Court of Appeal for Ontario
Date: 2018-07-04 Docket: C64476
Judges: Epstein, Lauwers and van Rensburg JJ.A.
Between
Michael Da Silva, Daniela Da Silva, Daniel Da Silva and Michelle Da Silva Plaintiffs (Appellants)
and
Brandon Gomes, Hamilton Sparta Sports Club, The Ontario Soccer Association Incorporated, Peter Gesse, Jack Myslin and Hildeberto Leal Defendants (Respondents)
Counsel
Daniel D'Urzo, for the appellants
Kayla Kwinter, for the respondents other than Brandon Gomes
Heard: June 29, 2018
On appeal from the judgment of Justice M.J.L. Shaw of the Superior Court of Justice, dated September 29, 2017 and reported at 2017 ONSC 5841.
Reasons for Decision
[1] In the course of a soccer game, Brandon Gomes punched Michael Da Silva. Mr. Gomes was criminally convicted for the assault. Mr. Da Silva was injured. He and his family, who bring their claims under the Family Law Act, R.S.O. 1990, c. F.3, sued Mr. Gomes, the Hamilton Sparta Sports Club for which Mr. Gomes played, the Ontario Soccer Association Incorporated, under whose auspices the game was played, and several other associated individuals.
[2] The motion judge granted summary judgment dismissing the action against the respondents other than Mr. Gomes. Although he was represented before the motion judge, Mr. Gomes did not participate in the appeal.
[3] We dismiss the appeal for the following reasons.
The Facts
[4] Mr. Da Silva and his team were playing in a soccer match with Mr. Gomes' team. Mr. Da Silva was in an altercation with one of Mr. Gomes' teammates, when Mr. Gomes ran over and punched Mr. Da Silva in the face, injuring him. The motion judge noted, at para. 10, that, on discovery Mr. Gomes testified that he did not know why he punched Mr. Da Silva. It was an impulsive act; "he knew he was not to punch other players and did it anyways."
The Issues
[5] The appellants make three arguments:
The respondents were negligent in their supervision of the game, and breached several standards of care, including the standard for coaches, for on-field supervision and for player conduct;
The respondents were liable under the Occupiers Liability Act, R.S.O. 1990, c. O.2 for failing to ensure that the playing field was safe; and
The motion judge erred in finding that these arguments on the evidence did not raise genuine issues requiring a trial.
The Analysis
[6] We address each issue.
(1) Negligence
[7] The motion judge listed the particulars of the negligence claimed by the appellants at para. 64:
The [respondents] ought to have known of Gomes' violent behaviour given the two prior incidents and should have anticipated his conduct and not allowed him to play in the game or taken other action to prevent the assault;
The [respondents] ought to have known of Gomes' violent behaviour and ran on the field to stop him before he attacked Da Silva;
The coach was not properly trained;
Proper policies and procedures were not in place with respect to training of coaches and player safety;
Proper policies were not in place to ensure that Gomes' prior conduct was reported by [the respondent] Leal which could have led to Gomes' suspension prior to this soccer game.
[8] The appellants' case rests on proving the claim that Mr. Gomes' previous conduct showed a risk that he would commit violence against an opposing player, and that accordingly, his coach, his team and the Association were negligent in permitting him to play.
[9] The motion judge rejected this claim. She found, at para. 30: "Based on the material before the court, there is no evidence that Gomes acted in a physically aggressive or violent manner during a soccer game prior to September 9, 2010." She noted, at para. 73, that Mr. Gomes had twice been disciplined before the game in question, not for violence, but for "being verbally inappropriate with referees." She found, at para 73:
In my view, the two prior incidents were not predictive or demonstrative of the type of violent behaviour demonstrated by Gomes when he assaulted Da Silva. …Gomes' prior two incidents of making inappropriate comments to the referees was not the type of behaviour that should have led Leal, acting as a reasonable coach, to conclude that there was a risk regarding Gomes' behaviour.
[10] The motion judge added, at para. 96:
Gomes admitted that he knew he was not to punch another player but did so anyways. There is no evidence that had he been disciplined in some fashion following the two prior incidents that he would not have assaulted Da Silva on September 9, 2010.
[11] On the issue of the standard of care, the motion judge noted that the appellants had not proven their case:
The appellants rely upon a code of conduct but did not file such a document for the motion. (para. 59)
The appellants did not file any other documentation purporting to be any written standards governing the respondents. They have not filed any written policies or procedures or standards which they allege have been breached. (para. 61)
The appellants submitted no evidence about written policies or procedures from [the respondents] Hamilton Sparta or the OSA regarding the training of coaches. (para. 90)
The coach was properly qualified (para. 75)
The appellants took the position that the court cannot make a determination of the standard of care required of a coach without an expert opinion, but failed to file such a report for this motion. (para. 55)
There was ample time for the appellants to assemble the necessary evidence.
[12] The motion judge returned to the core point, at para 78:
Gomes' evidence was that he knew he was not to punch other players. His evidence was that he assaulted Da Silva impulsively. Based on Gomes' evidence, even if there was a code of conduct and even if he was made aware of it, it would not have prevented him from engaging in behaviour that was so beyond the realm of what is reasonable. He assaulted Da Silva and was convicted of an offence which resulted in a suspension from the league.
[13] With respect to the issue of causation, the motion judge found, at para 94:
Based on the evidence, I am unable to conclude that the lack of or improper discipline would have deterred Gomes such that the assault upon Da Silva would not have occurred. Gomes' evidence was that he knew he could not punch another player but did so anyways. His evidence was that the assault was not premeditated and, in fact, was an unprovoked and impulsive act.
[14] All of these findings were open to the motion judge on the evidence, and the appellant has not shown that she made any palpable and overriding errors.
[15] As for the applicable law, the motion judge relied on the school board cases, which provide useful analogues. The law is clear that supervising authorities are not legally responsible for "a sudden unexpected event in the midst of an acceptable, safe activity": Patrick v. St. Clair Catholic District School Board, [2013] O.J. No. 6216, at para. 266. See Lee (Litigation Guardian of) v. Toronto District School Board, [2013] O.J. No. 1157 at paras. 104-05; Rollins (Litigation Guardian of) v. English Language Separate District School Board No. 39, [2009] O.J. No. 6193 at para. 170, appeal dismissed 2012 ONCA 104, [2012] O.J. No. 646, and cases cited in it. The motion judge did not err in accepting and applying this law.
(2) The Occupier's Liability Act
[16] The appellants argue that the respondents were liable under the Occupier's Liability Act for failing to ensure that the playing field was safe. The motion judge dismissed this argument: there was no evidence that there were "any site safety issues or that the playing field was not safe", and no evidence that the respondents were in breach of any obligation owed under the Act (para. 65). This finding was also open to the motion judge and she made no palpable and overriding error in reaching it.
(3) The Appropriateness of Summary Judgment
[17] The motion judge's self-instruction on the test for summary judgment was correct (paras. 46-48). She found that the case was not complex and the key facts were not in dispute (para. 52). There were no credibility issues to resolve (paras. 53-54). Her comments on the absence of critical evidence are noted above. We find no error in her consideration and application of the test for summary judgment.
[18] The appellants' case foundered on the absence of evidence. The motion judge rightly noted, at para. 49: "The responding party must 'lead trump or risk losing,'" citing 1061590 Ontario Limited v. Ontario Jockey Club, [1995] O.J. No. 132, 21 O.R. (3d) 547 (C.A.). In a motion for summary judgment, the court can reasonably assume that "the parties have placed before it, in some form, all of the evidence that will be available for trial", as Corbett J. noted in Sweda v. Egg Farmers of Ontario, 2014 ONSC 1200 at para. 27, affirmed 2014 ONCA 878. This is trite law.
Disposition
[19] The appeal is dismissed, with costs fixed at $7,500 all-inclusive, payable by the appellants to the respondents.
"Gloria Epstein J.A."
"P. Lauwers J.A."
"K. van Rensburg J.A."
