Lawsuit over 2011 jail assault going ahead
Thomas William Jack, 44, of Fredericton, was beaten and sustained a brain injury while on remand in provincial jail, but province sought to have 12-year-old court action dismissed
The province has failed in its bid for the dismissal of a long-languishing lawsuit brought by a man beaten in jail almost 12 years ago, but a judge has pushed the parties to pick up the pace.
Thomas William Jack, 44, of Fredericton, was charged in late 2011 with assaulting a man and a woman with a knife and threatening the woman, and he was remanded into custody in November 2011 pending the outcome of the case.
While he was being held at the Saint John Regional Correctional Centre on remand, he was severely assaulted and sustained a brain injury as a result.
Jack filed a notice of action and statement of claim in November 2013 against the Department of Public Safety, which oversees the province’s jails, in the Court of Queen’s Bench, as it then was, alleging jail staff and the department failed in its duty to ensure his health and safety while he was being held at the jail.
None of the allegations in the lawsuit has been proven in court as yet.
That lawsuit has been outstanding since that time, and little progress has been made in it getting to trial.
The provincial Attorney General’s Office filed a motion for dismissal of the lawsuit for delay in the case in January, and lawyers Brian Barnett, for the province, and Cassey LaBelle, appearing for Jack, argued the motion before Court of King’s Bench Justice Terrence Morrison earlier this week.
The judge rendered his decision on the province’s motion Wednesday, declining to dismiss the lawsuit.
Three criteria
Morrison said for the motion to be granted, the province needed to demonstrate three things: that there was inordinate delay in the case attributable to the plaintiff, that the delay was inexcusable, and that the delay prejudiced the province’s ability to defend itself.
Such assessments are to be made on a case by case basis, he said, noting there’s no one set of criteria for determining issues of delay.
“What would justify dismissal in one case might not justify it in another,” the judge said Wednesday from the bench at the Burton Courthouse.
Morrison said the timeline of the case was as follows:
- Pleadings in the case closed November 2014, and the next development in the file was a request from Jack’s counsel to the province for surveillance video from the jail and policy manuals in September 2015.
- In May 2017, the plaintiff’s counsel received an affidavit of documents from the defendant, and the video was disclosed. The province then inquired in February 2019 about when an affidavit of documents from the plaintiff would be provided.
- In July 2021, Jack’s lawyers again requested the provincial policy manuals they’d sought previously, and it was only after a telephone conversation between the two sides in January 2023 that the province noted those manuals were ready.
- The manuals were provided Jan. 17, but the province filed its motion for dismissal the following day, though it had advised Jack’s counsel of its intent to do so earlier that month.
Morrison said he calculated the overall delay as being eight years and two months, but he was deducting about 1½ years from that due to the provincial government’s delay in providing the requested manuals.
That brought the delay he had to consider to six years and nine months, he said.
“This is a significant period of delay,” the judge said, noting it was “on the borderline of being inordinate.”
“Some of the delay is excusable, but not all.”
Morrison noted the plaintiff had other avenues he could have pursued to move the case forward in a more timely manner but failed to do so.
Barnett had argued the delay was to such a degree that it would impede the province’s ability to answer to Jack’s allegations. He noted a number of staff members from the jail have moved on, notably a key correctional officer.
Court heard the province no longer has current contact information for that former employee. Furthermore, it’s expected a number of inmates at the time could be witnesses, and their locations are unknown.
The province also argued it’s been so long since the relevant events, people’s memories would have faded.
No dismissal, but a deadline
But Morrison said there’s no evidence that anyone has even tried to locate the pertinent individuals thus far.
Furthermore, he said, there would be incident reports and video that would refresh people’s memories.
“I am not satisfied that the defendant could not fairly defend the claim due to delay,” the judge said. “The delay in this case does not rise to the level of requiring dismissal.”
Nevertheless, Morrison said, the delay is unacceptable to the court, as there’s been no discovery done up to this point.
He said he sees no reason that can’t be accomplished within a few months.
The judge directed that the matter should be ready to be set down for trial at the June 2024 motions day.
If it isn’t, Morrison said, he’ll dismiss the lawsuit at that time, barring any unforeseen factor that would justify further delay.
The judge also said while the province was unsuccessful with its dismissal motion, it was justified in bringing it, so he declined to award costs to the plaintiff.
Allegations in the lawsuit
The original statement of claim alleges Jack and his cellmate, Jeremy Abram David, didn’t get along.
It notes that sometime between 1:30 and 2 p.m. on Nov. 28, 2011, Jack was seriously assaulted, but correctional officers failed to realize he was severely injured, thinking he was only asleep in his cell.
The court filing alleges video shows David and another inmate moved Jack out of the cell, leaving him unconscious in the hall of Unit 4 at the Saint John jail.
“Another unknown individual enters cell 284 and cleans the cell with a mop,” it states, noting the footage didn’t capture anything inside the cell.
It was after 2:30 p.m. that day that another inmate alerted a guard that Jack was having seizures.
That prompted a medical code being called, it said, with all other inmates being secured.
A nurse practitioner noted Jack was foaming at the mouth and breathing in a grunting pattern. He also had a black eye with “a well-defined, grid-like pattern” on it.
That led correctional officers to suspect Jack had been assaulted, as the pattern appeared to look like it came from the sole of a shoe. It was later found to be consistent with David’s shoe.
Jack was transported to the Saint John Regional Hospital, the statement of claim says, and after an initial examination, he was rushed into surgery.
“Jack was diagnosed with a severe head injury. Jack had a left frontal skull fracture and left epidural hematoma,” the lawsuit states.
“Jack was taken immediately into the operation room where he underwent a craniotomy with an evacuation of the left epidural hematoma and insertion of left external ventricular drain.”
The Saint John Police Force was notified and officers conducted an investigation. Police officers found blood-stained sheets and a pillowcase in the laundry area.
When questioned by police, David said he and Jack had gotten into an altercation, but that Jack had struck him first.
“... David responded with force, which ended with three kicks to Jack’s head,” the statement of claim says.
“David was convicted of this assault on March 18, 2013, and was sentenced on March 19, 2013.”
Jack remained in the Saint John ICU for a time and was later transferred to the Stan Cassidy Centre for Rehabilitation in Fredericton on Jan. 4, 2012. He remained there as an in-patient until April 27, 2012, and then continued as a Stan Cassidy out-patient.
He’s suing for unspecified damages for pain and suffering; loss of income, past and in the future; for the cost of his care; and the cost of future rehabilitation needs; among others.
Don MacPherson can be contacted at ftonindependent@gmail.com.
Pretty sure that former guard is still paying income tax... as well as "some"(?) of the former inmates that were in custody at the time. You are not looking their tax returns, just a current address and contact number.
WoW Sad -- I hope he win's