COURT FILE NO.: CV-01-0474

DATE: 2012-01-31

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

PAM MEADY, EVELYN SHEPHERD, CARRIE ANN TAPAK, DENNIS CROMARTY, THAYNE GILLIAT, FAYE EVANS, SHELDON CHRISTENSEN, a Minor by his Litigation Guardian, CATHY DUCHARME, ANTHONY CLOWES, TANYA CLOWES and BRIAN ELIZABETH CLOWES and SHAUNA PAULINE CLOWES, minors by their Litigation Guardian, TANYA CLOWES, BRIAN GORDON ADAMS, MICHAEL DAVID FINN, JENNIFER ESTERREICHER, J.T., an infant under the age of eighteen years by his Litigation Guardian L.T. and L.T.,

Christopher D.J. Hacio¸ Nicole Crowe and Karen Drake, for the Plaintiffs

Plaintiffs

• and -

GREYHOUND CANADA TRANSPORTATION CORP., CONSTABLE COREY PARRISH, CONSTABLE MARTIN SINGLETON, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, ALBERT ARNOLD DOLPH and SHAUN DAVIS,

Owen Smith, Amanda McBride and David Contant for the Defendants Greyhound Canada Transportation Corp. & Albert Arnold Dolph;

Stephen Moore, Teri D. MacDonald, Danielle D. Stone, Bianca Matrundola and Rafal Szymanski for the Defendants Constables Parrish & Singleton and Her Majesty The Queen in Right of Ontario

Defendants

HEARD: April 26-30; May 10-13, 17-20, 26 , 27 & 31; June 1-4, 25-30; July 8, 15 & 29; September 14-16, 20-23, 27-29; October 4, 12-15, 18-21; November 2, 8-10, 15-18, 22-24, 29 & 30; December 1 & 6, 2010; January 20 and April 27, 2011,

at Thunder Bay, Ontario

Mr. Justice T.A. Platana

REASONS FOR JUDGMENT

INDEX

Page

General Introduction/Overview ........................................................................................... 5

Events at Ignace ..................................................................................................................... 5

Encounter At Tempo ............................................................................................................... 6

Departure from Ignace ........................................................................................................... 9

Post-accident ......................................................................................................................... 15

The Ontario Provincial Police Training Issue ..................................................................... 16

The Communications Issue .................................................................................................. 22

The Greyhound Training Issue ............................................................................................ 23

Position of the Plaintiffs against the O.P.P. & Constables Parrish & Singleton................ 27

Failure to Follow Training ............................................................................................ 27

Failure to Apprehend under S. 17 MHA .................................................................... 27

Failure to Obtain Background Information .............................................................. 28

Failure to Detain ....................................................................................................... 28

Failure to provide Information to Dolph ................................................................... 29

Failure of O.P.P. to Provide Information ................................................................. 29

Failure to Provide Training ....................................................................................... 29

Position of the Defendants O.P.P. & Constables Parrish & Singleton............................... 29

Section 17 of the MHA................................................................................................ 30

Placing Davis in an Enclosed Space and invading his Personal Space..................... 31

Failure to Speak to Lay Witnesses ............................................................................. 31

Failure to Obtain Additional Information about Davis’ Medication ........................ 31

Failure to Contact the RCMP for further Information ............................................. 32

Investigative Detention .............................................................................................. 32

Failure to Provide Complete & Accurate Information to Dolph .............................. 32

Constable Parrish Pressured Dolph into taking Davis ............................................. 32

Failure to Obtain Additional Information from Family & Friends ........................... 32

Position of the Plaintiffs against Greyhound and Dolph...................................................... 33

Failure to make Reasonable Enquiries ...................................................................... 34

Allowing Davis to Cross the White Line .................................................................... 34

Allowing Davis to Stand in the Stairwell ................................................................... 35

Failure to Stop the Bus .............................................................................................. 35

Failure to provide Adequate Training on Emergency Pullovers................................ 35

Failure to provide Sufficient Training on how to deal with Difficult

Passengers........................................................................................................... 36

Failure to follow available Guidelines regarding Passengers with Mental

Illness.................................................................................................................... 36

Failure to provide Barrier between Driver and Passengers ..................................... 36

Driving at an Excessive Speed .................................................................................. 36

Position of the Defendants Greyhound & Dolph................................................................. 37

Davis had a Right to Board the Bus Driven by Dolph................................................ 37

No Potential Problem Existed that would have Prevented Davis from

Boarding the Bus..................................................................................................... 38

Dolph was Properly Trained....................................................................................... 38

It was Proper Procedure to allow Davis to be Seated at the Front of

the Bus..................................................................................................................... 38

The White Line ........................................................................................................... 38

Boxing in the Driver is not a Solution ....................................................................... 38

Dolph was driving at a Safe Speed ............................................................................ 39

Pulling over the Bus would have been Dangerous .................................................... 39

Legal Principles - Negligence............................................................................................... 39

Duty of Care .............................................................................................................. 40

Standard of Care ....................................................................................................... 40

(a) Standard of Care For Bus Drivers ................................................................. 40

(b)Standard of Care for Police Officers .............................................................. 40

Causation ................................................................................................................... 41

Remoteness ................................................................................................................ 41

Onus of Proof ............................................................................................................ 42

Investigative Detention .............................................................................................. 43

Discussion/Analysis as to Liability re: O.P.P. & Constables.............................................. 44

Introduction................................................................................................................ 44

Were the O.P.P. & Constables Parrish & Singleton Negligent? ........................... 44

Failure to Apprehend under Section 17 of the MHA ................................................. 44

Failure to detain Davis using the Doctrine of Investigative Detention ..................... 46

Putting Davis in an Enclosed Space & Invading His Personal Space ....................... 46

Failure to obtain Background Information about Davis from

Third Parties............................................................................................................ 47

Failure to obtain additional information about Davis’ Medication .......................... 47

Failure to provide Dolph with Complete & Accurate Information ........................... 48

Pressuring Dolph into allowing Davis onto the Bus .................................................. 48

Failure to provide proper training/information on how to deal with

mentally ill individuals ............................................................................................ 48

Discussion/Analysis as to Liability re: Greyhound & Dolph............................................... 49

Were Greyhound & Dolph Negligent? .................................................................... 49

Failure to Make Reasonable Enquiries ...................................................................... 49

Dolph allowed Davis to Cross the White Line ........................................................... 50

Failure to Pull Bus Over ............................................................................................ 51

Operating the Bus at an Excessive Speed .................................................................. 51

Insufficient Training & Information on Passengers with Mental Illness ................... 52

Insufficient Barrier Between the Driver and the Passengers ..................................... 52

Conclusion as to Liability...................................................................................................... 52

Legal Principles - Damages ................................................................................................. 53

Loss of Housekeeping Capacity ................................................................................. 55

Past & Future Loss of Income Earning Capacity ..................................................... 55

Special Damages ........................................................................................................ 56

The MPIC Claims ...................................................................................................... 56

The Family Law Claims ............................................................................................. 57

Discussion/Analysis – Damages ......................................................................................... 57

Evelyn Shepherd......................................................................................................... 57

Anthony Clowes ......................................................................................................... 59

Tanya Clowes ............................................................................................................ 67

Dennis Cromarty ....................................................................................................... 70

Michael Finn .............................................................................................................. 73

Thayne Gilliatt ........................................................................................................... 75

Jennifer Esterreicher ................................................................................................. 77

Bryan Adams .............................................................................................................. 83

Faye Evans ................................................................................................................ 86

J.T. ............................................................................................................................. 90

Pam Meady ................................................................................................................ 97

Carrie Anne Tapak .................................................................................................. 103

General Introduction/Overview

[1] On December 23, 2000, a Greyhound bus was travelling eastbound on Highway No. 1 near Ignace, Ontario. On arrival at Ignace, one of the passengers, later identified as Shaun Davis (“Davis”), spoke to the driver, Bill Groves (“Groves”). Davis expressed concern with respect to other individuals on the bus who Davis stated were trying to do him harm. He told the driver that they were going through his luggage. Davis and Groves contacted the police. Davis was then given an endorsed ticket to ride on a following bus. The evidence demonstrated, and the police acknowledged, that Davis’ behaviour showed symptoms of anxiety and mild paranoia.

[2] After remaining in Ignace for some time, Davis and the police met with the driver of a later bus, Albert Dolph (“Dolph”), carrying passengers expecting to be home for Christmas with family and friends. The police spoke to the driver. Davis boarded the bus and was placed in the front seat. Approximately 45 to 50 minutes after leaving Ignace, Davis went up to the front of the bus. He engaged in discussion with Dolph about people on the bus wanting to hurt him. At a point in time, while standing in the wheel well in front of the bus next to the passenger door, Davis jumped up and grabbed the wheel of the bus, forcing it across the highway where it rolled onto its side in a ditch.

[3] Several of the bus passengers, Plaintiffs in this action, suffered injuries. They bring this action against Davis, who did not respond to this action; Dolph as driver of the bus; Greyhound Canada Transportation (“Greyhound”) as operator; Her Majesty the Queen in the Right of the Province (Ontario Provincial Police (“O.P.P.”)); and the two named Constables Corey Parrish (“Parrish”) and Constable (now Sergeant) Martin Singleton (“Singleton”). In the course of these reasons, when I use the term “Defendants”, I am referring to all named Defendants collectively, unless I otherwise specify a named Defendant. “Police Defendants” references the named officers and the O.P.P. “Greyhound Defendants” references the Defendant Dolph and Greyhound Transportation Corporation. The Plaintiffs claim that the Defendant Constables were negligent by placing Davis onto the bus and the Defendant Dolph was negligent in his operation of the bus. They claim the O.P.P. was negligent in the training of the officers and Greyhound was negligent in the training of Dolph.

Events at Ignace

[4] On December 23, 2000, Groves was driving a bus from Dryden to Thunder Bay. While the bus was stopped at the Tempo, a rest stop in Ignace for Greyhound buses, he was approached by a passenger, subsequently determined to be Davis. Davis indicated that he felt threatened by passengers in the back of the bus. Groves offered to have Davis sit up at the front of the bus. Davis seemed concerned, but forthright. He presented as clean cut, well dressed, and not obnoxious. Nothing stuck out about Davis from any other passenger. He was not aggressive and Groves “saw no red flags”. Davis told Groves that someone was going through his luggage. Because this appeared to be a police matter, Groves asked the station attendant to call the police. When the police arrived, they asked if Davis’ ticket could be switched to another bus. Groves said he had no problem endorsing his ticket, and that should David so choose, he had no fears or concerns about Davis staying on his bus.

Encounter At Tempo

[5] Sylvia Melanson was working as a cashier and waitress at the Tempo Gas Station/Restaurant in Ignace. Between 2:45 and 3:00 p.m. CST on that afternoon, an individual (whom she subsequently came to know as Davis) got off a Greyhound bus and came into the Tempo behind the bus driver. She testified that Davis seemed agitated, although there was nothing unusual about his appearance. She heard him speaking with the bus driver by the cash register, telling the driver that people on the bus were after him and that they were trying to go through his luggage. She then heard the driver suggesting to him that he call the police and she assisted Davis in doing so. She testified that Davis stated that he wanted to get his bags off the bus and that the bus driver told him that he could do so and take a following bus. In describing Davis’ demeanor, she stated that he was nervous, agitated, and seemed paranoid. He appeared to believe what he was saying, however, she did not believe him as it did not appear that anyone was bothering him.

[6] Sylvie Maurice is the owner of the Tempo station/restaurant in Ignace. She came into contact with Davis twice that day; the first time was when she saw him behind the counter some time after 2:15 p.m. in the afternoon. He looked somewhat nervous. Davis indicated to her that people were out to get him. She states that he was asked to come out from behind the counter and he did so when asked.

[7] Constable Corey Parrish was working when he was called to the Tempo Restaurant at 2:20 p.m. in response to a call from his dispatcher that a person needed assistance. On arrival he spoke to Davis and Groves. Parrish testified that Davis presented well. Davis told him that there were some people on the bus who wanted to jump him and take his bags. He asked Davis to check his bags on the bus and Davis noted that everything was there. Davis was polite and communicated well. Constable Parrish spoke to Davis in the cruiser and formed the opinion that his complaints were not substantiated. While speaking to Davis in the cruiser, Davis said that he wanted to go home but wanted to take another bus. Constable Parrish asked him if he had taken any alcohol or drugs and Davis said he was taking prescription medications for Attention Deficit Disorder. Constable Parrish did not ask him what specific medications he was taking.

[8] After arrangements were made for Davis to travel on the following bus, and after retrieving his bags, Davis asked Constable Parrish if he could ride along in the cruiser with Constable Parrish. He was advised that he could not. Davis did not want to stay at the bus stop with the other passengers and Constable Parrish agreed to drive him to the Voyageur, another local restaurant in Ignace. He confirmed that Davis had the financial resources to get a cab back to the Tempo. When Davis exited from the cruiser Constable Parrish noted that Davis was calm, well-mannered, well-spoken and appeared to be suffering from mild paranoia.

[9] Filed as part of Exhibit 72 is a transcript of the tape recording between the Kenora Communication Centre and Constable Parrish, which took place at 3:02 p.m. In that recording, Constable Parrish describes Davis as “… sort of the complainer or whatever it is suffers from mild paranoia…”

[10] Amy Hewlett was working at the Voyageur Restaurant. She had contact with Davis while he was sitting at a counter drinking coffee. He was pacing a lot and looking out the window. He expressed concern to Ms. Hewlett about his belongings being stolen. She testified that she was never afraid of him and that he never made any threats against anyone.

[11] Margaret Glover was also working at the Voyageur Restaurant on the day in question and spoke to Davis. At trial, she stated that she brought him into the back office of the restaurant so that he could use the telephone. He was clean cut and neat. She had a discussion with him after the phone call, during which he said to her that people were after him, going through his luggage. He stated that he was changing buses as there had been some kids on the bus who were bothering him. She described him as looking tired, upset, and tense, and that he looked like someone who was having a bad day. In cross-examination she acknowledged that she was not uncomfortable with him and that he seemed “like a sweet, lost, scared boy.”

[12] Karen Ray was driving a taxi in the Town of Ignace. She received a call from the Voyageur Restaurant to pick up a passenger at approximately 3:00 pm in the afternoon. She stated that the passenger was saying that people were after him and that he wanted to see the police. She then drove across the street where a police vehicle was parked. She spoke to Constable Parrish, whom she knew. She testified that she overheard a conversation between Parrish and Davis in which Parrish asked Davis if he wanted to see a doctor to which Davis replied, “no”, and said that he “simply wanted to get out of town.” She then drove Davis back to the Tempo. Davis again stated that people were trying to rob him. She told him not to worry and to calm down. Her evidence was that she thought he may have been high on something and needed to calm down. He seemed “a little delusional.” She acknowledged that in her first contact with the police subsequent to the incident she stated that Davis had looked normal and “like a two year old, quite harmless.” She acknowledged that there was never any indication of violence from Davis and that she never felt threatened by him.

[13] Ms. Melanson had contact with Davis for a second time approximately an hour or more after their first encounter. At the time of the second contact, Davis appeared more agitated than he was before. For this reason, she asked Sylvie Maurice not to leave her alone with Davis. He again was repeating that everybody was out to get him. In cross-examination she stated that she spoke to the police approximately five days later about the incident and she agreed that Davis did not appear violent in any way and that he complied with any request that she made of him. She further acknowledged that Davis was neatly groomed, that he did not smell of alcohol, that he was polite and that he was not using any foul language.

[14] Ms. Maurice also came into contact with Davis for a second time shortly before 5:00 p.m. She stated that at that time he was looking around and that he looked very nervous. He again asked her to call the police. During this second contact she stated that he seemed more nervous and agitated than he was during their previous encounter. She acknowledged that she had given a statement to an investigator in June 2001, in which she stated that Davis seemed paranoid but “not to the extent that he would harm anybody.” She acknowledged in cross-examination that she was surprised and shocked when she ultimately heard about the accident, since during her contacts with Davis he “just looked like a scared little kid.” She also acknowledged that his behaviour was mild compared to other individuals whom she had seen in her restaurant and that he did not frighten her. Further, she did not have any concern that he would harm anybody. She acknowledged that he was polite, understood everything that she was saying and was not loud.

[15] At the time of this incident, Constable, now Sergeant, Martin Singleton was a Probationary Constable stationed at Ignace. He testified that he was at the detachment in Ignace at approximately 5:15 p.m. when he received a call from Davis stating that people were going to beat him up. He called the Communications Center and was subsequently picked up by Constable Parrish, who was on his way to the Tempo. He learned of Constable Parrish’s previous involvement with Davis. His evidence is that upon his arrival at the Tempo Gas Station he was approached by Davis. Davis told the police that the people who were going to beat him up had just gone and that everything was now “okay”. He stated that he just wanted to go home for Christmas. Davis was calm when Constable Singleton arrived at the Tempo. He stated that Davis seemed to be suffering from mild paranoia but that it was not the type of paranoia which he had previously seen or was taught about in his training program.

[16] The next scheduled Greyhound bus was operated by Dolph and arrived just after Constables Singleton and Parrish arrived at the Tempo. When the police cruiser stopped, Davis immediately approached the Officers and asked them to stay around until he could get on the Greyhound bus. Constable Parrish put Davis in the back of the police cruiser and went to speak with Dolph, the driver of the bus that Davis would be boarding. Constable Parrish’s evidence is that he advised Dolph that Davis had gotten off an earlier bus because he was suffering from mild paranoia but that he was not a threat to anyone and that he displayed no signs of violence or danger. Constable Parrish stated that he advised Dolph that Davis had been concerned about people staring at him but that he was “not a problem.”

[17] There is a dispute between the evidence of Constable Parrish and Dolph about whether Dolph had any conversation with Davis while they were all at the Tempo. Constable Parrish testified that Dolph did have a conversation with Davis and that he decided to take Davis on his bus as a result of that conversation. Dolph testified that he had no such conversation with Davis because he did not feel it was necessary to do so. In my view nothing turns on this differing evidence.

[18] Dolph and Constable Parrish then got on the Greyhound bus in question and asked Pam Meady, who was seated in the front left hand passenger side seat, to change seats so that Davis could sit at the front left hand side of the bus. There is some dispute between the evidence of Dolph and Constable Parrish about who wanted to place Davis in Pam Meady’s seat. Again, in my view, nothing turns on this evidence. Ms. Meady was advised by Dolph that they really needed her seat because a passenger was getting on the bus who had “issues”.

[19] After relocating Pam Meady to her new seat Constable Parrish exited the bus in question and went to speak to Davis. After speaking to him, Parrish returned to the bus. Some of the Plaintiff passengers on the bus testified that Constable Parrish spoke to passengers within hearing range of him. He advised them that no one should look at him or attempt to have any contact with him. Several passengers also testified that they heard Parrish say that Davis was paranoid. Parrish testified that he was speaking only to the young man seated behind Davis. For the purposes of my finding in this trial, it is not necessary for me to determine who Constable Parrish was specifically speaking to or what specifically was said. It is clear that Constable Parrish did speak to passengers on the bus advising them to avoid contact with Davis.

[20] After this, Dolph and Constable Parrish had another conversation in which Dolph asked Parrish to “keep an eye out for me” in response to which Parrish said that there would be O.P.P. cruisers up and down the highway and that he would be fine. Dolph also asked Parrish to contact the O.P.P. detachment in Upsala, Ontario, and advise that he had Davis on his bus. Constable Parrish then exited the bus and had a short conversation with Davis during which time he advised Davis to speak to Dolph if he had any problems. Parrish then escorted Davis onto the bus and sat him in the front seat previously occupied by Pam Meady.

[21] There was an issue raised by Mr. Hacio with respect to whether Constable Parrish “put” Davis on the bus, implying a forced requirement. Mr. Hacio refers to Exhibit 72 where Parrish says to the Communication Centre “…there is a gentleman who we put on the bus…”. Constable Parrish testified that in his communication with Kenora, he had not used the word “put” in the sense of requiring or forcing Davis to board the bus. I note that further along in the same conversation Parrish states “… he just wanted to get on a different bus and avoid the problem so we got him a transfer.” I am satisfied from the evidence that Constable Parrish did not use the word “put” in a sense that implies any manner of requirement or coercion. In any event, the evidence of Dolph is clear that it was ultimately his decision to determine who was permitted to be a passenger on the bus.

[22] Constable Singleton had a conversation with Davis in the parking lot while all this was going on in the bus. Davis showed Singleton his medication. Singleton did not make any inquiries when shown this medication. Singleton testified that by the time Davis got on the bus, he appeared to be calm and happy to be going home.

[23] Prior to leaving Ignace, Dolph had a conversation with George Zuber, who would be driving an overflow Greyhound bus that would be following the Dolph bus. Dolph asked Zuber to “keep an eye” on him because he was transporting a passenger who seemed to be troubled.

[24] Constables Parrish and Singleton left the Greyhound bus depot immediately after Davis boarded the bus. The bus then left the Greyhound depot about 30 minutes behind schedule. The roads were partially snow covered and it was very cold out. It was not snowing and the roads had been recently plowed.

Departure from Ignace

[25] Albert Dolph’s evidence is that during his conversation with Constable Parrish, Parrish told him that he thought Davis was suffering from mild paranoia. His testimony is that Davis presented as calm, clean cut, polite and responsive to questions. He was not intoxicated, obnoxious, or loud nor was he acting up. He stated that he never felt pressure from the police to put Davis on the bus, and he had no reason to prevent him from boarding the bus. It was Dolph’s decision to let Davis board, regardless of what the police would have said or did say. Davis was placed in the front seat, not as a question of concern for other passengers but for his own comfort.

[26] Several witnesses testified that Davis looked “troubled” or disturbed and odd when he got on the bus. Pam Meady boarded the bus in Winnipeg and was on her way home for Christmas. From Winnipeg to Ignace, she was seated in the front row passenger side aisle seat so that she could stretch her leg. She testified that at the Ignace bus stop, she got off the bus for 7 to 10 minutes. When she came back to the bus she saw the driver speaking to a police officer. The driver and the policeman asked her to change seats because there was “a guy having some trouble.” She stated that the policeman said that the guy was “not dangerous”, but that eye contact with him should be avoided. She agreed to change seats and from that point on she was seated in seat number 11, three rows back from the front of the bus.

[27] Ms. Meady and Brian Adams testified that he plopped himself into the seat and sat slouched in the seat until the bus left Ignace. Ms. Meady and Anthony and Tanya Clowes testified that they were very surprised when the O.P.P. got off the bus because they had the impression that the O.P.P. were going to be travelling on the bus with Davis. While I acknowledge that they had these impressions, the evidence of Davis’ physical demeanour presented by the witnesses at Ignace prior to boarding the bus suggests that the passengers’ impressions may have been affected by Davis’ behavior during and after the incident. I note also the evidence of Michael Finn who testified that when Davis boarded the bus he looked “meek and mild.”

[28] Dolph’s evidence is that they left Ignace between 6:15 p.m. and 6:20 p.m. EST. Upsala was 63 miles or one hour and five minutes from Ignace. His evidence is that when he was around Graham Road, Davis came forward, not agitated, but expressing concerns in a normal voice. Dolph assured him that all would be okay and that they would be at Upsala in 10 minutes. Davis then went back to his seat. Davis seemed fidgety but made no threatening gestures and did not argue. In his testimony, Dolph acknowledged that he had previously asked Constable Parrish to call ahead to the O.P.P. in Upsala. He did so only because he was aware that Davis had wanted off the previous bus. If Davis subsequently determined that he wanted to get off Dolph’s bus, Upsala would be the next opportunity to do so, and there would be no place open in Upsala for Davis to go.

[29] Dolph testified that Greyhound did not train him to diagnose mental disorders, but did provide him with some training regarding how to identify signs of mental illness. When looking at a particular passenger’s situation, Dolph stated that he used his training, his own experience and common sense. His evidence is that Davis never seemed dangerous to him.

[30] Dolph estimates that when the bus was about 7 minutes from Upsala, Davis came back to the front of the bus and stood in the stairwell. Dolph did not consider him to be a threat in the stairwell and saw no reason to stop the bus. On previous occasions he had allowed passengers to stand there for a short time for their own comfort. There was no evidence that he had had problems with doing so on those occasions. He chose to let Davis remain in the stairwell as he knew that Upsala was a short distance away and that he could stop at Upsala. At one point, Dolph reduced the speed of the bus. In response, Davis said to him “No, no, don’t stop.” Dolph testified that at this point on the bus route, there was no safe place to stop on the highway. The shoulders were not wide enough and someone could have run into the bus if he stopped on the highway.

[31] Dolph’s testimony was that he requested Davis to return to his seat on several occasions. He spoke to him in a calm voice, attempting to keep Davis calm and assured. Suddenly and without warning Davis leapt from the stairwell and threw himself over the steering wheel, attempting to wrestle the wheel from him. Dolph stated that “once he grabbed the wheel, we were gone.” The bus flipped onto its side and slid down the embankment on the opposite side of the highway.

[32] Shane Lywak testified that on the day in question he was travelling eastbound from Winnipeg and arrived in Ignace in the late afternoon. He was travelling at a speed of approximately 110kms/hr. His evidence is that when he left Ignace there were two trucks ahead of him. He passed the first one but stayed behind the second one, following it at 110 kms/hr. Less than an hour after leaving Ignace he lost sight of both the truck and the bus as he approached a left hand corner. He then saw the truck’s brake lights, and saw the truck pull to the right. He stated that the entire truck was off the highway portion of the roadway when he passed by and saw the bus lying in the ditch. He was certain that he could not be wrong about that. He came into contact with the bus driver and his evidence is that the bus driver said “those damn O.P.P.” Dolph’s evidence is that he would not have said that, and does not recall saying “[t]hose damn O.P.P.” to anyone at any time after the accident. Mr. Lywak said that the bus had been going at a “pretty good clip” and that the driver told him he was behind schedule. Lywak’s evidence is that he would not disagree with the evidence of other witnesses, who have indicated that the bus left Ignace at approximately 5:40 p.m. and that the accident happened at approximately 8:00 p.m. Further, he could neither agree nor disagree with the evidence of a tow truck driver who came onto the scene and who stated that it was not safe for a vehicle to be on the shoulder of the highway.

[33] Dennis Simcock was driving a long distance truck for Arnold Bros. Transport. His evidence is that he followed the Greyhound bus from Ignace at a distance of approximately 1,000 to 2,000 feet and at a speed of 90 to 94 kms/hr. He indicated that the roads were wet but not slippery. The shoulders were snow covered and he could not see where the shoulder ended and the ditch started. He testified that he saw the accident occur in front of him, at which time he stopped his truck on the highway because it was not safe to stop on the shoulder. He disagrees with Lywak’s evidence that he stopped his truck off the travelled portion.

[34] Jack Fraser was a passenger riding with Mr. Simcock in the Arnold Bros. Transport. He testified that after leaving Upsala they were driving the posted speed limit although it felt like around 100. He indicated that the truck was governed at 105 kms/hr. He testified that when they arrived at the scene of the accident he climbed over the guardrail at the side of the highway and that the snow there was knee high.

[35] Mr. Hacio urged me to find that Simcock’s evidence as to his speed and where he stopped his truck on the highway should not be considered credible. Mr. Simcock did not recall stopping in Upsala after leaving the scene of the accident in order to leave a bag for a person who had been in his truck while he attended the accident. Mr. Fraser testified that following the accident he and Mr. Simcock placed an individual inside their truck in order to warm the person up and that the individual left a bag behind. Mr. Fraser testified that upon discovering the bag, they contacted the Ontario Provincial Police Communication Center to have the bag returned. Mr. Fraser testified that after leaving the accident scene, Mr. Simcock stopped in Upsala and they left the bag at the O.P.P. station. Mr. Simcock has no recollection of this event taking place. I do not consider this difference to significantly affect Mr. Simcock’s evidence as to the speed when following the bus. Nor do I find that this difference impacts upon Mr. Simcock’s evidence concerning the location where he parked his truck.

[36] Rod Miron is the Operations Manager of Arnold Bros. Transportation. His testimony was that in 2000 he was an owner/operator. The Arnold Bros. trucks, at that time, were speed governed to 95 kms/hr in cruise and 102 kms/hr when accelerating.

[37] Vern Humphreys was a transport truck driver in 2000. His evidence is that he was driving at 90 kms. per hour following the bus. The roads were wet but not slippery. The shoulders were snow covered and he could not tell where the shoulder ended and the ditch started. He testified that it was not safe to stop on the shoulder of the highway. He stated that he had driven that highway many times before and that there were, in fact, a number of straight-aways to the west of the scene of the accident.

[38] Pam Meady states that at one time she noticed that Davis got up, stood beside the driver and placed his arm around the driver’s seat. She could hear his voice going up and down but could not hear the words which were spoken. At one point in time, the bus slowed down and she heard Davis say “don’t slow down.” At that time she noted that Davis was noticeably agitated. She heard the driver keep telling him to take his seat and that they would be “in Upsala soon.” She states that Davis suddenly jumped the driver and grabbed the wheel of the bus, at which point the bus went across the road. Her evidence is that the driver did not have time to react. In cross-examination, she acknowledged that she had given a statement following the incident (Exhibit 40). In her statement, she said that the driver had been trying to keep things calm and that subsequent to the accident she told him he had done a really good job.

[39] Evelyn Shepherd testified that at one point in time Davis got out of his seat. He was standing by the windshield a few feet from the driver, and was saying that somebody was after him. She stated that Davis seemed agitated and was moving about and twitching She could not hear all of the conversation, but she did hear the driver tell Davis to sit down and Davis did so fairly shortly after being told. Her evidence is that after Davis returned to his seat he got up for a second time approximately 5-10 minutes later. She was nervous because of how Davis was acting. He stood at the same place and she again heard him say that people were after him with a baseball bat. She stated that Davis seemed scared, that he was speaking in a fairly loud voice and that his comments seemed to be directed at anyone and not specifically to the driver. She again heard the driver ask Davis to take his seat on more than one occasion. She stated that she saw Davis move into the stairwell and that he stood there for several minutes. She could not see the driver’s reaction but overheard the driver trying to get him back to his seat. Her evidence is that at one point in time Davis came up and lunged at the driver. In her opinion, the driver did not have a chance to do anything. She then ducked behind her seat. She thinks she was knocked out. When she next has a recollection, she was lying on the bottom of the bus with the bus lying on its passenger’s side. She exited the bus and noted that others were already off.

[40] Anthony Clowes was a passenger travelling to Thunder Bay to visit his wife’s family. He was with his two daughters, ages four and seven at the time. He was seated in the middle of the bus. When the officers left the bus he saw Davis in the front seat of the passenger side seated by the window. He noted nothing special about him. He testified that approximately 10 minutes after leaving Ignacem, Davis went up to the side of the driver and was talking to him with his left arm across the back of the seat. He testified that when Davis originally went into the stairwell the bus decelerated a little as though the driver took his foot off the gas. Davis then returned to his seat. The bus then sped up again.

[41] Mr. Clowes says that some 10 to 15 minutes later the man got out of his seat again, stood next to the driver and then stepped down into the stairwell. Mr. Clowes testified that there was nothing unusual about the individual’s mannerisms; it appeared as though he was just chatting to the driver. Mr. Clowes heard no specific conversation between Dolph and Davis. He states that at that time, the passenger was about two feet from the driver and that on two occasions he heard the passenger say “[d]on’t stop the bus.” Mr. Clowes states that after the man had been standing in the stairwell some 5 to 7 minutes he jumped and grabbed the wheel. The driver tried to hold the bus straight but was overpowered by the man. He then described the action of the bus in flipping over and that he remembers the back of his head hitting something. The bus stopped on its side after sliding through branches and Mr. Clowes testified the bus rolled two, maybe three times.

[42] In cross-examination he stated that the accident occurred 30 to 35 minutes after leaving Ignace but agreed that he was hazy on the time and distance. He does acknowledge that when the bus slowed down it could have reduced its speed by between 15 to 20 kms/hr. His best estimate of the speed of the bus was between 90 to 95 kms/hr.

[43] Brian Adams was a passenger on the bus, who was seated in the first row aisle seat, behind the driver on its arrival at Ignace. Mr. Adams states that approximately 45 minutes after leaving Ignace, Davis got out of his seat and leaned over to the side and started talking to the driver. He was telling the driver that someone at the back of the bus had a bat and was coming to get him. He kept repeating the same thing over and over. Davis was speaking in a regular voice and seemed bothered. Mr. Adams does not recall what the driver said to Davis. He states that Davis then got up and approached the driver, standing at the top of the stairwell between the driver and the door. Davis seemed to be getting more and more agitated. Mr. Adams’ testimony is that the driver kept trying to calm him down and to reassure Davis, telling him that they were going to be in Upsala very soon and that he would be safe. At one time, the bus dramatically reduced speed at which time Davis pleaded with the driver not to stop. The bus then sped back up. On regaining speed, Davis appeared to calm down. Then all of a sudden, he lunged towards the driver, grabbed the wheel and the bus lurched left.

[44] Michael Finn was travelling from Prince Albert, Saskatchewan. He was sitting in the window seat in the second row from the front on the passenger side of the bus. His evidence is that when Davis got on the bus he looked “meek and mild.” At first Davis seemed calm and relaxed and was sitting still while speaking on his cell phone. Mr. Finn said that approximately 10 to 20 minutes after the bus left he saw Davis at the front and assumed he was talking to the driver. He then got back into his seat. The speed of the bus at that time, he states, was between 100 to 110 kms/hr. He then observed Davis get up again. He saw Davis walk to the front of the bus and place one foot in the stairwell. The bus then decelerated and Davis became agitated saying something that Mr. Finn could not hear. He overheard the driver trying to calm Davis down and Davis told the driver not to slow the bus down. Mr. Finn stated that he glanced at the speedometer at that time and that the speed was between 80 to 90 kms/hr. He states that the driver was trying to soothe Davis and told him that the O.P.P. station was 10 minutes ahead. The bus then sped back up to 100 or maybe 110 kms/hr. Mr. Finn said that Davis then seemed to calm down and seemed to be more at ease. He did not overhear any other conversation at that time. He stated that the next thing he noticed was that Davis stood up, lunged at the driver and made contact with the steering wheel. Mr. Finn heard the air brakes go on and felt the bus move across the road, hit a snow bank, whip around and flip over on its side.

[45] With respect to Mr. Finn’s evidence about seeing the speedometer, Mr. Dolph testified that the gauge to the right of the driver in the control panel is the air pressure gauge which runs normally in a range between 90 and 120. Brian Houghton is the Area Maintenance Manager for Greyhound. Following evidence given by Michael Finn, where Mr. Finn indicated that he could see the speedometer from where he was seated, Mr. Houghton performed an experiment. Mr. Houghton went to Greyhound’s Winnipeg facility and sat in the same seat of a Greyhound bus as that which Mr. Finn was seated in during the day in question. Mr. Houghton testified that he would not be able to see the speedometer from seat number 8 where Mr. Finn was seated. In cross-examination, Mr. Finn agreed that he had provided a statement to Greyhound representatives after the accident. In that statement, he said that the bus had slowed down to 70 to 80 kms/hr and was doing 80 to 90 kms/hr at the time Davis grabbed the wheel. He further stated that he never felt as though he was in any danger from Davis and that he did not think Davis was doing anything other than “running off at the mouth”.

[46] J.T. was 13 years old at the time of the accident. He stated that he caught the bus in Kenora and was seated in an aisle seat in the second row on the passenger side. He stated that when the bus was stopped in Ignace the police came on board and told him that they were bringing an individual onto the bus. Speaking about the individual, the police said “don’t look at him, don’t bother him.” He stated that at one time he saw Davis get up out of his seat and heard him tell the driver that someone in the back of the bus was out to get him. He overheard the driver tell Davis to go sit down and Davis did. His evidence is that he then heard Davis talking on his cell phone. He subsequently saw Davis get up from his seat again and enter the stairwell. He was talking to the driver, asking to be let off. He was also banging on the door. There was no other evidence of that. J.T. heard the driver tell Davis that they would be there soon and to sit down. J.T. then saw Davis go up the stairs quickly and grab the wheel of the bus.

[47] Thayne Gilliatt testified that he was in seat 20, five rows back from the front of the bus. His evidence is that when Davis got on the bus he seemed subdued. Mr. Gilliat noticed nothing out of the ordinary about Davis. For the first half hour after the bus departed from Ignace, he observed Davis just sitting there and not moving much. He stated that the ride was uneventful until the bus reached the vicinity of Graham Road, which was approximately 45 minutes after leaving Ignace. His estimate of the time was based on the fact that he knew how long it would take him to travel that distance. At this point, Mr. Gilliat saw Davis get out of his seat and lean over the driver’s seat with his arm behind the driver. He overheard no details of the discussion but said that the driver appeared to be trying to calm Davis down. Davis then backed away from the driver and moved down into the stairwell. Mr. Gilliatt testified that when the bus passed Graham Road, it was travelling at the usual speed of between 100 and 110 kms/hr. It was at this point that he saw Davis lunge at the driver out of the stairwell in a single motion as though he were running.

[48] Tanya Clowes stated that when Davis boarded the bus he did not look presentable and that he had skin piercings and spiked hair which was dyed blond. She remembers a police officer saying to the driver “he’s not dangerous.” She testified that at some point in time Davis got up from his seat. She heard Davis say “don’t slow down” when he was standing in the door-well. She saw him standing in the door well for about 5 minutes and then saw him lunge at the driver.

Post-accident

[49] Dan Syncox was a tow truck operator who attended at the scene. He stated that when he arrived, the road had not yet been cleared and the shoulders of the highway had not been “winged”. He was not able to determine where the shoulder of the highway ended. He acknowledged that there was a snow plow turning area 12 kms. west of the scene and that there was also a couple of straight-aways west of that scene. His testimony is that his tow truck was 84” wide and he parked with his dual rear wheels on the travel portion of the highway.

[50] Randy Boomhower was a certified primary care paramedic in December of 2000. He received a call at 7:45 pm on December 23 with respect to an accident. He arrived at the scene approximately 10 minutes after receiving the call and assumed the duties of sight co-ordinator. He parked his ambulance on the north shoulder with one wheel on the pavement and one on the shoulder of the road. He stated that at one time he noted a second bus on the highway, but he did not know if that bus was parked on the road or on the shoulder.

[51] He began attending to injured people. He came into contact with one individual in particular, later determined to be Shaun Davis, who was holding his abdomen and saying that he was the cause of the accident. He treated that individual and later saw him in the back of an ambulance. He testified that Davis kept saying he wished there was something he could do to make it right. Boomhower acknowledged in cross-examination that when he saw Davis in the ambulance Davis was aggressive and loud, but that his actions were not inappropriate for the circumstances.

[52] He testified that he had some contact with the bus driver who was subsequently identified as Dolph during the period when the passengers were taken to the Upsala Community Centre. Mr. Boomhower witnessed a number of passengers hailing the bus driver as a hero. He stated that Dolph told him that he had felt pressured into letting Davis on the bus, but that he had transported excited and agitated passengers on previous occasions without issue. In his conversation with Dolph, Dolph said that he was confused about not being able to recognize Davis’ condition and that he was concerned about getting into trouble with his employer. In particular, he expressed a concern about letting “people like that” onto his bus.

[53] Christopher Beebe was a volunteer fireman with the Upsala Fire Department. He was called to the scene of the accident. His evidence is that when he arrived at the scene of the accident with his uncle, they parked their vehicle on the highway. He stated that the snow banks were approximately one foot high and that the bus was 10 to 15 feet below the highway.

[54] Graham Warburton was a member of the Atikokan Fire Department. He was westbound on Highway 17 when he came across the accident. He stated that he stopped on the shoulder of the road and had no difficulty in doing so. He identified himself to the police officers who were present and then began helping passengers out of the bus and up the embankment. He later went to the Ignace Community Centre to assist and at one time assisted some paramedics who were putting Davis into an ambulance. At that time, Davis seemed extremely agitated. He complained to Mr. Warburton of pain in his legs and back and started to apologize for causing the accident.

[55] Dr. Saad Amir Nassan was accepted by the Defendants as an expert in accident reconstruction. He was permitted to give an opinion on whether the bus could have pulled over on the side of the road. I did not permit him to give expert evidence with respect to the use of seatbelts. He prepared a report using information contained in the police report (Volume 4, Tab 72) which gave measurements of the roadway taken at the time of the accident. The police report also included a video of the straight-aways and intersections on the highway that were in the vicinity of the accident. In his opinion, based upon the information that he had, there was enough room for the bus driver to have pulled onto the snow covered area of the highway. He stated that he had considered the possibility of shoulder collapse but that he could not testify as to whether on the day of the accident, the shoulder could not have collapsed.

[56] In cross-examination, he acknowledged that he had never driven a large bus or transport truck. He acknowledged that his measurements did not include a determination as to whether the bus could fit on the shoulder with the passenger door opened. He stated that he only measured the shoulder space at the scene and that he had no evidence as to what the condition of the shoulder was west of the accident scene.

The Ontario Provincial Police Training Issue

[57] Constable Parrish is a First Class Constable, having been with the O.P.P. for 16 ½ years. He had been stationed in Ignace since 1997. On December 23, 2000, he was working general patrol duties. He testified that dealing with the mentally ill was covered during his initial Ontario Police College training and during the block training that he had attended prior to the accident. Interacting with the mentally ill was specifically dealt with in a number of training modules, namely, dealing with the mentally ill, tactical communications, use of force and transporting prisoners. Not surprisingly, neither Singleton nor Parrish could recall the details of the specific training they had received. They were both asked how that training was of any use to them when they could not remember the specifics of it. They both indicated that the constant reinforcement achieved through this training together with applying it in the field caused it to become second nature. A significant focus of the Plaintiffs’ claim against the O.P.P. and Parrish and Singleton revolves around s. 17 of the Mental Health Act, R.S.O. 1990, c. M.7 (“MHA”).

[58] Constable Parrish stated that, during the time he spent with him, he did not arrest Davis because there were no grounds to do so. Davis had not committed any criminal offence. Constable Parrish testified that he considered apprehending Davis under s. 17 of the MHA. On December 23, 2000, that section read:

“17. Where a police officer has reasonable and probable grounds to believe that a person is acting or has acted in a disorderly manner and has reasonable cause to believe that the person,

a) has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself;

b) has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him or her; or

c) has shown or is showing a lack of competence to care for himself or herself,

and in addition the police officer is of the opinion that the person is apparently suffering from mental disorder of a nature or quality that likely will result in,

d) serious bodily harm to the person;

e) serious physical impairment of the person,

f) and that it would be dangerous to proceed under section 16, the police officer may take the person in custody to an appropriate place for examination by a physician.”

[59] The current wording of s. 17 took effect on December 1, 2000, some 23 days before this accident. The earlier wording of the preamble to this section required an officer to personally observe the person acting in a disorderly manner before the officer could act. It also required the physical impairment of the person under clause (e) to be “imminent” as well as serious. Constable Parrish could not remember if he had received training materials regarding the changes before the accident.

[60] Included in Exhibit 69 is the material used to train Constables Parrish and Singleton in dealing with emotionally disturbed individuals. The training focused on how the officers should protect the public. Exhibit 69, Tab 48, contains some of the O.P.P. training materials provided to Constable Parrish. These materials provide response strategies for dealing with emotionally disturbed persons. Under the section “Verbal Response Strategies: Emotionally Disturbed Persons” it states that every effort should be made to obtain all background information about the person in question.

[61] Tab 50 of Exhibit 69 is a police training guide called the “Advanced Patrol Training – Mental Illness – Facilitator Guide.” This Guide is used by facilitators to train O.P.P. officers in dealing with mentally ill individuals. This Guide emphasizes the need to obtain as much information about the individual in question as possible, which includes determining the type and quantity of drug they have consumed. These materials further instruct O.P.P. officers not to move too quickly and not to invade the personal space of, or touch, a person suffering from paranoia. Finally, the training manual teaches officers not to do anything to make the paranoia worse.

[62] Tab 46 of Exhibit 69 is a document entitled “Advanced Patrol Training – Mental Illness Study Guide”. This Study Guide is the document given to O.P.P. officers when they receive their advanced patrol training for mental illness. This Study Guide provides instruction and advice which is similar to the teachings set out in the Advanced Patrol Training Mental Illness Facilitators Guide. The Study Guide specifically states that it is of critical importance to realize that a person who exhibits paranoia symptoms does not have control over their symptoms. This Study Guide also says the general rule is that when talking to someone who is delusional, one should never engage in an argument or dispute with the individual regarding the reality of his or her experience. The Study Guide goes on to say that for someone who is suffering from paranoia, the police officer might be included as one of the conspirators out to harm the individual. Extreme caution is recommended. The police officer is told to never invade the person’s personal space, to avoid touching the individual and not to make any loud noises. The Study Guide goes on to say that the person should not be put in a situation where they believe that someone is going to hurt them. At page 10 of the Study Guide, it states that the police officer should isolate and contain a person who is suffering from paranoia.

[63] The “Provincial Police Academy Operational Field Briefing 00-43” (Tab 72 of Exhibit 69) makes some recommendations as to when it is appropriate to detain someone under s. 17 of the MHA. This Field Briefing, dated December 2000, also explains to a police officer that the test for detaining someone under s. 17 of the MHA is to change as of December 2000. The last page of this Field Briefing states that a police officer has other options if they decide not to apprehend under s. 17. A police officer may consider contacting family/friends, a doctor or anyone else in order to complete a thorough investigation.

[64] Exhibits 78 and 79 are videos which are used to train O.P.P. Officers on how to deal with mentally ill individuals. One is dated March 1998 and is entitled “Dealing with the Mentally Ill”. This video generally tells officers that interaction with mentally ill persons requires special consideration and training and that they should obtain as much information as possible when dealing with a person who suffers from mental illness. Officers are also told to isolate and contain the situation, to choose the option safest for all concerned and to consider that the person may have medication related symptoms. This video tells officers that “disorderly” under the MHA means irrational (described as frightened or paranoid behaviour) but not necessarily unruly. To be apprehended under the MHA, a person does not have to be exhibiting violence. The person does not need to be acting with criminal conduct nor does he or she need to be acting out. The video also talks about the seriousness of someone who is hearing voices. It also says that the person must be unable or incompetent to care for themselves, that the threatened imminent bodily harm must be more than “trifling” and that the person must be suffering from a “mental illness” in order to be apprehended under the MHA.

[65] The second video that was produced is dated August 1999 and is entitled “Section 17 Mental Health Act”. This video is designed as a companion to the 1998 video referred to above. It reviews s. 17 and talks about the upcoming changes to that statute. It emphasizes the changes that were made to the MHA (effective December 1, 2000) and in particular focuses on the new provisions of the MHA, which state that officers can rely on evidence from third parties to prove “disorderly” conduct and that the word “imminent” has been removed from s. 17.

[66] These materials also train officers as to when they should apprehend someone under s. 17 and includes case studies involving the actions of individuals who act similar to how Davis acted on the evening in question. They tell officers how to identify mental illness and outline the options that are available to them in dealing with such individuals. Pages 64 to 105 of Tab 26(b) of this material states that if an individual is apparently suffering from a mental illness, the officer should try to determine the type of drug or medication the person may be on. It also lists the types of behaviour officers should look for in trying to identify mental illness. The material tells officers not to leave such individuals unattended and to notify or meet with significant others in order to identify the person’s mental illness. The material also encourages officers to isolate and contain the individual so as to protect other members of the public.

[67] Constable Parrish acknowledged that being aware of someone suffering from mental illness was critical and that if the illness was serious, he could contact a doctor. He further stated that he was aware that mental illness included delusions and paranoia.

[68] The evidence is that O.P.P. officers do not generally have access to a pharmacist or physician or any other individual who could assist them in determining the side effects of particular prescription or non-prescription medication. If an officer suspects that an individual is on a particular type of drug or medication, they have no way of determining the side effects of such medication. Further, O.P.P. officers have no written material or documentation available to them which can be used to determine the side effects of any particular medication. They do not have a list of telephone numbers of social agencies who would be available to assist mentally ill individuals who are in their custody or care during calls. Through their Communications Operator or detachment, officers do have phone numbers and contacts for social agencies and individuals who can assist mentally ill individuals. At trial, Constable Parrish said that he believed a doctor was available at the local health clinic during the time he was in contact with Davis. Constable Parrish also acknowledged that a pharmacist works out of the Mary Berglund Community Health Centre in Ignace, Ontario, and he acknowledged that he did not ask Davis about any history of mental illness prior to December 23, 2000.

[69] Constable Parrish spent approximately 45 minutes with Davis on December 23, 2000. He considered apprehending Davis under s. 17 of the MHA but decided not to because he did not think that he had the appropriate grounds to do so. He understood that pursuant to that section, “disorderly behavior” included a person hearing voices and having hallucinations. He also understood that someone acting irrationally might classify as someone who was acting “disorderly” in accordance with s. 17 of the MHA. He understood that pursuant to s. 17 of the MHA, the threat of bodily harm that someone is exhibiting must be more than “trifling”. Constable Parrish also testified that he could try to have someone voluntarily admit themselves to hospital if he did not feel that he could use s. 17 of the MHA to apprehend the person.

[70] Constable Parrish testified that he understood the importance of separating people who were in conflict. He said he understood it was important to reduce the level of anxiety and stress for someone who has mental health issues. He had a vague recollection of receiving training about the concept of personal space before becoming a police constable. He said he was taught to eliminate the triggers that are escalating a particular situation. He did not recall the specifics of his training. He couldn’t recall receiving any training about how to deal with delusional or paranoid individuals. He also did not specifically recall having learned to avoid physical contact with, or invade the personal space of, someone suffering from delusions or paranoid delusions. He agreed that it was important to gather as much information as possible when dealing with someone who is emotionally disturbed. He also understood that it was important to avoid causing excitement in a person suffering from a mental illness and to ensure that no one else caused that person to become more excited.

[71] Constable Parrish said he understood that someone exhibiting psychotic symptoms may be suffering those symptoms due to the side effects of medication. He also understood that it was important to contact third parties in order to acquire information about someone who an officer suspects is suffering from mental illness. He further understood that it was important to get details about the person’s medication because such information may assist an officer in understanding the person’s mental condition. He understood that someone suffering from paranoia should be treated with extreme caution. He understood that it was important to consult mental health professionals in dealing with someone suffering from a mental illness.

[72] Constable Parrish’s evidence in re-examination was that in the situation he was in, the second part of the test in s. 17 of the MHA was more important than the first in these circumstances. He stated that the training which he received in mental health issues covered delusion, paranoia, depression, hallucination, and psychotic behaviour. He testified that while he felt that Davis was suffering from mild paranoia, Davis was calm, well spoken, never out of control, well mannered, not disorderly, and had clothes and money with him. He determined that Davis was not using alcohol or non-medically prescribed drugs. He stated that when he asked Davis if he wanted to go see a doctor, Davis’ replied “no”.

[73] He acknowledged that if he had spoken to Sylvia Melanson and learned that she observed Davis talking to himself, that information may have affected his decision as to his course of action. In cross-examination, he responded that he knew the medical clinic in Ignace was open and that there was a doctor there. However, since Davis said that he did not wish to see a doctor, Parrish saw no further reason to pursue this endeavor. He also acknowledged that he had not spoken to Karen Ray, the taxi driver. He admitted that before deciding what to do with Davis, it would have been nice to know what Davis had said to her.

[74] During the time that he was in Davis’ company Constable Parrish testified that Davis had always been cooperative. When he saw him for the last time at approximately 5:30 p.m. at the Tempo, Davis was calm and well mannered. He was aware that Davis had reported to Constable Singleton that people were out to get him, but when the police arrived Davis said to them “It’s okay. They’re gone.”

[75] Throughout his three encounters with Davis, Parrish saw no change in him. Parrish testified that he had no concerns about Davis getting on the bus. He had dealt with people suffering from mild paranoia on previous occasions and had never experienced a subsequent problem with any of them.

[76] Constable Parrish acknowledged that he was aware of the legal doctrine of investigative detention, which was taught to him in 2000. He determined that Davis was not involved in any criminal activity and therefore he felt that he had no basis to detain Davis for the purpose of investigative detention.

[77] Sergeant Singleton received his initial training at the Ontario Police College after a period of time with the Anishnabe Aski Police Services. He began his O.P.P. career as a probationary constable during which time he had a coach officer. He stated that following his initial training he received regular shift briefings, monthly updates and information packages. He had MHA training at Police College, which included various scenarios of role-playing. He also stated that he was given a general overview of various types of mental illnesses. In cross-examination he agreed that the O.P.P. training materials, specifically Exhibit 69, Volume 1, Tab 26, were the materials that he had received. As part of his training he was aware that when dealing with someone who was experiencing a type of mental illness, he should not invade the individual’s personal space. He was also aware that he should gather as much information about the individual as possible and knew that a person did not have to be exhibiting violent behavior in order to be suffering from a mental illness.

[78] In this case he agreed that it would have been helpful to speak to Sylvia Melanson and Sylvie Maurice, but at the time he saw no need to do so because Davis was acting in a calm and normal fashion. Furthermore, when he spoke to Davis at the Tempo in response to Davis’ complaint about people outside wanting to harm him, Davis indicated to Sergeant Singleton that everything was now okay. His evidence is that at the time, he saw no need to ask Davis about any medications. This was based on his observations of Davis during the time he was in contact with him. On December 23, 2000, Constable Parrish was the decision making officer.

[79] At the time of the accident, Constable Colin Dubuque had been with the O.P.P. for 11 ½ years. He attended at the McKellar Hospital after the accident. He subsequently arrested Davis upon Davis’ release from the Lakehead Psychiatric Hospital. In cross-examination, he acknowledged that he did receive some training with respect to mental health issues, which included response strategies. In referencing page 42 of Exhibit 69, Tab 26(2), he indicated that there are various options that are available to an officer who is dealing with an emotionally disturbed person, one of which is to contact the person’s family and friends in order to acquire further information. He stated that the options to be used depended entirely on the situation.

[80] Sergeant Wayne Minnear was off duty when he was originally called in on December 23 at 8:45 pm. He was a senior officer and attended at the accident scene. His evidence is that the distance from Ignace to Upsala is 106 kms. On December 23, 2000, the road conditions to the west of the accident scene were wet but not slippery. The weather was cold and bitter. He further testified that between Graham Road and the accident scene there were 2 locations where a vehicle could be stopped safely, however, the task was made more difficult in the winter because of snow plowing. He indicated that there were several long flat stretches of the highway approximately 10 kms west of the accident scene toward Ignace. His testimony is that the snow banks on the highway were knee deep or higher and that the weather was cold and bitter. On his arrival at the scene, he observed the second bus parked on the travelled part of the roadway.

[81] Sergeant John McMaster had been a member of the O.P.P. for 12 years at the time of the accident. At the time of this trial he was a Scene Of Crime Officer. He testified that at 8:05 p.m. EST on December 23 he was dispatched from Thunder Bay to Upsala where he arrived at 9:25 p.m. He took photos of the scene. His evidence is that he had contact with Davis at the community center and at that time Davis did not seem normal. He formed the opinion that Davis was paranoid although he could not say whether it was mild or severe. He transported Davis to McKellar Hospital in Thunder Bay.

The Communications Issue

[82] One of the allegations of negligence against the Defendant police officers is that they did not consult with their superiors, supervisors, and/or appropriate professionals concerning the handling of Davis. Pat Weare was a civilian radio operator working with the O.P.P. at the time of the accident. She described that at the time of the accident there were two different communication systems in effect for the O.P.P. in the region where the accident occurred. She testified that she originally took a telephone call from an officer in Ignace asking for a CPIC check. Her evidence is that if she received a call from an officer and the officer wanted other background information, he or she would have to obtain that information from the Communications Center. She stated that Constable Parrish did not ask dispatch to call Davis’ family or friends. Nor did he ask for a pharmacist, a health care facility, or the Mary Berglund Clinic before deciding to let Davis board the second bus.

[83] Ted Vincent is the Director of Technology & Client Services with the O.P.P. He testified with respect to the operation of the CPIC system. That system, he noted, is a records repository. Individual police departments are responsible for entering information on the system. A “query” would indicate if someone had been charged, was on probation, or whether there was an outstanding warrant in effect. He further stated that the system could indicate on the criminal name index whether someone had been found not guilty by reason of insanity or was unfit to stand trial. His evidence is that in 2000, there was no mobile access available via CPIC. In order to obtain information from CPIC, an officer had to contact the dispatcher who would then have to obtain the information and relay it back to the inquiring officer. He reviewed the documents in Exhibit 72, Tab 3, which deal with previous involvements of Davis prior to the incident and concluded that these documents would not have been on CPIC in 2000. He also testified that the CPIC system does not include any information concerning whether an individual is suffering from mental health problems.

[84] Staff Sergeant Grant Robins, who retired from the O.P.P. in 2005, testified that a bottle of pills was seized when Mr. Davis was arrested on December 27, 2000. The prescription label suggested that the bottle had contained 100-10 mg Dexedrine tablets on December 20, 2000 and that this was a prescription for Mr. Davis. The bottle contained 62 pills when it was seized at the time Davis was released from the hospital, 72 hours after the accident. He offered no evidence as to what happened to those pills during that time period. There is no evidence before me that the pills were actually Dexedrine. He further testified that on December 30, 2000, he was able to get information with respect to Davis’ history of alcohol and drugs. In the course of the trial, Mr. Hacio indicated that the only purpose in presenting evidence respecting the availability of information on the side effects of Dexedrine and Davis’ history of alcohol and drugs was to show that such information was available.

[85] Mr. Hacio submits that Mr. Davis had overdosed on the pills, leading to the events of the bus crash. There are a number of problems with this position. There was never any evidence adduced before me that the pills were as stated on the bottle; there was no evidence as to the purpose of Dexedrine, its effect, or the effect in the event of an overdose; there is evidence that the bottle originally contained 100 pills on December 20, but there is no evidence as to what happened to the pills. Specifically, there is no evidence as to whether Davis had consumed any or all of the 38 missing pills.

The Greyhound Training Issue

[86] William Groves had been a driver with Greyhound since May of 1989. He described the training he had received, which included both classroom and hands on training. That training included discussions of dealing with unruly passengers. He also stated that Greyhound holds ongoing presentations with regard to safety issues which are mandatory for drivers to attend.

[87] His evidence is that the Greyhound training did not specifically include training in psychological issues. He knew he had to be aware of someone who was agitated, who spoke rapidly, or who was incoherent. He confirmed that there was nothing in Davis’ demeanour which would have caused him to foresee any problems. His evidence is that ejecting a passenger from the bus was a last resort, a “line in the sand”. In the event that such action became necessary, it could only be done if there was a safe place to do so, and the conditions were also safe. When asked about the meaning of “defensive driving”, he responded that the term is used to alert drivers to the importance of making informed decisions about what to anticipate while driving.

[88] Albert Dolph’s evidence is that he started working for Greyhound in 1972. Previous to that, he drove transport trucks. At the time of this trial he was involved in teaching fire truck drivers. He described his initial training with Greyhound as being one day in a classroom and then four to five trips with another driver. He did not receive any specific training on how to recognize the symptoms of mental illness.

[89] Joan Crawford is the Executive Director of the Motor Carrier Passenger Council. She participated in setting the standards that are followed by members of that Council. Her evidence is that there is nothing in the Motor Carrier Passenger Council’s standards dealing with mental illness or recognition of a person on drugs. She noted that paragraph 995 of Exhibit 80 does indicate that drivers must be proactive and recognize potential hazards.

[90] The Motor Carrier Passenger Council of Canada has issued a document entitled “National Occupational Standards Professional Bus Operator” (Exhibit 69, Tab 69). A number of specific standards were relied on by counsel. The standards set out how a driver should assess weather and road conditions on a regular basis. They also tell drivers how to deal with difficult passengers in situations which threaten the comfort or safety of other passengers. According to the standards, such situations must be dealt with swiftly, decisively and with tack and diplomacy. Drivers are also to ensure that they advise passengers of the rules and regulations on a bus and are to ensure that those rules and regulations are enforced. They are to be trained and must be aware of how to deal with emergency situations. They are to know how to deal with difficult passengers and to do their best to defuse a dangerous situation.

[91] Mr. David Leach is the Chief Executive Officer and President of Greyhound Lines in Canada and the United States. His evidence described the selection process for drivers. He was also questioned about several Greyhound documents that were relied on by counsel. Greyhound has, for some time, had an Operator’s Rule Book which drivers keep in their possession when driving a Greyhound bus. The version that was in existence in 2000 is at Exhibit 69, Tab 20. The relevant portions are:

(a) Page 3, The Preface, says that drivers must ensure the safety of passengers. It says drivers must be aware of and comply with all of Greyhounds rules, bulletins and directives. It also says that any violation of any laws, rule or bulletin may result in discipline.

(b) Page 6, Section G-1 - says that good judgment should be applied if the rules, directives or bulletins don’t cover a particular situation.

(c) Page 9, Section G-12 Unnecessary Conversation or Distraction – states that a bus driver shall not engage in unnecessary conversation with passengers while the bus is in motion.

(d) Page 11, Section G-23 Schedule Performance – states that drivers are to make their best effort to ensure that time schedules are maintained. Delay at terminals and stops or running ahead of scheduled time is not permitted.

(e) Page 12, Section G-30 Passengers, Handling of Disorderly – states that a bus driver is to refuse transportation to persons who are intoxicated or who are conducting themselves in a manner which may cause discomfort to other passengers. The section also states that drivers should arrange to have a police officer meet the bus and have a passenger removed if that passenger appears to be intoxicated, on drugs or disorderly. Further, the section states that a bus driver should not eject a passenger from a bus at an unsafe place or in an unsafe manner. If a passenger is to be ejected from a bus, the bus driver must ensure that he or she has sound facts in making such a decision and that he or she has acted in good faith and in a proper manner. It should only be done where it is in the best interests of the company to do so and/or it is in the best interests of the travelling public (passengers).

(f) Page 13, Section G-32 Passengers, Seating – states that bus drivers are not authorized to allow passengers to select seats, except where they have reserved seating. An operator is specifically not allowed to reserve or assign seats.

[92] Greyhound issues Transportation Bulletins on various issues to assist bus drivers in operating their buses in a safe and competent fashion. The Transportation Bulletins that are relevant to this proceeding are as follows (see Exhibit 69, Tab 14):

(a) No. 52 issued March 7, 1991, entitled “Passengers Standing on Coaches” – tells bus drivers that passengers must not be allowed to stand on a bus for an extended period of time and must not be allowed to stand in front of the white line at the front of the bus because it is against the law to allow them to do so.

(b) No. 74 issue January 14, 1992, entitled “No Standing Ahead of White Line” – tells bus drivers that passengers must not be allowed to cross the white line at the front of the bus while the bus is in motion and that it is against the law to allow them to do so.

(c) October 1995, entitled “Hazardous & Unusual Road Conditions due to Seasonal Weather” – tells bus drivers that they must operate their bus according to weather and road conditions.

(d) December 1999, entitled “Winter Driving” – tells bus drivers that they must operate their bus according to weather and road conditions.

(e) Exhibit 69, Tab 17, is Bulletin #95 - which says that drivers can refuse passage to any person.

[93] Greyhound has a Safety Department which prepared and released a document entitled “Documentation & Training Forms Manual”. The relevant portions of that Manual are at Exhibit 69, Tab 56. The relevant portions of the Manual can be summarized as follows:

(a) Applicants must complete an Application Form with Greyhound Canada in order to qualify to become drivers. Once they are qualified, they receive driver training in accordance with s. 3 of the Manual. They also receive some classroom training.

(b) Drivers are also trained on winter driving. This training is described in s. 4 of the Manual. No portion of the winter training section of the Manual describes when it is appropriate to pull a motor coach off the highway onto a ploughed shoulder.

(c) The Manual (page 66) again emphasizes defensive driving.

[94] Exhibit 69, Tab 57 is Greyhound’s Driver’s Manual. The relevant portions (Sections 2.3, 2.4, 2.13 and pages 34 and 36) of this Manual state that it is the driver’s responsibility to ensure that they identify problem situations as quickly as possible and react to them in a reasonable fashion. The Manual encourages defensive action so as to protect passengers. It instructs drivers to slow down in adverse weather situations and to reduce speed in poor winter conditions. Greyhound stresses in their materials that drivers must always assume the worst case scenario so as to protect their passengers from harm. The same driver requirements are set out in Greyhound’s Rules, which can be found at Exhibit 69, Tab 20 pages 17 to 22 and in the Greyhound document which can be found at Tab 58, pages 105 and 106.

[95] Greyhound also offers an Accessibility Coach Training Program (Exhibit 69, Tab 59) to its drivers. There is a specific section entitled “Assisting Passengers with Psychiatric and Mental Health Disorders”. This section is found at pages 68 – 71. The section is used to train drivers on how to identify psychiatric disorders and mental health problems. Drivers are instructed to be patient and calm in dealing with such individuals and to take the individual’s concerns seriously. They are directed not to restrain such individuals and are told to try and keep them calm.

[96] Motor coaches in the Province of Ontario are governed by the Public Vehicles Act, R.S.O. 1990, c. P.54 2000. Section 22 reads in part:

“(d) 22.(1) No driver or operator shall allow passengers to ride on the fenders or any other part of a public vehicle other than the seats thereof, except that a vehicle may carry as standing passengers in the aisles thereof not more than one-third the number of persons for which seats are provided.

(e) (2) No driver or operator of a public vehicle shall permit or allow on the front seat of the vehicle more passengers than the seat is designed to carry, exclusive of the driver, or permit or allow any passengers to occupy any other portion of the vehicle forward of the back of the driver’s seat …”

[97] Mr. Leach testified that Greyhound followed the standards set out in the National Occupation Standards at Volume 2, Tab 13 of Exhibit 80. He acknowledged that paragraph 1193 of the standards referenced mental health issues. He agreed that the paragraph described some of the means used in identifying people with such issues. This included guidance in dealing with someone who talks to themselves, or who has indicated that people are trying to harm him or her.

[98] He testified that there are always circumstances which are not covered by policies and rules and in those circumstances drivers would be expected to use “good judgment” as a prevailing guideline. That would include an example of someone standing ahead of the white line on a passenger bus. He stated that there is no specific policy with respect to parking the bus on the shoulder of a highway because there are a number of factors which must be considered.

[99] In cross-examination Mr. Leach was not aware of what training Dolph had had when he was hired in 1972. Mr. Leach also indicated that in the year 2000 Greyhound bus drivers had no cell phones and there were no communication devices on the buses.

Position of the Plaintiffs against the O.P.P. and Constables Parrish and Singleton

[100] The Plaintiffs submit that the Defendants O.P.P. and Constables Parrish and Singleton owed them a duty of care. In written submissions, both sets of Defendants acknowledged a duty of care on their respective parties.

[101] The Plaintiffs rely on the decision of K.L.B. v. British Columbia, 2003 SCC 51, [2003] 2 S.C.R. 403, in submitting that a police officer breaches his or her standard of care where he or she has failed to protect a private individual in the following circumstances: the risk of harm is reasonable, serious, and foreseeable; the potential victim is an identified individual; and the officer is in a legal relationship of control with the perpetrator; the police possess significant legal powers granted for the purpose of reducing those risks, and a duty of care that requires their use.

[102] The Plaintiffs further submit that the onus is on the Defendants to prove that they did not have a reasonable opportunity to prevent the bus crash or the Plaintiffs’ injuries. The Plaintiffs suggest that the Defendants’ onus is a heavy one, and that police officers are held to a very high standard of care. The position is that the officers ought to have foreseen a potential problem with Davis if he were to be placed on the bus.

[103] With respect to causation, the Plaintiffs submit that the “but for” test is the proper test to apply in the instant case.

[104] The Plaintiffs rely upon a number of specific ways in which the Defendants O.P.P. and Constables Parrish and Singleton were negligent.

Failure to Follow Training

[105] The Plaintiffs submit that Constables Parrish and Singleton breached the standard of care to which a police officer is held in two ways: first, by failing to follow their training regarding individuals suffering from paranoia, and second, by putting Davis in an enclosed space with over forty individuals. The Plaintiffs posit that the Constables were trained not to invade the space of someone who is suffering from paranoia and to isolate and contain that individual. They were also trained to prevent anyone else from invading the space of someone suffering from paranoia and to avoid personal contact with a person suffering from paranoia. They were trained with the knowledge that someone with paranoia can be a danger to themselves and to others. Finally, they were trained to make every possible effort to obtain background information about a person who appears to be suffering from a mental illness. The argument is that the officers should have identified Davis as dangerous and should have prevented him from boarding the bus.

Failure to Apprehend under S. 17 MHA

[106] The Plaintiffs submit that the Constables failed to apprehend Davis pursuant to s. 17 of the MHA when there was more than sufficient evidence to indicate that he passed the appropriate mental health test for apprehension. They rely on the “Tactical Communications” training that the Constables had received. These materials train officers as to when they should apprehend someone under s. 17 of the MHA. The Plaintiffs submit that the materials also include case studies involving the actions of individuals who act in a similar manner to Davis on the evening in question. They also make reference to the training the Constables received at Police College concerning apprehension under s. 17 of the MHA. Finally, the Plaintiffs refer to a training video entitled “Section 17 Mental Health Act”, which reviews s. 17 of the MHA and talks about the upcoming changes to the statute. The video emphasizes that as of December 1, 2000, officers could rely on evidence from third parties to prove “disorderly conduct” and that the word “imminent” had been removed from the section.

[107] The Plaintiffs submit that Davis was acting disorderly and irrational and it was obvious that, if not removed from the environment causing his symptoms, he was or would soon become a danger to himself or others. They rely on the evidence of Constable McMaster, who attended the scene immediately after the bus crash, and, after interviewing Davis and hearing him speak of the same concerns he had voiced to Constables Parrish and Singleton, determined that Davis should be detained under s. 17 of the MHA.

[108] The Plaintiffs also rely on the evidence of Vernon Humphries, Randy Boomhower, Chris Beebe, and Graham Warburton and submit that the evidence provided by these individuals confirm that Davis was clearly delusional, psychotic, and severely paranoid.

Failure to Obtain Background Information

[109] The Plaintiffs submit that the Constables failed to follow their training on how to deal with mentally ill individuals. They were told to get as much background information about the individual in question as they could and try to determine what kind of medication the person in question was on. According to the Plaintiffs, the Constables made no such enquiries. The Plaintiffs submit that in order to obtain such information, the Constables could have called Davis’ family, friends, or health practitioners. Further, they could have obtained information about Davis from the Communication Centre. Sergeant Robbins made these types of enquiries and discovered the following: that Davis had been prescribed Dexedrine, that he had been in trouble with the RCMP; that an RCMP detachment could be contacted for further information about Davis; that he had drug, alcohol, and mental problems; and finally, that he had been physically abusive to himself in the past.

[110] Davis advised the Constables that he was taking medication but neither Constable made any enquiries about the type of medication he was taking or the quantity of medication he had consumed. Further, the Constables made no effort to determine if there were any side effects relating to the over-consumption of Dexedrine. According to the Plaintiffs, had the Constables made such enquiries, they would have discovered that Davis had over-consumed his medication and was experiencing a drug induced psychosis.

Failure to Detain

[111] Relying on R. v. Simpson, 1993 CanLII 3379 (ON CA), [1993] O.J. 308 (C.A.) and R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, the Plaintiffs submit that the Defendant police officers breached the duty of care in that they did not detain Davis using the doctrine of investigative detention. The Plaintiffs submit that the Constables had the opportunity to detain Davis for examination but failed to do so. It is the Plaintiffs’ position that the Constables had sufficient and reasonable grounds to detain Davis given his mental state and conduct, as well as his verbal statements prior to the crash. According to the Plaintiffs, the Constables had a number of options available to them for the purposes of detaining Davis. They could have kept him at a local detachment until his medication wore off. They could have had him assessed by a physician.

Failure to provide Information to Dolph

[112] In the Plaintiffs’ submissions, the Constables failed to provide adequate and complete information to Dolph so that he could make an informed decision as to whether Davis should be allowed on the bus. The Plaintiffs submit that the Constables used their position of authority to pressure Dolph into putting Davis on the bus.

Failure of O.P.P. to Provide Information

[113] The Plaintiffs submit that the O.P.P. did not have any information, phone numbers, or access to third parties available to Constables Parrish and Singleton. The Plaintiffs submit that this information could have been used to assist the Constables in determining the effects of certain medications and therefore should have been available. According to the Plaintiffs, the O.P.P. training materials require the local Detachment Commander to make these types of contacts available to their subordinates.

Failure to Provide Training

[114] The Plaintiffs submit that the O.P.P. failed to provide sufficient training on how to deal with individuals suffering from mental health issues. Specifically, the Plaintiffs submit that the constables lacked training relating to how paranoid people are likely to act and to how dangerous they might be to themselves or to others. The O.P.P. also failed to ensure Constables Parrish and Singleton were adequately trained on the provisions of the new MHA before December 1, 2000.

Position of the Defendants O.P.P. and Constables Parrish and Singleton

[115] The Defendants O.P.P. and Constables Parrish and Singleton concede that they owed the Plaintiffs a duty of care. However, the Defendants submit that the Plaintiffs have failed to demonstrate that the O.P.P. or Constables Parrish and Singleton breached their respective standards of care.

[116] The Defendants submit that the standard of care for a police officer is that of the reasonable officer in like circumstances: Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129, at para. 70, where the Court held that “[p]olice meet a standard of reasonableness by... living up to accepted standards of professional conduct to the extent that it is reasonable to expect in given circumstances.” These Defendants submit that when determining whether the standard of care is met, I should consider whether the officer acted reasonably and within the statutory powers imposed upon him. I should also take the policy of a police force into account, and if necessary, I should hear evidence from other police officers. Finally, these Defendants submit that when considering whether an officer breached the standard of care, I must bear in mind that officers are required to exercise judgment quickly and in highly stressful circumstances.

[117] It is the Defendants’ position that a police officer making an error in judgment while acting with ordinary care is not negligence: Hill, at para. 73. An error in judgment only amounts to negligence when it is one that would not have been made by a reasonably competent professional who has the same standard and type of skill as the officer in question and who acted with ordinary care: see Hill, at para. 70; Whitehouse v. Jordan, [1981] 1 W.L.R. 246, at 263. The Defendants argue that even if I determine that Constables Parrish and Singleton did not handle the situation properly, their conduct did not amount to negligence but to an error in judgment.

[118] The Defendants submit that the Plaintiffs can only demonstrate a breach of the standard of care if they can prove, on a balance of probabilities, that Constables Parrish and Singleton knew or ought reasonably to have known that Davis posed a danger to the passengers on the bus and failed to detain him when under an obligation to do so. It is the Defendants’ position that the officers’ actions were entirely appropriate in the circumstances. The Defendants contend that they did not breach their standard of care and are not at fault for the bus accident or for the Plaintiffs’ injuries. They submit that the Plaintiffs have failed to adduce evidence demonstrating that the actions of the O.P.P., Constable Parrish or Constable Singleton fell below the standard of care that was expected of the police in the circumstances.

[119] The Defendants submit that there were no legal means by which the O.P.P. could have prevented Davis from boarding the bus. Constables Parrish and Singleton did not have just cause to detain or apprehend Davis. Constable Parrish did not believe that Davis posed any danger to the passengers on the bus, nor could he have reasonably anticipated Davis’ actions.

[120] With respect to the issue of causation, the Defendants agree with the Plaintiffs that the proper test is the “but for” test.

[121] In defending their position, the Defendants respond to a number of specific arguments on liability as follows.

Section 17 of the MHA

[122] The Defendants submit that the most pivotal issue concerning liability relates to Constable Parrish’s application of s. 17 of the MHA. It is the Defendants’ position that Constable Parrish interpreted his powers under s. 17 correctly, and his decision not to detain Davis was reasonable in the circumstances. Under Part One of the test, neither Constable Parrish nor Constable Singleton concluded that Davis was acting in a disorderly manner.

[123] Under Part Two of the test, the Defendants submit that even if Constables Parrish and Singleton had sought information from the witnesses who observed Davis that day, they would not have been provided with any information indicating that Davis had threatened to cause bodily harm to himself, had behaved violently towards another person or caused another person to fear bodily harm from him, or had shown a lack of competence to care for himself.

[124] Under Part Three of the test, the Defendants submit that at the time he boarded the bus, there is no evidence that Davis suffered from a mental disorder of a nature that rendered him capable of doing serious bodily harm to himself or another person. The Defendants concede that if the court determines that the first three parts of the tests are met, then the fourth part is also satisfied.

[125] The Defendants note that in order to apprehend a person under s. 17 of the MHA, all four parts of the test must be satisfied. If any one part of the test cannot be met, the enquiry must stop and the officer does not have grounds to apprehend under this section. It is the Defendants’ position that Constables Parrish and Singleton did not have grounds to apprehend Davis under s. 17.

Placing Davis in an Enclosed Space and invading his Personal Space

[126] The Defendants submit that there is no indication Constable Parrish invaded Davis’ personal space. Davis appeared to be calm in Constable Parrish’s presence. He had been in enclosed spaces when he was in the police car as it drove him to the Tempo, when he was driven in the taxi, and when he was in the police cruiser during the Constables’ final visit to the Tempo at 5:28 p.m. Further, Constable Parrish and Dolph actually increased Davis’ personal space on the bus by giving him a seat at the front of the bus to himself and by asking the individuals who were seated around Davis not to interact with him.

[127] Finally, the Defendants submit that there is no causal link between Davis’ personal space being invaded and his behaviour on the bus. The Defendants submit that I should not speculate as to why Davis did what he did.

Failure to Speak to Lay Witnesses

[128] The Defendants submit that none of the information provided by the lay witnesses would have changed Constable Parrish’s ability to apprehend Davis under s. 17 of the MHA. The Defendants ask me to put the situation into context: Constable Parrish was called on the pretext that Davis was the victim of a crime; Davis was mild mannered, compliant, polite, and rational. Based on his experience, Constable Parrish had no reason to believe that a mildly paranoid individual posed any danger to anyone. The Defendants submit that when these factors are taken into consideration, Constable Parrish’s failure to speak with lay witnesses was reasonable in the circumstances.

Failure to Obtain Additional Information about Davis’ Medication

[129] First, the Defendants submit that there is no admissible evidence indicating that Dexedrine played any role in Davis’ attack on Dolph. Any failure of Constable Parrish to obtain further information about the medication Davis was taking cannot be causally linked to the accident. Second, the Defendants submit that it was not unreasonable for Constable Parrish to cease from asking additional questions regarding Davis’ medications. Constable Parrish knew that Davis’ ADD was a chronic condition, and therefore it was only natural that Davis was on a drug to regulate his symptoms. Finally, the Defendants submit that even if Constable Parrish had attempted to obtain further information about the drug Davis was taking, the Plaintiffs would still need to establish certain facts in order to advance their case: first, that Davis would have answered Constable Parrish’s questions about the drug he was taking; second, that Davis would have been forthcoming about taking more medication than prescribed; third, that a police officer should be aware of the potential problems regarding an overdose of Dexedrine; and fourth, that in the circumstances, a police officer should have gone further and sought information about Dexedrine from a pharmacist or doctor. It is the Defendant’s position that because the Plaintiffs cannot establish any of these facts, the Constables’ failure to obtain additional information on the drugs Davis was taking is not indicative of a breach of the standard of care.

Failure to Contact the RCMP for further Information

[130] These Defendants submit that information from the RCMP was not available on Saturday. Staff Sergeant Robbins testified that there were only two special officers in the O.P.P. who could contact the RCMP for this information and that neither was available on the day in question. The Defendants submit that even if the information was available, it would have taken time to acquire and analyze the information received. Finally, the Defendants submit that even if a request to the RCMP was made, there is no guarantee that a response would have been forthcoming.

Investigative Detention

[131] It is the Defendant’s position that the doctrine of investigative detention was not available in the circumstances. The Defendants submit that investigative detention applies to situations where police need to detain someone whom they suspect of being involved in a crime or whom they suspect is about to commit a crime. They argue that no crime was suspected here, nor was there any indication that Davis was about to commit a crime.

Failure to Provide Complete and Accurate Information to Dolph

[132] The Defendants submit that Constables Parrish and Singleton provided complete and accurate information to Dolph. Further, the Defendants submit that the Plaintiffs do not establish what would have changed if additional information had been provided to Dolph.

Constable Parrish Pressured Dolph into taking Davis

[133] The Defendants submit that there is no evidence to support an allegation that Constable Parrish applied any pressure to Dolph when speaking to him about taking Davis as a passenger.

Failure to Obtain Additional Information from Family and Friends

[134] The Defendants submit that, given Davis’ harmless appearance, it was unnecessary for Constables Parrish and Singleton to obtain additional information from Davis’ family and friends. Further, no expert evidence was adduced to suggest that such enquiries need to be made when dealing with the mildly paranoid.

[135] Alternatively, the Defendants submit that even if the officers had made third party enquiries into Davis’ past, the information obtained from such enquires would not have provided Constables Parrish and Singleton with the grounds to apprehend Davis under s. 17 of the MHA, nor would it have been sufficient to detain Davis using the doctrine of investigative detention or to lay a charge against him.

Position of the Plaintiffs against Greyhound and Dolph

[136] The Plaintiffs submit that the Defendants Greyhound and Dolph owed them a duty of care. With regard to the standard of care, the Plaintiffs submit that fault must be determined based on the standard of conduct to be expected of a reasonable person in the circumstances.

[137] The Plaintiffs rely on the Public Vehicles Act, R.S.O. 1990, c. P.54, s. 22(2), which states that it is prohibited for a person to stand anywhere that is forward of the back of the driver’s seat. Failing to require a person to move to the back or away from the front when it interferes with the bus driver’s safe operation of the vehicle has been found to be an act of negligence: Baldwin v. Lyons and Erin District High School Board, [1961] O.J. No. 523, (H.C.J).

[138] The Plaintiffs further cite Rances v. Scaplen, 2008 ABQB 708, [2008] A.J. No. 1323 (QB), where the Alberta Court of Queen’s Bench states “legislative standards are relevant to the common law standard of care, but the two are not necessarily co-extensive. The fact that a statute prescribes or prohibits certain activities may constitute evidence of reasonable conduct in a given situation, but does not extinguish the underlying obligation of reasonableness.” The Court also stated at para. 241:

“While the obligation upon carriers of persons is to use all due, proper and reasonable care and the care required is of a very high degree …” “Decisions applying Day [SCC] have generally interpreted this passage to mean that where the Defendant is a public carrier, in the event of an accident and resulting injury, the Plaintiff enjoys the benefit of a burden that shifts to the Defendant to prove the carrier was being operated in a skilled and prudent manner.”

In relation to the Defendant Greyhound in that case the court stated at para. 243:

“While Greyhound is not an insured of the safety of its passengers, it bears a very high duty of care should injury to any of its passengers occur. Upon proof of an incident, the carrier is called upon to show that it was operating its vehicle with all due, proper and reasonable care and skill.”

[139] It is the Plaintiffs’ position that the Defendant Greyhound had an obligation to provide adequate policies, rules, guidelines, and procedures to ensure that its drivers could fulfill their duties and to ensure that its drivers were aware of the laws applicable to operating a bus. The Plaintiffs further submit that once an allegation of negligence is made against a common carrier, the burden of proof shifts to the Defendant to demonstrate that the carrier was being operated in a skilled and prudent manner: Rances, at para. 242.

[140] With respect to causation, the Plaintiffs submit that the basic test for determining causation is the “but for” test, where the Plaintiff bears the burden of showing on a balance of probabilities that “but for” the negligent actions of the Defendant, the injury to the Plaintiff would not have occurred: Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333. The Plaintiffs further submit that causation need not be proven with scientific precision: Snell v. Farrell (1990), 1990 CanLII 70 (SCC), 72 D.L.R. (4th) 289, at para. 298.

[141] The Plaintiffs rely upon various ways in which the Defendants Greyhound and Dolph breached their respective standard of care.

Failure to make Reasonable Enquiries

[142] The Plaintiffs submit that at the time the Constables were attempting to put Davis onto Dolph’s bus, Dolph failed to make reasonable enquiries of the Constables and/or of Davis concerning Davis’ mental state and prior conduct. The Plaintiffs rely on Page 12 of the Greyhound’s Operator’s Handbook, which was the version in existence in 2000. Under section G-30, entitled “Passengers, Handling of Disorderly”, the bus driver is to refuse transportation to persons who are intoxicated or who are conducting themselves in a manner which may cause discomfort to other passengers. The Plaintiffs rely on the testimony of Mr. Groves, who testified that a prudent driver would have made those types of enquiries of the police and/or the potential passenger before allowing him/her to board the bus. The Plaintiffs argue that Dolph had the right to refuse Davis’ passage on his bus, but failed to do so.

Allowing Davis to Cross the White Line

[143] The Plaintiffs rely on evidence that Dolph allowed Davis to cross the white line at the front of the bus on two or three occasions. This, they argue, was in violation of published guidelines from Greyhound Canada and s. 22 of the PVA. Section 22 of the PVA reads, in part:

“Passengers not to be allowed on running board, etc.

22. (1) No driver or operator shall allow passengers to ride on the fenders or any other part of a public vehicle other than the seats thereof, except that a vehicle may carry as standing passengers in the aisles thereof not more than one-third the number of persons for which seats are provided.

Restrictions as to seating

(2) No driver or operator of a public vehicle shall permit or allow on the front seat of the vehicle more passengers than the seat is designed to carry, exclusive of the driver, or permit or allow any passenger to occupy any other portion of the vehicle forward of the back of the driver’s seat.”

[144] According to the Plaintiffs, the failure of Dolph to require Davis to move away from the front of the bus when he was interfering with the bus driver’s safe operation of the vehicle amounts to an act of negligence: Baldwin at para 4. The Plaintiffs submit that Davis would not have been able to jump Dolph from such close proximity had Dolph ensured that Davis abide by the law and remain behind the white line.

Allowing Davis to Stand in the Stairwell

[145] The Plaintiffs submit that Dolph also breached the standard of care by allowing Davis to stand in the stairwell in violation of published guidelines from Greyhound Canada and s. 22 of the PVA. Dolph also failed to pay adequate attention to Davis while he was in the stairwell. Section 22 of the PVA is outlined above. The Plaintiffs reference Greyhound transportation bulletin number 52, issued on March 7, 1991, entitled “Passengers Standing on Coaches”, which tells bus drivers that passengers must not be allowed to stand on a bus for an extended period of time and must not be allowed to stand in front of the white line at the front of the bus. Bulletin number 74, issued on January 14, 1992, entitled “No Standing Ahead of White Line”, states that passengers must not be allowed to cross the white line at the front of the bus while the bus is in motion and that it is against the law to allow passengers to do so. Dolph testified that he didn’t hear what Davis was saying while he was in the stairwell. The Plaintiffs submit that had Dolph been paying adequate attention to Davis, he would have appreciated that Davis was dangerous, and would have reacted accordingly. The submission is that Dolph did not give Davis the attention that he required, and in failing to do so the situation was allowed to escalate. The Plaintiffs submit that this led to Davis’ eventual attack and if Dolph had reacted in an appropriate manner, the accident would have been avoided.

Failure to Stop the Bus

[146] The Plaintiffs submit that when Davis was standing in the stairwell Dolph should have assumed that Davis would do something to harm the bus or its passengers and therefore should have stopped the bus on the side of the highway. The Plaintiffs submit that in Greyhound’s Driving Manual and rules for bus drivers, Greyhound stresses that drivers must always assume the worst case scenario so as to protect their passengers from harm.

[147] The Plaintiffs submit that there was evidence of two straight stretches of highway within 15 km west of where the bus crashed. Further, Dr. Nassar presented evidence which verified that a Greyhound bus could pull over in the area in question. The argument is that Dolph’s failure to stop the bus when he had the time and space to do so was in breach of the standard of care.

Failure to provide Adequate Training on Emergency Pullovers

[148] The Plaintiffs submit that Greyhound failed to train Dolph on how to safely pull a bus over in the winter when the width of the highway shoulders was reduced because of snow accumulation. The Plaintiffs rely on a Greyhound transportation bulletin from October 1995 entitled “Hazardous & Unusual Road Conditions due to Seasonal Weather,” which instructs drivers that they must operate their bus according to the weather and road conditions that are in effect at the time. The Plaintiffs also rely on a document entitled “Documentation & Training Forms Manual”. The Manual emphasizes defensive driving, and states that drivers are trained on winter driving. No portion of the Manual describes when it is appropriate to pull a motor coach off the highway onto a shoulder. According to the Plaintiffs, there is no evidence that Dolph received any enhanced operational training, despite its availability. Failure to provide such training on the part of Greyhound breached the standard of care expected of an owner of a common carriage service.

Failure to provide Sufficient Training on how to deal with Difficult Passengers

[149] The Plaintiffs submit that Greyhound did not have sufficient training and/or information available to drivers on the subject of how to deal with difficult passengers, including those who may be suffering from mental illness or drug overdose. They submit that Greyhound does in fact offer an “Accessibility Coach Training Program” to its drivers which includes a section on how to identify psychiatric disorders or mental health problems. Drivers are instructed to be patient and calm in dealing with such individuals and to take the individual’s concerns seriously. They are also directed not to restrain such individuals and to try and keep them calm. The Plaintiffs argue that it is unclear as to whether Dolph took this training program before the accident. The Plaintiffs further submit that even if he had taken the program, the training involved was not enough to prepare a bus driver for recognizing and dealing with an individual who suffers from mental illness.

Failure to follow available Guidelines regarding Passengers with Mental Illness

[150] The Plaintiffs submit that Dolph did not follow any of the national guidelines regarding difficult passengers and individuals suffering from mental illness that were available to him. In support of their position, the Plaintiffs point to a document entitled “National Occupational Standards Professional Bus Operator”. The document describes how drivers may deal with difficult passengers in situations which threaten the comfort or safety of other passengers. Such situations must be dealt with swiftly, decisively, and with tact and diplomacy. The Plaintiffs also make reference Section 2.3 of Greyhound’s Driver’s Manual which states that it is the driver’s responsibility to ensure that he or she identifies problem situations as quickly as possible and reacts to them in a reasonable fashion. The Manual also encourages defensive action so as to protect passengers. According to the Plaintiffs’ submissions, Dolph should have continued to slow the bus down as Davis’ irrational behaviour escalated, and he should have practiced defensive driving. It is the Plaintiffs’ position that Dolph took neither of these actions and by failing to do so breached his standard of care.

Failure to provide Barrier between Driver and Passengers

[151] The Plaintiffs submit that Greyhound did not have a sufficient barrier between the driver and the passengers to prevent passengers from crossing the white line at the front of the bus, and that if such a barrier existed, Davis would not have been able to jump Dolph and the accident would not have occurred.

Driving at an Excessive Speed

[152] The Plaintiffs submit that Dolph was operating his bus at an excessive speed in the circumstances. It is the Plaintiffs’ position that Dolph was travelling at least 100 km/hr at the time of the crash. According to the Plaintiffs, there were a number of factors at play which warranted a substantially reduced speed: first, the road conditions were medium to poor; second, Davis was standing 2-3 feet away from Dolph while in the stairwell; third, Davis was exhibiting signs of mental illness and severe paranoia; and fourth, Dolph had been warned by the Defendant Constables that Davis had exhibited paranoid behavior earlier that day and on the previous Greyhound bus. The Plaintiffs submit that had Dolph been travelling at a reduced speed, he would have had a chance of regaining control of the vehicle at the time that Davis grabbed the wheel. Further, the Plaintiffs submit that the injuries to the passengers would have been far less severe if Dolph had been going slower when Davis grabbed the wheel.

Position of the Defendants Greyhound and Dolph

[153] The Defendants Greyhound and Dolph concede that they owed the Plaintiffs a duty of care. These Defendants submit that the standard of care for a bus driver is that of the reasonably prudent bus driver in similar circumstances: Desjardins v. Arcadian Restaurants Ltd., 2005 CarswellOnt 7549. These Defendants agree with the Plaintiffs’ position regarding the standard of care for a common carrier: a common carrier must use all due, proper, and reasonable care and skill to avoid or prevent injury to the passenger: Day v. Toronto Transportation Commission, 1940 CanLII 7 (SCC), 1940 S.C.R. 433, at 441. The Defendants submit that they have an absolute defence to the plaintiffs’ claims of liability, arguing that Dolph acted reasonably in the circumstances and by doing so met the applicable standard of care. The Defendants further submit that the Plaintiffs have not established foreseeability, since Dolph could not foresee the danger posed by Davis in the circumstances.

[154] These Defendants agree with the Plaintiffs that the relevant test for causation is the “but for” test. However, the Defendants contend that the Plaintiffs must demonstrate a substantial connection between their injuries and the Defendants’ conduct: Resurfice Corp., at para 23.

[155] The position of these Defendants is that the Plaintiffs have not established causation. They submit that the onus is on the Plaintiffs to establish causation, and in this case, the Plaintiffs have failed to adduce evidence as to why Davis attacked Dolph. Even if it is found that a reverse onus or heightened standard of care exists, the Defendants argue that they have refuted the Plaintiffs’ prima facie case by providing evidence which demonstrates that Dolph acted reasonably in the circumstances.

[156] These Defendants further submit that the defence of due diligence is available to them: R. v. Sault Ste. Marie (City), 1978 CanLII 11 (SCC), [1978] 2 S.C.R. 1299, in that Greyhound took reasonable and proper steps to protect the safety of its passengers. According to the Defendants, such preventative conduct provides them with a complete defence to the Plaintiffs’ allegations of negligence.

[157] The Defendants specifically refute each of the Plaintiffs’ allegations of negligence. In support of their position, the Defendants rely on the following arguments.

Davis had a Right to Board the Bus Driven by Dolph

[158] It is the Defendants’ position that they had no choice but to allow Davis to board the bus. In making this assertion, the Defendants rely on s. 21 of the PVA. Section 21 of the PVA states:

[n]o driver shall refuse to carry any person offering himself at any regular stopping place for carriage and who tenders regular fare to any regular stopping place on the route of the vehicle.

The Defendants reference the evidence that Davis asked to continue his trip and the O.P.P. facilitated his transfer to Dolph’s bus. Dolph found that there was nothing unusual about Davis.

No Potential Problem Existed that would have Prevented Davis from Boarding the Bus

[159] These Defendants submit that at the time Davis boarded the bus, Dolph did not fail to recognize a problem because there was no problem to be discerned. Davis did not display any unusual behaviour and did not appear dangerous. The lay witnesses who observed Davis on the day in question stated that he did not appear violent. The O.P.P. were of the view that Davis was slightly paranoid, but not dangerous, and was not a problem. The Defendants submit that there was no indication that Davis was capable of creating a problem at the time he boarded the bus.

Dolph was Properly Trained

[160] The Defendants submit that Dolph had 28 years of driving experience for Greyhound before the incident occurred. At trial, Dolph testified that he followed all of Greyhound’s protocols. It is the Defendants’ position that he had sufficient front end training and experience. Alternatively, the Defendants submit that, even if the court finds Dolph’s training to have been inadequate, his lack of training was not causative of the incident.

It was Proper Procedure to allow Davis to be Seated at the Front of the Bus

[161] The Defendants submit that it was reasonable for Davis to be seated at the front of the bus so that Dolph could keep an eye on him. Further, the Defendants submit that the position in which Davis was seated did not cause the accident.

The White Line

[162] It is the Defendants’ position that Dolph’s decision to leave Davis in the stairwell was a reasonable one. The Defendants submit that Dolph was attempting to keep Davis calm, and it was only a few more minutes until his next scheduled stop in Upsala. Further, Dolph did not allow Davis to stand in the stairwell; Davis simply did it. According to the Defendants, Davis’ actions were beyond Dolph’s control. These Defendants submit that allowing Davis to stand in the stairwell was not the cause of the incident. The Defendants further submit that the purpose of section 22(2) of the PVA, which prohibits persons from standing in the stairwell, is to protect the person in the stairwell from harm. Since Davis has not brought an action against Greyhound, it is the Defendants’ position that the Plaintiffs’ use of this section is inappropriate.

Boxing in the Driver is not a Solution

[163] The Defendants submit that the Plaintiffs have not adduced any evidence demonstrating that boxing in the driver is a feasible solution or that doing so would have prevented the accident.

Dolph was driving at a Safe Speed

[164] First, the Defendants submit that Dolph was driving at a reasonable speed in the circumstances. The Defendants rely on the evidence of Mr. Simcock, an ex-police officer who was driving a truck that followed the bus. The truck was governed by a top speed of 103 kms/hr. Second, they argue that the evidence of Shane Lywak cannot be relied upon. Third, contrary to the Plaintiffs’ submissions, the Defendants submit that at no time did Dolph state the accident took place at 6:30pm. Further, the Plaintiffs failed to provide evidence as to how they determined that the accident took place at 6:30 p.m. Fourth, the Defendants submit that the Plaintiffs’ submissions relating to speed are not plausible or reasonable. These Defendants argue that to accept the Plaintiffs’ position, I would have to accept that the bus travelled 95 km on a dark winter evening in approximately 40 minutes. To achieve such a distance in that time, the bus would have been travelling at a speed of approximately 154 kms/hr. Furthermore, these Defendants submit that even if this court finds that Dolph was driving at an excessive speed at the time of the incident, there is no evidence before the court indicating that speed was causative of the accident or that excessive speed exacerbated the Plaintiffs’ injuries.

Pulling over the Bus would have been Dangerous

[165] The Defendants submit that Dolph’s decision to continue driving, instead of attempting to pull the bus over, was reasonable in the circumstances. According to the Defendants, pulling over could have resulted in the bus rolling over or being pulled into the ditch. These were Dolph’s primary concerns. The shoulders of the highway were snowy and it was dark. After the accident occurred, other vehicles arriving at the scene parked on the paved portion of the highway, not on the highway’s shoulder. In the Defendants’ opinion, this indicates that other individuals were wary of the condition of the highway’s shoulders. With respect to the testimony of Dr. Nassar, the Defendants submit that he did not attend at the scene of the accident and did not take the calculations he used in arriving at his conclusions himself. Further, he has no experience driving in Northern Ontario. For these reasons, the Defendants argue that his testimony is unreliable.

[166] The Defendants further submit that had Dolph pulled the bus over, it is uncertain what would have been done with Davis. It is against Greyhound regulations to leave a passenger in the cold and the dark in the middle of nowhere. It is the Defendants’ position that it would not have been reasonable for Dolph to have abandoned Davis on the side of the highway on a cold winter night. It was reasonable for him to continue driving toward his next scheduled stop in Upsala.

[167] Finally, the Defendants submit that Davis’ actions were not foreseeable. According to the Defendants, because there was no indication to Dolph that any trouble was coming, it was reasonable for him to determine that pulling over the bus was unnecessary in the circumstances.

Legal Principles - Negligence

[168] In The Law of Torts in Canada, 3d ed. (Toronto, ON: Thomson Reuters Canada, 2010), at 297, G.H.L. Fridman et. al. defines negligence as the “breach of a legal duty to take care which results in damage to the Plaintiff.” To prove negligence, the Plaintiff must show:

(a) that the defendant owed him or her a duty of care;

(b) that the defendant breached his or her duty by failing to observe the relevant standard of care;

(c) that the breach of the duty caused damage or loss to the Plaintiff; and

(d) that the damage was not too remote a consequence of the breach (see Fridman et. al., at 297).

Duty of Care

[169] Both of the Defendants have acknowledged that they owed a duty of care to the Plaintiffs. Since the Defendants are willing to concede that a duty was owed by them to the Plaintiffs, it is unnecessary to canvass the law regarding duty of care.

Standard of Care

[170] The conventional standard of care that is applied in an action for negligence is that of the ordinary, reasonable, cautious and prudent person in the position and circumstances of the defendant: Ryan v. Victoria (City), [1991] 1 S.C.R. 201, at 222. The reasonable person is neither exceptional nor extraordinary. He or she is a person of normal intelligence who makes prudence a guide to conduct, doing nothing that a prudent person would not do and not avoiding doing anything that a prudent person would do: see Canada (Attorney General) v. Dingle Estate, 2000 NSCA 5, [2000] N.S.J. No 4, at para. 31; Burbank v. B (R.T.), 2007 BCCA 215, [2007] B.C.L. No. 752, at para. 60; Fridman et. al., at 366. What is reasonable will depend on the facts of each case, and includes a consideration of the likelihood (or foreseeability) of the harm, the gravity of the harm, and the costs that would have to be incurred in order to prevent the harm: Ryan, at 526. These factors are to be assessed as of the time of the alleged breach and not in light of subsequent developments: see Desautels v. Katimavik (2003), 2003 CanLII 39372 (ON CA), 175 O.A.C. 201 (C.A.); Nattrass v. Weber, 2010 ABCA 64, [2010] A.J. No. 424, leave to appeal dismissed, 2010 S.C.C.A. No. 159.

(a) Standard of Care for Bus Drivers

[171] I accept the Greyhound Defendants’ submission that for a bus driver, the standard of care is that of the reasonable bus driver in like circumstances. To determine whether the standard of care for a bus driver is met, I must ask whether the bus driver used all due, proper and reasonable care and skill in the circumstances: see Day, at 441; Rances, at para. 349.

(b) Standard of Care for Police Officers

[172] I accept the argument of the O.P.P. Defendants that for a police officer, the standard of care is that of the reasonable officer in like circumstances. In order to meet the standard of “reasonableness”, an officer must live up to the accepted standards of professional conduct to the extent that it is reasonable to do so in the circumstances: Hill, at para. 70. I must consider the elements involved in a reasonable and prudent investigation, and must determine whether those elements have been met: Fridman et. al., at 376. Police officers may make minor errors in judgment without breaching the standard of care. An error in judgment only amounts to negligence if the error would not have been made by a reasonably competent professional with the same skill as the officer in question who acted with ordinary care: Hill, at para. 73.

Causation

[173] Causation is the third step in a negligence analysis in tort. In order to reach the stage where it is necessary to determine causation, I must first find that a duty of care was owed by the Defendant to the Plaintiff. Next, I must decide what the appropriate standard of care is, and whether the Defendant breached the standard of care. If I find that the Defendant did not breach the standard of care, an inquiry into causation is not necessary.

[174] I accept the Plaintiffs’ position that the “but for” test is the standard test for causation, and is the appropriate test in these circumstances. The test requires the Plaintiff to show that “but for” the negligent act or omission of each Defendant, his or her injury would not have occurred: Resurfice Corp., at para. 21. The "but for" test recognizes that compensation for negligent conduct should only be made where a substantial connection exists between the Plaintiff’s injury and the Defendant's conduct: see Resurfice Corp., at para 23; Snell v. Farrell, 1990 CanLII 70 (SCC), [1990] 2 S.C.R. 311, [1990] S.C.J. No. 73, at para 26. A substantial connection ensures that the Defendant will not be held liable for injuries to the Plaintiff which "may very well be due to factors unconnected to the Defendant and not the fault of anyone": Snell, at para. 26. It is also important to appreciate that the Defendant’s negligence need only be “a” cause of the Plaintiff’s injury; it need not be the “only” cause.

[175] The Plaintiff must prove that the Defendant’s breach of the standard of care resulted in some injury to the Plaintiff. It is only the Defendant’s breach of the standard of care that can establish causation. If I cannot conclude that the Defendants breached the standard of care, I cannot find that the Defendants caused the Plaintiff’s injuries.

Remoteness

[176] In addition to proving factual causation, the Plaintiff must establish that the Defendant’s carelessness was a “legal” or “proximate” cause of his or her injuries: Fridman et. al., at 417. The remoteness inquiry asks whether the harm to the Plaintiff is sufficiently related to the wrongful conduct of the Defendant: Mustapha v. Culligan of Canada Ltd, 2008 SCC 27, [2008] 2 S.C.R. 114, at para 12. If it is found that the Plaintiff’s injuries are too remote to have been caused by the Defendant’s conduct, then no liability can attach to the Defendant. In other words, the harm to the Plaintiff must have been reasonably foreseeable to the Defendant: Mustapha, at paras. 12-13. In order for liability to be imposed on a negligent Defendant, the risk to the Plaintiff must have been a “real risk” as opposed to a far-fetched one: Mustapha, at para. 13.

[177] The remoteness test can therefore be summarized as follows: the trier of fact must ask whether a reasonable person, put in the position of the Defendant, would have contemplated the harm that came to the Plaintiff. If the trier of fact finds that a reasonable person would or should have contemplated the Plaintiff’s injuries in the circumstances, the Defendant is liable. If the trier of fact finds that the harm to the Plaintiff was too remote or far-fetched to have been contemplated by a reasonable person in the circumstances, the Defendant is not liable.

Onus of Proof

[178] In The Law of Torts in Canada, Andrew Botterell makes the following comments on the onus of proof in a negligence action:

“The general rule is that the plaintiff must prove all of the elements of the tort of negligence... The plaintiff’s obligation is to convince the court on the balance of probabilities that it is more likely than not that his or her loss was caused by negligence on the part of the defendant. If this is done, the defendant then has the task of calling into question the prima facie inference of negligence. By establishing a prima facie case, the plaintiff succeeds in shifting the evidentiary... burden onto the defendant... Should the plaintiff fail to adduce evidence that proves negligence, or fail to produce evidence for which a reasonable inference may be drawn that the defendant acted negligently, the plaintiff will not succeed” (Fridman et. al., at 384-385).

[179] In a negligence action, the onus of proof rests with the Plaintiff. The Plaintiff must prove all elements of the tort of negligence. If the Plaintiff convinces the court on a balance of probabilities that the Defendant’s negligence caused his or her injuries, then he or she has established a prima facie case against the Defendant. This shifts the evidentiary burden to the Defendant, who can discharge that burden by providing evidence of non-negligence.

[180] The Plaintiffs have raised the question of whether a reverse onus exists for a common carrier in a negligence action. In Whelan v. Parsons & Sons Transportation Ltd., 2005 NLCA 52, 2005 CarswellNfld 229, [2005] N.J. No. 264 (C.A.), at paras. 21-22, the Newfoundland Court of Appeal considered whether a reverse onus exists for common carriers in a negligence action. The court made the following comments with respect to the onus of proof for common carriers:

“Once the plaintiff has established a prima facie case, which may be based on the drawing of inferences from circumstantial evidence, the carrier will be found liable for negligence unless it presents evidence to negate that conclusion.

What makes the case of a common carrier different relates, in fact, to the high standard of care imposed on the carrier. As a result of this high standard, the court may draw inferences adverse to the carrier, or conclude that a prima facie case has been established, based on evidence adduced by the plaintiff that would not, in other circumstances, have been sufficient. In other words, the carrier may be under a heightened need to adduce evidence in response because the threshold the plaintiff must clear is lower.”

[181] The onus is not on the common carrier to prove that it was not negligent. Instead, the threshold that the Plaintiff must meet to establish a prima facie case is lower than it normally would be. This is so because the standard of care imposed on the common carrier is higher than that which is placed on the average person. This is not a reverse onus situation; the Plaintiff must still adduce some evidence to establish a prima facie case before the burden can shift to the Defendant.

Investigative Detention

[182] In R. v. Simpson, the Ontario Court of Appeal held that an investigative detention can only be justified if the detaining officer has some "articulable cause" for the detention. In defining “articulable cause”, the court reviewed a number of U.S. decisions and in doing so, came to the conclusion that:

These cases require a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation. The requirement that the facts must meet an objectively discernible standard is recognized in connection with the arrest power: R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241 at p. 251, 53 C.C.C. (3d) 316 at p. 324, and serves to avoid indiscriminate and discriminatory exercises of the police power. A "hunch" based entirely on intuition gained by experience cannot suffice, no matter how accurate that "hunch" might prove to be: Simpson, at para. 61.

[183] In R. v. Mann, the Supreme Court of Canada approved of, and expanded upon, the Simpson decision. The Court made the following comments about the power of investigative detention at paragraph 34:

The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer's suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence. Reasonable grounds figures at the front-end of such an assessment, underlying the officer's reasonable suspicion that the particular individual is implicated in the criminal activity under investigation. The overall reasonableness of the decision to detain, however, must further be assessed against all of the circumstances, most notably the extent to which the interference with individual liberty is necessary to perform the officer's duty, the liberty interfered with, and the nature and extent of that interference, in order to meet the second prong of the Waterfield test.

Police powers and police duties are not necessarily correlative. While the police have a common law duty to investigate crime, they are not empowered to undertake any and all action in the exercise of that duty. Individual liberty interests are fundamental to the Canadian constitutional order. Consequently, any intrusion upon them must not be taken lightly and, as a result, police officers do not have carte blanche to detain. The power to detain cannot be exercised on the basis of a hunch, nor can it become a de facto arrest: Mann, at paras. 34-35.

Discussion/Analysis as to Liability re: O.P.P. & Constables

Introduction

[184] As I have noted previously, in the course of written submissions, counsel for the Defendants both acknowledged a duty of care on the part of their respective parties.

[185] To obtain judgment against a Defendant in a negligence action, the Plaintiff must establish four elements, each on a balance of probabilities: that the Defendant owed a duty of care to the Plaintiff; the standard of care; a breach of that standard; and that the breach caused the Plaintiff’s damages. In considering the Plaintiffs’ claims against the Defendants Parrish and Singleton and the O.P.P., the claims can be summarized and conceptualized in the following way: that the officers were in breach of the standard of care and failed to prevent Davis from boarding the bus either by using s. 17 of the MHA, by using investigative detention, or by using other powers available to them.

Were the O.P.P. and Constables Parrish & Singleton Negligent?

Failure to Apprehend under Section 17 of the MHA

[186] Before I engage in an analysis of s. 17, I note that the evidence shows Constable Singleton was the secondary, or supporting, officer. His involvement into the investigation of Davis was limited. Constable Parrish, on the other hand, was Singleton’s coach officer and it was Parrish who spent a significant amount of time with Davis. He observed Davis at some length and spoke with him on a number of occasions. It fell to him to determine whether or not Davis could be apprehended pursuant to s. 17 of the MHA. The analysis that follows therefore focuses on whether Constable Parrish’s failure to apprehend was reasonable in the circumstances.

[187] I am satisfied that the Defendants O.P.P. and Constables Parrish and Singleton have correctly identified and explained the legal test for the apprehension of an individual under s. 17 of the MHA. In order to apprehend a person under s. 17 of the MHA, all four parts of the test must be satisfied. If any one part of the test cannot be met, the investigation must stop and the officer does not have grounds to apprehend.

[188] In considering the first part of the test, Constable Parrish did not conclude that Davis was acting in a disorderly manner. He based this belief on his discussions with, and observations of, Davis, which lasted for a period of approximately 45 minutes. During the time that he spent with Davis, Constable Parrish’s initial assessment of him did not change. The evidence supports his opinion that Davis did not pose a risk to himself or to others. In assessing Davis, Constable Parrish did not rely on third party information. He did not speak with the lay witnesses who had been in contact with Davis at the Tempo and at the Voyageur restaurant. He did not attempt to obtain further information about Davis from the RCMP, or from his family and friends. However, even if Constable Parrish had made contact with some or all of these third parties, had received information about Davis’ past and present behaviour, and was satisfied that his conduct was disorderly, Parts Two and Three of the s. 17 test still had to be met. In this case, they were not.

[189] Part Two of the test requires an investigating officer to determine that the person in question satisfies one of the following three criteria: first, the person must have either threatened or attempted to cause himself bodily harm or was threatening or attempting to cause bodily harm to himself; or second, the person must have behaved or was behaving violently towards another person or had caused or was causing another person to fear bodily injury from him; or third, the person must have shown or was showing a lack of competence. In making a determination under part two of the test, the officer can rely on third party evidence.

[190] With respect to the first criterion, there is no evidence before me suggesting that prior to boarding the bus Davis had threatened, attempted to cause himself bodily harm, or was threatening or attempting to cause bodily harm to himself.

[191] With respect to the second criterion, none of the information from the lay witnesses indicated that Davis had behaved or was behaving violently towards another person or that Davis had caused or was causing another person to fear bodily harm from him. Lay witnesses who had observed Davis in the hours before he boarded the bus remarked that he never appeared violent. Davis was described as polite, harmless, “like a two year old”, calm, articulate, a “sweet lost scared boy”, mild, and relaxed; these are not words that I would use to describe someone who showed signs of harming himself. Upon meeting Davis in the hours before he got on the bus, another witness thought about taking Davis home for the night in order to let him rest. According to the lay witnesses and the Constables, there was no indication that Davis was behaving violently towards anyone. Constable Parrish could not have apprehended Davis under this part of the test.

[192] With respect to the third criterion, there was no evidence from the witnesses to support a finding that Davis had shown a lack of competence to care for himself. More than one witness described Davis as well-dressed and good looking. Constable Parrish described Davis as articulate, well-spoken, calm, and rational. Dolph described Davis as clean-cut, cleanly dressed, and polite. The lay witness testimony indicates that Davis appeared fully capable of taking care of himself at the time he got on the bus. Constable Parrish could not have apprehended Davis under this part of the test.

[193] With respect to the third part of the s. 17 test, in Rhora v. Ontario, 2004 CanLII 4046 (Ont. Sup. Ct.) the court noted that the police are not required to make a detailed curb-side diagnosis unless there is obvious, anomalous behavior that suggests that the person could threaten the well-being of themselves or someone else. There is no evidence that any of the witnesses believed that Davis might do serious bodily harm to himself or to another person, or that he might suffer a serious physical impairment. The evidence provided by the lay witnesses reaffirms Constable Parrish’s opinion of Davis as a quiet, polite, mildly paranoid but otherwise harmless individual.

[194] The Defendants have submitted that if I find that the first three parts of the test are satisfied, they are willing to concede that the fourth part of the test is also met.

[195] The Plaintiffs rely heavily on the fact that Constable McMaster, who attended the scene immediately after the bus crash and interviewed Davis, determined that Davis should be detained under section 17 of the MHA. The Plaintiffs also submit that evidence from other individuals who had contact with Davis immediately after the bus crash, namely Vernon Humphries, Randy Boomhower, Chris Beebe, and Graham Warburton, confirms that Davis was clearly delusional, psychotic, and severely paranoid. The Plaintiffs use this evidence to suggest that Constable Parrish should have apprehended Davis before he got on the bus. However, Constable McMaster and the lay witnesses referred to above only observed Davis after the bus had already crashed.

[196] I conclude on the basis of the evidence that there were no grounds to detail Davis under s. 17 of the MHA.

Failure to detain Davis using the Doctrine of Investigative Detention

[197] Although Mann came four years after the incident in question, the Supreme Court’s comments affirm what Simpson has already made clear: the power of investigative attention is only available to an officer who needs to detain an individual that he or she suspects of being involved in a crime. A mere hunch about the individual in question is not enough. The officer must be able to point to some evidence demonstrating that he or she had reason to believe the individual was involved in a crime, thereby justifying the person’s arrest. According to the court in Simpson, “[t]he detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity”: Simpson, at para. 60.

[198] The power of investigative detention can also be used to prevent a crime: Mann, at para. 26. In order for an officer to detain an individual using the doctrine of investigative detention, he or she must have some evidence indicating that the person in question was involved in a crime or was about to commit a crime. If there is no evidence to support either of these suspicions, then the officer does not have the grounds to detain the individual.

[199] In this case, there is no evidence before the court indicating that Davis was involved in criminal activity, or that he was about to commit a criminal act. I accept the Defendants’ position that the doctrine of investigative detention was not available to Constables Parrish and Singleton.

Putting Davis in an Enclosed Space and Invading his Personal Space

[200] According to the Plaintiffs’ submissions, Constables Parrish and Singleton “put” Davis on the bus with the same passengers that he was trying to get away from on the Groves’ bus. In their testimony, both Constables Parrish and Singleton made it clear that they were very careful not to invade Davis’ personal space. Davis appeared to be comfortable in the Constables’ presence. The Plaintiffs acknowledge this fact in their submissions. For the Plaintiffs to suggest that the Constables invaded Davis’ personal space, then later acknowledge that Davis was comfortable in their presence, is contradictory. I accept the Defendants’ position that the Constables made an effort to avoid invading Davis’ personal space.

[201] There is also evidence indicating that Davis boarded the bus voluntarily. I accept the Defendants’ evidence that Davis just wanted to go home for Christmas, was relieved to be boarding the bus, and did so of his own accord. Forcing Davis onto the bus, as opposed to escorting him, are two very different courses of action. There is no evidence demonstrating that the Constables forced Davis onto the bus.

[202] Finally, as the Defendants have pointed out, Davis found himself in enclosed spaces on three separate occasions in the hours before he boarded the bus. Davis did not act out, nor did his symptoms escalate, in any of those three circumstances. In fact, Davis appeared to be quite calm while he was in Constable Parrish’s police cruiser (on two separate occasions) and in Ms. Ray’s taxi cab. Even if I were to find that the Constables did in fact encroach upon Davis’ personal space, and that the Constables did in fact “put” Davis on the bus, the Plaintiffs have not established that the Constables’ carelessness was a proximate cause of their injuries. The risk to the Plaintiffs must have been reasonably foreseeable by the Defendants. The risk to the Plaintiffs must have been a real risk as opposed to an unlikely or far-fetched one.

[203] For this reason, I find there is no liability against either of the officers, or the O.P.P.

Failure to obtain Background Information about Davis from Third Parties

[204] I accept the position of the Defendants that in the circumstances, it was unnecessary for Constables Parrish and Singleton to obtain background information about Davis from third parties. Given the presentation of Davis, it was reasonable for the Constables to conclude that third party enquiries were not needed. As the lay witnesses made clear in their testimony, Davis appeared calm, quiet, and harmless.

[205] Finally, as the Defendants suggest, I must consider the context of the investigation; Constable Parrish was called to assist Davis, who was the apparent victim of a crime. After spending a meaningful amount of time with Davis, Constable Parrish concluded that he was mildly paranoid, but otherwise harmless. It was reasonable for Constable Parrish to conclude that phone calls to Davis’ health practitioner in Calgary, or to his family and friends in Nova Scotia, were unnecessary. Based on his interactions with Davis, which were less involved than those of Constable Parrish, it was reasonable for Constable Singleton to have arrived at the same conclusion.

Failure to obtain additional information about Davis’ Medication

[206] Constable Parrish’s failure to obtain additional information about Davis’ medication was reasonable in the circumstances. When Constable Parrish made enquiries into whether Davis was on any medication, Davis explained that he had ADD/ADHD, and implied that he had been on drugs for sometime in order to treat his symptoms. Davis’ explanation, combined with his calm, quiet, and harmless appearance, were sufficient to satisfy Constable Parrish’s interest in the medication he was taking. Similarly, based on his observations of Davis, Constable Singleton had no concerns when Davis told him he was taking medication for ADD.

[207] Constable Parrish did not pursue further information about the prescription drugs Davis was taking because during his interactions with Davis, there was no indication that further enquiries were required in the circumstances. As far as Constable Parrish was concerned, Davis was a calm, quiet, non-violent individual who took prescription medication for a chronic illness. There is no evidence before the Court indicating that Davis’ paranoia was a product of an overdose. Finally, the Plaintiffs have not adduced any evidence linking Davis’ consumption of Dexedrine with his violent behavior on the bus.

Failure to provide Dolph with Complete and Accurate Information

[208] There is no evidence before the court indicating that Constables Parrish and Singleton withheld information about Davis from Dolph. Constable Parrish made Dolph aware of Davis’ paranoia, and indicated to him that he believed Davis was not a threat to himself, nor would he be a threat to the people on the bus. This was the pertinent information that was available to Constable Parrish at the time that he spoke with Dolph. The information was also accurate. Constable Parrish did not mislead or misinform Dolph when providing him with information about Davis. Dolph had all of the information that he needed in order to determine whether Davis should be allowed to board the bus. I am of the view that Constable Parrish provided Dolph with sufficient and accurate information, which Dolph was then able to use in making an informed decision respecting Davis’ capacity to board the bus.

Pressuring Dolph into allowing Davis onto the Bus

[209] There is no evidence to support this allegation. Dolph’s evidence is clear that it was he who made the ultimate decision to allow Davis to board the bus. According to Dolph, Davis had a valid ticket and had asked to continue his trip. In Dolph's opinion, these facts were sufficient to allow Davis aboard the bus.

Failure to provide proper training/information on how to deal with mentally ill individuals

[210] In their submissions, the Plaintiffs allege that the O.P.P. did not provide sufficient training to its officers which specifically related to how paranoid individuals are likely to act, or how dangerous they might be to themselves or to others.

[211] In order to determine whether the Constables obtained sufficient training on how to deal with mentally ill individuals, an overview of the training regimen on this topic is necessary. The O.P.P. provided training materials to Constable Parrish which teach response strategies in dealing with emotionally disturbed persons. The materials also provide guidelines on how to deal with someone who suffers from paranoia. Also, the document entitled “Advanced Patrol Training – Mental Illness – Facilitator Guide” acts as a guide to be used by facilitators to train O.P.P. officers in dealing with mentally ill individuals.

[212] There is another document, entitled “Advanced Patrol Training – Mental Illness Study Guide”, which is a Guide that is given to O.P.P. officers once they have received their advanced patrol training for mental illness. There is also a document entitled the “Provincial Police Academy Operational Field Briefing 00-43”, which makes recommendations as to when it is appropriate to detain someone under s. 17 of the MHA. Finally, the Defendants O.P.P. and Constables Parrish and Singleton produced two videos that are used to train O.P.P. officers on how to deal with mentally ill individuals.

[213] Although the Constables may not have received specific training on how to deal with the exact symptoms that Davis presented, I am satisfied that they received adequate training on how to recognize, approach, and deal with an individual who presented as Davis did. I therefore accept the Defendants’ position that the O.P.P. training regimen being used at the time of the accident was reasonable.

[214] In Hill, Justice McLachlin made the following comments regarding the standard of care that is expected of a police officer:

The standard of care is not breached because a police officer exercises his or her discretion in a manner other than that deemed optimal by the reviewing court. A number of choices may be open to a police officer investigating a crime, all of which may fall within the range of reasonableness. So long as discretion is exercised within this range, the standard of care is not breached. The standard is not perfection, or even the optimum, judged from the vantage of hindsight. It is that of a reasonable officer, judged in the circumstances prevailing at the time the decision was made - circumstances that may include urgency and deficiencies of information: Hill, at para. 73.

[215] Upon his arrival at the Tempo, Constable Parrish was under the impression that Davis was a victim, not an offender. Davis was described as non-violent by those who had been in contact with him that day. Constable Parrish thought that Davis was mildly paranoid, but not threatening.

[216] I am not satisfied that the risk of Davis attacking Dolph was reasonably foreseeable to the Constables at the time they escorted Davis onto the bus. According to the Constables and lay witnesses, Davis was quiet, polite, well mannered, and articulate. No one saw him as being a threat or a danger. At the time he boarded, the Constables could not have foreseen Davis as being a real risk to the patrons of the bus. This determination was within the range of reasonable choices available to them. In my opinion, the harm that came to the Plaintiffs was too remote to have been contemplated by a reasonable police officer in the circumstances.

Discussion/Analysis as to Liability re: Greyhound & Dolph

Were Greyhound & Dolph Negligent?

[217] The essence of the Plaintiffs’ allegations against the Defendant Dolph focus on his decision to allow Davis to board the bus, and subsequent his actions in not responding reasonably when Davis was standing in the stairwell at the front of the bus. While Greyhound is not an insurer of the safety of its passengers, it bears a very high duty of care should injury to any of its passengers occur. Upon proof of an incident, the carrier is called upon to show that it was operating its vehicle with all due, proper and reasonable care and skill. The Plaintiffs detailed a number of specific factors, which I will address.

Failure to Make Reasonable Enquiries

[218] I accept the Defendants’ position that Dolph had no choice but to permit Davis to board the bus. Section 21 of the PVA states that “no driver shall refuse to carry any person offering himself at any regular stopping and who tenders regular fare to any regular stopping place on the route of the vehicle.” Davis had a valid Greyhound ticket for the bus, which was validated by Groves. I accept that Dolph could rely on the fact that Groves marked the ticket indicating that Groves had no issue with Davis, that the ticket was legitimate, and there was no reason to deny Davis boarding the bus. At the time Davis was boarding the bus, he was not acting in an obnoxious or hostile manner. He was not intoxicated. He was not violent. At the time he boarded the bus, Davis’ appearance, demeanor, and actions affirm Dolph’s initial assessment of him as a non-violent and non-dangerous individual. Dolph performed his own cursory observation of Davis. According to Dolph, Davis appeared to be quiet and polite. This characterization of Davis is similar to the impression that Davis made on other witnesses who observed him that day.

[219] Further, the O.P.P. advised Dolph that Davis did not pose a risk and was not a problem. He was told by two police officers that Davis was not dangerous. It was reasonable for him to have taken the Constables at their word. Davis did not provide Dolph with a reason to prevent him from getting on the bus.

[220] There is in my view no basis to find that Dolph should have made any further inquiries.

[221] Dolph's observations, combined with the assurances provided by the police and Davis’ valid bus ticket, were sufficient pieces of information for Dolph to rely on in permitting Davis to board the bus. On the evidence, his decision was not unreasonable in the circumstances.

Dolph allowed Davis to Cross the White Line

[222] Dolph was operating the bus while Davis was standing in the stairwell ahead of the white line. The Plaintiffs submit this is a breach of s. 22 of the Public Vehicles Act. In Rances after reviewing previous jurisprudence the Alberta Court of Queen’s Bench, at para. 228, stated:

“A breach of a statute is not determinative of whether a party has failed to meet the applicable standard of care so as to give rise to civil liability. A court may make a finding that a party did not meet the standard of care even in the absence of a statutory breach. However, the statutory formulation of a duty of care may provide a specific and useful standard of reasonable conduct.”

[223] Davis’ decision to stand in the stairwell was not something that Dolph could physically prevent without relinquishing his control of the bus. To relinquish control of the bus in order to physically prevent Davis from crossing the white line would have been unreasonable in the circumstances. Aside from pulling over the bus, there was nothing Dolph could do to prevent Davis from crossing the white line and standing in the stairwell. Dolph was operating a bus on a dark highway in the middle of winter. He used his driving experience, his training, and his judgment to determine that the best course of action was to leave Davis in the stairwell until the bus reached Upsala. He believed that this was the safest decision he could make in the circumstances. It may have been an error in judgment for Dolph to leave Davis in the stairwell, but his decision was reasonable in the circumstances.

Failure to Pull Bus Over

[224] The Plaintiffs rely on the testimony of Dr. Nassar to establish that it was safe for Dolph to pull the bus over while Davis was in the stairwell. However, Dr. Nassar’s evidence only establishes that Dolph had adequate space to pull the bus over; his evidence does not establish that it was safe for Dolph to do so in the circumstances. Dr. Nassar did not attend at the scene of the accident, take measurements, or perform any calculations firsthand. The conditions for a roadside stop were uncertain at best. Groves, Simcock and Humphries all testified to the effect that they would not want to stop on the shoulder because they could not determine where the shoulder ended and the ditch began. It was only a few minutes to Upsala, where a stop was scheduled.

[225] Further, there is evidence from the Plaintiffs that at one point in time Dolph began to slow the bus down because of how Davis was acting. When he did so, Davis immediately advised Dolph to speed up because he thought that people were following the bus and that those individuals intended to harm him. If I were to accept the Plaintiffs’ evidence, then we have a situation where Dolph attempted to slow the bus down but was told by Davis not to do so. It is reasonable to assume that attempting to pull the bus over could have escalated Davis further.

[226] For these reasons, Dolph’s decision not to perform a roadside stop was within the range of reasonable responses available to him in the circumstances.

Operating the Bus at an Excessive Speed

[227] There is conflicting evidence on this point. The Plaintiffs submit that Dolph was travelling at a minimum of 100 kms/hr. They base this estimate on the evidence provided by some of the passengers, who placed the speed of the bus at between 105-110 kms/hr, and on the testimony of Mr. Lywack, who stated that the bus was travelling at around 110 kms/hr. Their estimate is based on their belief that the accident took place at approximately 6:30 p.m. I note that Dolph’s evidence is that he left Ignace between 6:15 and 6:20 p.m. There is a time zone change which, if the Plaintiffs’ evidence is correct, put the accident at 7:30 p.m.

[228] There is no evidence that had Dolph been travelling at a reduced speed, he would have been able to regain control of the vehicle and avoid the crash. Further, there is no evidence before the court indicating that excessive speed aggravated the Plaintiffs’ injuries. There is no expert report to suggest that had Dolph been travelling at a reduced speed, the Plaintiffs would have experienced less serious injuries. While I may speculate that it would have been easier for Dolph to respond to Davis’ action at a slower speed, and that the injuries may have been less severe at a slower speed, without such evidence, it is difficult to determine whether the injuries to the Plaintiffs would have been significantly reduced had the bus been travelling at 90 kms/hr rather than at 110 kms/hr.

Insufficient Training and Information on Passengers with Mental Illness

[229] The Plaintiffs submit that Greyhound did not have sufficient training and information available to drivers with respect to how to deal with mentally ill passengers. However, the Plaintiffs do not indicate what “reasonable training” would consist of.

[230] I accept the Defendants’ position that Dolph was properly trained. He had 28 years of experience as a Greyhound bus driver. He testified that he followed all Greyhound protocols, and read all of Greyhound’s bulletins and safety memos. Prior to the accident in question, Dolph had an excellent driving record. Throughout his years of service, he underwent “competency checks”. He was always found to be a competent bus driver. Greyhound also performed an “annual review” of Dolph, which was used to determine whether he continued to meet the minimum requirements for safe driving. In every year leading up to and including the year of the accident, Dolph met these minimum requirements. In addition to his training, Dolph had years of experience driving in Northern Ontario.

[231] Although the training provided by Greyhound respecting how to recognize and deal with a passenger with mental illness was not as extensive as the Plaintiffs allege it could have been, I am satisfied that the training and testing the company provided for its drivers was sufficient for ensuring the safety of its passengers.

Insufficient Barrier between the Driver and the Passengers

[232] It is unclear what the Plaintiffs have in mind with respect to what constitutes a “sufficient barrier”. The Plaintiffs have not provided evidence demonstrating that a barrier between the bus driver and the passengers would have prevented the accident from occurring. They do not set out what such a barrier would look like, how it would function, or how it would prevent a passenger from accessing the driver. For these reasons, I cannot accept the Plaintiffs’ submission regarding Greyhound’s failure to provide a barrier between the driver and the passengers.

Conclusion as to Liability

[233] In Resurfice Corp., the Supreme Court of Canada cited Jordan House Ltd. v. Merow, 1973 CanLII 16 (SCC), [1974] S.C.R. 239, for the principle that “Liability for negligence requires breach of a duty of care arising from a reasonably foreseeable risk of harm to one person, created by the act or omission of another.” In my opinion, the Plaintiffs have failed to establish that, on a balance of probabilities, an officer exercising the care, skill, and expertise of a police officer, being in the same position as Constables Singleton and Parrish and knowing what they knew or ought reasonably to have known, would have prevented Davis from boarding the bus. They have also failed to establish that, on a balance of probabilities, the O.P.P. did not provide reasonable training to Constables Singleton and Parrish.

[234] They have failed to establish, on a balance of probabilities, that a bus driver exercising the care, skill, and expertise of a public carrier, being in the same position as Dolph and knowing what he knew or ought reasonably to have known, would have prevented Davis from boarding the bus. Further, they have failed to demonstrate that, on a balance of probabilities, Dolph did not use all due, proper, and reasonable care and skill in the circumstances with respect to his operation of the vehicle. Finally, they have failed to establish that, on a balance of probabilities, Greyhound did not provide reasonable training to Dolph.

[235] Because the Plaintiffs have failed to demonstrate that the Defendants breached their respective standards of care, it is unnecessary to determine whether the Plaintiffs have established causation.

[236] The Plaintiffs’ claims of liability are therefore dismissed.

Legal Principles – Damages

[237] If I had determined there to be liability, I would have considered the damages on the following basis. The calculation of damages is not an exact science. In Wood v. Grand Valley Railway Company, (1914) 1915 CanLII 574 (SCC), 51 S.C.R. 283, at 289, Davies J. summarized the difficult task the court must undertake when estimating damages. In his review of the trial judge’s findings with respect to damages, Davies J. made the following observation:

It was clearly impossible under the facts of that case to estimate with anything approaching to mathematical accuracy the damages sustained by the plaintiffs, but it seems to me to be clearly laid down and there by the learned judges that such an impossibility cannot “relieve the wrongdoer of the necessity of paying damages for his breach of contract” and that on the other hand the tribunal to estimate them whether jury or judge must under such circumstances do “the best it can” and its conclusion will not be set aside even if the amount of the verdict is a matter of guesswork.

[238] The principle articulated by Davies J. has been followed in subsequent cases: see Smith Bros. Excavating Windsor Ltd. v. Camion Equipment & Leasing Inc. (Trustee of), [1994] O.J. No. 1380, 21 C.C.L.T. (2d) 113 (C. J. (Gen. Div.)), at para. 247; Penvidic Contracting Co. v. International Nickel Co. of Canada, 1975 CanLII 6 (SCC), [1976] 1 S.C.R. 267; Martin v. Goldfarb, 1998 CanLII 4150 (ON CA), [1998] O.J. No. 3403, 41 O.R. (3d) 161 (C.A.), at paras. 70-71; Farm Boy Inc. v. Mobius Corp.: 2011 ONSC 2877, [2011] O.J. No. 2671, at paras. 151-154.

[239] In Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458, 140 D.L.R. (4th) 235, at 27-28:

“Hypothetical events (such as how the plaintiff’s life would have proceeded without the tortious injury) or future events need not be proven on a balance of probabilities. Instead, they are simply given weight according to their relative likelihood. For example, if there is a 30 per cent change that the plaintiff’s injuries will worsen, then the damage award may be increased to 30 per cent of the anticipated extra damages to reflect that risk. A future or hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility and not mere speculation.”

[240] Although there will always be some element of guesswork when calculating a damages award, there are certain factors that the courts have recognized as instructive in assessing damages. These factors are specific to the type of damages being claimed. The Plaintiffs in this case seek compensation under four different categories of damages: general damages, damages for loss of housekeeping capacity, damages for past and future loss of income earning capacity, and special damages.

[241] In assessing the seriousness of any injuries and impairments claimed, the whole of the evidence must be looked at objectively. This includes the nature of the injuries, the length of the recovery period, and the possibility of any ongoing medical problems related to the injuries, for example, arthritis. Other objective factors to be considered are how much of an impact there has been on a Plaintiff’s family function, work function, social enjoyment and capacity for household chores. Additionally, the extent of medical and rehabilitation treatment must be considered.

[242] I considered the Plaintiff’s efforts to mitigate and recover from his injuries. In Lahay v. Henderson, [2005] O.J. No. d1705, 2005 CanLII 14140 (ON SC), [2005] O.T.C. 313, Wood J., referencing Janiak v. Ippolito, 1985 CanLII 62 (SCC), [1985] 1 S.C.R. 146, stated at para. 130:

“A plaintiff cannot recover damages which he could have avoided by taking reasonable steps. In taking these steps he is only required to act like a reasonable and prudent person. However, the test is an objective one based on the court’s assessment of what a reasonable person would do in the circumstances. The onus is on a Defendant who asserts that a plaintiff has failed to mitigate his damages”.

[243] I considered whether the Plaintiffs had followed a treatment program prescribed by a health care professional. However, I was conscious of the fact that certain Plaintiffs could not mitigate their injuries to the same degree as others due to their personal circumstances.

[244] I considered the importance of the injury to the individual Plaintiff. For example, as then Chief Justice Dickson once remarked, a broken finger is a greater loss to a pianist than it is to someone who does not play the piano at all. I was conscious of each Plaintiff’s injuries relative to their pre-accident employment and activities. I am aware that the impact the injury has had on the Plaintiff’s life is directly connected to the Plaintiff’s ability to pursue the work, play, and general lifestyle that he or she engaged in prior to the accident. I looked at how each Plaintiff’s injuries have impacted upon their enjoyment and quality of life. Here, I considered the physical, social and mental impact that the Plaintiffs’ injuries have had upon their lives.

[245] I attempted to achieve a level of consistency when I looked at the upper and lower range for damage awards in the same class of case. Similar cases have provided me with the parameters within which the award for general damages ought to fall.

Loss of Housekeeping Capacity

[246] I agree with the Plaintiffs’ position that damages for loss of housekeeping capacity are compensable if, as a result of their injuries, a person loses the ability to carry out certain household functions and/or takes longer to perform those functions. When assessing damages for loss of housekeeping capacity, the Plaintiffs must prove that there is a real and substantial risk that he/she has lost the ability to carry out the household functions that he or she performed prior to the accident, or whether the Plaintiff took longer to complete the household functions that he or she performed prior to the accident. I looked to see if there was any objective evidence that there will be a cost to that beyond the Plaintiffs’ subjective testimony. As noted in Menhinick v. Lobesz, 2008 CarswellBC 2012, 2008 BCSC 1285, para. 55, there must be an evidentiary base to found such an award:

“The decisions in McTavish v. MacGillivray, 2000 BCCA 164, [2000] 5 W.W.R. 554, 74 B.C.L.R. (3d) 281 (B.C.C.A.) and Deglow v. Uffleman, 2001 BCCA 652, 96 B.C.L.R. (3d) 130 (B.C.C.A.) are authority for awards for loss of past and future housekeeping capacity assuming that there is an evidentiary base to found such an award. The plaintiff must establish a real and substantial possibility that she will continue in the future to be unable to perform all of her usual and necessary household work, and that the work she will not be able to do will require her to pay someone else to do it, or will require others to do it for her gratuitously.”

[247] As R. MacKinnon J., noted in Watts v. Donovan 2009 CarswellOnt 3051:

“It cannot, however, be assessed with absolute certainty and mathematical precision. Rather, it requires a court to predict the future to some extent – and to use its best ability to do so.”

Past and Future Loss of Income Earning Capacity

[248] The proof of future economic loss is not on the balance of probabilities, but rather the standard of proof under this heading of damages is substantial possibility. In Schrump v. Koot (1977), 1977 CanLII 1332 (ON CA), 18 O.R. (2d) 337 (C.A.), the Ontario Court of Appeal stated:

“substantial possibilities based on such expert or cogent evidence must be considered in the assessment of damages for personal injuries and civil litigation. This principle applies regardless of the percentage of possibility as long as it is a substantial one, and regardless of whether the possibility is favourable or unfavourable. Thus, future contingencies which are less than probable are regarded as factors to be considered, provided they are shown to be substantial and not speculative.”

[249] In Lazare v. Harver, 2008 ONCA 171, the Court re-stated the principle with particular clarity:

“In her charge regarding loss of future income, the trial judge explained correctly and repeatedly that the appellant need only establish that her loss was a real and substantial possibility. She emphasized that the appellant was not required to establish this loss on as balance of probabilities, which is of course a different and higher standard. In particular, the trial judge gave the following instruction:

The onus is not on the plaintiff to prove on the balance of probabilities that her future earning capacity will be lost or diminished. The onus is a lower one. [The appellant] need only satisfy you on the evidence that there is a reasonable and substantial risk of loss of income in the future to be entitled to damages under this heading.”

[250] In assessing damages arising from past and future loss of income earning capacity, the whole of the evidence must be considered. I considered the career ambitions of the Plaintiff, the reasonableness of those ambitions, and the effect that the bus crash related injuries has had upon the Plaintiff’s ability to achieve his or her career goals. I considered what the Plaintiff had demonstrated to attain his or her desired occupation prior to the accident, and assessed whether or not it was likely that the Plaintiff would have achieved his or her career objectives had the accident not occurred. I also looked at whether there were opportunities for career advancement prior to the accident that the Plaintiff did not take advantage of.

[251] Awards for loss of earning capacity must be ultimately assessed in terms of their fairness and reasonableness. The task of the court is to assess damages, not to calculate them according to some mathematical formula. Once an impairment of a Plaintiff’s earning capacity as a capital asset has been established, that impairment must be valued. A Plaintiff is entitled to compensation for loss of earning capacity to recognize the likelihood that there may indeed be positions in the future which the Plaintiffs might otherwise have had an opportunity to obtain but which will not be feasible for him/her in light of the continuing symptoms from their injuries. As with any type of damages, claims must be proven as more than speculative.

[252] For students, where there are no actual pre-accident earnings, the court must examine the potential occupational choices of the injured individual and their earning levels for each of those choices to determine pre-accident income potential. Delay caused by the injury in obtaining qualifications or employment income are compensable.

Special Damages

[253] With respect to my assessment of special damages, I considered the out of pocket expenses of the Plaintiff, and whether or not those damages were reasonably related to the injuries he or she sustained in the accident.

The MPIC Claims

[254] With respect to the subrogated claims for Manitoba Public Insurance, I accept the Defendants’ argument that based on s. 267.8(17) and the decisions in Wawanesa Mutual Insurance Co. v. Ontario Provincial Police Force Commissioner (2000), 2001 CanLII 38746 (ON SCDC), 54 O.R. (3d) 112 (Div. Ct.); Matt (Litigation Guardian of) v. Barber (2002), 221 O.A.C. 34 (C.A.) and Landry v. Roy (2001), 2001 CanLII 27998 (ON SC), 55 O.R. (3d) 605 (Sup. Ct. J.), subrogation and this aspect of any of the claims is disallowed.

The Family Law Claims

[255] With respect to Family Law Act damages, a plaintiff is entitled to fair compensation for any demonstrated diminution in quantity and quality of the guidance, care, and companionship of his/her spouse.

Discussion/Analysis – Damages

Evelyn Shepherd

[256] Evelyn Shepherd was 70 years old on the date of the accident in 2000, and living in Dryden, Ontario. She had been retired since 1989 and her source of income was Canada Pension Plan and Old Age Security. Mrs. Shepherd stated that some 5 years prior to the accident she had experienced a back problem which had cleared up and she had had no problem since that time. Prior to the accident, she states that nothing prevented her from doing her normal day-to-day activities. She lived in her own home and did all her own housework and regular daily cleaning. She also did her own Fall and Spring cleanup. She gardened and cut her own lawn. She tried to walk every morning and indicated that she bowled every week. She was involved socially in a local women’s institute and volunteered extensively doing church lunches.

[257] In anticipation of the accident, she ducked behind her seat and thinks she was knocked out. She noted that her head was bleeding above the left eye and that she had a sore ankle. She was helped up the hill at the side of the road over the snow bank and got into a vehicle which she understood belonged to a nurse. She stated that she “hurt everywhere.” She then moved to another van and was taken to the Upsala Community Centre Clinic. At the clinic her forehead was bandaged by a nurse. Her face was bruised and bleeding and her ankle and head were sore.

[258] She was subsequently taken to Thunder Bay McKellar General Hospital by air ambulance. She was admitted to the hospital and had x-rays taken of her head and ankle. She received six stitches to her head and forehead, three stitches to her left thigh and had a cast placed on her ankle the next morning for a small avulsion fracture. She spent one night in the hospital and subsequently was released to her daughter’s home in Thunder Bay. She stated that she was originally on crutches.

[259] Several days following the accident she returned to Dryden by car. For the first few weeks following the accident she required help with her grocery shopping as she was in a cast and could not do any activities. One week after she arrived back in Dryden the stitches were taken out and the cast was removed five to six weeks later. She stated that after the cast was off she did not require crutches, had no pain and she was able to walk around again carefully for a period of some three to four months. Her knee originally started hurting but that resolved over a period of approximately one year. At the time of trial she stated that her ankle aches when tired but that “it is pretty good now.” Her condition has been unchanged since 2004. She had headaches after the accident for several months, but has had no headaches of that type since.

[260] Following the accident she attended physiotherapy for a period of six weeks which relieved the pain in both her ankle and her knee. She testified that in the first six months after the accident her activities were restricted somewhat. She now takes regular walks, although she walks a shorter distance than she was able to previous to the accident. She returned to acquafit four months following the accident and six months after the accident she was able to engage in acquafit in the same fashion as previously. She was able to engage in her summer yard work that summer, planted her own garden and cut her own grass. She describes that for two or three months following the accident she had poor sleeping patterns. She acknowledged that as of March 14, 2001, she had returned to all normal activities.

[261] Dr. Karen Mazurski testified by video from Dryden. Evelyn Shepherd has been her patient since 1984. Her evidence was that in the three years prior to December of 2000 she had seen Mrs. Shepherd mainly for her annual physicals and some general problems. Mrs. Shepherd had no muscular skeletal problems, no physical limitations and was generally in good health prior to December 23, 2000.

[262] Dr. Mazurski’s evidence is that she saw Ms. Shepherd on January 2, 2001, to remove the sutures. Ms. Shepherd told her at that time that she was “coping well”. On January 19, 2001, she reviewed Mrs. Shepherd’s injuries with her. At that time Ms. Shepherd stated that her ankle was pain free and that she was in a walking cast. She still had some soreness in her sacral area and bruising with a small laceration over her left eye, which had healed.

[263] On January 24, 2001, the cast was removed. The ankle seemed stiff but not swollen and Dr. Mazurski referred her to physiotherapy for mobilization. Her prognosis at that time was good and she stated that there did not seem to be any serious injury.

[264] Dr. Mazurski saw her on March 6, 2001, at which time the cast had been off for six weeks. Ms. Shepherd was doing well with her physiotherapy, her left knee was somewhat sore since the cast had been removed, and she had some tenderness along a joint line in her leg with a 5% loss of extension. The ligaments seemed stable. She was pain free in her ankle. Dr. Mazurski queried whether the knee pain was possibly accident related as Mrs. Shepherd had had no previous complaint with respect to her knee. She queried whether there had been a meniscus tear and subsequently referred her to Dr. Remus.

[265] The evidence of Dr. Remus, orthopaedic surgeon who initially treated her on December 27, 2000, noted that the accident caused an avulsion fracture to her left ankle and a cruciate ligament tear in her left knee. He anticipated that she would make a satisfactory recovery and would achieve full range of motion.

[266] Dr. Remus saw her again in September at which time he noted her recovery to have been satisfactory with respect to the knee and the ankle. She had a full range of motion and ligaments were intact and had no obvious restrictions and no surgery was indicated. In February 14, 2002, he noted that there was perhaps a degenerative tear and ordered an MRI which ultimately suggested a degeneration in the meniscus. She had a full range of motion and no surgery was needed. On October 22, 2002, he saw her and noted that she had a full range of motion with no instability. In April of 2003, he noted that she had knee complaints and stated that that could be attributed to normal wear and tear. In September 2003, he noted no significant abnormalities and that she didn’t feel she needed injections. In October 2004 he noted that she was doing well. An x-ray in May 2005 gave an indication that she may develop early arthritic changes. However an x-ray in April 2007 noted no arthritic changes and Dr. Remus acknowledged in cross-examination that he made no diagnosis of post-traumatic arthritis. Dr. Remus stated that she is left with no obvious restrictions, is not a candidate for surgery, and that there is no evidence of any arthritic changes attributable to the accident.

[267] At the time of trial she stated that she had some ongoing aching of her ankle when tired but otherwise the ankle was “pretty good”.

[268] With respect to the injury to her knee, her evidence is that approximately one year following the accident her knee got worse and she experienced a very sharp pain when getting out of a car. She stated that she “thought something tore”. She stated that the pain she originally experienced in her knee from the accident resolved over a period of one year. There is no evidence that relates this “tear” to the accident.

[269] In assessing general damages for Mrs. Shepherd I have taken into consideration that she was 70 years of age, spent one night in hospital, had stitches to her head and leg, and also had headaches for a period of several months. She took no prescription medications but did take Tylenol. Mrs. Shepherd was active both doing interior and exterior work in her own home and stated that in the summer following the accident she did her own summer yard work.

[270] With respect to any claim for damages for loss of housekeeping, the evidence would indicate that she could do all of her indoor and outdoor activities within a period of six months. Prior to that there is no indication that she could not carry out her housekeeping functions but that it may have taken more time. She was, however, in a cast for four weeks and on crutches for six. I accept that made housekeeping more difficult until mid-March when she acknowledged she had returned to all normal activities.

[271] I award damages for loss of housekeeping capacity, in the amount of $3,000.00. I award $45,000.00 for general damages.

[272] With respect to special damages counsel have agreed that special damages for Mrs. Shepherd are in the amount of $250.00.

Anthony Clowes

[273] Anthony Clowes was age 37 at the time of the accident. He had been in a relationship with Tanya Clowes since 1992 and they married in 1999. He described theirs as a “beautiful relationship” and that they had no separations prior to 2000. He acknowledged in cross-examination that there had been a previous three month separation. They were living in a rented house. Mr. Clowes testified that he did all the work in relation to the lawn, the garage, eaves troughs, snow shoveling, and some interior cleaning; that the parties shared the cooking 50/50 and that his pre-accident health was excellent. He stated that he had had no previous shoulder problems, no elbow problems and no hip problems. Prior to the accident he played a little hockey, basketball, family baseball, exercised and biked. In cross-examination with respect to his pre-accident health, he acknowledged that in November of 1998 he was at the doctor for soreness in his middle back; in March of 1999 for a strained lower back and again in October 1999 for a strained lower back. Furthermore, nursing records of his employer reveal a history from 1997 on of frequent chronic headaches, right shoulder pain, and long standing and very frequent attendances regarding back pain, back strains and back injuries.

[274] He was travelling with his wife and daughters. Mr. Clowes testified that when he saw Davis grab the wheel of the bus, he grabbed the daughter who was seated with him. He remembers the back of his head hitting something and his daughter’s head hitting the side of his head. He testified that his wife Tanya was shaken up and that his daughters were crying with Shawna’s face bleeding. They were transported by the other bus to the Upsala Community Centre and ultimately to the Thunder Bay Port Arthur General Hospital by another Greyhound bus which was travelling a distance behind. With respect to his injuries, he described the initial injuries as a cut on the back of his head, a strained neck as well as bruising of the right shoulder and left upper back. He also described lower left back pain, a sore elbow, pain and bruising in his hips and his left leg which was cut and suffered bruising. X-rays were taken of his left elbow and both hips. His wife Tanya and both daughters were treated. They stayed at the hospital a few hours and ultimately went to his in-laws. He acknowledged in cross-examination that after the accident he left the hospital against medical advice and agrees that there is no record of him ever having returned to the hospital. The family returned to Winnipeg four days after the accident

[275] He returned to work January 15, 2001, to light duty. Prior to the accident he was a welder/fitter working in the chassis department of New Flyer Industries. He was moved to a different location for a period of eight months but remained at the same pay. In the first six months post-accident he described having intermittent pain on a scale of between 2 to 10. His social activities were limited as he states he “wasn’t up to it.” He testified that he was then unable to work any overtime as he could not work any more than eight hours a day as a result of pain in his back. Muscle relaxants were prescribed and he states that he received no relief in the first six months. He stopped taking medications which had been prescribed because he was not obtaining any relief.

[276] For three years prior to the accident he did shift work at Flyer Industries working two weeks of days followed by two weeks of evenings. His work, he states, was physically demanding prior to 2000. It involved lifting parts, grinding, and lifting parts of up to 40 lbs. The documentation filed indicates that in 1997 he earned $15.05 per hour and in 2000 $18.26. He has been in the union at Flyer Industries since he began work there. He testified that previous to the accident he worked as much overtime as he wanted and that he never declined an opportunity to work overtime. The evidence filed notes that his 1997 tax year income was $32,393.00; in 1998 $43,830.00; and in 1999 $37,417.00. He described that he had not taken any time off for illness or injury prior to the accident although he had one 10-day layoff in the three years preceding the accident of December 2000.

[277] Eight months after the accident Mr. Clowes went to a different position in Flyer when it became available. He again states that he had no overtime in the latter part of 2001 although he did not miss any work.

[278] Prior to the accident his plans were to retire at age 65. His evidence is that as of December 2000 he would have applied for a lead hand position. He had not applied as a lead hand before the accident as he did not want the responsibility. He believes that a lead hand then made $1.00 more per hour. He states that he has not applied for a position as a lead hand since the accident as it would place too much responsibility on him. He agrees that the lead hand position is not as physically demanding as the position he is currently occupying. A number of job postings were reviewed with him and he states that he would have applied for some but did not believe that he could do so as a result of his injuries in the accident. Lead hands currently make $2.00 per hour more including a shift premium.

[279] Mr. Russell Rudkevich is a shop steward for Flyer Industries in Winnipeg. He has known Anthony Clowes for a period of 13 years and has worked closely with him for the last five to six years. He testified that overtime is always available which ebbs and flows depending upon the orders. His evidence is that one could normally expect 1 ½ to 4 hours of overtime per week at double time. He testified that Mr. Clowes has not worked much overtime. He stated that if Mr. Clowes were to become a lead hand, the job would be less physical. He stated that Mr. Clowes went on light duty in approximately 2006 and that he is now back to regular duty. In cross-examination he agreed that in order to be appointed a lead hand one had to apply. He further indicated that a regular work week was 40 hours. Between 40 to 48 hours work was paid at the rate of time and a half and after 48 hours, at double time.

[280] Mr. Clowes stated that by November of 2001 he was experiencing back aches but went through periods of time of up to a month with no discomfort. He describes the pain as being mid-back. He also testified that he was experiencing depression. He testified that this accident has had a significant detrimental effect on his marriage, and the family suffered financially because he was not able to work overtime. As a result of not working overtime his wife began to call him lazy and difficulties ensued. The parties eventually separated in November 2001 which he attributes to them fighting and having money issues. On separation the girls went to live with his wife and he states that the relationship between the two of them continued to deteriorate. He began to see Dr. Bergen for depression and received medication for same in January of 2002. In cross-examination Mr. Clowes admitted that there was no mention in any of the doctors’ reports of stress, depression or anxiety until November 2001.

[281] In June 2006 he suffered a work injury. Flyer Industries had been on strike for 20 days and he was told by the supervisor to do a job which he said he couldn’t do as it involved lifting over 100 lbs. He states that when he attempted to do so he felt pain in the middle of his back, that he received an injection and ultimately went to physiotherapy for a period of six months. He was treated by a chiropractor and took Tylenol 3 which had been prescribed. He was placed on light duty work for over one year. Mr. Clowes acknowledged that this was a new injury and that the previous pain which he had experienced in his right leg by now was an annoyance more than anything else. When questioned about seeing Dr. Kesselman of Manitoba Workers Compensation Board about that injury, Mr. Clowes acknowledged that the doctor’s report stated that Clowes had not missed work as a result of the bus accident. Mr. Clowes stated that was not true and that he had forgotten to tell the doctor that. Exhibit B Tab 25 references a letter from Dr. Loris Cristante dated may 15, 2007 addressed to Workers Compensation. The letter notes “The past medical history of the patient is unremarkable.” Mr. Clowes states that he did not recall being asked about any previous back injury by Dr. Cristante.

[282] Flyer Industries had a 1 ½ year layoff from January 2002 to June 2003. He states that when the company returned to work there were opportunities to work overtime every day. He states he was unable to do so. He agreed in cross-examination that he had never been told by a doctor not to work overtime. He agreed that it bothered his wife Tanya that he was not working overtime and that she suggested physiotherapy to him but that he did not go. He did not pursue any specialist or physiotherapist.

[283] He described the overall effect of the accident on his life as him now suffering pain, alienation, and that he “can’t do what he used to do.” He acknowledged that he is currently working a 7 ½ hour day and that his job includes lifting 30 lb. parts. He has to pick up smaller parts and weld them to larger pieces. For most of the day he uses either a welding machine or a grinding machine and either sits or stands. He does the same type of work as other employees.

[284] Dr. Jerry Bergen is a family practitioner. The clinical notes he produced at Exhibit B Tab 4 indicated that Mr. Clowes presented on September 29, 1999 for an injury to his mid-back. On January 8, 2001, Dr. Bergen’s notes show Mr. Clowes presenting with “L lower back pain; some strain and injury to lower back; tenderness over left SI and left lumbar muscles.” His diagnosis was contusion to the right upper back and left lower back with associated muscle spasm. He prescribed Tylenol and told Mr. Clowes to take a week and a half off work.

[285] On January 17, 2001, Dr. Bergen noted “lower back pain; lower back contusion; ROM back normal.” Mr. Clowes reported that “he felt generally O.K. able to move around and do his work, but on light duties.” Dr. Bergen noted that the right shoulder area almost had entirely resolved. Dr. Bergen’s evidence from reviewing his clinical notes indicates that on January 17, 2001 Mr. Clowes had normal range of motion. On February 19, 2001, Dr. Bergen noted, “doing generally well at work, was now able to do full duties”.

[286] On November 26, 2001, Dr. Bergen noted recurrent pain over lower left back and noted that Mr. Clowes complained of depression. Dr. Bergen testified that concern was expressed by Mr. Clowes about his wife’s infidelity, and the issue of HIV testing for both was discussed. Mr. Clowes further reported that Ms. Clowes had assaulted him. Mr. Clowes stated that he could go a whole month without discomfort. By November he was experiencing back aches, but went months with no discomfort. He had not pursued seeing a specialist or a physiotherapist. Mr. Clowes acknowledged that he did not mention anything about feeling depressed to Dr. Bergen before November 21st because it was “..not big enough a deal to complain about..” prior to then.

[287] On January 15, 2002, Mr. Clowes reported intermittent panic attacks. Dr. Bergen noted “no identifiable trigger.” In March and May of 2002, Dr. Bergen rated Mr. Clowes as showing classic depressive symptoms, and noted the cause was a separation from his wife. In March of 2005, Mr. Clowes reported still having mid back pain in the same area as before. In December 2005 and January 2006, Dr. Bergen again noted stress from depression from separation and financial issues. In March 2006, Mr. Clowes reported continued back pain. A CT scan shows disc protrusion which was not there at the time of accident. By October 2006, his lower back was still sore and chiropractic and physiotherapy had been of no help

[288] In cross-examination Dr. Bergen indicated that he had never been advised by Mr. Clowes of his work injury in June 2006. He acknowledged that following that date Mr. Clowes’ complaints were more aggressive then they had been prior.

[289] Counsel agree that Gail Archer-Heesce was entitled to testify as an expert in occupational therapy. She conducted two days of testing on Mr. Clowes. Ms. Archer-Heesce determined that Mr. Clowes functioned overall at a medium level of work. In cross-examination she acknowledged that he was able to return to work to the level of his previous work demands. She also indicated that if treatment had been offered and not taken that would have been a factor in Mr. Clowes’ recovery. She acknowledged that she had never visited his worksite and did not know what his actual work requirements were.

[290] Dr. Michael Stambrook is a clinical psychologist whom counsel agreed was entitled to offer an opinion on Post Traumatic Stress Disorder (“PTSD”). He saw Mr. Clowes twice, the first time four and a half years post-accident. He obtained a history from Mr. Clowes and based his opinion on the information given that Mr. Clowes was travelling with his children when the bus accident occurred; that he witnessed a woman suffering after the accident; and that he had experienced changes in his relationship with his wife and children. He was satisfied that Mr. Clowes had experienced an event that could lead to PTSD. He thought that Mr. Clowes was not clinically depressed but rather his symptoms were more anxiety related. Dr. Stambrook conducted various tests which he testified confirmed his initial clinical diagnosis. His opinion was that Mr. Clowes had PTSD following the accident which continued to the time of the assessment. Mr. Clowes had a permanent change in functioning. Dr. Stambrook acknowledged that in his first report he recommended that Mr. Clowes would benefit from a cognitive behavioral program. Mr. Clowes did not do so.

[291] Dr. Stambrook did a second assessment in April of 2010. At that time he determined that Mr. Clowes had serious PTSD symptoms, aggravated by having to prepare for trial and go through the experience of recalling the accident again. He performed the same three tests as he had previously and came to the same conclusion that Mr. Clowes was suffering from PTSD and that it was permanent. The symptoms he is suffering from will reduce after the trial but he has suffered a life change.

[292] Dr. Stambrook was asked to review a report prepared by Dr. Ross, retained by the Defendants. He disagreed with the opinion of Dr. Ross in that Dr. Ross determined that Mr. Clowes had post-traumatic symptoms - an Adjustment Disorder, marked by anxiety and depressive symptoms - but they did not reach the level of PTSD. Dr. Stambrook had no collateral information other than that obtained from Tanya Clowes, to provide any support for his diagnosis. In cross-examination, Dr. Stambrook acknowledged that Mr. Clowes had refused to provide “collateral information,” prior to his evaluation. He confirmed that but for the retrospective information given by Mr. Clowes, he would have agreed with the opinion given by Dr. Ross.

[293] Dr. Stambrook agreed that the first mention of any psychological complaints in Dr. Bergen’s began in November 2001 following Mr. Clowes separation from his wife, and after references in Dr. Bergen’s notes about Mr. Clowes expressing some concern about marital infidelity on the part of his wife. He agreed that if he had Dr. Bergen’s notes in 2005 he would have canvassed further issues about his diagnosis of PTSD. He acknowledged that it was possible his diagnosis would have changed if he had had seen Dr. Bergen’s notes prior to his testing in 2005. The difference between his opinion and that of Dr. Ross is the information as to what Mr. Clowes told him he was experiencing in the first three to six months.

[294] In cross-examination on his second report, Dr. Stambrook agreed that Mr. Clowes going into bankruptcy as a result of separation from his wife would have been a psychological stressor. He further acknowledged that Mr. Clowes did not mention his back injury in June 2006 and, if that back pain had caused additional physical problems, that also would have added to his psychological stress. Further he was not aware at the time of preparing his second report that this