Court File and Parties

COURT FILE NO.: 25250/10

DATE: 2013-03-07

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MITSUHIRO MIYAFUJI

Plaintiff

– and –

DAVID WAYNE ROBERTS, GREYHOUND CANADA TRANSPORTATION ULC, OFFICER HEMSWORTH, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, AND THE MUNICIPALITY OF WAWA POLICE SERVICES BOARD

Defendants

Brian L. DeLorenzi, for the Plaintiff

Cynthia A. Aoki, for the Defendants David Roberts/Greyhound Canada Transportation

Erin Rizok for Defendants Officer Hemsworth/Her Majesty the Queen in Right of Ontario

Stuart Zacharias for Defendant The Municipality of Wawa Police Services Board

HEARD: February 21, 2013

REASONS FOR ORDER

JUSTICE E. GAREAU:

[1] The defendants, Greyhound, Hemsworth, Queen in Right of Ontario and Wawa Police Services Board brought various motions which were heard on February 21, 2013.

[2] In particular, the defendant Greyhound, by motion dated May 15, 2012 requested the following relief:

(a) An order dismissing the plaintiff, Mitsuhiro Miyafuji’s action as against Greyhound, on the ground that the matter has already been settled through the execution of a final release, and as such an abuse of the processes of the court;

(b) In the alternative, an order that the plaintiff’s action be dismissed for failure to serve its statement of claim within six months from the date of issuance.

(c) In the alternative, an order that the plaintiff pay into court $15,000.00 as security for Greyhound’s costs;

(d) In the alternative, an order that the plaintiff pay into court such other amount as the court deems just, as security for Greyhound’s costs without prejudice to Greyhound’s ability to move for additional security for costs;

(e) An order that until such security for costs has been posted, the plaintiff may not take any steps in the proceeding;

(f) An order that the plaintiff pay to Greyhound, its costs of this motion fixed and payable forthwith; and

(g) Such further and other relief as the Honourable Court may seem just.

[3] The defendants Hemsworth and Her Majesty the Queen in Right of Ontario, by motion dated July 9, 2012, requested the following relief:

(h) An order that the plaintiff pay into court $10,000.00 as security for the crown defendants’ costs;

(i) In the alternative, an order that the plaintiff pay into court such amount as the court deems just, as security for the crown defendants’ costs, without prejudice to the crown defendants’ ability to move for additional security for costs at a later date;

(j) An order that until such security for costs has been posted, the plaintiff may not take any steps in this proceeding;

(k) An order that the plaintiff pay to the crown defendants its costs of this motion fixed and payable forthwith;

(l) Such further and other relief as the Honourable Court may deem just.

[4] The defendant, The Municipality of Wawa Police Services board, by motion dated June 28, 2012 requested the following relief:

(a) An order dismissing or staying the action on the basis of a prior settlement agreed by the plaintiff;

(b) In the alternative, dismissing the action for want of prosecution; and

(c) In the further alternative, an order that the plaintiff pay into court security for costs in favour of the defendant, The Municipality of Wawa Police Services Board.

[5] The salient facts are succinctly summarized in the facta filed on the motion and are essentially as follows:

(a) The plaintiff was an exchange student from his home country of Japan attending the University of Saskatchewan.

(b) In September, 2008, the plaintiff was visiting the East Coast of Canada with a group of students.

(c) On or about September 21, 2008 the plaintiff purchased a ticket from Greyhound for travel from Toronto to Saskatoon.

(d) Enroute from Toronto to Saskatchewan, Officer Hemsworth of the Municipality of the Wawa Police Services accompanied David Wayne Roberts onto the Greyhound bus and arranged with the driver to accept Mr. Roberts as a passenger on the bus.

(e) Shortly after Mr. Roberts boarded the bus, he assaulted the plaintiff with a pen knife. This incident occurred on September 21, 2008. The plaintiff was hospitalized for two days and was released from the hospital on September 23, 2008.

(f) The plaintiff has multiple scars to his chest as a result of being stabbed by Mr. Roberts. These injuries were treated in Sault Ste. Marie, Ontario and found by the treating physician to be “superficial” in nature.

(g) Subsequent to the assault and prior to commencing this action, the plaintiff executed a “final release” dated December 3, 2008 which provides for payment of $12,616.22 ($5,695.85 to the plaintiff and $6,920.37 to the University of Saskatchewan) in exchange for a release from all claims against Greyhound Canada Transportation Corp. and Donald R. Gauthier (the driver) as well as a release against anyone else who might claim contribution or indemnity.

The Release

[6] The defendant, Greyhound, requests that the action against it be dismissed on the basis of the aforementioned release executed by the plaintiff on December 3, 2008. The defendant, The Municipality of Wawa Police Services Board takes the position if the release is found to be a valid release as against Greyhound, then the action should be stayed against it as well on the basis that it would be prejudiced in advancing cross-claims against the defendant, Greyhound.

[7] It is clear that the release has been partially performed by the defendant, Greyhound, but not completely satisfied. The defendant, Greyhound, acknowledges that it has paid the sum of $6,920.37 to the University of Saskatchewan under the terms of the release but it failed to pay the sum of $5,695.85 to the plaintiff under the terms of the release. Shortly after the date of the release, Greyhound Canada received a letter dated December 10, 2008 from Christine Glazer, Q.C., indicating that her firm, McKercher, Barristers and Solicitors, were representing Mr. Miyafuji in relation to the bus incident. This letter from Ms. Glazer clearly puts the release in issue and provides the plaintiff’s perspective as to what the release was intended to cover. Paragraphs 2 and 3 of Ms. Glazer’s letter dated December 10, 2008 reads as follows:

“We are advised that Mr. Doug Andrews, a representative of Greyhound Canada had met with Mr. Miyafuji towards the end of November regarding payment of out of pocket expenses incurred by the University of Saskatchewan on behalf of Mr. Miyafuji as well as Mr. Myafuji’s parents. Mr. Andrews spent several hours interviewing Mr. Miyafuji, in the presence of a translator. Although Mr. Miyafuji apparently requested compensation for his physical and emotional injuries, Mr. Andrews reportedly told him that Greyhound Canada could only offer payment of out of pocket expenses. Mr. Miyafuji was offered compensation for his parent’s trip to Canada, as well as the payments made by the University of Saskatchewan on behalf of Mr. Miyafuji and others. He was told that the money could be paid only if he signs a Release. Without any legal advice, and under considerable financial pressure, Mr. Miyafuji signed the Release. As result of financial pressures and his imminent departure to Japan, he felt pressured during these meetings to accept the arrangement offered by Mr. Andrews in order to at least recover some of his parents cost of travel.

We wish to put you on notice that we are investigating this claim and intend to advance a claim against Greyhound Canada for personal injuries suffered by Mr. Miyafuji. We consider the Release signed by Mr. Miyafuji to relate only to the payment of amounts indicated in the Release, more specifically $5,695.85 to be paid to Mitsuhiro Miyafuji for out of pocket expenses incurred by his parents, and a further $6,920.37 to be paid to the University of Saskatchewan for other expenses associated with the trip back to Saskatoon after Mr. Miyafuji’s release from the hospital. Please do not process these checks if you intend to assert that Mr. Miyafuji has released his right to claim compensation for his personal injuries against Greyhound Canada. If you have already issued and delivered the checks, they, or the amount of the checks, will be returned, unless you are prepared to acknowledge that the Release does not affect the claim of Mr. Miyafuji for his personal injuries.”

[8] On the basis of Ms. Glazer’s suggestion to “not process these checks if you intend to assert that Mr. Miyafuji has released his right to claim compensation for his personal injuries against Greyhound Canada”, Mr. Miyafuji was not paid the sum of $5,695.85 provided in the release, which remains unpaid.

[9] The plaintiff filed an affidavit sworn on October 12, 2012, in response to the various motions brought by the defendants. In this affidavit, the plaintiff deals with the issue of the release at paragraph 7 stating as follows:

“In response to paragraphs 10 – 16 of the Affidavit of John Jones, regarding my meetings with Greyhound and the Greyhound’s motion to dismiss my action because of the document titled Final Release (Exhibit “B” to the Affidavit of John Jones), I say the following:

(a) John Jones is incorrect in saying, at paragraph 12, that Greyhound actually paid $12,616.22 and I put him to the strict proof of this statement. I never received the $5,695.85 which Mr. Jones swears that Greyhound paid me, which sum of money is indicated on the Final Release. At the meeting with the Greyhound representative, Doug Andrews, on December 3, 2008 (the “meeting”), I received a refund for my bus ticket in the approximate amount of $500.00 from Greyhound. This was the ticket for the bus trip I was on when I was stabbed by the Defendant David Wayne Roberts. I have not received any money by cheque or otherwise from Greyhound;

(b) The Final Release indicated Greyhound paid the University of Saskatchewan $6,920.37. I have no knowledge of this payment except that Doug Andrews told me in the meeting that Greyhound paid some money to the University. I have no personal knowledge of what Greyhound actually paid to the University for losses incurred by other students and to the Canadian family that travelled to Ontario to assist the Japanese students. I do not know if Greyhound did pay this money, and I put them to the strict proof thereof;

(c) David Parkinson, Director of the University of Saskatchewan Language Center, arranged the meeting between Greyhound and myself;

(d) I am advised by my legal counsel and believe that David Parkinson has made inquiries regarding money paid to the University by Greyhound, and understand that the University received $5,362.92 from Greyhound to compensate for travel expenses incurred by University of Saskatchewan Language Center representative Isabel Zitaruk, as well as travel expenses for me and two other classmates, Manami Nishimoto and Mayu Funatom, who were on the bus. Attached hereto and marked as Exhibit “E” is the University of Saskatchewan Language Center’s Duplicate Receipt dated December 11, 2008;

(e) In response to paragraph 12 of the Affidavit of John Jones where he says that Greyhound “gratuitously paid” $12,616.22 listed on the Final Release, Greyhound appears to have paid only $5,362.92 to the University of Saskatchewan;

(f) I recall Doug Andrews asking me questions about the cost of my damaged clothes, my travel expenses and the travel expenses of my parents who left their jobs and travelled from Japan to Canada to help me. He told me Greyhound could not pay for any other loss, and with my language barrier I understood him to mean that any other compensation was not possible; and

(g) In response to paragraph 13, John Jones was not at the meeting. I do not know how he is able to swear to this Honourable Court that I was not under duress or undue influence. To that specifically, I would say:

(i) I did not have legal counsel present;

(ii) I was nervous and intimidated by the meeting;

(iii) I was unclear of the purpose of the meeting;

(iv) Greyhound did not offer legal counsel or recommend that I seek legal counsel;

(v) The Japanese-English interpreter, referred to at paragraph 11 of the Affidavit of John Jones, was not a professional. She was simply a Japanese born Canadian volunteer. She did not ensure I understood the substance and consequences of the Final Release as John Jones asserts. She attempted to translate English to Japanese and Japanese to English. It is because I did not understand my rights or the nature of the Release that I sought legal counsel before leaving Canada;

(vi) After asking me questions in the meeting, Doug Andrews wrote all the words in the statement presented as Exhibit “B” to the Affidavit of John Jones. Doug Andrews and the Japanese-English interpreter had problems explaining to me what a “statement” was. I did not understand the purpose of the statement. I do not remember signing the statement and I note that my signature is not on this Exhibit; and

(vii) I felt afraid and very anxious with having to meet Mr. Andrews to review the events that occurred on the bus, and felt intimidated and fatigued by the process. The meeting lasted several hours.

[10] In my view, the evidence filed by the affidavits of the plaintiff and Christine J. Glazer, Q.C. raise triable issues as to whether or not the “final release” dated December 3, 2008 is a valid enforceable release barring the plaintiff from pursuing this litigation against the defendants. I take particular note of paragraph 7 (f) of the plaintiff’s affidavit sworn on October 12, 2012 in which he indicates: “I recall Doug Andrews asking me questions about the cost of my damaged clothes, my travel expenses and the travel expenses of my parents who left their jobs and travelled from Japan to Canada to help me. He told me Greyhound could not pay for any other loss, and with my language barrier I understood him to mean that any other compensation was not possible.” It is impossible to adjudicate upon the release without having the benefit of evidence from Doug Andrews as to what was told to the plaintiff and the representations that were made to the plaintiff with respect to the release.

[11] The record to date indicates a triable issue with respect to the release which cannot be resolved on the affidavits filed and which requires the full scope of examination which only a trial can provide.

[12] Accordingly, the portion of the motions brought by the defendants requesting a dismissal of the plaintiff’s action on the basis of the executed final release is dismissed.

The Request for Dismissal on the Basis of the Plaintiff’s Failure to Serve the Statement of Claim in the Time Prescribed by the Rules of Civil Procedure

[13] This relief is based on the fact that Rule 14.08(1) was not complied with by the plaintiff. Rule 14.08(1) requires that a statement of claim be served within 6 months after it is issued. The plaintiff fell three days outside this rule and served the statement of claim 183 days and not 180 days from the date the statement of claim was issued. On the facts of this case, the principle that procedural mis-steps ought not to result in the loss of substantive rights unless there is a resulting prejudice to the other party outweighs the principle that the provisions of the Rules of Civil Procedure should be complied with.

[14] There was absolutely no prejudice suffered by any of the defendants in having the statement of claim served three days outside the prescribed time limits in the Rules. To dismiss the plaintiff’s claim on this basis, in the absence of prejudice, would not be in the interests of justice and moreover, in my view, would bring the administration of justice into disrepute.

[15] Accordingly, the portion of the motions brought by the defendants requesting a dismissal of the plaintiff’s action on the basis of non-compliance with the Rules as to the services of the statement of claim is dismissed.

Request for Dismissal for Wants of Prosecution

[16] This request was advanced by the defendant, The Municipality of Wawa Police Services Board. It was the position of that defendant that the action arose in September, 2008, the action was commenced at the limitation deadline in September, 2010 and not much has happened since that time to move this litigation forward.

[17] On the evidence before me, I cannot conclude that the plaintiff has in any way abandoned this action or has lost interest in pursuing it. It is clear from the material filed on the motion that much of the fact finding necessary has been completed by the parties and there has been a concentration placed on the motions presently before the court.

[18] In order to dismiss this action for want of prosecution, there must be clear and cogent evidence that the plaintiff has unreasonably delayed the prosecution of this action to the detriment and prejudice of the defendants, which I cannot conclude on the facts before me. Accordingly, this portion of the motion is dismissed.

Security for Costs

[19] The motion for security for costs brought by all the defendants, except for David Wayne Roberts, is brought pursuant to Rule 56.01 of the Rules of Civil Procedure. The subsection that is applicable on the facts of this case is subsection (a) of Rule 56.01 which reads as follows:

“56.01(1) The Court, on motion by the defendant or respondent in a proceeding, may make such order for security for costs as is just where it appears that,

(a) The plaintiff or applicant is ordinarily resident outside Ontario.”

[20] There is no issue that the plaintiff is ordinarily resident in Japan and presently resides in the City of Toyonaka in the Prefecture of Osaka, in the Country of Japan. That fact is confirmed in paragraph 3 of the affidavit of the plaintiff sworn on October 12, 2012.

[21] On a motion for security for costs, once the defendant establishes that the plaintiff resides outside of Ontario, it proves a prima facie case that an order for security for costs should be made by the court. With this prima facie case being established, the onus shifts to the plaintiff to prove that the order should not be made on the basis that the plaintiff has sufficient assets in Ontario, the plaintiff is impecunious or has special circumstances which make it just that no security or nominal security only be ordered.

[22] Trainor, J. in the case of Warren Industrial Feldspar Co. v. Union Carbide Canada Ltd. et al (1986), O.R. (2d) 213 (H.C.J.) identifies at paragraph 25 the options available to the plaintiff once the defendants have established a prima facie case for an order for security for costs:

“Once the defendants are found to be entitled to security for costs, an issue arises as to whether the plaintiff can avoid the obligation to post security. This issue was addressed by Master Clark in the R.C.V.M. Enterprises case, where it was held that the plaintiff has two options. It may lead evidence to show that it has sufficient assets in Ontario to make an order for security for costs unnecessary. Alternatively, it may rely on its own impecuniosity, lead evidence to substantiate it, and show why justice demands that it be allowed to proceed without posting security, notwithstanding its impecuniosity. This approach is similar to that taken in Smallwood v. Sparling, supra, Willowtree Investments Inc. v. Brown (1985), 48 C.P.C. 150 at 155 (Ont. Master), and McCormack v. Newman (1983), 35 C.P.C. 298 at 301 (Ont. Master).”

[23] In our case, the argument raised by the plaintiff and focused on in argument by counsel for the parties, was the suggestion that the plaintiff met the test of impecuniosity.

[24] On the issue of impecuniosity, the plaintiff filed an affidavit sworn on October 12, 2012 and was cross-examined on that affidavit by counsel for the defendant, Greyhound , Cynthia Aoki, on December 20, 2012. The plaintiff is 25 years of age, having been born on October 27, 1987. He is single without dependants and resides alone. After returning to Japan, the plaintiff secured part-time employment from December, 2008 to February, 2010 at Family Mart, which is a convenience store. After that employment, the plaintiff secured full-time employment at Osaka Hokubu Nougyou where he is currently employed. That employer does banking and agricultural-related work, such as selling rice and fertilizer. Documents produced on the motion indicate that in 2010 the plaintiff earned equivalent to $22,948.62 Canadian funds. In 2011, the plaintiff earned equivalent to $33,539.20 Canadian funds and in 2012, the plaintiff earned equivalent to $34,138.56 in Canadian funds. These amounts included bonuses which the plaintiff received. These bonuses are not guaranteed, but the plaintiff has received a bonus in all three years that he has been employed with his current employer and it is not unreasonable to include the bonus amounts when assessing the income of the plaintiff. In 2011 and 2012, the plaintiff earned similar income and for the purpose of considering the issue of impecuniosity, I am satisfied that the plaintiff’s current level of income is equivalent to $34,000.00 per year in Canadian funds.

[25] The plaintiff has been able to purchase a motor vehicle valued at approximately $17,000.00 Canadian and a motorcycle valued at approximately $3,000.00 Canadian over the past three years since securing full-time employment. The plaintiff made the purchases of the vehicles primarily from savings he was able to accumulate, borrowing only $2,000.00 of the $17,000.00 required for the purchase of the motor vehicle from his parents. Mr. Miyafuji also had funds available in the amount of $3,500.00 from his sister, but he did not require these funds to purchase his vehicle and returned these funds to his sister. Mr. Miyafuji was able to save the money required for the vehicle in a relatively short period of time, from December, 2010 to October, 2011, notwithstanding his evidence that he had a surplus of only $238.63 Canadian monthly from his income after paying his basic living expenses.

[26] Although the plaintiff returned the money his sister advanced him for the purchase of the vehicle, the evidence is that the plaintiff receives funds from his parents and other family members and has the capability of borrowing money from family members, if necessary. In fact, the documentation produced on the motion reveals that from March, 2009 to December, 2012, the plaintiff received the equivalent of $11,982.16 in Canadian funds from his parents and other individuals.

[27] In essence, the question is whether the plaintiff has demonstrated impecuniosity on a balance of probabilities. On the evidence before the court, in my view, the plaintiff has not. The plaintiff has a yearly income of equivalent to $34,000.00 Canadian. He has no dependants. He has unencumbered assets totalling close to $20,000.00 Canadian. He has access to funds and the capability to access funds through borrowing and through his own personal savings, as he has done in the past. I agree with the submission made by counsel for the Municipality of Wawa Police Services Board that if the plaintiff is impecunious then most of the litigants before the court would be found to be impecunious.

[28] On the evidence before me on this motion, I am not satisfied that the plaintiff has established impecuniosity on a balance of probabilities. Having said that, the plaintiff may still satisfy the onus in establishing that a security for costs order is not in the interest of justice on an examination of the merits of the case.

[29] As to examining the merits, the law is well settled and clearly set out in paragraphs 49 and 40 in Zeitoun v. Economical Insurance Group (2008), 91 O.R. (3d) 131 which reads as follows:

“Where impecuniosity is shown, the plaintiff needs only to demonstrate that the claim is not plainly devoid of merit. (See John Wink Ltd. V. Sico Inc. (1987), 57 O.R. (2d) 705 (H.C.J.)). That is a very low evidentiary threshold.

Where impecuniosity has not been shown however, a closer scrutiny of the merits of the case is warranted; in those cases there is no compelling argument that there is a danger that poverty of the plaintiff will cause an injustice by impeding pursuit of a claim that otherwise would have been permitted to be tried. Where impecuniosity has not been shown, a legitimate factor in deciding whether or not it would be just to require security for costs is whether the claim has a good chance of success.”

[30] Counsel for the plaintiff argued that there are genuine issues with respect to liability and that the plaintiff’s claim has a good chance of success. The plaintiff suggests that the police failed in its duty of care in not advising the Greyhound bus driver about the defendant, Roberts, or their involvement with him in the days prior to September 21, 2008 and that the bus driver failed in his duty of care owed to the plaintiff in not making inquiries of the police concerning Roberts when he as escorted onto the bus by the Wawa Police. The position taken by the defendants, excluding Roberts, on the motion is that the plaintiff does not have a good chance of success in his claim to find that liability attaches to them in the circumstances of this case. In support of this position, the defendants rely on the case of Meady v. Greyhound Canada Transportation Corp., 2012 ONSC 657, a decision released on January 31, 2012 by Platana, J. An overview of the facts in the Meady case are at paragraphs 1, 2, and 3 of that decision which are repeated as follows:

“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.

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.

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.”

[31] In the decision in Meady, Platana, J. held that no liability attached to the defendants Greyhound, the bus driver, the police officers or to Her Majesty the Queen in Right of Ontario with respect to the accident which occurred. At paragraph 216 of his decision, Platana, J. states as follows:

“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.

[32] In dealing with the liability of the bus line, Greyhound, and the bus driver, Rolph, Platana, J. analyzes the various arguments for liability raised in the Meady case and concludes that there was no liability established. Paragraphs 233 to 236 inclusive of the Meady decision, summarizes the trial judge’s conclusions as to liability as follows:

“In Resurfice Corp., the Supreme Court of Canada cited Jordan House Ltd. v. Merow, [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.

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.

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.

The Plaintiffs’ claims of liability are therefore dismissed.”

[33] I am not persuaded that the Meady case is easily distinguishable from the case at bar and on the facts. I am not persuaded that the plaintiff’s claim has a good chance of success as it relates to the defendants Greyhound, Hemsworth, Her Majesty the Queen in Right of Ontario and the Municipality of Wawa Police Services Board.

[34] In my view, the actions of Roberts were not reasonably foreseeable to any of the defendants and anything that would have been communicated between the bus driver and the police would have not changed the sequence of events on September 21, 2008.

[35] Having reached this conclusion and in finding that the plaintiff is not impecunious, it is appropriate to make an order for security for costs.

[36] In making such an order, it is my intention to order an amount which is not financially crushing to the plaintiff and which will enable him to continue with the litigation if he chooses that course of action.

[37] In the circumstances of this case, a just order for security of costs is the following:

(a) payment of $5,000.00 to the defendant, Greyhound Canada Transportation Corp.;

(b) payment of $5,000.00 total to Officer Hemsworth and to Her Majesty the Queen in Right of Ontario;

(c) payment of $5,000.00 to the Municipality of Wawa Police Services.

The payment of the total of $15,000.00 for the aforementioned defendants is to be paid by the plaintiff within 90 days from the date of this judgment.

[38] As to the next steps to be taken in this litigation, there will be no further steps taken in this action until the security for costs ordered has been paid by the plaintiff, with the exception of a pre-trial conference which shall be arranged by the parties through the Trial Co-ordinator and which shall be held within 60 days.

[39] If the parties cannot agree on the issue of costs, counsel are to provide written submissions to the court no longer than three pages in length, excluding attachments, by March 22, 2013.

Justice E. Gareau

Released: March 7, 2013

COURT FILE NO.: 25250/10

DATE: 2013-03-07

ONTARIO

SUPERIOR COURT OF JUSTICE

MITSUHIRO MIYAFUJI

Plaintiff

– and –

DAVID WAYNE ROBERTS, GREYHOUND CANADA TRANSPORTATION ULC, OFFICER HEMSWORTH, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, AND THE MUNICIPALITY OF WAWA POLICE SERVICES BOARD

Defendants

REASONS FOR ORDER

Justice E. Gareau

Released: March 7, 2013