COURT OF APPEAL FOR ONTARIO

CITATION: Meady v. Greyhound Canada Transportation Corp., 2015 ONCA 6

DATE: 20150108

DOCKET: C55125

Strathy C.J.O., Feldman and Pardu JJ.A.

BETWEEN

Pam Meady, Evelyn Shepherd, Carrie Anne Tapak, Dennis Cromarty, Thayne Gilliat, Faye Evans, Sheldon Christensen, a Minor by his Litigation Guardian, Cathy Ducharme, Anthony Clowes, Tanya Clowes, and Briannah Elizabeth Clowes, Shauna Pauline Clowes, Minors by their Litigation Guardian, Tanya Clowes, Brian Gordon Adams, Michael David Finn, Jennifer Esterreicher, Johnathan Theriault, an infant under the age of eighteen years by his Litigation Guardian, Lyne Theriault, and Lyne Theriault

Plaintiffs (Appellants)

and

Greyhound Canada Transportation Corp., Constable Corey Parrish, Constable Martin Singleton, Her Majesty the Queen in Right of Ontario, Albert Arnold Dolph and Shaun Davis

Defendants (Respondents)

Paul J. Pape, David S. Steinberg and Christopher Hacio, for the appellants

Owen Smith and Amanda McBride, for the respondents Greyhound Canada Transportation Corp. and Albert Arnold Dolph

Roger Horst and Rafal Szymanski, for the respondents Constables Corey Parrish and Martin Singleton

Heard: October 27, 2014

On appeal from the judgment of Justice Terrence A. Platana of the Superior Court of Justice, dated January 31, 2012, with reasons reported at 2012 ONSC 657.

Strathy C.J.O.:

OVERVIEW

[1] On December 23, 2000, 21-year-old Shaun Davis boarded a Greyhound bus in the small northern Ontario town of Ignace and continued his journey east from Calgary to spend Christmas with his family in Pictou, Nova Scotia.

[2] About an hour later, Davis got out of his seat at the front of the bus and moved to the stairwell by the door. He ignored the driver’s requests that he return to his seat. Suddenly, he lunged at the driver and grabbed the steering wheel. The bus veered off the road and toppled on its side. One person was killed and many of the 32 passengers were injured.

[3] In this action, a number of passengers sued Greyhound and the bus driver, Albert Dolph (the “Greyhound respondents”) and two OPP officers who had contact with Davis before he boarded the bus, and their employer, Her Majesty the Queen in Right of Ontario (the “OPP respondents”). They also sued Davis, who did not defend and was noted in default.

[4] After a trial lasting more than 60 days, the trial judge dismissed the action against all defendants, other than Davis.

[5] The plaintiffs appeal.[^1] They say the trial judge erred by excluding the evidence of two experts – one a specialist in police training and the other an expert in bus safety. They claim the police training expert would have established that competent police officers, having observed that Davis was delusional, would have used crisis management techniques to deter him from boarding the bus. The bus safety expert, they say, would have established that a prudent bus driver, knowing Davis’ agitated condition and observing him leave his seat, would have reduced his speed. In turn, this may have averted the accident or at least mitigated the damage it caused. In addition, they argue the trial judge failed to adequately articulate the standard of care applicable to the respondents.

[6] For the reasons that follow, I would dismiss the appeal. In my view, the trial judge properly exercised his gatekeeper function by excluding unnecessary expert evidence. On the admissible evidence, he made no error in concluding the respondents had not breached the applicable standards of care.

Background

[7] Davis’ eastbound bus trip began in Calgary. At Dryden, Ontario, he transferred to a bus to Thunder Bay. When that bus stopped at the Tempo Rest Stop in Ignace, about 240 km northwest of Thunder Bay, Davis told the driver that some passengers had been going through his baggage and were trying to harm him. The driver asked an attendant to call police and Cst. Corey Parrish arrived to investigate.

[8] Parrish concluded that no crime had occurred. He believed Davis was displaying signs of anxiety and mild paranoia. Otherwise, he seemed calm, well-spoken, well-mannered and quite rational. Davis told Parrish that he wanted to continue his journey on the next bus and the driver endorsed his ticket to allow him to do so.

[9] Davis then told Parrish he did not want to stay at the Tempo to wait for the next bus. Parrish agreed to take him to another local coffee shop, the Voyageur.

[10] Parrish asked Davis whether he had consumed any alcohol or drugs. Davis replied he had not, but said he was taking prescription medicine for attention deficit disorder.[^2]

[11] Parrish requested a CPIC search, which disclosed nothing of concern.

[12] Later that afternoon, Davis called a cab to come to the Voyageur to take him back to the Tempo. He complained that people were after him. The cab driver spotted a parked police car and pulled over so Davis could report his concerns. Parrish was in the police car and asked Davis whether he wanted to see a doctor. Davis declined, saying he simply wanted to go home.

[13] Davis later called police from the Tempo and spoke to the respondent Cst. Martin Singleton. He said he wanted police to come to the Tempo because people were going to beat him up. Singleton was aware of Parrish’s prior involvement with Davis. Parrish and Singleton headed to the Tempo together. Their arrival coincided with the arrival of the next bus. Davis told them the people who were going to beat him up had left. He asked Parrish if he would wait around until he boarded the bus.

[14] Parrish spoke to the bus driver, the respondent Dolph, and told him that Davis was suffering from mild paranoia, but had displayed no signs of violence and was not a threat to anyone. Meanwhile, Singleton spoke to Davis in the Tempo parking lot. Davis showed Singleton his ADD medication, but Singleton did not make inquiries about it. Singleton observed that Davis was calm and happy to be going home.

[15] Dolph allowed Davis to board and he was seated in the front seat, where Dolph could keep an eye on him and could speak to him if he became anxious. Parrish had advised passengers sitting nearby to avoid contact with Davis.

[16] About 50 minutes after the bus left Ignace, Davis got out of his seat and told Dolph that some people on the bus wanted to hurt him. Dolph assured him that everything would be all right and Davis returned to his seat. A few minutes later, Davis again left his seat and stood in the stairwell at the front of the bus. Dolph again asked Davis to return to his seat, but Davis did not comply. This did not particularly concern Dolph, as he had previously allowed passengers to stand in the stairwell and he did not think Davis posed any threat.

[17] At one point, Dolph reduced the speed of the bus, prompting Davis to tell him not to stop. In any case, there was no safe place to stop on the highway as the shoulder was too narrow. Dolph resumed the speed at which he had been driving.

[18] Moments later, Davis jumped up and grabbed the steering wheel, forcing the bus across the highway and into the ditch.

PROCEEDINgs below

The Trial and Exclusion of Expert Evidence

[19] The trial began in 2010, ten years after the accident. The respondents acknowledged they owed the appellants a duty of care. The issues were the standard of care, whether the respondents had met that standard and, if not, whether the breach was causative of the appellants’ damages.

[20] The trial judge heard 65 days of evidence from 83 witnesses. During the trial, he refused to admit the expert evidence of two witnesses tendered by the appellants. These rulings are at issue in this appeal.

[21] The first proposed expert was Steven Summerville, a retired Toronto police officer with extensive experience in use-of-force principles. The appellants wanted to rely on his opinion that Parrish and Singleton failed to meet the standard of care of a reasonable and prudent police officer by failing to follow standard police practices – specifically in relation to detention under s. 17 of the Mental Health Act, R.S.O. 1990, c. M.7, and the common law doctrine of investigative detention.

[22] The trial judge held that Summerville had no expertise in training police officers on these subjects and was therefore not qualified to give expert evidence about them.

[23] He acknowledged that expert evidence concerning the standard of care of a professional, such as a police officer, may be required in some cases. However, he concluded that he did not require expert evidence in this case to determine the standard of care of a competent police officer or to determine whether the OPP respondents properly exercised their use-of-force or investigative detention powers. He referred to the observations of the British Columbia Court of Appeal in Burbank v. B. (R.T.), 2007 BCCA 215, 279 D.L.R. (4th) 573, at para. 79, leave to appeal to S.C.C. refused, [2007] S.C.C.A. No. 316, to the effect that expert evidence concerning police training and practices is not required where the issue falls within the understanding or experience of the trier of fact. He observed that police policies and procedures could be adduced in evidence and that the officers could be cross-examined on their compliance.

[24] The second proposed expert was Arthur Atkinson, a transportation safety consultant, who had experience as an accident investigator and in drafting policies and standards for training bus operators. The trial judge found that although his opinion was relevant, it was not necessary. He did not need expert evidence to determine what the driver knew or ought to have known regarding his duties as an operator. Nor did he need expert evidence to determine the appropriate speed of the bus in relation to the road conditions, the steps that Dolph should have taken when Davis came to the front of the bus, how he ought to have reacted to Davis grabbing the wheel, or what other steps he ought to have taken to avoid the accident.

[25] In addition, the trial judge found, Atkinson’s opinion should be excluded because he expressed an opinion on the ultimate issue – specifically stating, “It is my opinion that Mr. Dolph was negligent in the operation of his passenger carrying bus.”

The Trial Judgment

[26] The trial judge released extensive reasons, nearly 600 paragraphs in length, dealing with both liability and damages. He dismissed the action against both groups of respondents.

[27] He found the appellants failed to establish that a police officer in the position of Singleton and Parrish, exercising reasonable care and diligence, would have prevented Davis from boarding the bus. He rejected the argument that the officers should have detained Davis either under s. 17 of the Mental Health Act or using their powers of investigative detention. He also rejected the allegation that the OPP did not adequately train the officers to respond to people with mental illness.

[28] The trial judge also found the appellants had not established that Dolph failed to exercise reasonable care and skill in the operation of the bus or that Greyhound had failed to properly train him. Dolph had no reason to anticipate that Davis would act as he did. He could not have prevented Davis from approaching the front of the bus, could not have pulled over to the side of the highway, and his decision to continue driving to Upsala (which was only a few minutes away) was reasonable in the circumstances.

ISSUES

[29] The appellants raise three issues on appeal:

1. Did the trial judge err in excluding Summerville’s expert evidence?

2. Did the trial judge err in excluding Atkinson’s expert evidence?

3. Did the trial judge err in failing to articulate the standard of care for each respondent?

Discussion

[30] The appellants’ first two grounds of appeal raise common issues concerning the trial judge’s approach to the admissibility of expert evidence and, in particular, the necessity criterion. I will address the principles governing these grounds together and then apply those principles to the arguments respecting each proposed expert witness. I will then address the appellant’s third ground of appeal concerning the trial judge’s articulation of the applicable standard of care for each respondent.

Principles Governing the Admissibility of Expert Evidence

[31] In considering the admissibility of the expert evidence, the trial judge correctly identified the test in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, as explained by this court in R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330, leave to appeal to S.C.C. refused, [2010] S.C.C.A. No. 125. The test has four requirements: (a) the evidence must be relevant; (b) it must be necessary to assist the trier of fact; (c) it must not be subject to an exclusionary rule; and (d) the expert must be properly qualified.

[32] The issue on this appeal is the second requirement – the necessity of the evidence to assist the trier of fact. In Mohan, at p. 23, the Supreme Court explained that necessary evidence must be outside the knowledge and experience of the trier of fact:

This pre-condition is often expressed in terms as to whether the evidence would be helpful to the trier of fact. The word "helpful" is not quite appropriate and sets too low a standard. However, I would not judge necessity by too strict a standard. What is required is that the opinion be necessary in the sense that it provide information "which is likely to be outside the experience and knowledge of a judge or jury": as quoted by Dickson J. in R. v. Abbey, 1982 CanLII 25 (SCC), [1982] 2 S.C.R. 24]. As stated by Dickson J., the evidence must be necessary to enable the trier of fact to appreciate the matters in issue due to their technical nature. In Kelliher (Village of) v. Smith, 1931 CanLII 1 (SCC), [1931] S.C.R. 672, at p. 684, this Court, quoting from Beven on Negligence (4th ed. 1928), at p. 141, stated that in order for expert evidence to be admissible, "[t]he subject-matter of the inquiry must be such that ordinary people are unlikely to form a correct judgment about it, if unassisted by persons with special knowledge".

[33] The application of the necessity criterion asks whether the trier is able to form a correct judgment about the issue without the assistance of persons with special knowledge.

[34] The general standard of care of a professional, such as a police officer, is a question of law, but the content of the standard of care in a particular case is a question of fact. As such, the content of the standard will generally require expert evidence: Krawchuk v. Scherbak, 2011 ONCA 352, 106 O.R. (3d) 598, at para. 125, 133, leave to appeal to S.C.C. refused, [2011] S.C.C.A. No. 319.

[35] This is, however, subject to the exception for “nontechnical matters or those of which an ordinary person may be expected to have knowledge”: Krawchuk, at para. 133, referring to Zink v. Adrian (2005), 2005 BCCA 93, 37 B.C.L.R. (4th) 389, at para. 44.

[36] The trial judge invoked this exception in refusing to admit the expert evidence. He quoted the British Columbia Court of Appeal in Burbank, above, at para. 79:

Expert evidence would only be necessary (and therefore admissible) to establish the standard of care in a negligence case of this kind if the conduct in question gave rise to considerations beyond common understanding. Evidence that need not invariably be expert evidence might be adduced to prove the training police officers are given, or to explain police practice, or where needed to interpret and explain the application of requirements contained in legislation or policy with which the trier of fact is unlikely to be familiar. These are just examples of the kind of evidence that where needed might go toward assisting the court in establishing the standard of care. But unless the nature of the inquiry into the conduct of a police officer is actually beyond the common understanding or experience of judge or jury, evidence of the standard of care, particularly expert opinion, is not required and should not be admitted. It is not otherwise necessary to adduce evidence that a police officer failed to meet the standard of care of a competent police officer.

[37] There has been growing recognition of the responsibility of the trial judge to exercise a more robust gatekeeper role in the admission of expert evidence – see: Lisa Dufraimont, “New Challenges for the Gatekeeper: The Evolving Law on Expert Evidence in Criminal Cases” (2012) 58 C.L.Q. 531; and Report of the Inquiry into Pediatric Forensic Pathology in Ontario (Toronto: Queen’s Printer for Ontario, 2008), vol. 3, c. 18: “Role of the Court”. This observation holds true for both civil and criminal contexts. Although much of the discussion has focused on increasing scrutiny of threshold reliability at the gatekeeper stage, it is equally important to ensure the evidence is genuinely necessary.

[38] There are compelling rationales underlying this approach. Unnecessary expert evidence distracts the trier of fact from the issues at hand, complicates the proceeding, prolongs the trial and increases the cost of litigation. In Masterpiece Inc. v. Alavida Lifestyles Inc., 2011 SCC 27, [2011] 2 S.C.R. 387, Rothstein J. stated at para. 77:

If a trial judge concludes that proposed expert evidence is unnecessary or irrelevant or will distract from the issues to be decided, he or she should disallow such evidence from being introduced.

[39] In a similar vein, Moldaver J.A. (as he was then) stated in Johnson v. Milton (Town), 2008 ONCA 440, 91 O.R. (3d) 190, at para. 48:

Trial judges should do their best to perform the gatekeeper function they have been assigned, if for no other reason than trial economy. Permitting experts to give evidence on matters that are commonplace or for which they have no special skill, knowledge or training wastes both time and resources and adds stress to an already overburdened justice system. It is also legally incorrect.

[40] As Doherty J.A. observed in 2009 in Abbey, at paras. 93-95, in assessing whether the evidence is necessary to the proper adjudication of the facts, the trial judge conducts a cost-benefit analysis – whether the benefits of admission are sufficiently strong to outweigh the associated costs. This is part of the judge’s gatekeeper function and involves an exercise of discretion. It is an analysis that does not necessarily admit of a “yes” or “no” answer: Abbey, at para. 79.

[41] In one of his rulings, the trial judge referred to Bryant, Lederman and Fuerst, The Law of Evidence in Canada, 3rd ed. (Markham: LexisNexis, 2009) at pp. 799-800, where the authors observe that there is “no bright line” to determine whether the subject matter of expert evidence falls within the normal experience of a particular trier of fact. The authors quote the judgment of this court in R. v. D.S.F. (1999), 1999 CanLII 3704 (ON CA), 43 O.R. (3d) 609 (C.A.), in which O’Connor J.A. observed, at p. 625 :

There is no exact way to draw the line between what is within the normal experience of a judge or a jury and what is not. The normal experiences of different triers of fact may differ. Over time the subject matters that come within the normal experiences of judges and juries may change. The normal experiences of those in one community may differ from those in other communities. In the end, the court in each case will be required to exercise its best judgment in deciding whether a particular subject matter is or is not within the normal experience of the trier of fact.

[42] For these reasons, deference is owed to the exercise of the trial judge’s gatekeeper function in excluding unnecessary evidence. The trial judge is best equipped to appreciate the issues in the context of the evidence as it unfolds and to determine the extent to which, if at all, expert evidence is required to assist the trier of fact in the disposition of the issues: R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at paras. 12-13.

[43] The tragic events in this case unfolded in a small northern community situated on the highway between Kenora and Thunder Bay and on a bus serving that and similar communities. The key issues involved the standard of care to be observed by police officers and by a bus driver operating in those communities. In my view, the trial judge was uniquely positioned to decide whether he needed expert evidence to determine those standards of care and his rulings attract deference.

Ground #1: Admissibility of Summerville’s Expert Evidence

[44] The appellants acknowledge that the trial judge was entitled to reject many of their allegations against the OPP respondents.

[45] They appellants do not dispute his conclusion that the police officers did not have grounds to detain Davis, either under the Mental Health Act or on the basis of investigative detention. Nor do they challenge his ruling that Summerville was not qualified to give expert evidence on these issues. Instead, they say that Summerville should have been permitted to give evidence on police crisis management techniques. They say that, had the officers made an appropriate investigation, they would have realized that Davis posed a risk if permitted to board the bus. Knowing that, they ought to have used crisis management techniques to persuade him not to board the bus. The appellants say the exclusion of Summerville’s evidence deprived them of the opportunity to establish the standard of care of a reasonably prudent police officer using crisis management techniques and to show that the OPP respondents did not meet that standard.

[46] In my view, the trial judge made no error in excluding Summerville’s evidence. On the contrary, he properly exercised his gatekeeper role by excluding unnecessary evidence.

[47] The exercise of police powers of investigation, arrest and detention and police interactions with the public falling short of coercion, are part of the daily diet of judges of the Superior Court. Technical knowledge or expertise was not required to determine whether the OPP officers properly investigated Davis, and whether they should have restrained him, diverted him or otherwise persuaded him not to board the bus. The police training materials were in evidence and were used to cross-examine the OPP respondents. The trial judge did not require expert evidence to understand them.

[48] In considering this ground of appeal in relation to the OPP respondents, context is all-important. The thrust of the complaint at trial, and of the proposed expert evidence, was the allegation that the officers should have apprehended Davis pursuant to s. 17 of the Mental Health Act, or that they should have detained him using their powers of investigative detention. These allegations have not been pursued on appeal. The only live issue on appeal is whether crisis management, or “verbal judo” as described by the putative expert, should have been employed.

[49] However, Summerville’s report had only this to say on the subject of crisis management:

Police training documentation indicates that the involved officers had received training in ‘crisis management’ and ‘effective communications’ strategies respecting persons displaying signs of mental illness or impairment. I saw nothing in any of the provided material to suggest that the involved officers attempted to apply this training.

[50] The training documentation to which Summerville referred was before the trial judge. It has not been established that he required expert advice to understand or apply the standards set out in those materials or to assess whether the officers had properly applied their training.

[51] In examining the allegations against the OPP respondents, it is also important to keep in mind, as the trial judge clearly did, that Parrish had the opportunity to observe Davis, at close hand, on three separate occasions over the course of the afternoon, lasting in total about 45 minutes. While he considered that Davis was displaying mild paranoia, he observed him to be calm, well-mannered and well-spoken, and he did not regard him as a threat to anyone. He was clearly solicitous of Davis’ well-being and was at pains to ensure that he would be comfortable on the next stage of his journey.

[52] Parrish’s observations were consistent with the evidence of witnesses at the Tempo, who described Davis as “calm”, “articulate”, “mild”, “relaxed” and a “sweet lost scared boy.” While he showed signs of agitation, anxiety and delusions, no one expressed concern that he might harm himself or others. The trial judge accepted this evidence.

[53] The trial judge was plainly aware that the onus was on the appellants to establish the applicable standard of care, the breach of that standard and that the breach was causative of the appellants’ damages. He considered and rejected each one of the appellants’ complaints that the OPP respondents failed to meet the standard of care. He found, among other things:

• there were no grounds to detain Davis under s. 17 of the Mental Health Act;

• the doctrine of investigative detention was not applicable;

• in view of Davis’s demeanour, it was not necessary that the officers make inquiries of his family and friends or of his doctor concerning his mental state or his medication;

• there was no evidence the officers failed to provide Dolph with appropriate information, misled him about Davis’ condition or pressured him to allow Davis on the bus; and

• there was nothing the officers knew or ought to have known that triggered an obligation to stop Davis from exercising his lawful right to board the bus.

[54] It was open to the trial judge to conclude that expert evidence was unnecessary for him to decide these issues and his findings were well-supported by the record. As a result, I would reject this ground of appeal.

Ground #2: Admissibility of Atkinson’s Expert Evidence

[55] As with their first ground, the appellants have also abandoned many of the allegations advanced at trial against the Greyhound respondents.

[56] The appellants assert, however, that the trial judge failed to come to grips with their complaint that the bus was travelling too fast, and that Dolph should have slowed down significantly after Davis left his seat. They say the trial judge improperly excluded Atkinson’s expert evidence, which would have enabled such findings to be made.

[57] In my view, the trial judge reasonably concluded that expert evidence was unnecessary to resolve the allegations of negligence against the Greyhound respondents.

[58] These allegations related to Dolph’s response to Davis leaving his seat and coming to the front of the bus and Dolph’s operation of the bus thereafter. These and similar issues are frequently decided in motor vehicle negligence cases without the assistance of expert evidence. As the record developed at trial, there was ample evidence of Greyhound’s practices and procedures and Dolph was cross-examined at length concerning his compliance with them. The trial judge considered all of the breaches of the standard of care alleged by the appellants against the Greyhound respondents.

[59] The trial judge found:

• Dolph was not negligent in permitting Davis to board the bus in light of his own observations of Davis and the information he received from police;

• Dolph’s decision to allow Davis to remain standing in the stairwell was reasonable in the circumstances; and

• it would not have been reasonable to pull the bus over to the side of the road, as suggested by one of the appellants’ experts, because the condition of the shoulders were unknown, it could have escalated Davis’ anxiety and Upsala was only a few minutes away.

[60] The trial judge noted there was conflicting evidence on the speed of the bus. The appellants had submitted that Dolph was traveling at least 100 km per hour. Dolph insisted he was driving at the 90 km per hour speed limit. There was evidence that his speed was the same as other commercial drivers on the highway at the time.

[61] The appellants are critical of the trial judge’s observation that there was no evidence the crash could have been avoided or the appellants’ injuries would have been less serious had the speed been lower. They say the exclusion of Atkinson’s evidence deprived them of the opportunity to prove that excessive speed aggravated their injuries.

[62] The trial judge was clearly not persuaded that the speed of the bus was unreasonable in the circumstances. It was therefore unnecessary to consider whether the accident could have been avoided or the injuries reduced at a lower speed.

[63] The trial judge found there was nothing Dolph knew or ought to have known that should have caused him to change the way he was driving the bus. This conclusion was available to him on the extensive evidence he heard. It was also open to him to conclude he could decide this issue without expert evidence. Therefore, I would reject this ground of appeal.

Ground #3: Articulation of the Standard of Care

[64] I do not accept the appellants’ submission that the trial judge failed to articulate the content of the applicable standards of care.

[65] Having found the standard of care applicable to Dolph was that of a reasonable bus driver in like circumstances, he said he was required to ask “whether the bus driver used all due, proper and reasonable care and skill in the circumstances” – referring to Day v. Toronto Transportation Commission, 1940 CanLII 7 (SCC), [1940] S.C.R. 433, at p. 441 and Rances v. Scaplen, 2008 ABQB 708, 462 A.R. 1, at para. 349.

[66] He then proceeded to examine each element of the standard of care put forward by the appellants, including those based on Greyhound’s training materials and on other expert evidence adduced by the appellants. He concluded that Dolph’s conduct met the standard of care in each respect.

[67] Similarly, the trial judge concluded that the standard of care applicable to the OPP respondents was that of “the reasonable officer in like circumstances” and the officer “must live up to the accepted standards of professional conduct to the extent that it is reasonable to do so in the circumstances” – referring to Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129, at para 70. He noted that an error in judgment would amount to negligence only “if the error would not have been made by a reasonably competent professional with the same skill as the officer in question who acted with ordinary care.”

[68] Again, the trial judge considered every aspect of the content of the standard of care put forward by the appellants, based on the evidence adduced by the parties. He concluded there had been no breach of the standard of care by the OPP respondents.

[69] The onus was on the appellants to adduce evidence of the content of the standard of care. They did so. The trial judge correctly identified the standard of care applicable to each defendant and applied it to the circumstances of the case. He was not required to make broad pronouncements on the content of the duty of care of police officers or bus drivers. He was entitled to find, as he did, that the respondents’ conduct did not fall below the standards identified by the appellants.

DISPOSITION

[70] For these reasons, I would dismiss the appeal, with costs. If not agreed upon, costs should be addressed by written submissions, not exceeding three pages, excluding the costs outline.

“G.R. Strathy C.J.O.”

“I agree K. Feldman J.A.”

“I agree G. Pardu J.A.”

Released: January 08, 2015

[^1]: The appeal was bifurcated by order of this court and the issue of damages is not before us.

[^2]: The trial judge found there was no proven link between Davis’s ADD medicine and his violent behaviour on the bus. The appellants acknowledge the evidence does not support a contrary finding.