Robert Alan Betts

The court dismissed summary judgment motions brought by the defendants in a personal injury action arising from an assault during a recreational hockey tournament.

The plaintiffs alleged negligence and statutory liability against the arena owner, tournament organizer, and bar operator, following an assault by a player who had been drinking.

The court found that genuine issues requiring a trial remained, particularly regarding foreseeability, standard of care, and the state of the evidentiary record.

The decision reviews the legal principles for summary judgment, the duties of commercial hosts and organizers, and the need for a full trial to resolve disputed facts and credibility.

The moving parties brought a motion for leave to appeal a decision of Harris J. dated August 19, 2024.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving parties to pay costs of $5,000 to the municipal respondent and $5,000 to the county and individual respondents.

The plaintiff, Kevin Bucknol, sued 2280882 Ontario Inc. (operating as Classic Lounge) for negligence and breach of the Occupiers' Liability Act after sustaining a significant eye injury from a thrown beer bottle in the nightclub.

The defendant moved for summary judgment to dismiss all claims.

The court granted the defendant's motion, finding no genuine issue for trial.

It concluded that the defendant had fulfilled its duty of reasonable care, the incident was not reasonably foreseeable, and the plaintiff's claim of spoliation regarding deleted surveillance footage was not established as litigation was not contemplated at the time of deletion.

The defendant Ceeps-Barneys Limited, operating as The Ceeps, brought a motion for summary judgment to dismiss a personal injury action against it.

The plaintiffs alleged the Ceeps breached its common-law and statutory duties as a commercial host and occupier, following an assault on the plaintiff Kyle Schiavone by co-defendant Brenden Woods outside the establishment.

The court dismissed the motion, finding genuine issues requiring a trial regarding the Ceeps' duty of care, breach, and the foreseeability of harm.

The court also noted that granting partial summary judgment would risk duplicative proceedings and inconsistent findings, as the action would proceed against other defendants regardless.

Two consolidated appeals concerning the enforceability of liability waivers executed by ski resort patrons.

The central issue was whether the Consumer Protection Act (CPA) or the Occupiers' Liability Act (OLA) governs the relationship between ski resorts and patrons who purchased ski tickets and executed waivers as a condition of entry.

The lower courts held that the CPA applied and voided the waivers.

The Court of Appeal held that the OLA and CPA conflict, and that the more specific OLA provisions prevail over the general CPA provisions.

The court allowed the appeals and held that the waivers were valid and enforceable.

The plaintiff brought a Rule 21 motion for a judicial determination of a question of law concerning the application and breadth of section 7(1) of the Consumer Protection Act (CPA) in the context of a negligence claim where the plaintiff was injured while skiing at the defendant's ski resort.

The issue engaged the interplay between consumer rights under the CPA and occupier liabilities under the Occupiers Liability Act (OLA).

The court found that the defendant's broad waiver of liability offended CPA requirements by attempting to waive the deemed warranty of "reasonably acceptable quality" under section 9(1) of the CPA.

However, the court rejected the plaintiff's argument that the entire waiver should be voided.

Instead, it applied the doctrine of notional severance to read down the waiver, making it unenforceable only for claims involving substantive and procedural rights under the CPA, while preserving its enforceability for negligence claims under the OLA.

This approach allows the plaintiff to pursue both negligence (subject to the OLA waiver) and breach of warranty (not subject to waiver) claims.

The defendant, Pizza Pizza Limited, successfully moved for summary judgment to dismiss the plaintiff's claim for damages.

The plaintiff, Paul Porchak, suffered a radial head fracture after tripping over a bicycle rack outside the defendant's leased premises.

The plaintiff alleged negligence, including unsafe sidewalk conditions and failure to inspect.

The court, applying principles of negligence and summary judgment, found no evidence of an objectively unreasonable risk of harm.

It noted the rack was plainly visible, the plaintiff was aware of its general presence, and there were no prior incidents.

The court concluded that the plaintiff failed to maintain a proper lookout for his own safety, and therefore, the defendant did not breach its duty of care.

Following a successful summary judgment dismissing the plaintiff’s personal injury claim arising from a ski accident, the defendant sought costs of the motion and action.

The plaintiff argued that no costs should be awarded due to his impecuniosity.

The court considered the factors under Rule 57.01 of the Rules of Civil Procedure and s. 131 of the Courts of Justice Act.

While acknowledging the plaintiff’s low income, the court held that impecuniosity alone does not justify avoiding the normal costs consequences, particularly where the plaintiff rejected a settlement offer and attempted to leverage litigation costs during negotiations.

Partial indemnity costs of $63,000 were awarded to the defendant, with half payable immediately and the remainder stayed for 24 months.

The plaintiff was injured in a skiing accident and underwent a vocational assessment.

The defendant sought an order requiring the plaintiff to undergo a further assessment by a vocational assessor of its choosing.

The motion judge granted the order, and the Divisional Court upheld it.

On appeal, the Court of Appeal affirmed that section 105 of the Courts of Justice Act does not occupy the field, and the Superior Court retains inherent jurisdiction to order an assessment by someone who is not a 'health practitioner' to ensure fairness and justice between the parties.

The plaintiff sued the defendant ski resort for negligence after fracturing his clavicle by colliding with a fluorescent orange mesh ribbon used to close a ski run at night.

The defendant moved for summary judgment, arguing there was no negligence and relying on a signed liability waiver.

The court granted the motion, finding no genuine issue requiring a trial.

Using enhanced fact-finding powers, the court determined the obstacle was clearly visible, snow-making equipment was not operating, and the plaintiff failed to keep a proper lookout.

Furthermore, the court held that the liability waiver signed by the plaintiff was prominently displayed, fully enforceable, and provided a complete defence to the claim.

The plaintiffs in two separate personal injury actions appealed interlocutory orders requiring them to undergo examinations by non-medical practitioners (a vocational assessor and a chiropractor).

The plaintiffs argued that section 105 of the Courts of Justice Act constitutes a complete code for such examinations, precluding orders for non-medical practitioners.

The Divisional Court held that section 105 does not completely occupy the field and that a Superior Court judge has inherent jurisdiction to order an examination by a non-medical practitioner where necessary to ensure trial fairness and justice.

Applying this test, the court dismissed the appeal in the Ziebenhaus action, finding the vocational assessment was necessary to meet the plaintiff's case.

However, the court allowed the appeal in the Jack action, finding the defendants failed to demonstrate that the functional abilities evaluation was necessary.

In a personal injury action arising from a skiing accident allegedly causing traumatic brain injury, the defendants sought an order compelling the plaintiff to undergo a vocational assessment by a non‑medical practitioner.

The plaintiff argued the court lacked jurisdiction under the Courts of Justice Act and the Rules of Civil Procedure to order such an assessment because the proposed assessor was not a "health practitioner" within the statutory definition.

The court held that, regardless of the statutory framework, the court may order a non‑medical vocational assessment where it is reasonably required and necessary to ensure fairness in the litigation.

Given the substantial claim for past and future income loss and the importance of assessing residual earning capacity, the requested assessment was found appropriate and not unfairly intrusive.

The motion was granted and the plaintiff was ordered to attend the vocational assessment.

A mortgagee brought a motion for summary judgment for possession and recovery of monies owing under a mortgage after a restraint order under the Controlled Drugs and Substances Act was registered on title to the mortgaged property.

The borrower argued the restraint order was analogous to a Mareva injunction and did not constitute a lien or encumbrance triggering default under the mortgage.

The court held that a restraint order under the Act constitutes both an encumbrance and an attachment within the broad contractual definition of “lien” in the mortgage’s standard charge terms.

As the order placed the property under the control of the justice system pending potential forfeiture, its registration amounted to a default under the mortgage.

The mortgagee was therefore entitled to summary judgment.

Two organizations, Conservation Ontario and the Ontario Association of Chiefs of Police (OACP), brought motions for leave to intervene in a judicial review concerning the interpretation of the workplace injury reporting requirements under s. 51(1) of the Occupational Health and Safety Act.

The court granted intervenor status to Conservation Ontario, finding it could provide a broader context regarding the operation of recreational facilities without expanding the record.

The court dismissed the OACP's motion, as it sought to introduce new issues and factual assertions that were not before the original decision-maker.