Court File and Parties

COURT FILE NO.: CV-11-437792

DATE: 20130422

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ezra Clarke (Plaintiff/Responding Party) and John Doe, Kevin Tully, Toronto Transit Commission and TTC Insurance Company Limited (Defendants/Responding Parties)

BEFORE: Justice Beth Allen

COUNSEL: Emily Casey, for the Plaintiff/Responding Party Karen McGuire, for the Defendants/Moving Parties Kevin Tully, Toronto Transit Commission and TTC Insurance Company Limited

HEARD: March 22, 2013

ENDORSEMENT

BACKGROUND

[1] On October 23, 2009, the plaintiff Ezra Clarke was a passenger on a TTC bus when he was involved in an altercation with another passenger, who was never identified and who for these proceedings is referred to as John Doe. In his pleadings, Mr. Clarke claims negligence against the TTC and the TTC bus driver, Kelly Tully, in relation to injuries he sustained which include various soft tissue injuries, cuts and bruises to his head, neck, back shoulders and limbs. Sometime after the accident, Mr. Clarke underwent an amputation of his right leg below the knee. Mr. Clarke claims an injury to his right toe during the altercation aggravated a pre-existing diabetes condition which resulted in the need for the amputation.

[2] TTC brings this motion under Rule 20 of the Rules of Civil Procedure on the basis there is no genuine issue of fact requiring a trial.

THE LAW ON RULE 20 MOTIONS

[3] The Court of Appeal established a useful benchmark to assist in evaluating which cases may be disposed of without a trial and which may require a trier of fact to assess the evidence [Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, at paras. 50 and 51, (Ont. C. A.)]. However, there is no change in the burdens on the parties to a Rule 20 motion.

[4] The principles set down in earlier cases still apply. To succeed in the motion, the moving party must satisfy the court there are no issues of fact required to be tried [Soper v. Southcott, [1998] O.J. No. 2700 at para. 14 (Ont. C.A.)]. The party resisting summary judgment has the onus to satisfy the court there are material facts to be tried and must demonstrate there is a real chance of success at a trial. The resisting party must adduce evidence of material facts which require a trial to assess credibility, weigh evidence and draw factual inferences. Courts have held the party resisting the motion must “lead trump or risk losing” [1061590 Ontario Limited v. Ontario Jockey Club (1995), 1995 1686 (ON CA), 21 O.R. (3d) 547 at 557 (Ont. C.A.)]. The court is entitled to assume the evidence contained in the record is all the evidence the parties would rely on if the matter proceeded to trial [Ontario Jockey Club, supra, at p. 557].

[5] The “full appreciation test” developed by the Court of Appeal is expressed in the following passage:

We find the passages set out in Housen, at paras. 14 and 18, such as “total familiarity with the case as a whole”, “extensive exposure to the evidence” and “familiarity with the case as a whole”, provide guidance as to when it is appropriate for the motion judge to exercise the powers in Rule 20.04(2.1). In deciding if these powers should be used to weed out a claim as having no chance of success or be used to resolve all or part of an action, the motion judge must ask the following question: can the full appreciation of the evidence and the issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of a trial?

We think this “full appreciation test” provides a useful benchmark for deciding whether or not a trial is required in the interest of justice.

[Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, at paras. 50 and 51, (Ont. C. A.)].

[6] The defendants have the burden to convince the court there are no genuine issues of fact as to their liability that require disposition at a trial and Mr. Clarke for his part must adduce evidence of material facts with respect to the defendants’ liability that must be heard by a trier of fact for disposition. The court must ask itself whether on the record before it, it can gain a full appreciation of the facts and issues that would be required to fully determine the matter.

THE INCIDENT

[7] On the day of the incident, a TCC bus was going southbound along Keele St. at Wilson Ave. Mr. Clarke and about 20 other passengers boarded the bus at that intersection. Mr. Clarke stood towards the front of the bus on the door side holding on to the overhead stanchion. John Doe passed behind Mr. Clarke carrying plastic grocery bags.

[8] The bus was fitted with video cameras that recorded from front and rear angles of the bus but did not record sound. The parties did not dispute the value of video surveillance to the fact finding task. The Supreme Court of Canada in a criminal case held that good quality surveillance evidence is relevant and admissible evidence. The court characterized such evidence as a silent and unbiased witness that is never subject to stress with the added quality of instant total recall of all it observes [R. v. Nikolovski, 1996 158 (SCC), [1996] 3 S.C.R. 1197 (S.C.C.)]. This view is no less applicable to the pursuit of the truth in a civil matter.

[9] The video surveillance reveals the following:

• at 4:51:12 p.m., Mr. Doe bumped Mr. Clarke while passing behind him as he was proceeding toward the rear of the bus;
• at 4:51:12, Mr. Clarke turned and addressed Mr. Doe. Mr. Doe replied and touched Mr. Clarke on his right shoulder at which point Mr. Clarke pushed Mr. Doe and spoke to him again;
• at 4:51:19, Mr. Doe replied to Mr. Clarke and took a step away from him;
• at 4:51:30, Mr. Clarke once again spoke to Mr. Doe and Mr. Doe threw a transfer in Mr. Clarke’s face;
• the two men continued to have verbal exchanges and at 4:51:52, Mr. Doe blew a mock kiss to Mr. Clarke;
• at 4:51:54, Mr. Doe tapped Mr. Clarke on his right forearm;
• Mr. Clarke responded at 4:51:55 with reaching out with his right hand and slapping Mr. Doe on the right side of his face or neck;
• at 4:51:55, the bus stopped at the Falstaff stop, just south of Highway 410, and the front doors opened immediately;
• at 4:51:55, just after the doors opened, Mr. Tully made a PA announcement that the bus was out of service and the doors were opened and he immediately called TTC Transit Control for assistance;
• at 4:52:15, just as the doors opened, Mr. Doe kicked at Mr. Clarke and Mr. Clarke raised his leg toward Mr. Doe and there appeared to be exchanges of words between them;
• at 4:52:15, as the other passengers were exiting through the front doors, and Mr. Doe was proceeding to exit past Mr. Clarke, Mr. Clarke elbowed Mr. Doe and Mr. Doe then struck Mr. Clarke on the right shoulder or upper back;
• Mr. Clarke then pursued Mr. Doe and grabbed him in front of the doors by his head at which point both men began to grab at each other as they moved slightly back in the bus;
• at 4:52:30 Mr. Clarke fell to the floor during the scuffle and was struck several times by Mr. Doe until another male passenger interceded and pulled Mr. Doe from Mr. Clarke;
• both passengers then got to their feet, exchanged some words and Mr. Doe then exited the bus at 4:52:53. Mr. Clarke remained on the bus; and
• the TTC supervisor attended the scene as did the police and ambulance.

PARTIES’ POSITIONS AND THE COURT’S CONCLUSIONS

[10] A plaintiff resisting a motion for summary judgment is required to put his best foot forward and provide an evidentiary basis for his allegations. The plaintiff is not permitted to rest on bald allegations against the defendants. Courts have made it clear that if the plaintiff provides no meaningful evidentiary support in the record for the allegations, bald assertions will not constitute genuine issues for trial [De Morales v. La Fontaine-Rish Medical Group Ltd., [2009] O.J. No. 2573 (Ont. S.C.J.); Irving Ungerman Ltd. v. Galanis (1991), 1991 7275 (ON CA), 4 O.R. (3d) 545 at 551 (Ont. C.A.); and Goldman v. Devine, 2007 ONCA 301, [2007] O.J. No. 1491, at para. 23, (Ont. C.A.)].

[11] Mr. Clarke alleges negligence against Mr. Tully and the TTC on the basis that the defendants had a duty of care to Mr. Clarke to have done or refrained from doing certain things in order to provide a safe environment on the bus. Mr. Clarke’s pleadings in negligence can be broadly divided along the lines of the allegations I set out below. In terms of an approach to addressing the allegations, I will comment on them in turn.

Mr. Tully negligently permitted John Doe onto the bus when he ought to have known that John Doe was dangerous

[12] There is no evidence to support the allegation that Mr. Tully ought to have known John Doe was dangerous. The video shows John Doe boarding the bus with other passengers. He seems to be somewhat in a hurry to move into the bus. He seems to make a brief comment to Mr. Tully and receives no response back. In fact, Mr. Tully deposed on cross-examination that there was no interaction between him and Mr. Doe. There is simply no evidence that Mr. Tully should have known Mr. Doe was dangerous. Even after the fact, there is no evidence Mr. Doe was dangerous at all. Getting into a scuffle on a bus with another passenger is not alone evidence of a dangerous person.

TTC was negligent in failing to have security personnel on board its buses

[13] I have no evidence of any regulations or policies to support Mr. Clarke’s expectation that TTC should have had security personnel on the bus. Perhaps, this might be so because it would be unreasonable and an exorbitant expense for TTC to provide this type of security on all buses.

Mr. Tully and TTC were negligent in not stopping the bus earlier, resulting in Mr. Clarke’s injuries.

[14] There is no evidence there was an earlier point in time that Mr. Tully could have stopped the bus that might have had an effect on preventing Mr. Clarke’s injuries. The evidence from Mr. Tully is that when the argument broke out, he was driving in the passing lane on the overpass over Highway 401. It would not have been prudent or safe to stop the bus at that point. Mr. Tully deposed that he pulled the bus over at the next bus stop. The video surveillance shows that when the physical fight broke out the bus was not in motion as it had actually stopped at the Falstaff bus stop.

Negligence in the movement of the bus or alternatively the manner of stopping the bus contributing to Mr. Clarke sustaining his injuries

[15] There is no evidence that the movement of the bus or the manner of stopping the bus contributed to Mr. Clarke being injured. As pointed out above, the bus was at a standstill when the more physical part of the altercation took place that resulted in Mr. Clarke’s fall.

Mr. Tully was negligent in not intervening physically or orally in the fight to prevent the injury to Mr. Clarke

[16] As to whether Mr. Tully should have physically intervened in the altercation, the Security for Bus Operators manual strictly prohibits an operator or driver from doing this. The risk is personal injury to the driver or could even result in the driver coming under the scrutiny of the criminal courts for assault. It was therefore not negligent for Mr. Tully not to intervene.

[17] Mr. Clarke asserts Mr. Tully should have issued a verbal warning to the disputing passengers to stop fighting. The manual does not require the driver to orally intervene in such situations. That seems to be a judgment the driver can make in the circumstances. What the evidence shows is that after the bus stopped and the front doors opened, Mr. Tully immediately informed the passengers over the PA that the bus was out of service. At the same time Mr. Tully called for the assistance of TTC transit control.

[18] Considering that the whole incident from the initial verbal exchanges and shoving to the more physical aspects lasted under two minutes, I do not think it reasonable to fault Mr. Tully’s actions. He stopped the bus, announced the bus as out of service over the PA and called for help, these actions being performed all within seconds. I find there is simply no connection between how Mr. Tully performed those actions and Mr. Clarke sustaining injuries.

TTC was negligently delayed in requesting the police or medical attention for Mr. Clarke contributing to his injuries

[19] There is no evidence on the record to support Mr. Clarke’s allegation that there was a delay in TTC calling for police and medical attention for Mr. Clarke that contributed to his injuries.

TTC was negligent in failing to have video recording devices on its bus and in failing to record and report dangerous incidents to police

[20] Mr. Clarke concedes that TTC had video surveillance available on the bus.

[21] Mr. Clarke makes the further allegation that there was involvement by an unidentified motorist in the incident giving rise to this accident. There is clearly no support in the record for that allegation.

[22] Overall, the assertions in Mr. Clarke’s affidavit with respect to the material facts are in large part self-serving statements and cannot form the basis for genuine issues requiring a trial. Courts have held a self-serving affidavit containing bald allegations or denials will not create triable issues. “The court must be scrupulous in assessing the bona fides of so-called credibility disputes and ensure that any such dispute constitutes a genuine issue for trial” [Iroquois Falls Community Credit Union Ltd. (Liquidator of) v. Co-operators General Insurance Co., 2007 56483 (ON SC), [2007] O.J. No. 4980 162 A.C.W.S. (3d) 924, at paras. 73 and 74 and Goldman v. Devine, supra].

[23] It has long been the law in Canada that common carriers like TTC are not insurers of passengers’ safety. The duty of carriers is to use all due, proper and reasonable care. The burden of care is a weighty one. The Supreme Court of Canada observed:

While the obligation of carriers is to use all due, proper and reasonable care and the care required is of a very high degree… such carriers are not insurers of the safety of the persons whom they carry. The law is sufficiently set forth in Halsbury, 3rd edition, vol. 4, p. 174, that they do not warrant the soundness or sufficiency of their vehicle, but their undertaking is to take all due care and to carry safely as far as reasonable care and forethought can attain that end.

[24] It is not every injury sustained by a passenger on a bus or common carrier that attracts the liability of the carrier. It must be established by the injured person that the injury resulted from the negligence of the carrier. Mr. Clarke has not been successful in achieving this.

[25] I find the record before the court is sufficient to fairly determine the matter without a full trial. Neither does this case present with a necessity for a mini trial where witnesses’ credibility requires testing to arrive at a determination. The plaintiff has failed to show through the affidavit evidence, the cross-examinations, the video surveillance and other supporting evidence that there is a genuine issue as to the defendants’ liability or as to credibility that require a trial for determination.

[26] For all the reasons set out, I allow the motion.

COSTS

[27] The parties provided costs outlines at the conclusion of the proceeding. Rule 57.01 grants the court discretion to determine which party will be required to pay costs and the extent to which costs are required to be paid. The defendants, the TTC and Mr. Tully, were wholly successful on this motion. In accordance with the principle that costs should follow the cause, I award costs against the plaintiff, Mr. Clarke. The question of the quantum of costs to the defendants is then left to be determined.

[28] The Ontario Court of Appeal set down the principle that the objective of a determination on costs is to fix an amount the unsuccessful party is required to pay that is fair and reasonable rather than an amount reflecting the actual costs of the successful party. The quantum of costs allowed must be fair, within the reasonable expectations of the parties, and in accord with the principles set out by the Court of Appeal in Boucher v. Public Accountants Council for the Province of Ontario 2004 14579 (ON CA), (2004), 71 O.R. (3d) 291 (Ont. C.A.)].

[29] The defendants’ counsel seeks partial indemnity costs in the total amount of $9,521.22 inclusive of HST and disbursements. The plaintiff’s counsel seeks partial indemnity costs of $15,403.42 inclusive of HST and disbursements.

[30] Rule 57.01 provides factors for the court’s consideration in deciding quantum, being the complexity of the proceeding; the importance of the issues; the conduct of any party that tended to unnecessarily lengthen or shorten the proceeding; whether any step in the process was improper or vexatious; and the experience of the parties. The matter on this motion involved the discrete issue of the defendants’ liability for the plaintiff’s injury that was not legally or factually complex. The proceeding progressed along expeditiously with no unnecessary interruptions or delays. Neither was any step in the process improper or vexatious.

[31] I find costs in the total amount of $10,000 inclusive of HST and disbursements to be fair and reasonable and in accord with the principles set down in Boucher, supra.

ORDER

[32] Order accordingly.

Allen J.

Date: April 22, 2013