Court File and Parties

Court File No.: CV-14-0580 Date: 2017-03-20 Superior Court of Justice - Ontario

Re: Ryan Turcotte, Rick Turcotte and Kerry Turcotte, Plaintiffs And: Aaron Lewis, Courtney Lewis, First Student Canada, 1853780 Ontario Inc. o/a Kee to Bala, Ryan Zaroski, David Ribble, John Doe 1 and John Doe 2, Defendants

Before: The Hon. Madam Justice S.E. Healey

Counsel: A. Wong and S. Hawryliw, for the Plaintiffs R. Chown and M. Hynes, for the Defendants First Student Canada and David Ribble A. Evangelista and J. Ajandi, for the Defendants 1853780 Ontario Inc. o/a Kee to Bala and Ryan Zaroski No one appearing for the Defendants Aaron Lewis and Courtney Lewis

Heard: January 23, 2017

Endorsement

Nature of the Motion

[1] Four of the defendants seek an order for summary judgment dismissing the plaintiffs’ claim against them in its entirety.

[2] The claim arises out of an assault and resulting injuries suffered by Ryan Turcotte, which occurred at the Duckworth Plaza in Barrie, Ontario in the early morning hours of June 26, 2012.

[3] In November, 2015 a jury found the defendants Aaron Lewis and Courtney Lewis guilty of aggravated assault against Ryan Turcotte (“Turcotte”). They are currently incarcerated, and have been noted in default. The defendants John Doe 1 and John Doe 2 who are alleged to have been involved in the subject altercation have not been identified.

[4] The moving defendants are First Student Canada and David Ribble (the “First Student Defendants”) and 1853780 Ontario Inc. o/a Kee to Bala and Ryan Zaroski (the “Kee Defendants”). They are, respectively, the company which provided a bus service used by Turcotte on the night in question, the driver of the bus, a company which operates a concert hall and entertainment venue called the Kee to Bala (the “Kee”), and a security guard employed by the Kee.

[5] Turcotte commenced this action seeking damages for injuries sustained in the assault. His parents claim damages pursuant to the Family Law Act, R.S.O. 1990, c. F.3.

[6] The moving party defendants seek summary judgment on the basis that at all material times they met the requisite standard of care as it relates to Turcotte, and as such there is no basis for a finding of liability against any one of them.

The Facts

[7] There are many undisputed facts in this case. Where there is a conflict in the evidence between witnesses, or inconsistencies with a prior statement, those conflicts and inconsistencies are identified below.

[8] The Kee is located in Bala, Ontario and is open seasonally. It has a capacity of approximately 1,215 patrons. Since 2011, the Kee has operated "resort nights", typically on Monday nights, which are intended to cater to resort and tourism staff working in the Muskoka region. On resort nights the Kee offers a chartered bus service that picks up patrons at various nearby locations, transports them to the Kee, and returns them back to the pickup points at the end of the night. One of the pickup and drop-off points is the Duckworth Plaza located in Barrie, Ontario.

[9] The motivation behind instituting the chartered bus system for resort night was to curb instances of drinking and driving, and was designed with input from the Ontario Provincial Police. Prior to 2011, resort night had occurred at various venues and bars throughout Muskoka. Resort nights came to be centralized at the Kee through a coordinated effort initiated by the OPP and the Township of Muskoka.

[10] On resort nights the Kee opens at 9 p.m. and closes at 2 a.m.. The buses generally arrive at the Kee at approximately 11:00 p.m. and depart from the Kee at approximately 1:30 a.m.. The majority of patrons attending resort night utilize the chartered bus system.

[11] One of the two companies that provide the charters is the defendant First Student Canada (“First Student”). Available records show that First Student began providing charter services to the Kee in 2008. The Kee does not charge the passengers any fee to take the bus to or from the venue; the cover charge to get into the Kee helps to cover its cost. The charter fee was distance-based, and for this particular run between Duckworth Plaza and the Kee, the cost was $550 plus HST.

[12] On June 25, 2012 Turcotte attended a resort night at the Kee. He, along with some of his friends, used the bus service provided. He was picked up at the Duckworth Plaza and was returned there in the early morning hours. The bus that transported patrons on the return trip from the Kee to the Duckworth Plaza that night was driven by the defendant David Ribble (“Ribble”), a long-term employee of First Student.

[13] The Kee also provided a security guard on such bus transports. That individual was also seasonally employed as a bouncer at its establishment, and paid by the Kee. At the pickup point the security guard would require that the individuals boarding the bus show proof of the age of majority, and would also search patrons to ensure they were not bringing alcohol on board.

[14] The security guards would then monitor the behavior of the patrons on the buses until they arrived at the Kee. On arrival, each security guard would be posted at a location in the venue, where they would be responsible for monitoring the behavior of patrons.

[15] On the night in question, that security person was Ryan Zaroski (“Zaroski”), a provincially licenced security guard. Zaroski had been employed seasonally as a security guard by the Kee since 2007. His employer's evidence is that Zaroski was a very good security guard with no record of incidents.

[16] There were no issues or security concerns on the trip from Barrie to Bala that evening. Once the bus had arrived at the Kee, Zaroski was stationed at the patio door. There is no evidence of any particular incidents occurring at the bar that night.

[17] Zaroski and Ribble had worked together on resort nights before, at least a few times. It was Zaroski’ evidence at the criminal trial that there was no expectation that First Student or its drivers provide security on the bus. In his affidavit filed in support of this motion, Zaroski's evidence is that the bus driver acted as a "second set of eyes". At his examination for discovery he gave the example of the bus driver keeping watch when patrons were boarding the bus, to ensure that alcohol was not being passed up through the windows as Zaroski was searching people before letting them on the bus.

[18] Jerry Richardson, who holds the position of location manager, has been with First Student and its predecessor, Laidlaw, for approximately 28 years. At his examination for discovery he testified that it was the responsibility of the driver of the charter to drive the bus safely and get the passengers to their intended destination. The drivers were expected to use good judgment, such as advising the security guard of a patron’s intoxication or the presence of open liquor, so that that security guard could take appropriate steps. There was no written contract between First Student and the Kee with respect to resort nights that would require First Student or any of its employees to provide security services.

[19] Michael Homewood, the president and director of the Kee, testified that First Student was not responsible for either arranging the security for the buses or providing any security on those buses.

[20] The Kee had a robust security system in place to accommodate the large crowds that attended resort nights. On such nights the Kee would have 15 provincially licenced security guards on duty, stationed throughout the venue. Resort nights were generally also staffed with 10 bartenders and 3 to 4 barbacks. Security policies at the Kee dictated that security guards were to separate patrons who were having issues with each other, and ask them to leave for the night if necessary. Kee employees were required to have their Smart Serve training completed prior to being hired.

[21] There were also paid duty police officers at the Kee on resort nights, as well as on-duty police officers stationed outside. They often brought a police transport van and left it parked outside of the venue.

[22] The staff would screen patrons for intoxication before allowing them to enter the Kee. Entry would not be permitted to an intoxicated patron.

[23] The Kee's security protocol also applied on the chartered buses. If there was an altercation on the bus, proper procedure was for the Kee security personnel to separate the individuals involved, and telephone the police in the event that they had reason to believe an altercation could flare-up once the bus arrived at its destination. Kee security guards were also entitled to remove patrons from the bus if they believed that it was necessary to do so. While on the bus, security personnel were to sit at the front of the bus, facing the back, in order to properly monitor the patrons.

[24] Ribble is a 55-year-old man with extensive experience as a bus driver. He had worked for First Student for approximately 14 years, operating both school runs and chartered trips. His training includes classroom time, videos and driver training. He had done the bus run to and from the Kee many times in the past. Ribble's evidence was that he was not hired to keep control of the patrons on the bus, as his attention needed to be focused on the road. It was the security guard who checked identification, watched for signs of intoxication, and dealt with any security issues.

[25] The bus left the Kee on June 26, 2012 between 1:30 and 2:00 a.m.. Zaroski could not recall there being any empty seats on the bus, which had a capacity of 48. The ride from the Kee to the Duckworth Plaza usually took approximately one hour.

[26] Turcotte was initially sitting at the back of the bus. Shortly after leaving the Kee, a woman seated near the back of the bus lit what Zaroski believed to be a marijuana cigarette. Bus patrons had been told that smoking and drinking were not permitted on the bus. Ribble pulled the bus over to the side of the road at Zaroski's request, in order that Zaroski could address the situation. The female was asked to leave when the bus was still within walking distance of the Kee. Zaroski's evidence at the criminal trial was that she left under protest, after he mentioned to the woman that they were just around the corner from the Kee and there were plenty of police officers to whom he could place a call if she did not leave voluntarily. A male patron left the bus with her. Ribble did not play a role in having the woman escorted off the bus.

[27] Another patron on the bus, later identified to be Aaron Lewis, was upset that the woman had been asked to leave the bus and attempted to convince Zaroski to let her remain. Although there was an identification defence raised with respect to Aaron Lewis at the criminal trial, the jury’s verdict leaves no doubt that the available evidence was sufficient to satisfy the jurors beyond a reasonable doubt that Zaroski had identified that individual to be Aaron Lewis. Courtney Lewis was not on the bus, and was not at the Kee that evening. Zaroski’s evidence is that he felt that he may have seen Aaron Lewis prior to that night, but did not know his name, and was not aware of any association between the two Lewises.

[28] It was Zaroski's evidence that he did not observe either Lewis or Turcotte to be heavily intoxicated. He assumed that they had been drinking given that they had been to the Kee, but saw no signs of overt intoxication. Turcotte’s evidence is that he had a total of three alcoholic drinks while he was at the Kee, and that he was not intoxicated.

[29] After that incident, arguing broke out at the back of the bus. Zaroski witnessed Lewis and Turcotte standing up at the back of the bus. Lewis pushed Turcotte. Zaroski immediately went to the back and separated the two individuals. Turcotte moved to the front of the bus, where he remained for the rest of the trip. Turcotte admits that he understood that Zaroski’s role was to act as a security officer.

[30] In his affidavit filed for this motion, Turcotte does not mention the physical altercation. He recalled that Lewis instigated a verbal disagreement with him, which prompted Turcotte to stand up and make eye contact with Zaroski. Zaroski then came to the back of the bus to speak with Lewis. While Zaroski was speaking with Lewis, Turcotte moved to the front of the bus. His recollection is that he remained standing at the front of the bus behind the driver for the remainder of the trip. There is no corroborating evidence from the other witnesses that Turcotte remained standing; Zaroski's evidence is that he moved to the front and sat down.

[31] Zaroski has deposed that cheering and shouting continued from the back of the bus. It was very difficult for him to hear what was being said. Likewise, Turcotte’s evidence is that it was difficult for him to hear the content of the cheering.

[32] Through text messages and calls, others were notified to come to the Duckworth Plaza. Two of Turcotte’s friends were asked to come to the Plaza but there is no evidence as to who contacted them. Courtney Lewis was notified by his cousin, Aaron Lewis, to attend at the Plaza. At the criminal trial Courtney Lewis testified that he received two phone calls from his cousin. He arrived before the bus.

[33] The noise level on the bus escalated as the bus drew closer to Barrie. Zaroski testified at the criminal trial that at about the halfway mark back to Barrie, he noticed a lot more tension and yelling coming from the back. He identified that the yelling and insults were in part coming from Lewis.

[34] About 10 minutes outside of Barrie the noise level on the bus increased. Zaroski was informed that someone at the back of the bus had "called ahead for backup". Zaroski called the Barrie Police Service dispatch and asked for a cruiser to meet the bus at the Duckworth Plaza. This call was placed between 5 to 10 minutes before arriving at the Plaza. He considered the call to the police to be a precaution. His affidavit states that he did so "out of an abundance of caution". He judged that there was no immediate emergency on the bus that required him to call 911. At his examination for discovery, he testified that he placed the call because he was concerned that the matter might escalate, and felt there was a definite possibility that it could do so once the bus arrived at the Plaza. He perceived that any altercation or escalation of matters would occur between Aaron Lewis and Turcotte.

[35] Ribble slowed the bus in an attempt to allow the police time to attend the Plaza, but a cruiser was not waiting when the bus arrived. On discovery, Ribble's evidence was that it would not have been possible to pull the bus over once it was on the highway in order to let any troublemakers off; instead, the police would have to be called to meet the bus and escort the patrons in question off the bus. Further, as the security guard, Zaroski had no authority to request that Ribble alter the route and, for example, allow Turcotte to get off the bus elsewhere. Ribble was not permitted to alter the route, a fact that is stated on a notice affixed to the outside of the bus.

[36] The bus and its passengers arrived safely at the Duckworth Plaza.

[37] Zaroski remained on the phone with the dispatcher for the remainder of the bus trip, and during the eventual assault.

[38] Turcotte disembarked through the front doors of the bus when the bus arrived at the Plaza, being one of the first passengers to leave the bus. It was Ribble’s evidence that Zaroski told the plaintiff to leave the bus. Zaroski's evidence is similar; he testified that he told Turcotte to not stay around the Plaza. It is Turcotte’s recollection that neither Ribble nor Zaroski warned him that they felt he was in danger if he entered the parking lot. Zaroski admits that he did not suggest to Turcotte that he remain on the bus or warn him of any imminent danger. He did not advise Turcotte that he had been told that someone at the back of the bus, where Aaron Lewis was seated, had "called for backup". It was Zaroski's evidence on discovery that he did not warn Turcotte that he had been told this because he believed that Turcotte was sitting beside him at the time that he was told. He did not offer to accompany Turcotte off of the bus.

[39] When the bus arrived at the Plaza, Zaroski noticed the presence of Courtney Lewis. Courtney Lewis was known to Zaroski prior to the incident in question as someone who involved himself in physical altercations, an impression that Zaroski had obtained from working in security at other establishments in Barrie. Again, Zaroski had no information that would cause him to believe that Aaron and Courtney Lewis were related to one another.

[40] Some passengers went out the emergency door at the back of the bus, setting off the emergency alarm, but Zaroski's evidence is that Aaron Lewis also exited past him out the front of the bus.

[41] In his affidavit filed for this motion, Ribble's evidence is that he could not hear what was being said at the back of the bus, and did not see Turcotte involved in any pushing or shoving on the bus. He was focused on driving. While acknowledging that there was some yelling and shouting on the bus, he could not hear what was being said at the back of the bus. His affidavit also states that during the ride he and Zaroski had a conversation about calling the police to have them at the Plaza when they arrived there. It was Zaroski who called the police. In that affidavit, Ribble adopts his testimony given at the criminal trial.

[42] When testifying at the criminal trial, Ribble said that Aaron Lewis was seated at the front of the bus, and overheard him saying that "it would be taken care of" when they got to Barrie, and that this caused him concern. He testified that he saw and heard Aaron Lewis making phone calls to various unknown people, in which he was directing people to meet him at the parking lot. He testified that he spoke with Zaroski about the need to call police because of that conversation, and the need to ensure that everyone on the bus was safe. He also testified that he attempted to let Turcotte off of the bus first in order to avoid any conflict. In contrast to those statements, Ribble testified on his examination for discovery that while he observed Lewis speaking on the phone, he did not at any time hear him make a phone call or say anything. He also testified that he attempted to call the police first, on his personal cell phone, but that the call did not go through, at which point he told Zaroski to call the police. He stated that he was concerned for the safety of everyone on the bus, but most particularly for the safety of Turcotte. He advised Turcotte that he was going to let him off the bus first in an effort to "give him a head start"; it was a joint decision made by he and Zaroski to let Turcotte off the bus first.

[43] Zaroski testified that Aaron Lewis never sat at the front of the bus, and that once Turcotte was brought to the front of the bus, he never returned to the back. Ribble, in contrast, recalled that Turcotte returned to the back of the bus after being brought to the front, and that Aaron Lewis came to the front, which is when he became aware that Lewis was placing phone calls.

[44] At no time before leaving the bus did Turcotte express any concern for his safety to either Zaroski or Ribble. Turcotte’s evidence at his examination for discovery is that he did not feel unsafe while he was on the bus returning to Barrie. He did not ask Zaroski to call the police, nor did he say anything to Ribble. He stated that he knew that some males were talking about fighting, but he thought they were talking about beating up the security guard for kicking one of their girlfriends off the bus. Although he recalled telling one of them to "relax" at the time, he did not believe that anyone was going to come after him for telling them to do so. He no longer considered himself to be involved in the situation once he moved to the front of the bus. It was his evidence that he moved to the front of the bus voluntarily, as he just wanted to get away from the noise and "some silly kids arguing". He did not think there was going to be further conflict when the trip concluded, and did not feel threatened as he was leaving the bus.

[45] It is undisputed that Turcotte walked a short distance away from the bus, estimated to be 8 to 20 feet away, and then stopped. He did not immediately leave the vicinity of the bus. It is his evidence that he was going to smoke and wait for his ride to arrive. Within 30 to 60 seconds after disembarking, he was surrounded by a group of individuals, including the co-defendants Aaron Lewis and Courtney Lewis. Turcotte’s evidence is that he had no fear for his own safety until being approached and surrounded.

[46] There were still passengers disembarking the parked bus at the time of the assault, which was still running. Ribble testified that he saw a person matching the description of Courtney Lewis punch Turcotte seconds after being surrounded and he fell to the ground, striking his head on the pavement. Zaroski’s evidence is that he watched Aaron Lewis walk over to Courtney Lewis, and then he saw the Lewises, and several others that he could not identify, surround Turcotte. He saw Aaron Lewis push Turcotte. He then observed Courtney Lewis punch Turcotte, followed by a “flurry of movement”. Throughout these observations he was on the bus speaking with the police dispatch, relating what was happening.

[47] Turcotte sustained a traumatic head injury which has resulted in permanent deficits including problems with his cognitive function and memory.

The Allegations

[48] The plaintiffs have particularized the negligence of the First Canada Defendants and the Kee Defendants collectively in the Statement of Claim, as follows:

(i) they failed to decide to take the bus to some other more secure location, such as the police station, when they knew or ought to have known the confrontation was likely to occur when they stopped at the Duckworth Plaza; (ii) they failed to protect patrons to whom they owed a duty to ensure their security and safety; (iii) they failed to prevent, or intervene in, the altercation; (iv) the failed to keep the premises and/or bus reasonably safe and in proper care and control for patrons; (v) they failed to provide sufficient security and/or to monitor the premises and/or bus on the day in question; (vi) they allowed patrons to become intoxicated; (vii) they failed to properly educate themselves or their employees on the signs of intoxication, in accordance with "Smart Serve" practices; (viii) they failed to take reasonable action to properly protect patrons from other patrons who had become intoxicated; (ix) they failed to remove patrons who became intoxicated from the premises and/or bus; (x) they failed to have proper procedures in place for controlling fights when they broke out; (xi) they failed to recognize a situation of danger created by a group of patrons; (xii) they failed to respond to a situation of danger created by a group of patrons; (xiii) they failed to monitor the conduct of the patrons while being transported to ensure their safety; (xiv) they failed to call police to the Duckworth Plaza when they knew or ought to have known the confrontation was possible or, in the alternative, they failed to ensure the police arrived at the Duckworth Plaza before leaving; (xv) they failed to call out to the assailants in order to break up the confrontation; (xvi) they failed to prevent the plaintiff, Ryan Turcotte, from leaving the bus when they knew or ought to have known the situation of danger was imminent; and (xvii) in the alternative, they failed to prevent the defendant, Aaron Lewis and his group of friends, from leaving the bus when they knew or ought to have known that a situation of danger was imminent.

[49] The plaintiffs have pled that the Kee and First Canada are vicariously liable for the acts and omissions of Zaroski and Ribble.

[50] The above allegations made against the defendants fit into three general categories: 1) Occupiers’ Liability Act allegations; 2) Liquor Licence Act allegations; and 3) allegations in negligence generally.

Issues

[51] This court must decide the following two issues:

(1) Is this case appropriate for summary judgment? (2) Did the moving party defendants meet the requisite standard of care?

The Law

Summary Judgment

[52] On January 23, 2014, the Supreme Court of Canada released Hryniak v. Mauldin, 2014 SCC 7 [“Hryniak”] which dictates a new test for summary judgments under Rule 20 of the Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended.

[53] With respect to when summary judgment can be granted, Karakatsanis, J., writing for the Court, stated at para. 49:

There will be no genuine issue requiring trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process 1) allows the judge to make the necessary findings of fact, 2) allows the judge to apply the law to the facts, and 3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[54] At para. 50, the Court defined the overarching issue to be “whether summary judgment will provide a fair and just adjudication.” Karakatsanis, J. went on to say that “the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.” At para. 56 of Hryniak the Court noted: “the interest of justice cannot be limited to the advantageous features of a conventional trial, and must account for proportionality, timeliness and affordability. Otherwise, the adjudication permitted with the new powers – and the purpose of the amendments – would be frustrated.”

[55] The powers available under Rules 20.04(2.1) and (2.2) are presumptively available: Hryniak, at para. 67. They only become unavailable where it is in the interest of justice for such powers to be exercised only at trial.

[56] In terms of the approach to a motion for summary judgment, Hryniak directs at para. 66 that the judge should first determine if there is a genuine issue requiring a trial based only on the evidence before her, without using the new fact-finding powers. If there appears to be a genuine issue requiring a trial, she should then decide if the need for a trial can be avoided by using the powers under Rules 20.04(2.1) and (2.2). These powers may be used by the motion judge in her discretion provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result, and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

[57] The court must take a hard look at the evidence on a motion for summary judgment to determine whether there is, or is not, a genuine issue for trial, and may freely canvass the facts and law in doing so. The moving party bears the onus of establishing that there is no triable issue; however, the responding party on a motion for summary judgment must “lead trump or risk losing”: 1061590 Ontario Ltd. v. Ontario Jockey Club, 1995 CarswellOnt 63 (C.A.) at para. 36. This means that although the onus is on the moving party to establish the absence of a genuine issue requiring a trial, there is an evidentiary burden on the responding party, who may not rest on the allegations or denials in the party’s pleadings, but must present by way of affidavit, or other evidence, specific facts showing that there is a genuine issue for trial. It is only after the moving party has discharged its evidentiary burden of showing that there is no genuine issue which requires a trial for its resolution that the burden shifts to the responding party to prove that its claim or defence has a real chance of success: Sanzone v. Schechter, 2016 ONCA 566, at para. 30.

[58] As stated in Dawson v. Rexcraft Storage and Warehouse Inc. (1998), 164 D.L.R. (4th) 257 (Ont. C.A.), at para. 17, “[t]he motions judge is entitled to assume that the record contains all the evidence which the parties will present if there is a trial.” It is not sufficient for the responding party to say that more and better evidence will or possibly may be available at trial. The respondent must set out specific facts and coherent evidence organized to show that there is a genuine issue requiring a trial: Pizza Pizza Ltd. v. Gillespie (1990), 75 O.R. (2d) 225 (Gen. Div.), at p. 238.

Occupiers’ Liability

[59] The Kee, as the occupier of the premises at which the resort nights are held, has a duty to take reasonable steps to ensure the premises are reasonably safe. It must have in place a reasonable system of security to protect patrons from reasonable harm, including taking reasonable steps to keep patrons safe from other individuals at the premises who may assault them: Mellanby v. Chapple, [1995] O.J. No. 129, at para. 47.

[60] In Harding v. Hudsons Canada, 2015 ABQB 38 the court dismissed an action against a tavern where there was no evidence adduced to suggest that security personnel could have prevented the assault. At para. 14, the court noted the assault happened very quickly and without warning. Also, a tavern has been held not liable for assaults perpetrated by third parties where its system of security was found to be adequate to protect patrons against reasonably foreseeable risks in the circumstances: Highmore v. Hoskins, 2005 NLTD 171.

Liquor Licence Act Violations

[61] Commercial hosts in Ontario who sell alcohol are regulated by the provisions of the Liquor Licence Act, R.S.O. 1990, c. L.19. Section 29 of that Act prohibits the sale of alcohol to any patron who is already intoxicated, and therefore imposes a duty on commercial hosts to monitor intoxication levels in its patrons.

Negligence

[62] The conduct of a defendant is negligent if it creates an objectively unreasonable risk of harm. In order to succeed against any one of the defendants in negligence, the plaintiffs must demonstrate that that defendant failed to exercise the care that would be expected of an ordinary, reasonable and prudent person in the same circumstances: Ryan v. Victoria (City), [1999] 1 S.C.R. 201, at para. 28.

[63] The Court in Arland v. Taylor, 1955 CarswellOnt 44 (C.A.), at para. 29, described the reasonable person in the following terms:

… I shall not attempt to formulate a comprehensive definition of "reasonable man" of whom we speak so frequently in negligence cases. I simply say he is a mythical creature of the law whose conduct is the standard by which the Courts measure the conduct of all other persons and find it to be proper or improper in particular circumstances as they may exist from time to time. He is not an extraordinary or unusual creature; he is not superhuman; he is not required to display the highest skill of which anyone is capable; he is not a genius who can perform uncommon feats, nor is he possessed of unusual powers of foresight. He is a person of normal intelligence who makes prudence a guide to his conduct. He does nothing that a prudent man would not do and does not omit to do anything that a prudent man would do….

[64] There is a legal and factual standard to this description. While the legal standard is that of "reasonableness", the assessment of reasonableness will depend upon the particular facts of each situation. For example, in Fullowka v. Pinkertons of Canada Ltd., 2010 SCC 5 the Court considered the standard of care required of a security firm hired by a mine during a bitter and violent strike. The decision makes clear, at para. 80, that a security firm does not have an absolute duty to prevent a foreseeable harm from occurring. Such security firm would only have a duty of reasonable care in all of the relevant circumstances. One such circumstance that the trial judge should have taken into account in articulating what constituted reasonable care was the fact that the perpetrator who caused the harm was determined to commit an intentional, criminal act.

[65] In Ryan, at paras. 28-29, the Court explained that the measure of what is reasonable depends on the facts of each case, including: the likelihood of a known or foreseeable harm; the gravity of that harm; and the burden or cost that would be incurred to prevent the injury.

[66] Counsel for the Kee Defendants also provided the case of Kendal v. St. Paul's Roman Catholic Separate School Division No. 20, 2003 SKQB 214, for the proposition that the degree of care to be expected may be affected by the nature of the risk and the value of the venture. In that case, a teacher was injured when she was struck by a student in a special needs program, who was known to be aggressive. The court found that the elevated level of risk created by accepting the child into a program that was carefully planned, and for which steps of been taken to minimize the dangers, was outweighed by the social value provided by the educational program. At para. 20, the court quoted from Linden, Canadian Tort Law, 7th ed. (2001), at p. 120:

Conduct is negligent if it creates an unreasonable risk of harm. This does not mean that all risky conduct attracts liability, for virtually everything that anybody does creates some hazard to somebody. If every act involving danger to someone entailed liability, many worthwhile activities of our society might be too costly to conduct. The law of negligence seeks to prevent only those acts which produce an unreasonable risk of harm. In measuring whether the hazard is an unreasonable one, the court balances the danger created by the defendant's conduct, on one hand, and the utility of that conduct, on the other hand. If the hazard outweighs the social value of the activity, liability is imposed; if it does not, the defendant is exonerated.

[67] Counsel for the First Student Defendants relies on Clarke v. Toronto Transit Commission, 2013 ONSC 2287 to assist the court in its determination of the required standard. Mr. Clarke sustained injuries during an altercation with another passenger while inside a TTC bus. Several allegations of negligence were made against the defendant driver, including that he should not have let the alleged assailant board the bus, that he should have stopped the bus when the argument first broke out, and that he failed to intervene physically or verbally in the fight. None of these were found to be a basis for a finding of negligence, and the defendants’ motion for summary judgment was successful. At para. 23 Allen, J. observed that "it has long been the law in Canada that common carriers like TTC are not insurers of passengers' safety. The duty of carriers is to use all due, proper and reasonable care.”

[68] Counsel for the plaintiffs rely on Sanzone v. Schechter, earlier referenced, in support of their submission that because the defendants have failed to provide the evidence of an expert on standard of care, they have failed to discharge the evidentiary obligation that is on the moving parties under Rule 20 to put their best foot forward by adducing evidence on the merits.

Analysis

Is this case an appropriate one for summary judgment?

[69] All of the relevant evidence that relates to the allegations made by the plaintiffs against these defendants is now before the court on this motion. There is a fulsome evidentiary record in this case, consisting of the affidavits filed on this motion, the transcripts from the examinations for discovery, and the transcripts from the criminal trial of the key witnesses: Turcotte, Zaroski and Ribble. All relevant documents have been produced. The vast majority of the facts are not in dispute.

[70] The plaintiffs' primary argument against the granting of these motions is that there are inconsistencies among and between some of the prior statements made by both Ribble and Zaroski, and therefore the case will turn on the trial judge's assessment of credibility on key issues. However, the moving parties ask that the court take the plaintiffs’ case at its highest for the purpose of this motion, and in the event of such inconsistencies, to accept the evidence of Ribble and Zaroski that is most advantageous to the plaintiffs.

[71] While this could mean that this court is not required to resolve any disputed facts that are needed to determine liability, ultimately I have concluded that there are no conflicts in the evidence between Ribble and Zaroski that are material to the issue of negligence. Taking their evidence at its most advantageous to the plaintiffs’ case, it is specifically accepted by this court for the purpose of this motion that both Zaroski and Ribble knew that: tensions were escalating as the bus approached Barrie; someone had called for “backup”; one protagonist was Aaron Lewis; and the likely target of his anger was Turcotte. Any inconsistencies between and among their evidence is immaterial in the face of these admissions. Further, Ribble was aware of the fact that a call had been placed to the police by Zaroski, and both were concerned about the escalation of tension on the bus and the possibility that there might be an altercation in the Plaza involving Turcotte. Both knew that the police were not there when the bus arrived, and both suggested to Turcotte that he get off of the bus and not remain in the Plaza. In the view of this court, the standard of care is informed by these essential facts.

[72] The plaintiffs submit that because each defendant denies any responsibility or liability, the trial is necessary so that a judge will have the opportunity to hear and observe witnesses in the trial setting. This is not a reason to put the parties to the expense of a trial if it is not necessary.

[73] This is not a complex or factually complicated case. As will be discussed further, the sole issues are liability and causation. Whether the standard of care was met by the defendants is a matter of applying the law to the evidence that has been elicited in the case.

[74] The only disputed fact in this case that impacts on the applicable standard of care is Turcotte’s level of awareness of the danger that he was in, to the extent that that could have been foreseen. Turcotte has given inconsistent versions of what occurred on the bus that night, but his evidence will not improve with a trial. As is clear from his testimony at the criminal trial, he purported to recollect many key details at trial that had been previously forgotten by him due to his brain injury. An assessment of the reliability of Turcotte’s evidence is something that can be accomplished without him taking the witness stand once again. Accordingly, although his state of knowledge and awareness is a triable issue, it is not necessary to have a trial in order to determine what that was. The evidence necessary to make such a determination is before the court, as will be explained below.

[75] I find that this is an ideal case for summary judgment, as such approach will provide a fair and just adjudication. The necessary fact-finding can be done on the record before the court, the law can be applied to such evidence, and it saves the parties the more costly and time consuming process of proceeding through a lengthy personal injury trial.

Did the moving parties meet the requisite standard of care?

[76] Although the plaintiffs have argued otherwise, there is no need for the court to have expert evidence in order to decide the required standard of care and whether it was breached. The defendants do not dispute that they owed a duty of care to the patrons utilizing the chartered bus system or attending the venue that night. As for the defendant employees, the standard of care is that of an ordinary, reasonable and prudent bus driver and security guard, in the circumstances of the case.

[77] I will deal first with the allegations set out at paragraphs 18(b) (iv) through (ix) inclusive of the statement of claim, which relate to keeping the premises and/or bus reasonably safe and various allegations relating to intoxication.

[78] There is no evidence that Turcotte was harmed at the premises, or that he suffered injuries on the bus en route to the Plaza. There is extensive evidence of reasonable security measures being implemented both at the Kee and on the bus, to reasonably ensure the safety of patrons. There is no evidence that the security system utilized by the Kee for the charter buses was inadequate. As was demonstrated at the outset of the trip when Zaroski removed the offending smoker from the bus, security policies were followed. Further, when the incident of pushing occurred between Turcotte and Lewis on the bus, Zaroski responded immediately and followed policy by separating them.

[79] There is no evidence that the First Student Defendants were responsible for security on the bus, other than to ensure a safe trip for its patrons. The bus returned all passengers to the Plaza without any harm being caused.

[80] In summary, no evidence was adduced on this motion that any of the defendants failed to meet their duty under the Occupiers’ Liability Act, or that there was negligence on their part in relation to any acts or omissions occurring at the Kee or during the trip.

[81] Further, there is no evidence that any of the patrons on the bus were intoxicated or over-served by the Kee. Specifically, there is no evidence that any of the parties involved in the altercation were intoxicated, or that they were served alcohol while at the Kee to the point of intoxication.

[82] As previously stated, the defendants owed a duty to Turcotte to take reasonable steps to ensure that he was safe while he was at the Kee and while being transported to Duckworth Plaza. It is clear from any interpretation of the facts that all defendants fulfilled their duty in this regard.

[83] The allegations in paragraph 18(b)(iv) to (ix) inclusive must be dismissed.

[84] The remaining allegations set out in para. 18(b) of the statement of claim relate to breaches of the degree of care owed to Turcotte.

[85] The plaintiffs allege in paragraph 18(b)(i) of the claim that these defendants failed to take the bus to some other more secure location, such as the police station, when they knew or ought to have known the confrontation was likely to occur when they stopped at the Plaza. I find that this would have exceeded what could be reasonably expected in the circumstances, given that there were forty-some other passengers on the bus who were expecting to be delivered to the Duckworth Plaza, and to do so could expose these defendants to potential exposure to liability under the law, for example, for unlawful confinement. Further it would have been unreasonable to expect Ribble to do so when he knew that he was required to remain on the prescribed route, from which he could not deviate. Zaroski had no authority to direct Ribble to go to another location.

[86] The allegations contained in paragraphs 18(b)(x) to (xiii) inclusive all refer to the defendants’ vigilance and response in relation to the environment on the bus. The evidence establishes that they met the standard that would be required of them in terms of having proper procedures in place for controlling fights, and recognizing, monitoring, and responding to a situation of danger caused by patrons on the bus. Zaroski was seated facing backward on the bus in order to watch the behavior of the passengers. There is no evidence to dispute his testimony that he attempted to defuse the level of animosity on the bus once the jeering and name calling began to occur. Immediately upon observing the physical altercation between Turcotte and Lewis on the bus, Zaroski followed the protocol put in place by the Kee by separating the patrons. Zaroski continued to monitor the environment on the bus, being able to describe how the tension particularly increased about 10 minutes outside of Barrie. When he was alerted to the existence of the call for "backup", he called the police to request that a cruiser meet the bus at the Plaza if one was available. I find that none of these actions fell below the expected standard of care, nor did he omit to do anything that he reasonably should have done, nor is there any connection between these actions and the injuries sustained by the plaintiff.

[87] As far as Ribble is concerned, he was not responsible for security and was driving the bus. The evidence filed shows that he had no responsibility for monitoring the behavior of the patrons, as opposed to the conditions of the bus, traffic or roadway. Any monitoring was gratuitous and limited to certain points in time, such as during loading when he would watch for the presence of alcohol.

[88] Paragraph 18(b)(xiv) alleges a failure on the part of these defendants to call the police when they knew or ought to known the confrontation was possible, or in the alternative, a failure to ensure that the police arrived at the Plaza before leaving. The evidence is clear that the police were called. Zaroski’s evidence is that when the passengers began to get off the bus, he still was unsure as to whether the police were coming. The evidence is also undisputed that the physical altercation occurred within 30 to 60 seconds after Turcotte debarked from the bus, and while other passengers were still getting off. Zaroski’s discovery evidence is that the police arrived about two minutes after Turcotte hit the ground. There is no evidence about when the bus left the Plaza, but in any event, that timing is immaterial to any damages sustained by the plaintiffs.

[89] The next allegation in the statement of claim is that the defendants failed to call out to the assailants in order to break up the confrontation. Again, these events happened quickly. Ribble was seated in the driver seat with the bus running while passengers were still getting off. Zaroski was talking on the phone to the police dispatcher, relating what was occurring. Calling out to the assailants, even if such an opportunity existed to do so, which I find is not the case, would in my view seem to be an ineffective step in the face of the Lewis defendants, who were obviously intent on having a physical confrontation. Using verbal commands to attempt to defuse a physical altercation occurring outside of the bus is beyond what would reasonably be expected, and again, the evidence does not support the conclusion that a failure to do so led to Turcotte’s injuries.

[90] The two final allegations are that these defendants were negligent in failing to prevent either Turcotte or Aaron Lewis, and his group of friends, from leaving the bus when they knew or ought to have known that a situation of danger was imminent.

[91] I will deal first with the suggestion that Aaron Lewis and his friends should have been prevented from leaving the bus. First, the phrase “and his friends” is problematic because there is no evidence identifying who those individuals may have been, whether they were involved in any of the “jeering” that was being directed toward the front of the bus, or whether any were involved in the physical altercation outside of the bus. Further, having seen Turcotte exit the bus first, there was no reason to expect that he would stop in the parking lot, especially when it had been suggested to him that he move along. There is no evidence that would suggest that Zaroski or Ribble should have linked Courtney Lewis to Aaron Lewis. Further, there is no evidence that these defendants would have had the power to detain a patron on the bus, in these circumstances, without going beyond the scope of their authority and exposing themselves to potential liability. Last, while the potential for a physical altercation was foreseeable on these facts, to suggest that Ribble or Zaroski should have known that one was “imminent” or inevitable would require impossible clairvoyance.

[92] The sole issue for trial raised in respect of the potential negligence of these defendants is whether they should have prevented Turcotte from leaving the bus when they knew or ought to have known that a situation of danger was imminent. During argument, counsel for the plaintiffs sought to extend this allegation, in my view beyond the pleading, to include a failure to warn Turcotte that he would be in a situation of danger by leaving the bus. Despite my view that the pleading does not go this far, I will deal with the issue that raised by such allegation for the sake of completeness.

[93] The concept of “preventing” Turcotte from leaving the bus is problematic for the same reasons as attempting to prevent Aaron Lewis from leaving the bus. Also, the plaintiff was an adult, not inebriated either at all or to a point suggesting that his judgment might be impaired, who walked off of the bus of his own accord. The only basis upon which an argument could be made for either Ribble or Zaroski having fallen below the expected standard is if the circumstances were such that Turcotte was unaware that he was in danger once the bus had arrived at the parking lot. In those circumstances, Ribble and/or Zaroski’s failure to advise him of their concern that a physical altercation might take place in the Plaza may be said to create an unreasonable risk of harm to Turcotte.

[94] I have previously reviewed the evidence of Turcotte offered to support the conclusion that he was unaware of the existence of any such risk or danger to himself. I must reject that evidence, for two reasons. First, Turcotte’s evidence of his recollection of the events of that evening is not reliable. His testimony at his criminal trial was that when he first spoke to the police in August 2012, he had no memory of returning to the Duckworth Plaza that evening, from the point where he was standing in the aisle on the bus. In the intervening three years prior to the criminal trial, the only recovered memory that he relayed to the police was that he recalled a girl shutting the window on the bus. Although he claimed to have recovered a memory of other things, such as what happened when he stepped off the bus, he acknowledged that he has pieced these memories together over time. His evidence leaves considerable doubt about whether he has simply reconstructed events from conjecture and what has been told to him. Some of his testimony showed a clearly faulty memory. He had no recollection of the pushing incident on the bus involving Aaron Lewis as observed by Zaroski. He believed that he moved to the front of the bus on his own accord, whereas Zaroski stated that it was he who directed Turcotte to move. He believed that he stood at the front of the bus for the balance of the ride, which is contrary to Zaroski's evidence. He described the individual who was "chirping off" on the bus as being black and having his hair in cornrows, which is very different from Zaroski's more reliable evidence of how Aaron Lewis was wearing his hair at the time. At the criminal trial, Aaron Lewis did have his hair plaited in cornrows.

[95] The second reason that I reject Turcotte’s evidence relating to his knowledge of risk and danger is that it is at odds with Zaroski's evidence. The transcripts of Zaroski’s evidence demonstrate that he is a careful and credible witness. Other than Turcotte, he was the sole witness to the events unfolding on the bus and upon arrival at the Plaza who had both reason and opportunity to observe those events in their entirety. It was his job to keep watch. There are no material inconsistencies in the evidence he provided at the criminal trial versus his examination for discovery. His testimony is reliable. Either during that trial, or at discovery, Zaroski gave the following relevant evidence:

• he believed that the plaintiff was attempting to tell those who were yelling from the back of the bus to be quiet
• the plaintiff was one of the people yelling, and profanity was being used
• the plaintiff was yelling for people to "shut up", or something along those lines
• the plaintiff seem frustrated by the noise level and activity
• the plaintiff took it upon himself to try to "shout people down"
• The plaintiff was pushed by Lewis on the bus
• he moved the plaintiff to the front of the bus, rather than the plaintiff moving of his own volition
• the plaintiff was seated at the front of the bus beside Zaroski
• in the last 10 minutes of the ride the back of the bus became more energetic and louder
• Aaron Lewis was one of the individuals who was making jeering statements from the back of the bus
• the escalation in yelling and insults continued to come from those seated at the back of the bus, including Aaron Lewis, and was directed to those at the middle and front of the bus
• when Zaroski was told that somebody at the back of the bus had called for backup, he believed that the plaintiff was sitting beside him when he was told
• once they arrived at the Plaza, Zaroski suggested to the plaintiff that he "not hang around and make off to wherever he was going"
• instead of immediately leaving, the plaintiff got off and stood about 20 feet away from the bus.

[96] All of this leads the court to the conclusion that Turcotte was as aware of the circumstances that existed that night as Ribble and Zaroski were. He was aware of the potential for a physical altercation, and yet still got off the bus and remained in the parking area. There is no reason to hold either of these defendants to a higher standard. Even if a physical altercation involving Turcotte was foreseeable to Ribble or Zaroski, they had no absolute duty to ensure that Turcotte avoided harm or that no harm came to him once he got off the bus. Ribble and Zaroski both acted reasonably in letting Turcotte off the bus first, effectively giving him a “head start”, and Zaroski acted reasonably in suggesting that he continue on his way immediately. When they did so, they had every reason to believe that Aaron Lewis would be exiting out the front, as he did, and it was reasonable that they not have Lewis pass in front of Turcotte as he was exiting. It was not until Turcotte exited the bus that the alarm sounded to alert either to the possibility that Lewis might exit through the back, and in any event, this did not occur. These defendants are not responsible for the fact that Turcotte chose to ignore the advice given to him that he leave immediately. These defendants could no more have foreseen that Courtney Lewis, and perhaps others, would strike Turcotte than he himself could have foreseen.

[97] As the evidence shows that at no time did the conduct of any of these defendants fall below the standard of care required of them in all of the circumstances, I must dismiss the action against them in its entirety.

[98] An order will issue granting the motions brought by the First Student Defendants and the Kee Defendants.

[99] If the parties are unable to agree upon costs, they may file brief written submissions for the court's consideration. The submissions of the Kee Defendants and the First Student Defendants are due by April 3, the plaintiffs’ by April 10, and any reply, if necessary, by April 13. Submissions seeking costs shall include the costs outline required by Rule 57.01(6), and shall identify all lawyers on the file, their respective years of call, and rates actually charged to the client. Such costs outline shall also provide calculations on a partial indemnity rate, including the rate applied, and if sought, the same on a substantial indemnity basis. Any written offers to settle on which a party intends to rely are to be reproduced for the court in their entirety.

Healey J. Date: March 20, 2017