A proposed settlement has been reached in two class action lawsuits against the province over conditions at London’s Elgin-Middlesex Detention Centre, and allegations that thousands of inmates were deprived of their Charter rights while at the troubled provincial jail.
Under the proposed settlement, still subject to approval by a judge, the province will pay nearly $32.8 million to class members detained at the jail during a period of nearly 12 years — between Jan. 1, 2010 and Nov. 10, 2021 — including those held pending trial or other court appearances.
The actions alleged that conditions at the jail, located along Exeter Road in south London, were overcrowded, unsanitary, dangerous and violent, according to a notice of proposed settlement being distributed to class members.
In addition, the class actions alleged that the province was “systemically negligent and deprived Class Members of their rights” guaranteed under section 7 and section 12 of the Charter of Rights and Freedoms in its operation and management of the jail, the notice says.
“Our obligation is to the class in general, and I think that this is in their best interest to have it settled now rather than continue in the process,” said Kevin Egan, a lawyer with London-based law firm McKenzie Lake Lawyers.
News of the proposed settlement was first reported by the London Free Press. Global News contacted the Ministry of the Solicitor General for comment but did not receive a response by publishing time.
A short-form version of the notice sent to class members states that the province denied the allegations and that “the Court did not decide who was right.”
The settlement would be disbursed in payments of between $1,500 and up to $35,000 to individual class members or their families depending on the compensation level they fall under.
Those incarcerated at the jail for at least 24 hours who can establish that they “suffered some detrimental impact” from their time at the jail, such as depression, loss of sleep, nightmares, and/or panic states — considered a level 1 claim — may be eligible for $1,500.
For level 3 claims, which may be eligible for an award up to $35,000, class members or their estates must establish the individual “suffered an ongoing or fatal impact” from their time at the jail, “resulting in a serious dysfunction, impairment, or death,” the notice says.
Those detained at EMDC for less than 24 hours cannot make a level 1 claim, but can make level 2 or 3 claims “provided that they deliver the supporting evidence required,” the notice says.
The proposed settlement includes no admission of liability on the part of the province, something Egan says is standard in any settlement agreement.
Class members have until July 20 to file objections to the proposed settlement.
The class action has been proceeding slowly since the first claim was issued a decade ago. The initial suit, covering roughly 3,000 people held or incarcerated at the jail between Jan. 1, 2010 and Aug. 25, 2013, was certified in 2016.
A second action was certified in 2017, covering a period spanning Aug. 26, 2013 to May 18, 2017. In 2018, the two suits were consolidated, seeking $300 million in aggregate damages for “negligence, assault and battery,” and $25 million in punitive, aggravated or exemplary damages.
In 2021, a third action was certified covering a period of May 18, 2017 to Nov. 10, 2021, bringing the estimated total number of class members to more than 13,000, according to Egan. Those incarcerated or held at the jail during that period have until July 20 to opt out of the action.
When the proposed settlement was reached in October, the actions were still making their way through the discovery process, an early stage of the litigation cycle, meaning a resolution was still a long way away, Egan says. McKenzie Lake announced the settlement late last week.
“Because of the enormous volume of documents that needed to be reviewed, we had not advanced beyond that stage,” he said, estimating the number of documents to be in the “hundreds of thousands.”
“Normally, there’s discovery of documents and then there’s examinations of representatives of the parties. And that had not yet occurred… Given how long it’s taken to get here, it was unlikely we were going to reach a trial for a considerable number of years.”
Asked whether it could have taken another decade for the actions to be resolved, Egan replied “a decade might not be (an) unreasonable projection” given everything that had yet to be done.
The proposed settlement will go before the Superior Court of Justice on Sept. 13 for approval. If approved, the total amount actually paid out by the province may vary should people opt-out.
More information on the settlement can be found at emdcclassaction.ca.
Elgin-Middlesex Detention Centre has made headlines for more than a decade for allegations similar to those detailed in the two class action suits, including for overcrowding, violence, and poor inmate supervision.
In 2019, the former chief of the province’s Human Rights Commission described the jail as being overcrowded, unsanitary and dangerous, saying it exhibited conditions dehumanizing and antithetical to prisoner rehabilitation.
The facility has seen at least 21 deaths involving inmates since 2009, with five reported in just the last two years.
The most recent death at the facility occurred in September, when a male inmate was found in medical distress in his cell and was later pronounced dead in hospital, according to the Ministry of the Solicitor General. No cause of death was provided.
Three inmate deaths were reported in 2021, including two within days of each other. The death of a third inmate, Brandon Marchant, 32, that July prompted demonstrations outside the jail.
The OPP, who arrested the 32-year-old following a serious crash on Hwy. 401 near Ingersoll, was cleared in his death in August 2021 by the province’s police watchdog.
At least seven inquests have been held into inmate deaths at the facility, most recently in November into the death of Murray James Davis, 24.
Davis died at the jail on Aug. 18, 2017 as a result of acute combined fentanyl and hydromorphone toxicity, according to the inquest, which deemed his death accidental.
Of the 57 recommendations made by the jury overseeing the inquest, the first two called on the province to replace EMDC with a new, modern facility, and to “immediately assess the number of people in custody at EMDC, recognizing that the overcrowding of people in custody worsens their mental and physical health.”
Davis’ inquest was slated to be held as part of a joint inquest in 2020 looking at the deaths of inmates Floyd Deleary, 39, in August 2015 of acute fentanyl toxicity, and Justin Thompson in 2016 of cocaine toxicity.
Eighty recommendations were made by the jury following the Deleary-Thompson inquest. Like the Davis inquest, the first recommendation was that the province consider replacing the jail.
In its response to those recommendations, released last year, the province said it had undertaken security upgrades at the jail, along with new program rooms, new staff training rooms, and a new security trailer and canine kennel.
Alterations were also made to the jail’s yard, dividing it into four sections with a yard covering and skylights to allow more than one group of inmates to go outside at a time, the province said.
The changes, it said, were part of a $500-million investment over five years to “transform correctional services across the province through new hires” and improvements.
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