Eugene Kelly et. al. v. Bronson Vinerskis et. al., 2015 ONSC 2872
COURT FILE NO.: 08-6812
DATE: 2015-04-30
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Eugene Kelly, Karen Kelly, Melissa Kelly and Kathleen Kelly v. Bronson Antanas Vinerskis, Ryan Alexander Murray, Joncarlo Dalpra, and Pizza Pizza Limited
BEFORE: Justice R. J. Harper
COUNSEL: J. Ivan Marini, for the responding parties
Van Krakachovski, for the moving party, Pizza Pizza
E N D O R S E M E N T
Issues
[1] The moving party, Pizza Pizza Limited (Pizza Pizza) seeks leave to appeal the Order of the Honourable Justice Ramsay, dated June 25, 2014, dismissing its motion for summary judgment.
[2] The summary judgment motion of Pizza Pizza sought to have the plaintiff’s claim dismissed on the basis that there was no genuine issue for trial. Pizza Pizza submitted to Ramsey J. that, on the facts and on the law, they did not owe a duty of care to the plaintiffs.
Factual Background
[3] The only evidence that was before Justice Ramsey disclosed that the plaintiff’s action arose out of an incident that occurred on November 12, 2006. At approximately 2:30 a.m., the plaintiff Eugene Kelly (Eugene) attended at the Pizza Pizza restaurant located at the Fiesta Mall in Stoney Creek Ontario. Eugene entered the premises and ordered a pizza to take home with him. At that time, there was only one employee of Pizza Pizza working, Mr. Azhar Iqbal (Azhar), who was doing the cooking and the serving of customers.
[4] Immediately after Eugene had finished paying for his order, two or three youths entered the restaurant. One of the youths asked for some water and Azhar started to reach for a bottle of water. The youth stated “no, just a glass”. When Azhar told him that they only sold bottled water, the youth became belligerent and called the employee a “fucking Paki”. Eugene stepped in and stated “come on guys settle down and have some manners.” One of the youths then asked Eugene “what the fuck is it to you”. Eugene told Azhar that he was going to go next door to have coffee at the Tim Horton’s while his order was being prepared. Eugene’s evidence was that he had hoped to diffuse the situation by leaving the pizza restaurant at that point.
[5] Before Eugene left the restaurant, one of the youths asked him if he wanted to take it outside. Eugene’s evidence was that he shrugged to indicate no. As soon as he left the Pizza Pizza, the youths that were in the restaurant followed him out. Eugene stated that he was pepper sprayed and that was the last thing that he remembered until he woke up in the hospital with significant injuries.
[6] Three of the youths were convicted of assault causing bodily harm.
The Position of Pizza Pizza
[7] Pizza Pizza submits that Justice Ramsey erred in finding that Pizza Pizza may have a duty of care to take action to protect the plaintiff from assault, particularly after the plaintiff had left the restaurant. They further argue that Justice Ramsey erred in finding that there was any reasonable foreseeability on the part of Pizza Pizza that the plaintiff would sustain the injuries that he did.
[8] Pizza Pizza further submits that Justice Ramsay erred in finding that the assault occurred in the parking lot which is not occupied by Pizza Pizza may be relevant to the claim under the Occupiers Liability Act, but not to the claim at common law in the circumstances.
[9] Pizza Pizza argues that:
There is a reason to doubt the correctness of Justice Ramsay’s decision on the above point and that the proposed appeal raises a question of general importance: does a commercial entity who does not serve alcohol owe a duty of care to its former patron for an intentional tort that occurred off-premises. Pizza Pizza argues that this is an important principle that warrants a review and comment by appellate court to advance and/clarify the state of the law in Ontario.
Position of Eugene
[10] Justice Ramsey clearly dealt with the issue of whether or not the harm sustained by Eugene was foreseeable as well as the issue of whether Pizza Pizza owed a duty of care to the Plaintiff to protect him from tort committed by others, in the circumstances of this case.
[11] Justice Ramsey held that Pizza Pizza had duty to do more than it did in the circumstances of this case. He stated in his endorsement:
“In fact the defendant did nothing at all. Its agent did not speak to the youths, did not call the police and did not tell them that the police were coming in the face of a threat of assault. An invitation to fight that is declined can be a threat of assault when the victim retreats and the assailant follows.”
[12] Eugene also argues that Justice Ramsey is consistent with and adopts the rationale of the Supreme Court of Canada in Child’s v. Desormeaux, 2006 SCC 18, [2006] 1 SCR 643.
The Law and Analysis
When leave to appeal can be granted
[13] Rule 62.02 (4) (a) and (b), of the Rules of Civil Procedure which provides:
Grounds on Which Leave May Be Granted
(4) Leave to appeal shall not be granted unless:
a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or
(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted. R.R.O. 1990, Reg. 194, r. 62.02 (4)
[14] In this case I do not find that there is good reason to doubt the correctness of the order in question. Pizza Pizza’s submission that an appellate court need to provide certainty on the law relating to the application of the Occupiers Liability Act is not a reason to grant leave to appeal in this case. Justice Ramsey dismissed Pizza Pizza’s summary judgment motion and this matter will proceed to trial. It is the trial judge who will consider the legal issues after having the ability to hear all of the evidence. It is from that point that consideration might be given to have the matter proceed further. However, it is my view that it is not proper, at this stage, to allow the matter to go to the Divisional Court and possibly the Court of Appeal in order to provide certainty to an area of law.
[15] Leave to appeal the Order of Justice Ramsey is denied
Harper, J.
DATE: 30 April 2015
COURT FILE NO.: 08-6812
DATE: 2015-April-30
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Eugene Kelly, Karen Kelly, Melissa Kelly and Kathleen Kelly v. Bronson Antanas Vinerskis, Ryan Alexander Murray, Joncarlo Dalpra, and Pizza Pizza Limited
BEFORE: Justice R. J. Harper
COUNSEL: J. Ivan Marini, for the responding parties
Van Krakachovski, for the Moving Party, Pizza Pizza
ENDORSEMENT
Harper, J.
DATE: 30-April 2015