John L. Hill

An appeal court has upheld an award against federal prison officials for “misfeasance in public office” for intentionally failing to replace the worn-out running shoes of a multiple murderer — even though they knew he might injure himself as a result.

Federal Court Justice Leonard Mandamin affirmed Sept. 21 a prothonotary’s award last year of $6,000 to Gregory McMaster for the pain and suffering he experienced when he hurt his knee after prison officials deliberately delayed replacing the running shoes they knew to be “worn-out and inadequate.”

“We haven’t made a decision regarding whether we are going to appeal or not,” Correctional Service of Canada spokesperson Christa McGregor told The Lawyers Weekly. She declined further comment.

McMaster shot three Canadians and a Minnesota police officer during a killing spree in 1978.

The 270 lb. inmate, who wears extra-wide size 13 runners that cost $123, repeatedly requested replacements for his worn-out shoes. But prison officials kept offering him shoes that were either too large or too small, which he refused to wear. He was injured while wearing his 18-month-old shoes during one of his daily intensive workouts.

In awarding him $9,000 last October (there was a $3,000 deduction for contributory negligence), Prothonotary Kevin Aalto noted “there do not appear to be any cases which assess damages for misfeasance in public office.”

McMaster’s counsel, John L. Hill of Cobourg, Ont., called the Federal Court’s decisions at first instance and on appeal of “major importance” and salutary for all Canadians who suffer abuse by public officials.

“The fact that it has been granted for inmates to use [the tort] against civil servants will also have a concomitant effect on the general public who needs that kind of precedent to take to court whenever a member of the general public feels that they have been oppressed by a civil servant, provincially or federally,” Hill told The Lawyers Weekly. “Even though the dollar amount was not great, the impact of the decision, I think, will be far-reaching.”

Hill predicted that “the fact that an inmate can now use that particular tort will have major impact on the correctional system, and hopefully for the betterment of inmates everywhere.”

However, the federal Crown argued on appeal that the tort of misfeasance in public office is reserved for grave and intentional abuses of power. The government urged that the prothonotary used the wrong legal test, wrongly applied negligence principles and erroneously held that the government was obliged to give the plaintiff new shoes each year.

After reserving judgment for nearly a year, Justice Mandamin described the tort of misfeasance in public office as involving “the unlawful conduct or omission by a public official who knows his or her actions are unlawful and likely to harm a specific person or group of people. It is different from a claim of negligence, or even gross negligence. It contemplates an element of bad faith, which has been established in this case by the unexplained and excessive delay.”

The judge held that two Correctional Service of Canada (CSC) officials at medium-security Fenbrook Institution near Bracebridge, Ont. intentionally breached their statutory obligations to ensure the safety of inmates, and to keep inmates “adequately clothed and fed,” when they failed to supply the 52-year-old plaintiff, in a timely manner, with new properly fitting shoes. “The obligation to provide adequate footwear includes replacing an inmate’s shoes when inadequate from wear,” Justice Mandamin ruled.

Officials “should have known the plaintiff was risking injury by exercising on inadequate shoes,” he reasoned. If they didn’t, it was only because they were “subjectively reckless or willfully blind to the likelihood the plaintiff would injure himself if the situation persisted.”

However the judge agreed with the government that the prothonotary was wrong in finding that prison officials were bound to supply inmates with new shoes each year by a CSC directive that allocates a new pair of shoes to each inmate every year. This is merely a “guideline,” the judge held. The source of prison officials’ obligations is the Corrections and Conditional Release Act and its Regulation, which require the CSC “to take all reasonable steps” to ensure that inmates are kept safe and healthy, and adequately clothed and fed. “Shoes that can’t provide support, because of wear, are inadequate,” the judge concluded. “The correct statutory duty upon the CSC was an obligation to provide inmates with adequate footwear and replace footwear when it is inadequate.”