Madden v. Ministry of Public Safety and Solicitor General and another, 2024 BCHRT 313
Date Issued: November 5, 2024
File: CS-008019
Indexed as: Madden v. Ministry of Public Safety and Solicitor General and another, 2024 BCHRT 313
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
Connor Madden
COMPLAINANT
AND:
His Majesty the King in Right of the Province of British Columbia ARB the Ministry of Public Safety and Solicitor General (Fraser Regional Correctional Centre and Surrey Pretrial Services Centre) and Provincial Health Services Authority
RESPONDENTS
REASONS FOR DECISION
APPLICATION FOR PARTICULARS
Tribunal Member: Theressa Etmanski
On their own behalf: Connor Madden
Counsel for Provincial Health Services Authority: Alon Mizrahi
Counsel for the Ministry of Public Safety and Solicitor General: Joni Worton
I INTRODUCTION
[1] Mr. Madden has a physical disability for which he uses a cane. He alleges that while he was incarcerated at Surrey Pretrial Services Centre (SPSC) and Fraser Regional Correctional Centre (FRCC), from approximately May 2021 to April 2022, Correctional Officers repeatedly took his cane away from him. He alleges that this led to adverse incidents involving the use of force, segregation and other degrading treatment by correctional staff. He further alleges that health care staff contributed to the adverse impact he experienced during his incarceration.
[2] The Respondent, the Provincial Health Services Authority (PHSA), provides health care in correctional centres across British Columbia under Correctional Health Services (CHS). CHS operates as part of PHSA’s BC Mental Health and Substance Use Services program. PHSA provides health services to FRCC and SPSC.
[3] PHSA applies for particulars of the allegations contained in Mr. Madden’s complaint. PHSA says Mr. Madden has not provided particulars detailing any specific occurrence of discrimination as a result of PHSA’s actions or inactions, and it cannot respond to the allegations without further details. The other respondents have not provided a position on this application.
[4] Mr. Madden opposes the application and says he has provided sufficient particulars of his allegations at this early stage of the complaint.
[5] For the following reasons, I allow the application in part. I order Mr. Madden to provide particulars as detailed in paragraph 22 below.
II DECISION
[6] The Tribunal has authority to order a party to produce particulars to facilitate the just and efficient resolution of a complaint: Code, s. 27.3. The basic principles that apply to an application for particulars are set out in Klewchuk v. City of Burnaby (No. 3) , 2019 BCHRT 33:
This Tribunal encourages parties to provide full particulars of their position in advance of a hearing: Powell v. Morton and others (No. 2) , 2005 BCHRT 282 at para. 19. The purpose of particulars is “to define the issues, to prevent surprises at the hearing, to enable parties to prepare for the hearing and to facilitate the hearing process”: Hakansson v. BC (Ministry for Children and Family Development) (No. 2) , 2005 BCHRT 217 at para. 14.
Where a complaint or response to the complaint does not provide sufficient detail to allow the opposing party to understand the case it must meet, the Tribunal may order that party to particularize their position. This means the party must set out the material facts they intend to rely on in advancing their case. In doing so, they are not required to produce a complete summary of their evidence: Pegura and Forster v. School District No. 36 (No. 2) , 2004 BCHRT 48 at para. 17.
The issue in an application for particulars is whether the party has been “provided with sufficient information to enable it to prepare itself for the hearing”: Pegura at para. 19. That information may be contained within the complaint or response form, in documents disclosed during the Tribunal’s pre-hearing process, or in any submissions exchanged by the parties in interim applications.
Before addressing the specifics of this application, I begin with the observation that this is Ms. Klewchuk’s complaint. At a hearing, she bears the burden of proving that her allegations are true. To do this, she will have to lead evidence capable of establishing, on a balance of probabilities, that specific events took place that amount to discrimination. This entails, at a minimum, establishing the basic facts of who was involved, when the event happened, and what happened. To respond, the City is entitled to notice of these alleged facts to understand which of its staff it must talk to and what it must ask them to defend against the complaint. [paras. 3-6]
[7] There is no requirement that a complaint be at a certain stage before a respondent can apply for particulars; however, the Tribunal must be sensitive to the stage of proceedings in which the application is brought: Spencer obo others v. BC Ferry Services, 2022 BCHRT 112 at para. 18; Andrews and others v. B.C. (Four Ministries) , 2005 BCHRT 321 at para. 18. Surprises should be avoided at any stage of the complaint: Huzar v. North Vancouver School District, 2019 BCHRT 279 at para. 15. The current complaint is at a very early stage. PHSA has not yet provided a response to the complaint or begun document disclosure. This is relevant because PHSA says it requires the requested particulars to provide a response, and Mr. Madden may require PHSA’s document disclosure to particularize his complaint.
[8] Mr. Madden’s complaint describes allegations of Correctional Officers taking away his cane and refusing to return it to him for purposes such as showering or making calls to legal counsel. He says he declined to leave his cell without his cane, and this resulted in Corrections calling in the Emergency Response Team (ERT) to “forcibly and violently” remove him from his cell. He says he was often held in segregation. Mr. Madden alleges that all this “violence and isolation was extremely traumatic and had a negative impact on [his] health.”
[9] The specific allegations against PHSA are as follows:
Correctional Health Services, a division of the PHSA, was also complicit in the discrimination I experienced. They made decisions about my medical care only taking into account the position of corrections, failed to make sure I had the medical care I needed in order to be able to take care of myself, and failed to advocate for me with BC Corrections to ensure I could access necessary medical care and healthful living conditions. All of this contributed to my spending prolonged periods in isolation and having violent force used against me on numerous occasions, leading to the deterioration of my health.
[10] Mr. Madden further says that his allegations against PHSA include the following two incidents described in his complaint:
1. On or around July 15, 2021, I used my cane to knock on the segregation window to gain the attention of officers on duty (I did not do this in a violent or aggressive manner). After this an officer entered the CLOG stating “It is this writer’s opinion that if this inmate cannot make proper use of his cane, it should be taken away” and informed healthcare that I was using the cane as a weapon, resulting in Dr. Baughen discontinuing my approval to have the cane without meeting with me in person to determine if it was medically necessary.
2. 2021.11.23 – I had been fasting for a prolonged period and the ERT came to forcibly move me from one segregated cell to another so that nurses could check my vitals. The ERT commander repeatedly stated that they were moving me “for [my] own good.” The ERT barged in, cuffed me, moved me to a new cell, and held me down again while nurses took my blood sugar and blood pressure again. I was not certified under the Mental Health Act at that time but no one asked for my consent for any of these medical procedures.
[11] PHSA applies for particulars with respect to five aspects of the complaint:
1. The precise conduct of PHSA staff that the Complainant alleges is in contravention of the Code, including exactly what was said, by whom, to whom, and when. Specifically, PHSA says the complaint does not provide the names, dates, times, and details of events involving:
a) PHSA staff who were involved in supporting the alleged discriminatory actions carried out by Correctional Officers;
b) How PHSA allegedly failed to advocate on behalf of the Complainant with Corrections;
c) How PHSA solely considered Corrections’ stance when making medical decisions for the Complainant; or
d) How PHSA’s actions or inactions led to the deterioration of the Complainant’s health and the specific ways in which his health declined.
2. The way in which the Complainant required heath care which was denied by PHSA staff.
3. The way in which PHSA staff supported the alleged claim of discrimination made against the FRCC and the SPSC in the claim.
4. The way in which PHSA staff did not at all times, consider the physical and mental state of the Complainant.
5. Authority for the assertion that PHSA staff have a duty to advocate on behalf of the Complainant to Corrections.
[12] PHSA says Mr. Madden has not set out specific details of any events or interactions involving PHSA staff. PHSA submits that physicians who treat patients at correctional facilities within PHSA are independent contractors and PHSA is not liable for their actions, so it is therefore imperative to know who was involved in the allegations.
[13] Mr. Madden disagrees that PHSA cannot be held liable for the acts or omissions of physicians at correctional facilities and says this is a question that the Tribunal will likely need to determine at a later stage of the proceedings. He notes that independent contractors have been found by the Tribunal to be employees for the purpose of the Code : Johnson v. AC Taxi and Williams (No. 2), 2008 BCHRT 242; Bauer v. Uber Canada Inc. and others , 2024 BCHRT 62. I agree that the resolution of this issue is beyond the scope of the current application.
[14] Further, Mr. Madden says the two specific incidents in his complaint involving health care staff refenced above identify the date, what happened and who was involved. One of these incidents involves the conduct of a physician, who he names, and the other incident involves the conduct of nurses. Mr. Madden says that he does not know the name of the nurses involved but says he has provided sufficient particulars at this early stage of proceedings with respect to the incident. He says that PHSA and correctional staff document these types of encounters, and the identity of the nurses should come to light through the disclosure process.
[15] I agree that the names of the nurses is something that may more reasonably be known to the Respondent, and Mr. Madden has provided sufficient information that PHSA should be able to uncover these details through their own records. I decline to order further particulars with respect to these two incidents.
[16] I now turn to the remainder of Mr. Madden’s allegations against PHSA. PHSA says it faces prejudice in responding to the complaint in the absence of further particulars. It says it is faced with an investigation of all PHSA staff involved in Mr. Madden’s care during the relevant time, and these efforts would be futile because PHSA does not have the details of any events to which staff or volunteers could be asked to respond. PHSA says the information it seeks is reasonable and within the scope of what the Tribunal has ordered in other cases: Klewchuk . PHSA says such particulars would reasonably be within the scope of the Mr. Madden’s direct knowledge.
[17] In response to PHSA’s request for particulars regarding his allegation that PHSA was complicit in the discrimination of Correctional staff, Mr. Madden provides the following new information:
After my cane was taken away, Corrections personnel would drag me around when forcibly removing me from my cell. PHSA staff were often present during these incidents. It was clear that I required a mobility aid during these incidents. PHSA staff did not offer me mobility aids or suggest to Corrections staff that they provide me with a mobility aid.
Every morning when I was incarcerated, PHSA would do morning rounds and ask me if I needed anything. I would always say that I needed my cane back. My cane was not returned to me. I allege that my inability to use my cane adversely impacted me and my physical disability was a factor in that adverse impact.
[18] While the new information provided helps to clarify Mr. Madden’s allegations, I agree with PHSA that further information is still necessary. I note that in his complaint, Mr. Madden provides the date that his cane was first taken from him, and the dates of at least 24 instances when he says that he was forcibly removed from his cell. This may help to clarify the time periods in question. However, while Mr. Madden may not know the names of the specific PHSA personnel involved in each incident, he could provide details about their role if he knows that (i.e. nurse, outreach worker, physician, etc.) or other identifying details (i.e. perceived gender, race, age, etc.) which would help PHSA understand the case they are expected to meet and prepare their response.
[19] Similarly, Mr. Madden can reasonably provide more details about how PHSA is alleged to have denied him health care, and how they failed to consider his physical and mental state. I understand that not having access to his cane is an element of this allegation. However, Mr. Madden should be able to articulate specific details if the scope of his allegations goes beyond this factor alone. Further, Mr. Madden should particularize how his health declined as a result of PHSA’s alleged conduct. This will help to prevent surprises at later stages of this process.
[20] I am satisfied that Mr. Madden has set out sufficient details with respect to his allegations that PHSA failed to advocate on his behalf with Corrections in the new information he provided in response to this application. I am also satisfied that he has provided specific information about his allegation that PHSA solely considered Corrections’ stance when making medical decisions about him in his description of the July 15, 2021, incident involving Dr. Baughen.
[21] Finally, I agree with Mr. Madden that PHSA’s request for authorities outlining “PHSA’s obligation to advocate on behalf of the Complainant” is not the type of information that is required to be provided by Mr. Madden at this stage of proceedings. Whether the information requested may be found in legal authorities, as suggested by Mr. Madden, or in other evidence such as policy or procedure documents, Mr. Madden has provided sufficient information for PHSA to prepare a defence to this allegation.
III CONCLUSION
[22] The application is granted in part. I order Mr. Madden to provide the material facts he is relying on with respect to:
a. PHSA personnel who were present during the alleged incidents of the ERT forcibly removing Mr. Madden from his cell, or who were involved in morning rounds after Mr. Madden’s cane was allegedly taken away. This should include information about their role or position, and any other identifying information available.
b. Any incident in which Mr. Madden alleges that PHSA personnel denied him health care or failed to consider his physical and mental state.
c. How Mr. Madden’s health declined as a result of PHSA’s conduct.
[23] Mr. Madden must provide the particulars by no later than two months from the date of this decision.
[24] PHSA’s Form 2 complaint response will be due 35 days later. The Ministry may also file an amended Form 2 by this deadline if it so chooses.
Theressa Etmanski
Tribunal Member