COURT OF APPEAL FOR ONTARIO
ABELLA, CRONK and ARMSTRONG JJ.A.
B E T W E E N :
R.E., by his Litigation Guardian, B.E., K.E., J.E. and the said B.E., personally
Kristopher H. Knutsen, Q.C. and Erik S. Knutsen, for the plaintiffs (appellants)
Plaintiffs (Appellants)
- and -
R.P., by his Litigation Guardian, THE CHILDREN’S LAWYER, J.P.1, J.P.2, C.P. and T.L.
Gregory R. Birston, for the defendants (respondents) C.P. and J.P.2
Eugene Prpic, for the defendant (respondent) T.L.
Defendants (Respondents)
Heard: December 18, 2003
On appeal from the judgment of Justice John deP. Wright of the Superior Court of Justice dated January 29, 2003.
ABELLA J.A. (Dissenting as to the apportionment of liability against J.P.1):
1This appeal involves the tragic and accidental shooting of thirteen year old R.E. by his fifteen year old friend R.P.. The issue in this appeal is whether the trial judge’s apportionment of liability should be disturbed.
BACKGROUND
2R.P.’s (“R.P.”) parents separated when he was three years old. He lived with his mother, T.L., until he was fifteen. He moved in with his father, J.P.1, in December 1997, as a result of the untenable conflict between him and his mother’s new husband.
3By the time R.P. moved into his father’s house, his relationship with his mother was so estranged that he had little contact with her. She was removed from his school’s contact list and no longer received any information about his attendance or report cards.
4In spring of 1998, R.P.’s father was told by his employer that he had to attend an alcohol rehabilitation centre for three weeks in order to keep his job. He did not want his fifteen year old son living alone while he was away. As R.P. did not want to stay with his mother, his father urged his brother, R.P.’s uncle J.P.2, to permit R.P. to stay with him, his wife C.P., and their baby. C.P. was unhappy about the arrangement, but accepted it because she was under the impression that it would only be for a few days.
5When J.P.1 went to the rehabilitation centre, he took his son’s key away and instructed him not to enter his house while he was gone. The family dog was to remain at the home to be cared for by the tenants who lived upstairs.
6Despite these instructions, R.P. entered the house. On one occasion, he called his aunt from there. She recognized the telephone number on call display and phoned his mother who, in turn, immediately phoned R.P. and told him to return to his aunt’s house. He complied with his mother’s request.
7Almost one week after R.P. began living at his aunt’s and uncle’s house, the aunt, who sometimes drove him to school, called the school to inform them that R.P. would be late that morning. The school informed her that R.P. had not been in attendance for several months. This resulted in the aunt and uncle telling R.P. he had to go to school, an admonition he accepted and followed.
8On the day of the accident, June 12, 1998, R.P. had been living with his aunt and uncle for about 10 days. On that day, R.P. was driven to school by his aunt and wrote an exam. R.P. and two friends, including R.E. (“R.E.”), went to R.P.’s father’s home around 1:00 p.m. R.P. broke into the house and let the other boys in through the front door. They went to R.P.’s bedroom. There were approximately a dozen marijuana plants, two firearms, and ammunition scattered throughout the room and the rest of the house.
9R.E. was playing with one of the firearms, a .22 calibre rifle, and initially pointed it at R.P., but then put it down. R.P. was holding the other firearm, a 20‑gauge shotgun. He backed up against the wall, accidentally discharging the gun. R.E. was hit in the abdomen above his right hip and was critically injured.
10R.E. spent six weeks at the Hospital for Sick Children in Toronto where he underwent major surgery and completed six months of physiotherapy. His injuries are permanent and serious.
11When the police arrived at the father’s home in response to a 911 call, they saw cushions which seemed to be shot with bullets, empty .22 shell casings, ammunition, and scorch marks from burned gunpowder. In the father’s bedroom closet, they found a leather bullet belt with seven live shotgun shells.
12In R.P.’s bedroom, they saw both live and fired ammunition, a large hunting knife, graffiti on the wall, matches, Marilyn Manson posters on the walls, green plant material on the floor, and burn marks on the floor from gunpowder.
13R.E. and his parents brought an action for damages against R.P., his father, mother, uncle, and aunt. The plaintiffs, collectively, conceded contributory liability to the extent of 25%.
14The trial judge assessed damages at $1,066,500. He failed to attribute any negligence to R.P.’s mother, aunt, or uncle, but apportioned the remaining 75% liability to R.P. at 50% and his father at 25%.
15This appeal by the E. family is from that apportionment.
ANALYSIS
16The appellants argued that the uncle, aunt and mother should have known there were guns in the father’s house and, therefore, had a duty to inspect it when they knew R.P. had gone there despite explicit instructions to the contrary.
17The general principles governing parental negligence are referred to by Allen M. Linden in Canadian Tort Law, 7th ed. (Markham: Butterworths, 2001) at 136 where he cites Lelarge et al. v. Blakney et al. (1978), 92 D.L.R. (3d) 440 at 447 (N.B.C.A.):
The [parental] duty [of care] is to supervise and control the activities of the child and, in doing so, to use reasonable care to prevent foreseeable damage to others. The extent of the duty varies with the age of the child.
18Foreseeability is a key component in assessing whether the care was reasonable in the circumstances (G.H.L. Fridman, The Law of Torts in Canada, 2nd. ed. (Toronto: Carswell, 2002) at 388). The standard of care must take into account any evidence of whether the parents were aware of any dangerous activity or propensity on the part of the child and whether, knowing of this possibility, failed to take reasonable steps to avoid its manifestation.
19These relevant factors can be summarized as including the child’s age; the nature of the activity and its potential dangerousness; and the parent’s knowledge of prior dangerous acts or tendencies.
20In my view, the trial judge’s reasons reflect the proper legal principles and their appropriate application to the facts, despite the absence of explicit references to some of the guiding concepts. There was sufficient evidence upon which he could reasonably have concluded that R.P.’s mother, aunt and uncle had not breached the requisite standard of care, that R.P.’s father was less liable than his son, and that the greatest share of responsibility should be attributed to R.P. in these circumstances.
T.L. (Mother)
21The E. family argued that the trial judge erred in finding that R.P.’s mother, T.L., had satisfied the onus set out in s. 68 of the Family Law Act, R.S.O. 1990, c. F-3 which requires a parent to show that he or she has exercised “reasonable supervision and control over the child”. Section 68 states:
In an action against a parent for damages to property or for personal injury or death caused by the fault or neglect of a child who is a minor, the onus of establishing that the parent exercised reasonable supervision and control over the child rests with the parent.
22The trial judge was satisfied that R.P.’s mother had met the onus because, in circumstances the trial judge found to be reasonable, she had transferred the supervision of her son to his father six months earlier and subsequently, through his father, to his aunt and uncle. She told the aunt and uncle to call her if they had a problem.
23The trial judge determined, in essence, that the mother exercised what could be considered reasonable supervision and control over R.P. given her relationship with him at the time. He concluded that the fact that she still had technical legal custody of R.P. was not determinative.
24The applicable standard of appellate review of a trial judge’s finding of negligence was described in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at 245 as follows:
A proposition that should be unnecessary to state is that a court of appeal should not interfere with a trial judge’s reasons unless there is a palpable and overriding error. The same proposition is sometimes stated as prohibiting an appellate court from reviewing a trial judge’s decision if there was some evidence upon which he or she could have relied to reach that conclusion [emphasis added].
25I see no such palpable and overriding error justifying interference with the trial judge’s findings. R.P. was explicit in his discovery testimony that he had no desire to live with his mother or to have anything to do with her at that point in his life. He was adamant about not returning to live with her and her new husband.
26R.P.’s mother’s evidence was that apart from his conflicted relationship with his step-father, and some minor incidents at school, he exhibited no behavioral problems. Given his age, the tensions with his stepfather, and his determined resistance, the mother acted reasonably in permitting R.P. to stay with his aunt and uncle while his father was at the rehabilitation facility.
27T.L. and J.P.1 had been divorced for 12 years at the time of the accident. The trial judge found that R.P.’s mother had no knowledge that he was playing with firearms or that there were any available in his father’s home. She was not in a position to know what the contents of her ex-husband’s home were, nor did she have a key or access to the house while he was away. When she attended J.P.1’s house two months prior to the accident, she saw no evidence of guns or ammunition. The only knowledge she had about dangerous items was that J.P.1 had owned a gun 12 years earlier.
28In addition, R.P. testified on discovery that not only had he never told his mother about the guns and the ammunition at his father’s home, he deliberately withheld this information from her because he knew she would have “[done] something”.
29Having found as a fact that R.P.’s mother did not know that he had access to any dangerous items in his father’s house, and given the reality of the nature of her relationship with her son when the accident happened and his unwillingness to subject himself to her supervision, the trial judge was entitled to conclude that Ms. T.L. did not breach the requisite standard of care.
C.P. (Aunt)
30The appellants argued that the trial judge erred in failing to apply the standard of care of a reasonable parent to J.P.2 and C.P.. They acknowledge that in accordance with Housen, the standard of care in a negligence action involves a question of mixed fact and law and is therefore entitled to deference on appellate review. However, they assert that because the trial judge failed to use the words “standard of a reasonable and prudent parent” in his reasons in connection with the aunt and uncle, this reflects a sufficient error that this court is entitled to reconsider the evidence and substitute its own findings.
31In my view, read as a whole, the trial judge’s reasons disclose no such error. The trial judge was entitled to find that given the temporary nature of R.P.’s stay with them, and their relationship with him, the aunt and uncle exercised reasonable care and supervision in the circumstances.
32Prior to R.P. coming to stay with them, the aunt and uncle rarely saw R.P. or his father. The aunt believed that she was dealing with “a decent young man who was amenable to direction”. She took reasonable steps to supervise him when problems were brought to her attention. When she discovered that R.P. was not attending school, she phoned both his father and mother. She enforced a 10:00 p.m. curfew, admonished him to attend school, and told him that he was not allowed to smoke in the house.
33She had no knowledge of guns or their availability on the father’s premises.
34The trial judge found that there was little, if anything, that the aunt could have done to prevent the accident. She had no reason to believe that dangerous weapons were on the father’s premises, let alone that they were accessible to R.P., or that he would disregard the clear and repeated instructions from his father, mother, uncle and herself not to enter his father’s home.
35Given her tenuous relationship with R.P., the temporary nature of his stay with her, and the fact that she had no knowledge about any dangerous propensities or access to weapons, I agree with the trial judge that she did all that she could be expected to do and that she exercised reasonable care and supervision in the circumstances.
J.P.2 (Uncle)
36There was no evidence that the uncle knew that a gun was in his brother’s home at the time of the accident, despite a finding to the contrary by the trial judge which, with respect, is not supported by the evidence. The uncle’s only evidence on this point was that he and his brother were given guns one Christmas as teenagers.
37The trial judge found that the doors to the father’s house were locked and that the uncle had the key. He found that there was no evidence that the uncle knew that R.P. was going back to his father’s house, or that he was playing with guns.
38The appellants argued that the trial judge erred in finding that the uncle did not know that R.P. had been in the house. Their position is that at some point before the accident, the uncle spoke to the tenants and directed them not to let R.P. into the house again. Rather than attracting liability, however, I see the uncle’s instruction to the tenants as a reasonable response by him in the circumstances. It was also reasonable for the uncle to assume that once this means of entry was eliminated, R.P. would not return to the house. There is no evidence that the uncle knew of any potential for dangerousness on R.P.’s part, nor did he have any basis for anticipating – or any way of preventing – R.P. breaking into his father’s house.
39Most significantly, there is no evidence that the uncle knew that weapons and ammunition were in the house or stored unsafely. The trial judge was entitled, therefore, to conclude that no “duty to inspect” the father’s home arose in circumstances where there was no evidence that any adult other than the father knew of guns in the house, let alone that R.P. used them.
40The appellants argued, however, that since the uncle did not testify at trial, the trial judge ought to have drawn the adverse inference that he knew both that R.P. was going back to his father’s home and that there was a risk that he would be playing with guns there.
41The trial judge had some of the uncle’s evidence from his examination for discovery. Moreover, the appellants concede that there was no need for the uncle to testify unless a prima facie case against him had been made out. No such case was established. The aunt was not asked directly on discovery if she told her husband about the call-display incident.
42In the absence of any evidence that the uncle knew that his brother had guns in the house or that they were stored unsafely, there was no basis for concluding that the uncle breached the requisite standard of care by failing to inspect the house.
43R.P. broke into the home he lived in with his father notwithstanding instructions from his uncle, aunt, and mother not to attend at the house. There was no evidence that any of those three adults knew of any propensity on R.P.’s part for playing with guns or other weapons, or had any other information about his potential for dangerousness which would have led them to be more vigilant about him. The conduct of which the mother was aware included difficulties at school, such as absenteeism and drinking, an incident where he forged a letter to a girl in his class, and a turbulent relationship with his stepfather. This conduct cannot by any standard be said to lead a reasonable adult, or even a reasonable parent, to a heightened state of attentiveness for the possibilities of dangerous conduct, let alone firearm use.
44Based on what the mother, aunt and uncle knew and, significantly, what they did not know about the presence of guns, it was open to the trial judge to conclude that there was nothing more they could be expected to do. There was no evidence that could lead a reasonable person in the mother’s, aunt’s, or uncle’s position to conclude that there was any risk of dangerousness related to R.P.’s forbidden presence in his father’s house.
45In summary, there was nothing about R.P.’s conduct to alert any one of these three adults, all of whom acted in good faith, to any prospect of danger. The mother was not living with her son and had limited ability to control his physical actions. Her son had distanced himself from her once he began living with his father. The aunt and uncle, in an attempt to help the father, were temporarily responsible for a teenaged boy they had little personal knowledge about.
46In any event, R.P.’s mother, aunt and uncle all took reasonable steps in the circumstances. These included the aunt making arrangements for R.P. to return to school when she learned of his absenteeism; her telling the mother of the absenteeism and of R.P.’s visit to his father’s house; the mother’s immediate response to the aunt’s call, which included scolding R.P. and giving him firm instructions to return to his aunt’s house; the uncle’s instructions to the tenants that they should not let R.P. enter the house; and the aunt and the uncle ensuring that R.P. did indeed go to school by driving him to school, including on the day of the accident. Considering that they did not know of any potential for danger or of the presence of firearms, there is little else they could have done.
47The trial judge was therefore entitled to find that the shooting accident was not foreseeable by R.P.’s aunt, uncle, or mother and, given the reality of their respective relationships with him, that they exercised reasonable supervision and control in the circumstances. There was clearly “some evidence”, as stipulated in Housen, from which the trial judge could have come to his conclusion that these three adults should not be liable for R.E.’ injuries.
J.P.1 (Father)
48The appellants submit that the trial judge’s apportionment of 25% liability to the father was too low.
49The trial judge made no reference to the father’s conduct other than to his criminal conviction for the unsafe storage of a firearm. The father had pleaded guilty and was sentenced to six months to be served as a conditional sentence.
50While it would have been preferable for the trial judge to have provided more explicit reasons for his conclusions, in my view a review of the record, despite minor errors, demonstrates no serious misappreciation of the evidence or of the relevant law.
51J.P.1 did not defend this action. There is no dispute that he owned the firearms and the ammunition that ultimately injured R.E. and that he knew of his son’s interest in guns. R.P. found the shotgun with bullets in the ammunition belt in his father’s closet and the rifle in his father’s garage. R.P. was allowed to have access to these guns by his father and to store them on a gun rack in his bedroom along with various kinds of ammunition.
52R.E.’ testimony was that the first time he went to R.P.’s house, the father was home and the guns were on the gun rack in R.P.’s bedroom. The appellants argued that since the father knew of their presence in the home and his son’s easy access to them, it was insufficient for the father simply to have taken his key away and instructed him not to attend the house. Moreover, the appellants assert, the father ought to have foreseen that his son would be concerned about the dog remaining in the house and might attempt to visit it.
53There was a sound basis for finding the father negligent. He kept weapons and ammunition in his home without taking steps to secure their safe storage before he entered the rehabilitation clinic.
54These were weapons with potential for fatal harm. There is no evidence that he told his brother or sister-in-law of his son’s interest in weapons or even that there were weapons in the house. He took no steps to store the ammunition or the firearms safely while he was away from the house, notwithstanding that he knew he would not be able to supervise his son for a period of at least three weeks. This irresponsible conduct by the father amply supports the trial judge’s conclusion that the father was negligent.
55On the other hand, there was no evidence that the father was told, or ought to have foreseen, that his son would break into the house in defiance of his authority. It was open to the trial judge in these circumstances to find that despite the father’s acknowledged negligence in not properly storing the weapons, his adolescent son, in violating his father’s, mother’s and uncle’s clear and repeated instructions not to enter his home, and in pointing a loaded gun at his friend, was substantially more responsible for the accident than his father.
56J.P.1 had few options for his son’s care while he was away, and his decision to have his son stay with his aunt and uncle was, in the circumstances, reasonable and responsible. R.P., according to the evidence, had presented no significant behavioural problems for his father. R.P. testified in his examination for discovery that his father did not know that he was shooting the .22 in the house. It is true that the father could have alerted the adults to whom he assigned his son’s care to the presence of guns in the home. But in the absence of any evidence that he knew that his son had returned to his home contrary to his instructions, or that he had any basis for anticipating that he would do so, it was open to the trial judge to conclude that a duty to alert the aunt and uncle did not arise.
57The apportionment of liability by a trial judge should not be interfered with unless there is “demonstrable error in the trial judge’s appreciation of the facts or applicable legal principles” (Ingles v. Tutkaluk Construction Ltd., 2000 SCC 12, [2000] 1 S.C.R. 298 at 338, per Bastarache J.). Similarly, as noted by this court in Hague v. Billings (1993), 13 O.R. (3d) 298 at 303 (C.A.), citing Sparks v. Thompson, [1975] 1 S.C.R. 618, a “very strong and exceptional case is required before an appellate court should interfere with and vary the degrees of fault fixed by a trial judge”.
58This was not a young child. R.P. was, as the trial judge found, “a 15 year old boy who was intelligent, who had received some firearms training with the cadets, who knew better”. It was, therefore, open to the trial judge to attribute the greatest responsibility for this tragedy to R.P..
59In my view, it cannot be said that in these circumstances an apportionment of 25% liability is so manifest an error as to be interfered with.
60Accordingly, I would dismiss the appeal. On consent, all the cross-appeals were withdrawn before the hearing of the appeal. In the circumstances, I would not make an order for costs.
RELEASED:
“APR –6 2004” “R.S. Abella J.A.”
“RSA CRONK J.A.:
61I have had the benefit of reading the reasons for judgment of my colleague, Abella J.A. For the reasons expressed by her, and on the record before us, I agree that there is no basis on which to disturb the trial judge’s apportionment of liability concerning R.P.’s mother, aunt and uncle. With respect, however, I disagree with Abella J.A.’s conclusion that this appeal should be dismissed in connection with the trial judge’s assessment of the degree of fault of J.P.1 (J.P.1), R.P.’s father.
62On the basis of the trial judge’s reasons for judgment, I am unable to conclude that he conducted a proper negligence analysis concerning J.P.1. In particular, for the reasons that follow, I believe that the trial judge erred in restricting J.P.1’ negligence to only one factor. Accordingly, I am of the opinion that J.P.1’ proportionate liability should have been higher.
(1) Trial Judge’s Apportionment of Liability
63The background facts to the tragic accident in this case are set out in the reasons of Abella J.A. and need not be repeated. This appeal concerns the issue of the trial judge’s apportionment of liability. That apportionment was as follows:
R.P. (R.P.): 50%
R.P.’s father, J.P.1: 25%
R.E. (R.E.): 25%
R.P.’s mother, T.L. (T.L.): 0%
R.P.’s uncle, J.P.2 (J.P.2): 0%
R.P.’s aunt, C.P. (C.P.): 0%
100%
64It is important to emphasize that the appellants conceded at trial that they should bear 25% responsibility for the serious injuries sustained by R.E.. Although the trial judge stated in his reasons that this concession related only to R.E. himself, it is not contested on this appeal that the concession concerned all the appellants, as a group.
(2) Standard of Review
65Abella J.A. set out in her reasons the test for appellate review of the apportionment of liability by a trial judge in a negligence case. This test is an exacting one. An appellate court may only intervene where error in the trial judge’s appreciation of the facts or applicable legal principles has been demonstrated. As this court recently stated in Banihashem-Bakhtiari v. Axes Investments Inc., [2004] O.J. No. 302 at para. 8, “A re-apportionment of liability sought on appeal will only be granted in strong and exceptional cases.”
(3) J.P.1: R.P.'s Father
66I agree with Abella J.A. that parents owe a duty to exercise reasonable supervision and control over their children and that, in discharging that duty, they are obliged to use reasonable care to prevent foreseeable harm to their children or others. With respect, however, I do not agree with Abella J.A.’s conclusion that the trial judge’s reasons reflect the proper legal principles and their proper application to the facts of this case in relation to J.P.1.
67J.P.1 did not defend this action and was noted in default at an early stage of the litigation.
68The trial judge’s reasons concerning J.P.1’ negligence and his degree of culpability were limited to two brief paragraphs. At the beginning of his reasons, the trial judge noted that J.P.1 had not defended the action and held that J.P.1 was liable for “negligence in his storing of the gun [sic] and ammunition”. Later in his reasons, when apportioning liability, the trial judge stated (at para. 24):
As to the relative negligence between the father and the two boys I find the father 25% negligent.
It is true that he advised his son that the son was not to go to the home, that he locked the house and the boy did not have a key but the civil law must follow the criminal law requirements with respect to the storage of firearms. Under the Regulations respecting the Storage, Display, Transportation and Handling of Firearms by Individuals SOR/98-209 firearms must be rendered inoperable and ammunition stored in a secure manner other than with the firearm[s]. Failure to abide by these regulations must attract civil liability if that failure is a cause of damage. In this case it was.
69The trial judge’s apportionment of 25% liability to J.P.1 was based solely on J.P.1’ failure to comply with the applicable legal requirements concerning the safe storage of the firearms and the ammunition in his home. This failure weighs heavily in the analysis of J.P.1’ negligence and the determination of his contributory liability. Similarly, the trial judge’s findings that J.P.1 directed R.P. not to go to his home while he was absent, that J.P.1 had locked the house on his departure, and that R.P. did not have a key to J.P.1’ house are important factual underpinnings for the determination of an appropriate percentage of liability for J.P.1.
70However, these are not the only factors relevant to the assessment of J.P.1’ degree of fault in the circumstances. The reasons of the trial judge indicate that he failed to consider all the evidence of J.P.1’ conduct that supports the assignment to J.P.1 of a higher percentage of liability. This evidence may be summarized as follows.
(a) Evidence Concerning the Guns and the Ammunition
71The evidence at trial established that J.P.1 allowed R.P. to retain a .22 calibre semi-automatic rifle, which R.P. found in the garage at J.P.1’ home. As well, J.P.1 kept his own .20 gauge shotgun and an ammunition belt, containing unfired bullets, in the unlocked closet of the master bedroom in his house. Thus, although the trial judge referred to “the gun” and the ammunition in J.P.1’ home, there were two guns in the house: the .22 calibre rifle, which R.P. treated as his own, and the .20 gauge shotgun, which belonged to J.P.1.
72There is no suggestion that J.P.1 took any steps to prevent access by R.P. to either of these guns or the ammunition. To the contrary, J.P.1 permitted R.P. to display both guns on a gun rack in R.P.’s bedroom. Neither gun had a safety mechanism or trigger locks. No proof was offered at trial that J.P.1 instructed his son on the safe handling and use of these weapons, or that he sought to control their use by R.P..
73It is true, as observed by Abella J.A. in her reasons, that R.P. testified on discovery that his father did not know that he was firing the .22 calibre rifle in the house. However, J.P.1 did know that R.P. played with the guns in the house.
74Nonetheless, when he arranged for R.P. to stay with them during his absence, J.P.1 failed to inform his brother and his sister-in-law of R.P.’s propensity to play with guns. Moreover, and importantly, he failed to tell them that there were guns and ammunition in his house; nor did he take any steps to remove the guns or the ammunition from the house while he was away, although this could easily have been accomplished as, for example, by requesting that his brother remove the guns and secure them in a safe place. Apart from locking the door of the house, telling his son not to go to the house in his absence, and retrieving a key to the house from R.P., J.P.1 did nothing to secure the guns and the ammunition in the house or to prevent R.P.’s access to them.
75J.P.1’ actions concerning the guns and the ammunition demonstrate more than a failure to abide by applicable regulations concerning their safe storage. His conduct showed a complete disregard for the inherent dangers posed by the guns and the ammunition in their existing condition, for the proper supervision and control of his son in relation to the guns and the ammunition, and for the safety and well-being of his son and others who could come into contact with the guns and the ammunition during J.P.1’ absence.
(b) R.P.'s Behaviour
76The evidence also paints a disturbing picture of a general lack of supervision and control of R.P.’s behaviour and activities by his father while R.P. was living with him, up to and including the point when J.P.1 undertook rehabilitation for his alcohol problems.
77R.P. kept a large assortment of bullets, some fired and others unfired, in a dresser drawer in his bedroom prior to the shooting incident. As well, bullets were strewn all over his bedroom. R.P. testified on his discovery that he had a “whole whack of shells, all different kinds” that he collected when he was living with his father, some of which were “empties” while others were “full”, and that they were thrown in his drawer and “around” his room. He said that, “some of them were on the floor, in the grate in the floor, everywhere”.
78R.P. was also growing marijuana in his bedroom in about a dozen pots.
79When the police entered J.P.1’ house on the day of the accident involving R.E., they discovered R.P.’s room in a complete state of disarray. His clothes and books were strewn about; the walls were defaced and damaged by graffiti, burn marks and stab marks; and shotgun wadding (fibre wads) and fired and unfired bullet shell casings were found throughout the room. A police officer testified at trial that R.P.’s room “looked like a very abused room, not well kept”. R.P. said that, “My whole room was a mess.”
80The police also observed that the wood floor and baseboards in the house were seared with burn marks. R.P. candidly told the police that the marks were caused by his occasional practice of whittling out the lead from bullets, pouring the gunpowder on the wood floor, and causing it to ignite. R.P. did not suggest that this practice commenced only after his father entered the rehabilitation centre. To the contrary, he testified on his discovery that prior to the accident involving R.E., one of R.P.’s friends discharged the shotgun in the house and taught R.P. how to remove the lead from various bullets.
81As well, R.P. himself had discharged the rifle and had shot at a toolbox in the house. Although his father did not know that he had fired the rifle in the house, R.P. kept the damaged toolbox in the house and thought that his father had seen it.
82The police also recovered numerous .22 calibre bullet shell casings and fibre wads from the living room floor and elsewhere in J.P.1’ house, including from the kitchen and the hallway. As well, both fired and unfired shotgun shell casings were discovered in numerous locations in R.P.’s bedroom.
83The appellants submit that the extent of the chaos in R.P.’s room and J.P.1’ house realistically could not have been occasioned in only a few days. I agree.
84It is also noteworthy that shortly after R.P. began residing with his aunt and uncle, his aunt learned inadvertently that R.P. had been absent from school for most of the spring school semester. He was living with his father throughout that period.
85This evidence indicates a pattern of inattentiveness by J.P.1 to his son’s behaviour and activities over a prolonged period. I believe that it clearly demonstrates that J.P.1 furnished little meaningful supervision and control over R.P. while R.P. was living with him.
(c) Arrangements Concerning R.P.’s Care
86Furthermore, J.P.1’ arrangements for R.P.’s care while J.P.1 was in the rehabilitation centre were deficient in several important respects.
87As I have previously indicated, when J.P.2 and C.P. agreed to allow R.P. to stay with them, J.P.1 did not inform them that there were guns and ammunition in his home; nor did he tell them of R.P.’s past practice of playing with the guns. These omissions left J.P.2 and C.P. unaware that the contents of J.P.1’ home posed a potential hazard to R.P. and others if R.P. attended at the home, unsupervised, while J.P.1 was absent. Indeed, the potential danger to others existed even if R.P. did not disobey his father and his uncle by attending at the house. If J.P.1’ home had been broken into during his absence, unsecured guns and ammunition were readily available. They were also available to the upstairs tenants at J.P.1’ house, who had a key to J.P.1’ premises.
88J.P.1’ failure to disclose these matters to R.P.’s caregivers, J.P.2 and C.P., is significant for an additional reason. Since R.P. had displayed interest in and had played with the guns in the past, their uncontrolled presence in J.P.1’ house could attract R.P. to the house while his father was away. The likelihood of this possibility was strengthened by the fact that J.P.1 left his dog, to which R.P. was known to be attached, alone at his house to be cared for by the upstairs tenants. R.P.’s mother testified that R.P. did not want the tenants to look after the dog. As well, most of R.P.’s personal possessions and clothes were left at J.P.1’ house when J.P.1 departed. Consequently, J.P.1 permitted a situation to be created in which R.P. would be strongly attracted to his father’s house while J.P.1 was away, notwithstanding directions to R.P. that he not go to the house.
89J.P.1 also did not tell R.P. how long he was to stay with his aunt and uncle, although R.P. had never been inside their home before and had spent little time with them previously. As well, J.P.1 did not discuss or inquire after R.P.’s progress at his relatives’ home at any point while he was at the rehabilitation centre. In addition, J.P.1 had no discussion with his sister-in-law regarding R.P.’s care or supervision before he departed for the rehabilitation centre. He also did not contact his son directly at any point while R.P. was residing with his aunt and his uncle, although J.P.1 spoke with his brother and asked to meet with his sister-in-law.
90Finally, as I have said, J.P.1 left a key to his house with the upstairs tenants, rather than with his brother, sister-in-law or former wife. On at least one occasion while J.P.1 was at the rehabilitation centre, the tenants allowed R.P. to access his father’s house. As well, although there was some evidence indicating that J.P.1 had retrieved a key to the house from R.P. before entering the rehabilitation facility, R.P. kept another house key in his bedroom. He retrieved this key when he broke into his father’s house shortly after taking up residence with his aunt and his uncle and used it to gain access to the house.
91It does not appear that the trial judge took most of this evidence into account in apportioning liability. Instead, he fixed J.P.1’ percentage share of liability based on one factor only, that is, J.P.1’ failure to properly store the gun[s] and the ammunition in his home. Although that factor is clearly central to the assessment of J.P.1’ degree of culpability, the evidence of J.P.1’ conduct as a whole is also critical to that assessment.
92Viewed as a whole, the evidence concerning J.P.1’ conduct indicates carelessness and a lack of diligence by him concerning R.P.’s supervision and control for an extended time, both prior to and during R.P.’s stay with his aunt and his uncle. It demonstrates that J.P.1’ house was a site for “an accident waiting to happen”. Tragically, that accident occurred. It was entirely foreseeable to J.P.1.
93In these circumstances, I conclude that it is appropriate that J.P.1 assume a greater portion of liability. In my opinion, had the trial judge considered the whole of the relevant evidence regarding J.P.1’ conduct and measured it against J.P.1’ duty to supervise and control R.P., as in my view the trial judge was obliged to do, a higher attribution of percentage liability inevitably would have been held to attach to J.P.1.
94Taking into account the full extent of J.P.1’ responsibility for the severe injuries suffered by R.E., what degree of fault should properly be assigned to him?
95I agree, as conceded by the appellants at trial, that R.E. and his parents were contributorily negligent. Based on that concession, the trial judge did not err in attributing 25% liability to them.
96I also agree with the trial judge’s conclusion that a fifteen year old boy must be accountable for his actions. For the reasons expressed by Abella J.A., with which I concur, R.P. must bear significant responsibility for the injuries sustained by R.E..
97On the record in this case, however, I am not persuaded that R.P.’s proportionate culpability exceeds that of his father. Although, as found by the trial judge, R.P. “knew better”, his father’s conduct created the requisite conditions for a tragic accident. He failed to rectify those conditions prior to or at any point during his stay at the rehabilitation centre. In my view, therefore, J.P.1’ degree of fault exceeds that of his son. I would apportion their liability on the basis of 45% for J.P.1 and 30% for R.P..
(4) J.P.2: R.P.'s Uncle
98I do not wish to conclude these reasons without commenting on the trial judge’s factual findings concerning J.P.2, R.P.’s uncle, several of which are tainted with overriding and palpable error.
99J.P.2 did not testify at trial, although he defended the action and was present in court throughout the trial proceedings. Accordingly, the trial judge did not have the benefit of direct evidence from J.P.2 concerning his knowledge of R.P.’s activities and whereabouts during the days preceding the shooting accident, or concerning the appellants’ assertions of negligence against J.P.2.
100Against this backdrop, the trial judge held that there was no evidence that J.P.2 was aware that R.P. had gone to his father’s house in contravention of J.P.1’ and J.P.2’s directions that he not do so. This finding is contrary to the evidence, which suggests that J.P.2 knew that R.P. had been at his father’s home at least once, and perhaps twice, while his father was away.
101C.P. testified in this connection that her husband told her that R.P. was not to be at his father’s house during J.P.1’ absence and that J.P.2 had discussed this requirement with R.P.. She also testified that, through the operation of the call display feature on her telephone, she discovered on the second day of R.P.’s stay with her that R.P. was at his father’s house and that he had lied to her concerning his intended activities that evening. When asked on discovery why she did not thereafter confront R.P. with the fact that he was not to be at his father’s house, she testified: “It wasn’t my business. My husband, I stated to him what my concerns were. As far as I’m concerned it was not my business [emphasis added].” As urged by the appellants, this evidence supports the inference that C.P. told her husband of her concern that R.P. had been at his father’s home contrary to the explicit directions that he received from his father and from J.P.2. The trial judge did not refer to C.P.’s evidence on this issue.
102As well, R.P. testified that he got “caught” at his father’s house by his uncle, that his uncle told the upstairs tenants not to let R.P. into the house, and that there was “fighting” between his uncle and the tenants about R.P. being at the house. The trial judge did not refer to this evidence.
103The trial judge also held in connection with J.P.2 that, “the doors were locked and he had the key” [emphasis added]. This finding, which implies that J.P.2 was in a position to control R.P.’s access to his father’s house, is also not supported by the evidence.
104J.P.2 knew that the upstairs tenants at J.P.1’ house had a key to the premises and that they used the key to allow R.P. to enter the home on at least one occasion. J.P.2 spoke to the tenants to prevent a recurrence. Contrary to the trial judge’s finding that J.P.2 “had the key”, the evidence demonstrated that J.P.2 had access to the tenants’ key rather than possession of the only or any key to the house. Moreover, the call display incident established that the absence of a key did not deter R.P. from entering the house. As I have said, R.P. obtained a key from J.P.1’ house on the day of the call display incident, when he broke into the house by entering through a window.
105Finally, the trial judge’s factual findings concerning J.P.2 are flawed in a third respect. He held that J.P.2 knew of the presence of a shotgun at J.P.1’ home. As my colleague Abella J.A. points out in her reasons, this finding is contrary to the evidence.
106I have carefully considered whether these factual errors by the trial judge led him to err by holding that J.P.2 was not negligent. I conclude that the trial judge did not err in this regard.
107There was no demonstration at trial that J.P.2 knew that there were guns or ammunition in J.P.1’ house at the time that J.P.1 entered the rehabilitation centre or in the recent past. There was no evidence that he knew that R.P. was interested in guns or that he had previously played with guns; nor was it clearly established at trial that J.P.2 knew of R.P.’s school truancy. As well, neither of R.P.’s parents told J.P.2 or C.P. about any past behavioural difficulties concerning R.P.. It is also unclear on the record before us that J.P.2, in contrast to R.P., had actually been inside J.P.1’ house at any time related to J.P.1’ departure or during J.P.1’ absence. In addition, J.P.2 echoed J.P.1’ direction to R.P. to stay away from his father’s house by repeating that instruction to R.P. and by speaking to the tenants in an effort to ensure that they did not again let R.P. into the house after they had first done so. Finally, I do not regard the trial judge’s failure to draw an adverse inference against J.P.2, due to his failure to testify, as a reversible error. Rather, it was a discretionary decision within the purview of the trier of fact.
108In the circumstances, it is my view that the evidentiary record in this case does not support a finding of negligence against J.P.2. Consequently, the issue of his degree of fault does not arise.
(5) Disposition
109On consent, all the cross-appeals were withdrawn or abandoned prior to the hearing in this proceeding. For the reasons given, I would allow the appeal, set aside the trial judge’s apportionment of liability and substitute the following apportionment in its stead:
J.P.1: 45%
R.P.: 30%
the appellants: 25%
T.L.: 0%
J.P.2: 0%
C.P.: 0%
100%
In my view, this is not an appropriate case for an award of costs on the appeal.
“E.A. Cronk J.A.”
“I agree Robert P. Armstrong J.A.”
