory the City did not raise at trial.

ANALYSIS

[11]

The
    determination of this appeal turns on the answers to the following questions:

(a)

Did
    the trial judges characterization of the issue of whether the duty of care was
    breached reflect the way the case was put by the parties?

(b)

Was
    the trial judges characterization of this issue legally sufficient, in the
    sense that, if resolved in favour of Ms. Becker, it would be a proper legal
    basis to conclude that the City had breached its duty of care under s. 3(1) of
    the
OLA
?

(c)

Was
    the trial judge required to consider questions concerning whether the City
    breached the duty of care beyond those put by the parties and reflected in the
    theories they advanced at trial?

The Characterization of the Issues at Trial

[12]

It
    was expressly conceded at trial that the City owed a duty of care to Ms. Becker.
    The trial judge described the issues that she would have to decide as follows:

The Issues

The parties agree that the issues I must decide are:

1.       Has the Plaintiff met the onus of proving that the
    glass in the door of office 113 is annealed glass and not the required tempered
    safety glass?

2.       If the Plaintiff proves that the glass in the door was
    annealed glass, did the failure to use safety glass cause the Plaintiffs
    injuries?

3.       Even if the Plaintiff meets the burden of proving that
    the annealed glass caused her injuries, was injury to the Plaintiff a
    foreseeable risk in all of the circumstances?

[13]

The
    City submits that the trial judges characterization of the first issue did not
    reflect all that was involved in determining whether it breached its duty of
    care. It claims that its case at trial showed that more was involved. I
    disagree. In my view the trial judge accurately characterized the issue in
    light of the competing theories advanced by the parties.

[14]

Ms.
    Beckers theory of liability at trial was that the City breached its duty of
    care as occupier of the community centre because the glass portion of the door
    was not made of tempered safety glass, which was required under the
Building
    Code
. Instead, the door was made of ordinary annealed glass. Ms. Becker also
    alleged a failure of the City to supervise the person who broke the glass, but
    abandoned that theory before the end of the trial.

[15]

In
    its opening submissions, the City described the issue of whether it had
    breached its duty of care (beyond the ultimately abandoned allegation of the
    failure of supervision) as requiring that the following question be answered:
    It will be Your Honours job at the end of the day to determine whether the
    Plaintiff has satisfied you that  the glass that was installed in the office
    door was not safety glass, as required by the Ontario
Building Code
.
    There was no reference, in the opening submissions, to any requirement that the
    trial judge also determine whether the City had taken reasonable, albeit
    unsuccessful, steps to try to have the tempered safety glass installed.

[16]

None
    of the glass from the door had been preserved after the accident. Considerable
    evidence, including expert evidence, was therefore led about the kind of glass
    that had been installed in the door. The evidence included references to the
    specifications and drawings developed when the community centre was renovated and
    the door installed in 1995, the architectural firm and contractors the City had
    employed, the Citys supervision of the renovation project, and the lack of
    changes to the door after the renovation project was completed. The evidence
    also included what was known about how the glass behaved, and any sound it
    made, when it broke at the time of the accident.

[17]

The
    expert called by Ms. Becker concluded that annealed glass had been installed,
    while tempered safety glass was what the
Building Code
required. The
    expert called by the City concluded that the door contained the required
    tempered safety glass. No expert opinion was proffered at trial on the reasonableness
    of the Citys steps to try to have tempered safety glass installed.

[18]

In
    Ms. Beckers closing submissions, when addressing whether the City had breached
    its duty of care, counsel stated:

[T]he only issue for Your Honour to determine
    is whether there was, in fact, tempered glass in the door. If it is determined
    that it was not tempered glass, then the City is in violation of the minimum
    standards of the Ontario Building Code and, I submit, is therefore in breach of
    the reasonably-safe standard set by the
Occupiers Liability Act
.

[19]

In
    the Citys closing submissions, the City summarized its position on what needed
    to be established to find that it was liable as follows:

Your Honour, in order to succeed, the Plaintiff must prove to
    you that its more likely than not that it was annealed glass in the staff
    office door, at the time of the acciden[t], and that the absence of safety
    glass caused her injury.

On the issue of whether it breached the duty of care,
    the Citys theory was that the Plaintiff has not proven to you that its
    annealed glass on the balance of probabilities. The City did not submit to the
    trial judge that there had been a failure to establish a breach of the duty of
    care, even if Ms. Becker had proven that annealed glass had been used.

[20]

Although
    there is nothing in the parties description of the issues at trial that
    includes the theory that the City took reasonable but unsuccessful steps to
    have tempered safety glass installed, the City relies on the fact that there
    was evidence at trial of the specifications and drawings used for the
    renovation of the community centre, and of the Citys use and supervision of an
    architect and contractors. The City argues that this evidence shows there was
    an additional question in play at trial with respect to whether it breached its
    duty of care, beyond the question of what type of glass was actually installed.
    Specifically, the City says this type of evidence could show that it discharged
    its duty of care on the basis of its reasonable efforts to have a safe
    structure even if, despite those efforts, annealed glass ended up being
    installed by the contractors.

[21]

I
    do not accept that submission. A purpose of characterizing the issues in
    opening and closing submissions, and in describing what will be involved in
    deciding the issues, is to give the trial judge a lens through which to
    appreciate and evaluate the evidence. Leading evidence that is relevant to a
    theory that has been clearly raised cannot be seen, by itself, to put in issue
    another theory that has not been raised or articulated, even if the evidence could
    have also been relevant to the latter, unargued theory.

[22]

The
    Citys case at trial was that it did not breach its duty of care unless it was
    shown that tempered safety glass had not been used. The evidence the City
    points to was relevant and adduced in relation to that contention. If tempered
    safety glass was properly indicated in the architectural specifications and
    drawings, and competent professionals were used and supervised on the project,
    that might make it more likely that tempered safety glass was actually
    installed. On the other hand, if tempered safety glass was not properly specified,
    that might make it less likely it was installed. The trial judge found the
    specifications and drawings to be inconsistent, in the course of explaining why
    she accepted the evidence that annealed glass was used. However, the important
    point is that the trial judge used the lens provided to her by the description
    of the issues and the parties theories in the opening and closing submissions
    to appreciate and evaluate this evidence and the issue to which it was germane.

[23]

That
    the evidence could have also related to a different theory is beside the point,
    when the parties characterization of the issues did not invite the trial judge
    to appreciate or evaluate the evidence with that theory in mind.

[24]

In
    my view the trial judge correctly characterized the issues the parties had put
    to her for decision. They did not include the theory that the City took
    reasonable care in attempting to have tempered safety glass installed, and
    therefore fulfilled its duty of care, even if tempered safety glass was not
    actually installed.

The Characterization of the Issue of
    whether the Duty of Care was Breached was Legally Sufficient

[25]

The
OLA
does not impose a strict liability standard. The duty of care of
    an occupier, set out at s. 3(1), is to take such care as in all the circumstances
    of the case is reasonable to see that persons entering on the premises  are
    reasonably safe while on the premises. Accordingly, the City argues that the trial
    judges analysis had to focus on whether what the City did or failed to do fell
    below the standard of reasonable care. The City submits that it was not
    sufficient, in law, for the trial judge to focus only on the question of what
    type of glass was used (which would be a strict liability standard). The City
    argues that, in this case, the question of whether it took reasonable care also
    meant whether its efforts to try to have the required glass were reasonable
    even if unsuccessful. I do not accept the Citys submission.

[26]

I
    agree that if parties put forward questions to be answered at trial that, even
    if answered in the plaintiffs favour, are not legally sufficient to establish
    that the defendant was liable, a resulting judgment in favour of the plaintiff
    may be open to question. I also agree that in some situations, even when the
    parties focus their arguments on one aspect of an issue, the issue they raised
    may include other aspects that need to be addressed as a matter of law:
R.
    v. Mian
, 2014 SCC 54, [2014] 2 S.C.R. 689, at para. 33. However, the
    situation in this case is not covered by either of those propositions.

[27]

This
    case did not involve an issue formulated in a way that would not be legally
    sufficient to ground liability no matter how it was answered. Nor did the issue
    of whether the duty of care had been breached require, as a matter of law, any
    additional question to be analyzed beyond the questions the parties had
    expressly put to the trial judge.

[28]

Determining
    whether the duty of care had been breached by determining whether the Citys
    premises had the type of safety glass required by the
Building Code
,
    addressed what the City did or failed to do, and whether that conduct fell
    below a required standard. A legally inapplicable strict liability approach,
    imposing liability without consideration of whether the City failed to take
    reasonable care, was not used.

[29]

The
    City was found to have breached its duty of care not only because it failed to
    use tempered safety glass but also because that is the type of glass required
    by the
Building Code
. The
Building Code
is a statutory
    standard, enacted in the interests of public safety. Although the breach of a
    statute is not
per se
negligence, a statutory standard, can inform a
    standard of reasonable conduct. As the Supreme Court of Canada held, in
The
    Queen (Can.) v. Saskatchewan Wheat Pool
, [1983] 1 S.C.R. 205, at p. 228, there
    can be civil consequences to the failure to follow a statutory standard as [t]he
    statutory formulation of the duty may afford a specific, and useful, standard
    of reasonable conduct.

[30]

I
    interpret the trial judge to have followed that approach when she concluded:

Installing glass that does not meet minimum public safety
    standards in an office door in the lobby of a busy public community recreation
    centre consistently full of tiny tots, and their caregivers, seniors and
    adolescents meets the test for a breach of the standard of care to ensure
    persons entering the premises are safe. Hence I conclude that the Plaintiff has
    proved that the City breached its duty of care.

I do not accept the Citys argument that the trial
    judges use of the word ensure in this passage indicates that she did not
    properly set out the reasonable care standard. It is clear in the context of the
    entire passage and her reasons as a whole that she was referring to and
    properly understood the standard of reasonable care required under s. 3(1) of
    the
OLA
.

[31]

Similarly,
    characterizing the issue of whether the City had breached its duty of care as
    one that turned on whether the type of glass required by the
Building Code
had been installed was not legally incomplete, so as to require, as a matter of
    law, additional questions to be answered. It was not legally necessary for the
    trial judge to go on to consider whether the City discharged its duty of care
    on the basis of the specific, although unsuccessful, efforts taken by the City
    to have the required tempered safety glass installed, where that theory had not
    been raised.

[32]

It
    was open to the trial judge to treat the failure to use the type of glass
    required by the
Building Code
as a failure to take reasonable care as
    the occupier of the community centre. Indeed, that was the very treatment embedded
    in the parties theories about whether the duty of care had been breached which
    turned on whether the type of glass required by the
Building Code
had
    been used.

[33]

Accordingly,
    the trial judge, in accepting and acting on the formulation of the issues
    invited by the parties submissions did not fall into legal error as the City
    contends.

The Trial Judge Was Not Obliged to Consider the Issue Beyond
    the Way It Was Advanced at Trial

[34]

The
    City argues that even if it did not, at trial, expressly advance the theory
    that it had met the duty of care on the basis of its reasonable efforts,
    regardless of the type of glass that was actually installed, it never abandoned
    that theory or any defence. Accordingly, it argues that the trial judge should
    have considered it. Effectively, the City submits that it should be entitled to
    the benefit of any defence the evidence and law could support, regardless of
    the theory it expressly articulated to the trial judge, and regardless of the
    way its submissions framed the questions the trial judge was to decide.

[35]

The
    Citys argument runs contrary to the well-established principle that a trial
    judge errs, not by failing to decide issues that were not raised, but, on the
    contrary, by deciding a case on a basis not advanced by the parties. Procedural
    fairness underlies that principle:

Union
    Building Corporation of Canada v. Markham Woodmills Development Inc.
, 2018 ONCA 401, at paras. 13, 15
.

[36]

Strong
    authority contradicts the Citys argument that a position is advanced, and
    remains on the table, so long as it was pleaded and not formally abandoned,
    without regard to how the case was put at trial. Although the authorities arise
    in the context of attempts to raise a new issue on appeal, in my view they
    apply even more forcefully to an attempt to argue that a trial judge failed to
    consider an issue that was not raised before her.

[37]

One
    such authority is
Shaver Hospital for Chest Diseases v. Slesar
(1979)
, 27 O.R. (3d) 383 (C.A.), leave to
    appeal refused, [1981] 1 S.C.R. xiii. The defendant physician argued at trial
    that he had not agreed to turn over his fees to a hospital. On appeal, he
    pursued a different line of argument, namely, that the agreement with the
    hospital was void for illegality. The defendant argued on appeal that he had
    never clearly and unequivocally abandoned this issue, and it was not disputed
    that it had been properly pleaded. Nevertheless, this court dismissed the
    appeal, on the basis that it would be unfair to permit the defendant to
    resurrect an argument virtually abandoned at trial on which relevant evidence
    was not fully adduced:

It seems clear, therefore, that the issue of illegality,
    although clearly pleaded, was not an issue at the trial. The evidence which is
    said to foreshadow this defence was not introduced for that purpose, but found
    its way accidentally in the evidence as part of the documentation on the
    existence of the arrangement. I am therefore of the opinion that it would be
    manifestly unfair to the respondent to allow the appellant to argue a point
    which was not raised at the trial at a time when relevant evidence bearing on
    it could have been introduced.: at pp. 387-38.

[38]

In
    this case, the reasonable care was exhibited even if tempered safety glass was
    not installed theory was not clearly pleaded. Even assuming that the Citys
    statement of defence was broadly enough drafted to include this theory, the point
    is that it was not raised at trial. The evidence the City now points to, such
    as the involvement of its contractors and architects, was not introduced for
    the purpose of the even if theory. Unfairness to Ms. Becker would have
    resulted if it had been considered by the trial judge on a theory the City did
    not articulate.

[39]

The
    City chose to fight the issue of whether it breached the duty of care on the
    point of the type of glass that was installed. There can be good reasons why a
    party will pick what appears to be its best point and eschew alternative even
    if or fallback positions. Such positions can be seen to weaken or distract
    from the main point. But that strategic choice has a consequence (if it did
    not, it would not have been a choice). As this court observed, citing
Shaver
,
    you cannot take advantage afterwards of what was open to you on the pleadings,
    and what was open to you upon the evidence, if you have deliberately elected to
    fight another question, and have fought it, and have been beaten upon it.:
Pedwell
    v. Pelham (Town)
(2003), 174 O.A.C. 147 (C.A.), leave to appeal refused,
    [2003] S.C.C.A. No. 355, at para. 50.

[40]

To
    hold otherwise would encourage parties to litigate by instalments, with
    deleterious consequences for the efficiency of the justice system and for
    access to justice.

[41]

Additionally,
    I do not accept that the trial judge was required to consider an even if
    theory, which was not argued at trial, just because the City never expressly
    abandoned it. The parties may put the matter to the trial judge in a way that
    implicitly takes a defence off the table. In
Cotic v. Gray
, [1983] 2
    S.C.R. 2, the Court considered circumstances in which counsel had agreed, with
    the approval of the trial judge, that the only question to be submitted to the
    jury was whether the defendant caused or contributed to the plaintiffs injury.
    On appeal, the defendant argued that the trial judge had failed to instruct the
    jury on the issue of foreseeability of injury. The Court dismissed the appeal,
    finding that the question of foreseeability was implicitly conceded, given the
    parties agreement on the question to be submitted for adjudication:

[The question of foreseeability of suicide in these circumstances,
    in my opinion, was answered in favour of the respondent by the very form of the
    question put to the jury. The limited range of the question makes it clear that
    the question of foreseeability of suicide was agreed upon by the parties before
    the trial commenced and the only matter left open was that of causation. The
    parties contested the trial on this basis and it would be improper, in my view,
    to open a new issue at this time.: at p. 5.

[42]

In
    my view, the way the parties put the issue of whether the City breached its
    duty of care to the trial judge took any fallback position about whether the
    City had shown reasonable care, even if the required type of glass had not been
    installed, off the table. The entire question of reasonable care was subsumed
    in the question of the type of glass that was installed and whether it complied
    with the
Building Code
.

[43]

The
    trial judge was not obliged to consider the issue from a perspective other than
    the way it was put to her by the parties.
[2]

CONCLUSION

[44]

For
    these reasons, I would dismiss the Citys appeal. If the parties are unable to
    agree on the costs of the appeal, they may make submissions in writing, limited
    to two pages each. The submissions on behalf of Ms. Becker should be delivered
    within ten days of the date of these reasons. The submissions of the City
    should be delivered within five days of the delivery of Ms. Beckers
    submissions.

Released: D.W. September 28, 2020

B. Zarnett
    J.A.

I agree.
    David Watt J.A.

I agree. Gary
    Trotter J.A.

[1]
The Ontario
Building Code
in place at the time of the accident was a
    regulation under the
Building Code Act
, R.S.O. 1990, c. B.13. The
Act
governs the construction, renovation and change-of-use of buildings in Ontario;
    the
Building Code
establishes detailed technical and administrative
    requirements.

[2]
Nothing in these reasons should be taken as a comment on the sufficiency of the
    evidence of reasonable care in trying to have the required glass installed. As
    I have noted, the evidence was not analyzed by the trial judge from that perspective.
    Nor is it clear that, if the theory had been advanced by the City, the evidence
    below would have been limited to what the City now points to.


COURT OF APPEAL FOR ONTARIO

CITATION: Bruno v. Dacosta, 2020 ONCA 602

DATE: 20200923

DOCKET: C66667

Lauwers, Brown and Nordheimer
    JJ.A.

BETWEEN

Paul
    Bruno,
Martha Bruno
, Mary Catherine Bruno,

Paul John Bruno
,
    and
Jake Bruno
under the age of 18 by

his Litigation Guardian Martha Bruno

Plaintiffs
    (
Respondents
/

Appellants by way of cross-appeal
)

and

Joshua
    Dacosta, Guy Gibson, Daniel Ashenden, Terry Empey,

Her Majesty the Queen in the Right of Ontario
Represented by the

Ministry
    of Community Safety and Correctional Services
, the
    Niagara

Detention
    Center, Wendy Southall as the Chief of Police of the

Niagara
    Regional Police Service, Police Officers Jane Doe and

John
    Doe, the Niagara Regional Police Services Board, the

Corporation of the Regional Municipality of Niagara and William
    Shilson

Defendants
    (
Appellant
/

Respondent by way of cross-appeal
)

Ian MacLeod
    and Robert Trenker, for the appellant Her Majesty the Queen in Right of Ontario

Gregory P. McKenna
    and Sabrina L. Seibel, for the respondents Paul John Bruno, Martha Bruno and
    Jake Bruno

Heard: August 28,
    2020 by video conference

On appeal
    from the judgment of Justice Paul R. Sweeny of the Superior Court of Justice,
    dated February 7, 2019, with reasons reported at 2019 ONSC 99, and from the
    costs decision dated February 26, 2020, with reasons reported at 2020 ONSC 1258.

Lauwers
    J.A.:

A.

Overview

[1]

On August 25, 2006, the respondent, Paul Bruno,
    was an inmate being held in protective custody at the Niagara Detention Centre
    (NDC).

[2]

The trial judge found that inmates Joshua Dacosta,
    Guy Gibson, Daniel Ashenden, and Terry Empey assaulted Bruno in the washroom of
    3-Wing, in which they were all housed. Bruno suffered serious personal injuries
    and was found unconscious. He was in a coma for nearly a month and continues to
    suffer from the sequelae of his injuries.

[3]

The issue before the trial judge was whether the
    Crown, represented by the Ministry of Community Safety and Correctional
    Services, is liable to Bruno in negligence because NDC employees failed to take
    reasonable steps to protect him as a vulnerable inmate. He was vulnerable for
    several reasons, the most prominent being that his father was a retired police
    officer. The trial judge was not required to assess damages because the parties
    had agreed on the quantum at $1.5 million.

[4]

Dr. Michael Weinrath provided expert evidence
    for Bruno and Dr. Ralph Serin for the Crown. The trial judge relied on the
    evidence of Dr. Weinrath and rejected that of Dr. Serin. He found two breaches
    of the standard of care: first, the standard required that inmates Ashenden,
    Gibson, and Empey be kept separate from Bruno and not be housed together; and,
    second, the standard required NDC staff to consult with inmates about potential
    incompatibilities before Bruno was placed into protective custody in 3-Wing.

[5]

With respect to the first breach of the standard
    of care, the trial judge said he was satisfied that the gang assault would not
    have occurred had NDC staff separated Empey and Gibson and Ashenden or any of
    them. He found that: But for the NDCs breach of duty, Gibson, Empey, and Ashenden
    would not have been together and could not have acted in concert.

[6]

As for the second breach of the standard of care,
    the trial judge stated: had the [officers] made any inquiries of the inmates
    in 3-Wing prior to placing Bruno there, I am satisfied the assault would not
    have occurred.

[7]

However, because Bruno did not speak up when he
    noticed the presence of an old enemy, Gibson, in the wing, the trial judge
    found Bruno contributorily negligent. In his view, it was not foreseeable to [Bruno]
    that a gang assault would have occurred. He assessed Brunos contributory
    negligence at 15 percent.

[8]

The Crown appeals and asks that the action be
    dismissed. Bruno cross‑appeals and asks that the level of contributory
    negligence attributed to him be reduced to zero.

[9]

The appellant argues that the trial judge made numerous
    serious errors, in particular:

1.

finding liability on a Ministry-level basis not
    tied to the negligence of specific employees, contrary to the
Proceedings
    Against the Crown Act
, R.S.O. 1990 c. P.27 and case law;

2.

finding that the four named inmates assaulted
    Bruno in the washroom, particularly given the presence of a fifth inmate whose
    actions, if any, were not mentioned in the reasons;

3.

preferring the expert evidence on the standard
    of care advanced by Brunos expert witness over the evidence of the Crowns
    witness;

4.

finding that the breaches of the standard of
    care caused the assault because the causation finding was speculative, based on
    hindsight, and not supported by the evidence; and

5.

assessing Brunos contributory negligence too
    low at 15 percent (the Crown had argued at trial for 50 percent).

[10]

Bruno cross-appeals and asserts that the
    contributory negligence should be set at zero.

[11]

In considering the evidence and arguments on these
    issues, I have come to the regrettable conclusion that there must be a new
    trial. For the reasons set out below, I would allow the appeal on the basis
    that the reasons for decision are insufficient to permit meaningful appellate
    review. I would remit the case to the Superior Court for trial by another
    judge. Because the case must be tried anew, I will avoid unnecessary comment on
    the live issues.

B.

Analysis

[12]

I begin with a discussion of the governing
    principles on the sufficiency of reasons of trial judges and when an appellate
    court can salvage a judgment despite insufficient reasons, and then apply the
    governing principles to this case.

(1)

The Governing Principles on the Sufficiency of Trial
    Reasons

[13]

The Supreme Court explored the functional
    purposes for good reasons in
Baker v. Canada (Minister of Citizenship and
    Immigration)
, [1999] 2 S.C.R. 817, at para. 39,
per
LHeureux-Dubé J.:

Reasons  foster better decision making by
    ensuring that issues and reasoning are well articulated and, therefore, more
    carefully thought out. The process of writing reasons for decision by itself
    may be a guarantee of a better decision.
Reasons also
    allow parties to see that the applicable issues have been carefully considered,
    and are invaluable if a decision is to be appealed
, questioned, or
    considered on judicial review:  Those affected may be more likely to feel
    they were treated fairly and appropriately if reasons are given. [Emphasis
    added; citations omitted.]

See also
Canada (Minister of Citizenship
    and Immigration) v. Vavilov
, 2019 SCC 65, at
    paras. 79-81.

[14]

Beginning with the Supreme Courts decision in
R. v. Sheppard
, 2002 SCC
    26, [2002] 1 S.C.R. 869

and most recently in
Vavilov
, there has been a continuing
    judicial conversation about the duty of judges and tribunals to give reasons
    that properly explain a decision. The cases speak about accountability,
    intelligibility, adequacy, and transparency. In
Vavilov
, the court invoked
    the need to develop and strengthen a culture of justification: at paras. 2,
    14, 79 and 99; see also
Vancouver International Airport Authority v. Public
    Service Alliance of Canada
, 2010 FCA 158, [2011] 4 F.C.R. 425, at para.
    16, considering a decision of the Canada Industrial Labour Board,
per
Stratas J.A. I do not see this project of justification, which originated in
    several seminal criminal law decisions, as limited to administrative law:
Vavilov
,
    at paras. 79-80.

[15]

In
Sheppard
, the court noted at para.
    55 that [t]he delivery of reasoned decisions is inherent in the judges role [and]
    is part of his or her accountability for the discharge of the responsibilities
    of the office. The court continued, at para. 55:

The trial judges duty is satisfied by reasons
    which are sufficient to serve the purpose for which the duty is imposed, i.e.,
    a decision which, having regard to the particular circumstances of the case, is
    reasonably intelligible to the parties and
provides the
    basis for meaningful appellate review of the correctness of the trial judges
    decision
. [Emphasis added.]

[16]

A meaningful right of appeal must not be an
    illusory right:
R. v. Richardson
(1992), 9 O.R. (3d) 194 (C.A.),
    [1992] O.J. No. 1498, at para. 13.

[17]

In
R. v. R.E.M
., 2008 SCC 51, [2008] 3
    S.C.R. 3, McLachlin C.J. focussed on intelligibility, stating at para. 35 that
    [t]he basis for the trial judges verdict must be intelligible, or capable
    of being made out. She was referring to the trial judges duty to lay out the
    chain of reasoning, in which a logical connection between the verdict and the
    basis for the verdict must be apparent. She explained, at para. 35, that in
    discerning whether there is such a logical connection, one looks to the
    evidence, the submissions of counsel and the history of the trial to determine
    the live issues as they emerged during the trial. In that task of
    discernment, the appellate court reads the reasons as a whole, in the context
    of the evidence, the arguments and the trial, with an appreciation of the
    purposes or functions for which they are delivered: see also
Vavilov
,
    at para. 85.

[18]

Drilling down to the practical elements, in
    order to provide for a meaningful right of appeal,
trial
    judges must identify the key issues; find the facts relevant to the issues;
    assess credibility and reliability where there is conflict; set out the chain
    of reasoning; make the decision; and then write the reasons to clearly
    communicate the decision:
Welton v. United Lands Corp.
, 2020 ONCA 322,
    at paras. 57 and 58. Appellate courts rely on trial judges to find the facts and
    to assess credibility and reliability where there are live witnesses, as in
    this case. Appellate courts recognize that trial judges attend to these tasks
    from a privileged vantage point.

[19]

But the principles governing the sufficiency of
    the reasons of trial judges do give rise to a difficult issue: To what extent should
    appellate courts work to salvage inadequately explained or conclusory trial reasons?

(2)

When Appellate Courts can Salvage a Judgment for
    which there are Insufficient Trial Reasons; the Governing Principles

[20]

I begin with the observation that this court is
    reluctant to order a new trial in civil matters. 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.), at para. 6; see also
Nemchin v. Green
, 2019 ONCA 634, 147 O.R.
    (3d) 530, at para. 71. The court must find a real prospect "that a
    substantial wrong or miscarriage of justice has occurred":
Courts of
    Justice Act
, R.S.O. 1990, c. C.43, s. 134(6);
Vokes Estate v. Palmer
,
    2012 ONCA 510, 294
O.A.C. 342,
at para. 7; see also
Iannarella v. Corbett
, 2015 ONCA 110, 124 O.R. (3d)
    523, at para. 23.

[21]

Insufficient reasons necessitate a new trial
    where the appellate court is unable to salvage the decision based on the
    available record.
On what basis is that determination
    made?

[22]

In
Sheppard
, Binnie J. wrote, at para.
    55: Where the trial decision is deficient in explaining the result to the
    parties,
but the appeal court considers itself able to do
    so
, the appeal courts explanation in its own reasons is sufficient.
    There is no need in such a case for a new trial (emphasis added).
[1]
But the converse is also true.
    To paraphrase: Where the trial decision is deficient in explaining the result
    to the parties, and the appeal court does not consider itself able to do so, a
    new trial may be needed. This is a case-specific assessment.

[23]

In assessing the trial judges reasons for
    sufficiency, the reviewing 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, [2008] 1 S.C.R. 788, at para. 32,
per
Charron J., who ordered a new trial. An appellate court must review the record
    to determine whether the trial decision can be rendered more comprehensible
    when read in the context of the record: see
Maple Ridge Community
    Management Ltd. v. Peel Condominium Corporation
, 2015 ONCA 520, 389 D.L.R.
    (4th) 711, at para. 30,
per
Hourigan J.A., citing
Hill v.
    Hamilton-Wentworth Police Services Board
, 2007 SCC 41, [2007] 3 S.C.R.
    129, at para. 101.

[24]

However, there are limits on the appellate
    courts ability to fairly and justly salvage a trial decision: Where the trial
    judges reasoning is not apparent from the reasons or the record  the appeal
    court ought not to substitute its own analysis for that of the trial judge:
Dinardo
,
per
Charron J., at para. 32. She added that the need to review the
    record is not an invitation to appellate courts to engage in a reassessment of
    aspects of the case not resolved by the trial judge.

[25]

This court usually declines to dig into the
    record in order to salvage a decision where the trial decision turns on instances
    of conflicting evidence, evaluations of credibility and reliability, and
    exercises of discretion that are properly within the purview of a trial judge. I
    discuss each situation in turn.

(a)

Conflicting Evidence

[26]

This court does not attempt to reconcile critical
    conflicting evidence that could affect the outcome. In
R. v. Prokofiew
,
    2008 ONCA 585, Borins J.A. reviewed the reasons of a trial judge following a
    trial for conspiracy, fraud, and theft over $5,000. The trial had taken place
    intermittently over seven months. Nearly one year later, the trial judge
    released very extensive reasons for conviction. Borins J.A. noted, at para. 30:

My main problem with the trial judges reasons is that
    she made so few findings of fact on her way to the conclusory finding that each
    appellant was guilty as charged. He added: Because reasons for conviction
    were not patent on the record, I am unable to determine the analytical path she
    followed in convicting the appellants.

[27]

Similarly,
R. v. Capano
, 2014 ONCA 599
    concerned a trial judges consideration of the test for finding an accused to
    be not criminally responsible (NCR). The trial judge had not specifically
    articulated whether the accuseds mental disorder rendered the accused
    incapable of appreciating the nature and quality of the criminal act, on the
    one hand, or whether it rendered the accused incapable of knowing that the act
    was wrong, on the other hand. Faced with conflicting evidence in the trial
    record and the trial judges failure to expressly resolve this conflict in the
    evidence, this court ordered a new trial. Epstein J.A. noted, at para. 73: Given
    the two possible ways in which Mr. Capanos mental disorder may have affected
    his ability to understand that failing to report to CAMH was wrong, it was
    critical that the trial judge analyze and resolve how he found Mr. Capano
    NCR. She stated, at para. 74, relying on
Dinardo
, that it is not
    appropriate for this court to attempt to discern that route and explain it.

(b)

Credibility and Reliability

[28]

This same appellate
    reluctance applies to critical determinations of credibility and reliability. A
trial judges failure to sufficiently articulate how
    credibility and reliability concerns are resolved may constitute reversible
    error:

R. v. A.M.
, 2014 ONCA 769, 123
    O.R. (3d) 536, at para. 18, citing
R. v. Vuradin
, 2013 SCC 38, [2013]
    2 SCR 639, at para. 11, and
Dinardo
, at para. 26.

[29]

In
R. v. Slatter
, 2019 ONCA 807, 148
    O.R. (3d) 81, Trotter J.A. commented on a trial judges reliability findings,
    at para. 66:

Although the trial judge relied on Dr. Jones
    evidence in this context, he failed to mention her evidence concerning J.M.s
    suggestibility. The issue was clearly grounded in the evidentiary record. It
    was emphasized in defence counsels closing submissions.
Yet,
    because there is no attempt to address or reconcile this evidence in the trial
    judges reasons, we are left to speculate whether the trial judge appreciated
    the significance of this evidence and the role (if any) that it played in his
    ultimate findings
. [Emphasis added.]

(c)

Discretionary Decisions

[30]

Finally, this court is reluctant
    to make discretionary decisions that are properly within the purview of the
    trial judge.
In
R. v. Sahdev
, 2017 ONCA 900,
    356 C.C.C. (3d) 137,
per
Trotter J.A., the trial judge did not provide
    adequate reasons for refusing to sever counts in a criminal indictment. This court
    rejected the Crowns request to decide the issue. The severance issue was
    complicated by a similar fact issue and required a trial judges exercise of
    discretion in a new trial.

[31]

I now turn to apply these governing principles
    to the trial judges reasons.

(3)

Application

[32]

To provide context for the application of these
    principles, I will address the first issue raised by the Crown, which is that [t]he
    Trial Judge conflated the concepts of direct and vicarious liability, and erred
    by finding that institution-level conduct could ground liability. In doing so
    I do not mean to suggest that the trial judges reasons on the other issues
    were otherwise pristine and free of error; they were mostly conclusory.

(a)

The Law on
    Liability for Inmate Assaults

[33]

With respect to harm to an inmate, the
    applicable law is that Ontario can only be held liable for the negligent acts
    or omissions of an individual correctional officer who, in the course of
    employment by Ontario, did or failed to do something, thereby creating a
    foreseeable risk of harm to the inmate:
Proceedings Against the Crown Act
,
    R.S.O. 1990 c. P.27, ss. 5(1)(a) and 5(2);
MacLean v. R.
, [1973]
    S.C.R. 2;
Timm v. R.
, [1965] 1 Ex. C.R. 174;
Walters v. Ontario
,
    2017 ONCA 53, at para. 34;
Iwanicki v. Ontario
, [2000] O.T.C.
    181, O.J. No. 955 at para. 15. In
Walters
, this court held, at para.
    34:

Generally, the provincial Crown can be liable
    in tort to inmates of correctional facilities only in the form of vicarious
    liability for torts that specific Crown employees or agents commit, and only if
    the plaintiff could have sued the employee or agent for that tort  [Citations
    omitted.]

[34]

In inmate assault cases, Ontarios liability,
    if any, must derive from actionable negligence of specific [correctional
    officers] under subsections 5(1)(a) and 5(2) of the
Proceedings Against
    the Crown Act
:
Walters
, at para. 34. The federal law is to the
    same effect: see the federal
Crown Liability and Proceedings Act,
R.S.C.,
    1985 c. C-50,

and
Hinse v. Canada (Attorney General)
, 2015
    SCC 35, [2015] 2 S.C.R. 621, where the trial judge found liability based on institutional
    inertia and indifference. The Supreme Court held, at para. 92 of
Hinse
,
    that the trial judge should instead have analyzed the individual conduct of
    each of the successive Ministers acting in his or her capacity as a servant of
    the federal Crown.

(b)

The Crowns Argument Regarding the Trial Judges
    Reasoning

[35]

The appellant Crown points out that the trial
    judge did not identify any specific negligent acts or omissions by any specific
    correctional officer or other NDC employee. The Crown submits that the trial
    judge erred by expressing the issue before him in general terms only, namely
whether the Ministry is liable to Bruno because correctional
    officers ("COs") failed to take reasonable steps to protect him. The
    Crown argues that the trial judge maintained this generic approach throughout
    his reasons,
failed to address the conduct of any
    individual employee, and instead used institution-level references to the conduct
    of the NDC, the Ministry, NDC staff, and the COs. The Crown points to
    the
following examples in the trial judges reasons:

NDC had knowledge
of the history of Ashenden, Empey, and Gibson. (Para. 34)

Although Dr. Weinrath acknowledged that Empey,
    Ashenden, and Gibson were appropriately in protective custody on the basis that
    they requested protective custody,
in my view, that does
    not relieve the Ministry of appropriately monitoring
of the placement of
    these inmates in the institution to address the issue of the worrisome assaults
    occurring in 3-Wing. (Para. 47)

NDC was aware
that Bruno was not wanted in the general population F-Dorm.
NDC was also aware
that his peers rejected him in
    2-Wing. He had been involved in assaults on his prior stays at NDC. Brunos
    vulnerability included the fact that his father had been a police officer. Tom
    Dykstra, during discovery, confirmed that
NDC knew this
    fact
. (Para. 51)

NDC had a history of
    communicating
with inmates about issues that
    arose. []
The COs of NDC
fell below the
    applicable standard of care. (Para. 52)

Had the COs
separated Empey and Gibson and Ashenden or any of them, I am
    satisfied that the gang assault would not have occurred. But for
the NDCs breach of duty
, Gibson, Empey, and Ashenden
    would not have been together and could not have acted in concert. []
NDC staff was aware
[] (Para. 53)

Had the COs
made any inquiries of the inmates in 3-Wing [...] (Para. 54)

Given
NDCs knowledge of
    Brunos vulnerability
[] (Para. 57)

In the result,
I find
    that the Ministry fell below the standard of care
. (Para. 62) [Emphasis
    added by the appellant.]

(c)

The Respondents Argument Regarding the Trial
    Judges Reasoning

[36]

The respondents submit that, read fairly, the trial judges liability
    findings were not grounded on institution-level conduct. Instead, the trial
    judge found liability to have flowed through the negligence of Ontarios
    employees, whose conduct breached the standard of care. The respondents name
    specifically as negligent employees: NDC Superintendent Barry McDonnell, Operational
    Manager Dennis Dutkus, other Operational Managers (OM), and correctional
    officer (CO) Alison Sorley.

[37]

The respondents submit that the reasons must be read
    holistically. So read, the trial judge must be seen to have found negligence
    by NDC employees for whose conduct Ontario is vicariously liable. The
    respondents pick out language in the reasons that supports their preferred
    reading:

The issue I must determine is whether the Ministry is liable to
    Bruno
because correctional officers
    (COs) failed to take reasonable steps to protect him
. (Para. 2)

The Plaintiff says the
Ministry
    personnel

fell below the appropriate
    standard of care in two ways  (Para. 3)

Dr. Weinrath posited two breaches of the standard of care  and
the COs
should have
    consulted with the 3-Wing inmates before placing Bruno there. (Para. 45)

The COs of NDC
fell below the applicable standard of care. (Para. 52)

Had the COs
separated Empey, Gibson and Ashenden or any of them, I am satisfied that the
    gang assault would not have occurred. (Para. 53)

NDC staff was aware
Empey had acted with other inmates in assaults and that he had assaulted an
    inmate out of loyalty to Gibson. Notwithstanding this information,
the COs of NDC

placed
    Gibson and Empey in the same cell in 3-Wing. (Para. 53)

Had the COs
made any enquiries of the inmates in 3-Wing prior to placing Bruno there, I am
    satisfied the assault would not have occurred. (Para. 54)

Either the inmates would have rejected Bruno, or if not  he
    would likely be closely monitored
by the
    COs
. (Para. 54) [Emphasis added by the respondents.]

[38]

The respondents point out that the trial judge did not base his
    liability finding on institution level conduct such as a negligent policy or the
    lack of a procedure. They point to individual instances of negligence that flowed
    through the conduct of Ontarios employees. The first claimed negligence is
    that staff chose to allow these problematic inmates to remain housed together
    and not to move any of them out of 3-Wing on the day of the assault. Second, staff
    chose not to consult with the 3-Wing inmates before Bruno, a particularly
    vulnerable inmate, was placed there. These decisions were made by individual
    staff members, not at an institutional level.

[39]

The respondents acknowledge that the trial judge did not identify
    the employees who were at fault by name but argue that his failure to do so is
    not a reviewable error and it is not required by the legislation. The basis of
    this submission is that the staff at fault can be identified from the
    evidentiary record, and the trial judge, consistent with
Housen
    v. Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 72,

should be presumed to have based his conclusions on a review
    of the entirety of the evidence.

[40]

The respondents undertake a deep excavation of the evidence to
    substantiate this argument, which they urge this court to adopt. They assert
    that the responsibility to separate Ashenden, Empey and Gibson rested on
    Superintendent Barry McDonnell and the Operating Managers working under him. In
    his evidence, Dr. Serin referred to an OM16 as being the acting Superintendent
    at the relevant time. This, the respondents argue, would be consistent with the
    Superintendents legislated authority to delegate his duties.

[41]

The Superintendent and the OMs were responsible for inmate
    discipline, which included transferring problematic inmates to other areas of
    the NDC or to another institution. Superintendent McDonnell was statutorily
    responsible for the administration of the institution and for the custody,
    supervision, care and safety of every inmate.

[42]

Further,
the respondents
    point out that
Superintendent McDonnells ongoing
    responsibility for the placement and management of inmates is reflected in
    NDCs internal documentation, the Adult Institutions Policy and Procedures
    manual, and the legislation. Occurrence Reports and Misconduct Reports were all
    to be addressed and forwarded to the Superintendent or his designate. The
    Superintendent or his designate was obliged to interview inmates being
    investigated for misconduct, determine whether a misconduct had been committed,
    and decide on a penalty if appropriate. The Superintendent was required to
    monitor misconduct dispositions made by designated employees. Only the Superintendent
    could order an inmate to be held in segregation. A Protective Custody Decision
    or Review required the Superintendents or his designates signature. The
    transfer of an inmate to another institution required the Superintendents or
    his designates authorization.

[43]

Moving down a level, the respondents explain that t
he
    placement of inmates, including their internal placement within the facility, was
    a continuous process to be adjusted as the need arose. The relocation of an
    inmate to a different cell or unit required an OMs authorization. The OM or Shift
    Supervisor on duty managed the shift and was effectively in charge of the NDC.
    All employees reported to him or her. The respondents argue that the names of
    the individuals on duty at the relevant time are in the record. It is
    noteworthy that none of these named individuals were called to testify at trial.

[44]

The second claimed breach of the standard of care was the failure
    to consult with 3-Wing inmates about possible incompatibilities before Bruno
    was placed there. According to the respondents, this was the responsibility of
    OM Dutkus and CO Sorley. OM Dutkus made the final decision to place Bruno in
    3-Wing on August 25, 2006, upon CO Sorleys recommendation. OM Dutkus was required
    to affix his signature, the date, and any relevant notations on Brunos Unit
    Notification Card (UNC), which contained extracts from Brunos file in the
    computerized Offender Tracking Information System. OM Dutkus made no notations in
    Brunos UNC or in his Protective Custody Decision/Review, also signed by OM Dutkus,
    that 3-Wing inmates had been consulted about Bruno. He made no notation that
    there were any institutional or resource issues that prevented Bruno from being
    placed anywhere else, and he did not indicate that Brunos father was a retired
    police officer, which the respondents assert made Bruno a target within the
    facility and which OM Dutkus knew at the time.

[45]

Accordingly, the respondent argues, each of the claimed breaches
    of the standard of care can in fact be traced to named individuals on the
    evidence before the trial judge. The respondents urge this court to find that
    the evidentiary omissions in the trial judges reasons can be filled by
    evidence that is patent on the record, and to make those findings.

[46]

The respondents characterize the trial judges use of the terms
    Ministry and NDC as the type of loose short forms talk that comes to be
    used during trials, not an indication of fundamental error. The respondents
    state that even the Crowns expert, Dr. Serin, used the same language in his report
    when he wrote: in my opinion,
the Crown
met
    the standard of care (emphasis in original). The respondents urge the court
    to give no weight to this use of language.

(d)

Discussion

[47]

There
    is ample support for the arguments of both the appellant and the respondents in
    the loose language used by the trial judge in his reasons. Seen one way, the
    reasons can be read as the trial judge focusing on institution-level liability,
    contrary to the legal test set by this courts decision in
Walters
. Seen another way, the reasons can be read as the
    trial judge recognizing the legal necessity of finding negligence on the part of
    individual employees despite his failure to identify them by name or their
    negligent actions by description.

[48]

I
    am left with genuine uncertainty about whether the trial judge fully understood
    and properly applied the correct legal test for liability. The reasons do not
    record his self-instruction. His reference to
Walters
was not in the body of his liability discussion but only in his discussion of
    the contributory negligence claim. He did not refer to this courts
    specification of the legal test for liability in
Walters
but only to the
Walters

trial
    judges figure for contributory negligence.

[49]

I
    note that the issues were fully joined in the parties lengthy and pertinent written
    submissions (exceeding 130 pages each) filed with the trial judge along with
    the transcripts. The reasons, at a mere 14 pages, do not do justice to the
    record, nor to the arguments. The excessive delays in the case probably did not
    help the trial judge to remain engaged. Transcript preparation took about four
    months. The plaintiffs written argument was followed by the Crowns argument a
    month later, and the reply two weeks later. After cancelling a planned
    conference call to address questions arising from the arguments, the trial
    judge took four months to render judgment and provide his reasons.

[50]

In
    the parties written arguments the legal test in
Walters
was plainly explicated, the responsible individuals were named, and the parties
    respective positions were fully and carefully contested. It is unfortunate that
    the trial judge gave the material such short shrift.

[51]

In
    this context the trial judges reasons are not intelligible or transparent. Read
    as a whole, they do not adequately justify the result he reached. The trial
    judge did not clearly and consistently identify the key issues, find the
    relevant facts, assess credibility and reliability, or set out the chains of reasoning
    applicable to each issue free of gaps and assumptions.

[52]

It
    is not our function as an appellate court to undertake these tasks in order to
    salvage the judgment. Because the reasons do not provide the basis for
    meaningful appellate review, there must be a new trial.

C.

Some Trial Practice Notes

[53]

There
    were errors made in the admission and use of the joint document book that
    further frustrated appellate review and that should not happen in other cases. I
    laid out some elements of acceptable trial practice in
Girao
    v. Cunningham,
2020 ONCA 260, at paras. 21-35. At paras. 33 and 34,
    I said:

In my view, counsel and the court should have
    addressed the following questions, which arise in every case, in considering
    how the documents in the joint book of documents are to be treated for trial
    purposes:

1. Are the documents, if they are not
    originals, admitted to be true copies of the originals? Are they admissible
    without proof of the original documents?

2. Is it to be taken that all correspondence
    and other documents in the document book are admitted to have been prepared,
    sent and received on or about the dates set out in the documents, unless
    otherwise shown in evidence at the trial?

3. Is the content of a document admitted for
    the truth of its contents, or must the truth of the contents be separately
    established in the evidence at trial?

4. Are the parties able to introduce into
    evidence additional documents not mentioned in the document book?

5. Are there any documents in the joint book
    that a party wishes to treat as exceptions to the general agreement on the
    treatment of the documents in the document book?

6. Does any party object to a document in the
    document book, if it has not been prepared jointly?

It would be preferable if a written agreement
    between counsel addressing these matters were attached to the book of documents
    in all civil cases. In addition, it would be preferable if the trial judge and
    counsel went through the agreement line by line on the record to ensure that
    there are no misunderstandings.

[54]

Even
    though
Girao
was released after the trial
    decision in this case, this situation presents an opportunity for further
    reflection on trial practice.

[55]

The
    most obvious point, which nonetheless bears emphasis, is that any agreement
    between counsel as to the admissibility of documents is not automatically
    binding on the trial judge, who remains at all times the gatekeeper of the
    evidence. I now turn to the problems experienced in this case.

[56]

At
    the opening of the trial, Mr. McKenna read the parties initial agreement with
    respect to evidence into the record:

The documents contained in the Joint Document
    Brief are relevant, authentic and the dates of the documents are accurately
    reflected on their face. Neither of the parties are to be considered as having
    accepted the truth of the contents of all of the documents. Further, both
    parties reserve their rights to challenge what is stated in the documents, lead
    further evidence which may or may not be inconsistent with the documents and
    argue as to the interpretation and weight to be given to the documents.

[57]

This agreement was not helpful to the trial
    judge because of its ambiguity, which he should have probed immediately and
    carefully with some obvious questions, among them: If a document is not
    challenged, is its hearsay content deemed to be admitted? If not all documents,
    then which?

[58]

The approach taken by counsel and permitted by
    the trial judge only invited further contention, which inevitably emerged. On
    the second day of trial, counsel for the Crown, Mr. MacLeod, attempted to enter
    a Niagara Regional Police Service Supplementary Report into evidence, leading
    to the following exchange:

Mr. McKenna: Just maybe my friend can clear
    is this going in as a business record, is that sort of the basis of the admissibility
    of it?

Mr. MacLeod: Your Honour, this is one our
    productions. I don't intend to have this marked as, and go in as, a business
    record as an exception to the hearsay rule. It is a document. I don't think
    there's any issue between the parties as to its authenticity. I don't think
    there's any issue as to its relevance. The witness has been questioned about
    these events, but it does provide evidence of some objective things that were
    happening at this time.

Mr. McKenna:  It's the officer's document,
    it's not Mr. Bruno's document. It probably sounds like I'm trying to be
    difficult, but if we're going to deal with this piece by piece and lead to a
    bigger problem later on, then I'd like to deal with this issue, you know, as a
    whole if we can.
I just don't
    want to be seen to be agreeing to letting records just go in and then I'm going
    to be faced with some argument that I didn't dispute it at this time and I'm
    going to be faced with the opposite argument with their actual Ministry
    documents.
[Emphasis added.]

[59]

After seven days of trial, and at the beginning
    of the Crowns evidence, Mr. MacLeod stated that the parties wished to
    make a further stipulation with respect to some documents and that this new
    stipulation would be in addition to what was already stipulated as the
    agreement between the parties. Mr. MacLeod then read the following statement into
    the record:

The parties agree that the records of the
    Ministry of Community Safety and Correctional Services contained in the joint
    document brief (Exhibit 1), as well as exhibits A, B, C, F, and G are business
    records pursuant to Section 35 of the
Evidence Act
. However there is no agreement that statements recorded in these
    records are admissible for the truth of their contents. [] For example, for an
    occurrence report that states that inmate X said Y, is evidence of the fact
    that the statement Y made was made by inmate X, [but it is not evidence that it
    is true.] The standing orders of the Niagara Detention Centre and the adult
    institutions policies and procedures are not technically business records, but
    are in evidence and can be referred to by the parties when examining witnesses
    and in argument.

[60]

This agreement is more specific than the first,
    but it raises problems of its own concerning the proper application and reach
    of s. 35 of the
Evidence Act
, R.S.O. 1990, c. E.23, which should have been canvassed and
    resolved at the outset of the trial. This last agreement came too late; it
    implies that the statements had to be proved by other means but, by this point,
    the plaintiffs had referenced and relied on numerous documents involving
    various degrees of hearsay.

[61]

A party properly invoking s. 35 of the
Evidence Act
is entitled to introduce
    certain limited forms of double hearsay contained in business records, such as
    statements made and recorded by two people who are each acting in the ordinary
    course of business, even if those statements are ultimately accorded little
    weight:
Evidence Act
,
    s. 35(4);
Parliament et. al. v. Conley and Park
, 2019 ONSC 2951, at para. 36;
Setak
    Computer Services Corporation Ltd. v. Burroughs Business Machines Ltd., et. al.
, [1977] 15 O.R. (2d) 750; [1977] O.J. No. 2226, at para. 63. In
    dealing with police reports and occurrence reports, however, trial judges have
    generally refused to admit business records in which a person, acting in the
    course of their duty, records unreliable third-party statements or other forms
    of hearsay: see for example
DeGiorgio v. DeGiorgio
, 2020 ONSC 1674, at paras. 50 and 54. The parties agreement simply
    stipulated that double hearsay is not admissible for the truth of its content.
    In my view this issue required argument and an evidentiary ruling.

[62]

I add an observation about the respondents s.
    35
Evidence Act
notice. It seriously overreached and, in so doing, created the uncertainty that
    set the context for uncertainty about the permissible use of documents. The s.
    35 notice, a copy of which this court requested after oral argument, ends with
    the following description under the heading Liability Documentation: All
    other business and medical records listed in the parties affidavits of
    documents and produced subsequently in this proceeding in response to
    undertaking or production requests. The idea seems to have been to extend the
    s. 35 cloak to other documents as yet unidentified. As convenient as this might
    be, it is unacceptable trial practice and invites contention at trial over the
    status of individual documents, as transpired here. The rigorous approach set
    out in
Girao
as
    modified in these reasons is a good way to avoid such problems.

[63]

As a matter of ordinary trial practice, the
    parties agreement should be entered with the joint book of documents at the
    earliest opportunity. In this case, the need for a timely agreement or
    resolution of the issues regarding documentary evidence was greater because of
    the unusually heavy role played by the documents. The fact that the parties
    felt the need to clarify their agreement so late in the game simply illustrates
    the inadequacy of the initial agreement and the effect of the absence of
    judicial scrutiny.

[64]

This was a case of far too little, far too late,
    which left the trial judge in a quandary about the admissibility and use of the
    business records. This became apparent when he dealt with the factual issue of
    who assaulted Bruno. The appellant takes issue with the trial judges factual
    finding on the assault, at para. 36 of the decision, where he stated:
Having reviewed all the evidence including the photos of the other
    inmates, the video, and the records of the NDC including the report prepared by
    CO Tom Bradley, I am satisfied that DaCosta, Gibson, Ashenden and Empey
    undertook the assault. Despite the parties reservation in their agreement on
    the hearsay value of statements in the documents, the trial judge effectively
    accepted the hearsay content of what was known in the trial as the Bradley
    Report, which the Crown produced. CO Bradley did not testify.

[65]

This case highlights the deplorable tendency in
    civil cases of admitting evidence subject only to the weight to be afforded by
    the trial judge:
Seduced by this trend towards
    [evidentiary] flexibility, some judges in various jurisdictions have been tempted
    to rule all relevant evidence as admissible, subject to their later assessment
    of weight:
Teva Canada Ltd. v. Pfizer Canada Inc.
, 2016 FCA 161,
per
Stratas J.A. at para. 83.
This is legal
    heresy, as Stratas J.A. noted, citing

R. v. Khelawon
, 2006 SCC 57, [2006] 2
    S.C.R. 787
,

at para. 59. I agree with his trenchant comments.

[66]

Finally, as I noted in
Girao
, at para. 22:
The goal of a trial judge in supervising the assembly of a trial
    record is completeness and accuracy, so that the panel of this court sitting on
    the appeal can discern without difficulty exactly what was before [the trial
    judge] at any moment in the course of the trial. In this case it was necessary
    for this court to look at the written closing submissions of counsel to the trial
    judge, but they were not in the trial record. They were sent after oral
    argument on the appeal at our request. In my view, good trial practice is to
    include any written arguments in the trial record as lettered exhibits to which
    the appeal court can have access if necessary.

D.

Disposition

[67]

I would allow the appeal on the basis that the
    reasons for decision are insufficient to permit meaningful appellate review and
    remit the case to the Superior Court for trial by another judge. In the
    circumstances, I would not address the other grounds of appeal. This is truly a
    regrettable outcome, particularly for the respondent who lacks the resources of
    the state.

[68]

The court will accept written costs submissions
    of no more than five pages in length relating to the appeal costs and the trial
    costs in view of this disposition, beginning with the appellant. These
    submissions are to be served and filed with the court at coa.e-file@ontario.ca
    within two weeks of the release of this decision, followed one week later by
    the respondents submissions, and any reply within another week.

Released: P.L. September 23, 2020

P.
    Lauwers J.A.

I
    agree. David Brown J.A.

I
    agree. I.V.B. Nordheimer J.A.

[1]

While many cases dealing with insufficient reasons have come
    out of the criminal context, this Court has had no difficulty applying them in
    the civil context. See
Canadian
    Broadcasting Corporation Pension Plan v. BF Realty Holdings

(2002), 214 D.L.R. (4th) 121, at para. 64. The same
    applies, albeit with different considerations, to the overlap between civil and
    administrative law. Indeed Binnie J. relied on
Baker
in formulating his
    reasons in
Sheppard
.