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disposing of the matter MacKay J., referring to s10
of the CCRA, asserted that Commissioner's Directive 003 defines as peace
officers "Members employed in an penitentiary other than a Community Correctional
Centre," and on that basis, concluded that the officers involved in the
cell extraction were peace officers within the meaning of s25
of the Criminal Code. MacKay J. stated that Canadian law recognizes no
cause of action for a simple breach of statutory duty, except where a
statute provides for a civil cause of action in the event of a breach
of the duty. As a consequence, the failure of the guards to videotape
the cell extraction, as required by administrative policy, is not a basis
for a cause of action. In MacKay J.'s view, C's claim for injury alleged
in the course of the cell extraction must be founded in tort, either in
negligence or assault and battery. With respect to a cause of action in
negligence, there is no doubt that the guards owed a duty of care to the
inmate plaintiff. Yet, while the guards were obliged not to act in a fashion
that put the plaintiff at risk of harm that was reasonably foreseeable,
MacKay J. was not persuaded either that the guards breached the standard
of care to be applied in the circumstances of this case or even that the
damage alleged by the plaintiff can be attributed to the actions of the
hoards during the cell extraction. The action was dismissed.
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