COURT OF APPEAL FOR ONTARIO

CITATION: McDowell v. St. Lawrence Parks Commission, 2015 ONCA 755

DATE: 20151109

DOCKET: C59778

Feldman, Lauwers and Benotto JJ.A.

BETWEEN

Alice McDowell, Ronald McDowell, Johnathon Norman McDowell, Michael Allen McDowell and Caroline Marguerite McDowell

Plaintiffs

and

St. Lawrence Parks Commission

Defendant (Appellant)

and

Ontario Principals' Council and Jessup Food & Heritage Ltd.

Third Party (Respondent)

Jaan E. Lilles, for the appellant

Pasquale Santini, for the respondent

Heard: October 27, 2015

On appeal from the judgment of Justice Joseph M. W. Donohue of the Superior Court of Justice, dated November 26, 2014.

ENDORSEMENT

[1] The appellant was the defendant in a personal injury action. The respondent was the third party. The main claim settled. This is an appeal from the finding by the trial judge that the appellant did not prove its claim for indemnity or negligence against the third party.

[2] The appellant operates Fort Henry. The third party runs a food services facility, the Garrison Restaurant, at Fort Henry. The plaintiff attended an off-hours banquet held at the Garrison Restaurant. After dinner, she left the banquet and went to the washroom. When she left the washroom, she did not return to the banquet but turned toward the moat adjacent to the washroom and fell into it, injuring herself.

[3] The appellant had a service agreement with the third party that, in part, set out the third party’s obligations at Fort Henry. The third party’s primary obligations related to operation of the Garrison Restaurant, both during Fort Henry’s regular operating hours and for off-hours banquets and special events. Article 4.12(d) of the agreement required the third party “to promote a safe working environment and assure that health and safety needs of staff and customers are met following relative guidelines, policies & procedures at all times.”

[4] The appellant’s agreement with the third party included an indemnity provision, which provided as follows:

The Concessionaire hereby agrees to indemnify and hold harmless the Indemnified Parties from and against any and all liability, loss, costs, damages and expenses (including legal, expert and consultant fees), causes of action, actions, claims, demands, lawsuits or other proceedings, (collectively, “Claims”), by whomever made, sustained, incurred, brought or prosecuted, including for third party bodily injury (including death), personal injury and property damage, in any way based upon, occasioned by or attributable to anything done or omitted to be done by the Concessionaire, its subcontractors or their respective directors, officers, agents, employees, partners, affiliates, volunteers or independent contractors in the course of performance of the Concessionaire’s obligations under, or otherwise in connection with, the Contract. The Concessionaire further agrees to indemnify and hold harmless the Indemnified Parties for any incidental, indirect, special or consequential damages, or any loss of use, revenue or profit, by any person, entity or organisation, including, without limitation, the Commission, claimed or resulting from such Claims. The obligations contained in this paragraph shall survive the termination or expiry of the Contract. [Emphasis added.]

[5] The appellant’s theory of the case was that the third party breached the indemnity provision by failing to escort the plaintiff to the bus at the end of the banquet or that it was negligent in failing to do so.

[6] The trial judge found that regardless of whether the respondent had a duty to escort patrons to the bus following a private banquet when the Fort was closed to the public, the appellant had not proved that the plaintiff’s mishap happened at the same time as the departure of other guests from the restaurant rooms. He further found as follows: “I cannot find that the allegation of the third party’s failure to get the patrons safely to the bus is in any way connected to what happened to the plaintiff. I am not satisfied that departures to the bus happened simultaneously with the plaintiff’s mishap.”

[7] We see no error in his finding or in his analysis. The only indication of the timing of when the plaintiff went to the washroom was the respondent’s pleading that she went after dinner. As the trial judge pointed out during closing submissions, there was no actual evidence in the record of a witness who last saw her at the party or at the washroom. The only witness at trial who saw the plaintiff that night was the third party’s former restaurant manager, who only saw the plaintiff after she had already fallen when he found her in the moat. The trial judge was entitled to find that that did not satisfy the appellant’s onus of proof.

[8] Nor, based on the record, do we accept the submission that the trial judge cut off any cross-examination on the issue.

[9] Finally, on the issue of whether the trial judge erred in his discretionary decision that allowed the third party to withdraw its jury notice or struck that jury notice, we are not satisfied that there is evidence upon which a jury properly instructed and acting reasonably could come to a different conclusion than that reached by the trial judge: Kempf v. Nguyen, 2015 ONCA 114, 124 O.R. (3d) 241, at para. 73. As such, we need not address in full the issues raised regarding the striking (or withdrawal) of the jury notice.

[10] The appeal is dismissed with costs in the agreed amount of $15,000 inclusive of disbursements and HST.

“K. Feldman J.A.”

“P. Lauwers J.A.”

“M.L. Benotto J.A.”