Executive Summary: Key Legal and Evidentiary Issues

• Certification was granted for negligence claims only, rejecting all other causes of action.

• Claims related to unlawful imprisonment, misfeasance in public office, and Charter breaches failed for lack of commonality or viable pleadings.

• The court accepted that the plaintiff adequately pleaded compensable harm for negligence linked to the second lockdown.

• Allegations of systemic misconduct during prison lockdowns lacked sufficient uniformity for class-wide adjudication in most claims.

• The Office of the Correctional Investigator’s report was admitted as evidence under public document and hearsay exceptions.

• The claim’s framing around common experiences was narrowed to support certification but weakened broader systemic claims.

Facts and outcome of the case

This case arises from events at Kent Institution, a maximum-security federal penitentiary in British Columbia, during a lockdown that took place from January 7 to 18, 2010. An anonymous tip about a possible zip gun prompted authorities to initiate two consecutive “exceptional” searches under section 53 of the Corrections and Conditional Release Act. These involved full lockdowns, strip searches, and the use of heavily armed tactical teams (ERT/TAC) within inmate living units.

The plaintiff, Jeffrey Ewert, brought a proposed class action against the Attorney General of Canada, alleging that the lockdowns were conducted unlawfully and harmed inmates physically and psychologically. The causes of action included unlawful imprisonment, negligence, misfeasance in public office, and violations of sections 7, 8, and 12 of the Canadian Charter of Rights and Freedoms. The central factual allegations focused on the use of force during cell extractions, privacy violations during strip searches, and deprivation of basic necessities such as medication and access to counsel.

The litigation history of the case was protracted, with multiple amendments to the pleadings and appeals relating to certification. The Court of Appeal previously remitted the matter back to the trial court for a new determination of whether the claim was suitable for certification under the Class Proceedings Act. The plaintiff then submitted revised pleadings and proposed common issues, focusing on whether aspects of the lockdown involved common experiences sufficient to support class certification.

The court ultimately certified the action as a class proceeding but limited it strictly to two negligence claims. The certified claims relate to (1) prison administrators’ alleged negligence in planning and supervising the first exceptional search, and (2) correctional staff’s alleged negligence in conducting that first search. Both claims hinge on the assertion that the first search was flawed, leading to a second unnecessary lockdown and further harm to all inmates—a common experience suitable for a class action.

All other claims were rejected for certification. The court found that allegations of unlawful imprisonment, misfeasance in public office, and Charter breaches lacked sufficient commonality among inmates or failed to plead viable causes of action. Specifically, claims based on individual psychological harm or unique inmate experiences would require extensive individualized assessments, making them unsuitable for class-wide resolution.

The court found that the plaintiff’s proposed litigation plan was workable and that he would fairly represent the class. No damages were awarded at this stage, as the decision was limited to the question of certification. Similarly, no costs were awarded, and the court granted the parties leave to address any outstanding procedural matters related to the revised litigation plan and the scope of certified issues.