DATE: 20040611

DOCKET: C38092

COURT OF APPEAL FOR ONTARIO

LABROSSE, LASKIN and GOUDGE JJ.A.

B E T W E E N:

MARILYN ORTEGA, LYNN DIANNE RUSSELL, SEAN TELESFORD GREAVES, SHIRWYN VICTOR GREAVES, RHONDA GREAVES and JILLISA ORTEGA, by her Litigation Guardian, Marilyn Ortega, and NATHANIEL RUSSELL, by his Litigation Guardian, Marilyn Ortega

Bonnie A. Tough and Sam Marr for the plaintiffs/appellants

Plaintiffs/Appellants

• and -

1005640 ONTARIO INC. carrying on business under the name and style of CALYPSO HUT 3, 1230 SHEPPARD CENTRE INC. and JOHN DOE

Brian Brock, Q.C. for the defendants/ respondents

Defendants/Respondents

Heard: March 10, 2004

On appeal from the judgment of Justice Clair Marchand of the Superior Court of Justice dated March 11, 2003.

BY THE COURT:

[1] This an appeal from the decision of Mr. Justice Marchand dated March 18, 2002, dismissing the plaintiffs’ action on the basis of a finding of no liability against the defendants. The action arose as a result of an incident in which two persons were shot and killed and another injured by an unknown assailant as they were coming out of the front door of a nightclub in a strip mall in the early morning hours of July 27, 1997.

[2] The action was framed in tort and was brought on behalf of the family members of one of the murdered victims alleging a breach of the Occupier’s Liability Act, R.S.O. 1990, c. O.2, by the owners of the strip mall and of the nightclub. The action raised the issue of responsibility for security at nightclubs including the absence of an organized security system or policy which, the appellants argue, would have alerted the respondent to times of increased danger and which would have acted as an overall deterrent to criminal acts. The action also raised the issue of whether the obligation of the respondent nightclub as an occupier of property to take reasonable care to see that persons on the property are reasonably safe extends to and includes the parking lot.

[3] The trial judge’s reasons must be read as finding no duty on the respondents to take reasonable care for the safety of patrons in the parking lot. On this issue the trial judge is in error and the respondent concedes that the obligation to take reasonable care to see that persons on its property are reasonably safe extends to their use of the parking lot when leaving.

[4] The standard of care required of the respondent depends on the harm that is reasonably foreseeable for patrons in the parking lot. In his reasons, at para. 18, the trial judge finds that even if the respondent nightclub is subject to a duty of care, the standard of care does not extend to hiring security guards or off duty police officers to patrol outside the club at closing time. Absent an error in principle, that finding is entitled to deference in this court. In Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at para. 37, the Supreme Court stated:

In our view…the determination of whether or not the standard of care was met by the defendant involves the application of a legal standard to a set of facts, a question of mixed fact and law. This question is subject to a standard of palpable and overriding error unless it is clear that the trial judge made some extricable error in principle with respect to the characterization of the standard or its application, in which case the error may amount to an error of law.

[5] The appellants submit that the trial judge did err in principle because he failed to assess the reasonable foreseeability of harm at closing time. The appellants argue that the respondent nightclub acted unreasonably by bringing its security guards inside the club at closing, and that, had the trial judge properly characterized the standard of care, he would have concluded that the respondent had breached its duty of care.

[6] On a fair reading of para. 18 of the trial judge’s reasons, we incline to the view that he did not err in principle in either his characterization or application of the standard of care. However, even if we accept the appellants’ submission that he did so, their appeal must fail on the question of causation.

[7] Causation is established where a plaintiff proves on a balance of probabilities that the defendant caused or contributed to the injury: Snell v. Farrell, [1990] 2 S.C.R. 311 and Cottrelle v. Gerrard, [2003] O.J. No. 4194 (C.A.).

[8] The trial judge found that this shooting was unprovoked and indiscriminate, in other words, that it was a random shooting and that nothing the nightclub might reasonably have done would have prevented it. This finding is amply supported by the evidence. For example, the record discloses that the identity of the shooter was unknown, that no one knew whether the shooter had had any connection to the mall or the nightclub and that no one knew whether the shooter had any connection to the victim. Further, Detective Mendelson, a senior and experienced officer with the Toronto police force, testified that investigations of homicides at similar clubs showed that the presence of uniformed officers did not prevent murders from occurring.

[9] Nonetheless, the appellants argue that the presence of uniformed guards outside of the front door creates an atmosphere that diminishes the risk of violence. Although there is no evidence specifically addressing this, it may be that the deterrent effect of a uniform can be taken as a given. Nonetheless, to demonstrate causation the plaintiffs have to go beyond a diminished risk and demonstrate that in this case the failure to provide uniformed guards outside the front door of the club (assuming that to be the standard of care) caused the killing.

[10] In other words, to find causation established, the evidence of reduced risk created by the presence of a uniform would have to be coupled with a factual inference drawn by the trial judge, namely, that the failure to provide uniforms in this case caused or contributed to the killing. That is, this failure made the killing more likely that not.

[11] That finding was not made in this case. While it can be said that the trial judge did not approach it quite this way, his reasons leave no doubt of his conclusion: that nothing the respondent could have done would have either prevented or made less likely the killing. This finding (which requires deference) is insuperable if the appellants are to demonstrate the necessary causation.

[12] For these reasons, despite Ms. Tough’s able argument, we would dismiss the appeal, with costs if demanded, fixed at $10,000.00.

Released: June 11, 2004

“J.L.”

“J.M. Labrosse J.A.”

“John Laskin J.A.”

“S.T. Goudge J.A.”