ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-13-490261
DATE: 20150904
BETWEEN:
MOHAMED HEDI KHERIJI
Plaintiff
– and –
14939201 ONTARIO LIMITED operating as ROYAL QUEEN DEVELOPMENT, JOHN DOE BOUNCERS and DWAYNE SWEENY
Defendants
In person
Chris Afonso, for the Defendants
HEARD: August 14, 2015
G. DOW, j
reasons FOR JUDGMENT
[1] The defendant 14939201 Ontario Limited operating as Royal Queen Development seeks dismissal of the plaintiff’s claim because:
a) the plaintiff failed to issue the Statement of Claim within two years of when the plaintiff knew or ought reasonably to have known he had an action for damages following his being assaulted in an after-hours nightclub called Ministry purportedly situated in the basement of a property owned by this defendant;
b) summary judgment on the basis the defendant owed no duty of care to the plaintiff in all of the circumstances.
[2] The plaintiff, who is self-represented, opposed the defendant’s motion. At the outset of the motion, I reviewed the confirmation form with the parties which indicated the plaintiff was seeking an adjournment in order to cross-examine the defendant’s deponent, Joshua Shteiman, an employee of the defendant. However, I was advised by the plaintiff he no longer wished to do so but wanted to proceed with the hearing of the motion on its merits. I cautioned the plaintiff that the defendant’s motion may result in dismissal of his action. I explained to him the importance of obtaining legal counsel in these types of matters. The plaintiff confirmed his desire to proceed.
Facts
[3] It is clear the plaintiff was assaulted and injured in the early morning hours of July 5, 2009 when he knowingly attended an after-hours nightclub called Ministry which he claims was accessed by a rear door off a laneway to the basement of a premises at 1205 Queen Street West (the southwest corner of Queen and Dufferin).
[4] The defendant admits ownership of the premises but denies any knowledge of the existence of any such after-hours nightclub. The plaintiff alleges he was minding his own business in the club when set upon by two or more bouncers under the direction or control of the club’s manager, Dwayne Sweeney.
[5] As a result of the assault, the plaintiff suffered a head injury including lacerations to the back of his head that required eight staples and three sutures. The plaintiff claims he repressed his memory of the incident and it was not brought out until he attended supportive counselling therapy beginning in June, 2012.
[6] The Notice of Action was issued October 7, 2013. It is not clear if a motion proceeded in late 2014 to amend the Statement of Claim to add “John Doe Bouncers and Dwayne Sweeney”.
[7] To the contrary, the plaintiff admitted when cross-examined July 22, 2015 that he knew he had been injured as a result of the incident and spoke to a lawyer (questions 42-48). The plaintiff admitted attending at the Municipal Licensing and Standards Office in December, 2009 in an effort to identify the owner of the property. He re-attended in September, 2013 and was successful on this later occasion (questions 270-279).
[8] There is an allegation by the plaintiff that Dwayne Sweeney was employed by this defendant but the plaintiff admits having no direct evidence in this regard (questions 362-364 and questions 383-387). The plaintiff has evidence of police activity at 1205 Queen Street West but nothing to confirm that the corporate defendant or its directors, officers or employees were made aware of the searches conducted and confiscation of property at this location (questions 368-375).
[9] The plaintiff has evidence that some of the owners of the defendant corporation have been found guilty of fraud and tax evasion with regard to other businesses but not this specific defendant.
[10] The plaintiff claims his dissociation or denial of an injury or cause of action was a result of his brain being like a “crashed computer”. However, in the months and years following the incident, he was apparently able to maintain his self-care, day to day living, and continue to successfully complete a social services worker program at Seneca College. There is no medical evidence after July, 2009 assessing the plaintiff as suffering from physical or psychiatric illness which would render him a person under disability in accordance with the Rules of Civil Procedure and particularly Rule 7. (There is medical evidence from a family physician in the form of clinical notes which describe the plaintiff as suffering from anxiety, insomnia and stress in 2010 but no diagnosis of any mental illness at a level that would render the plaintiff incapable of self-care or making decisions.) There is also evidence from a family physician who began seeing the plaintiff in April, 2011 but no mention was made of the July 5, 2009 incident until September, 2013.
[11] The plaintiff has also deposed his disagreement with a note made by one of the investigating officers from the night of the incident that he “does not want assault charges”.
Issue - Limitations Act
[12] Section 4 of the Limitations Act, 2002, S.O. 2002, c.24 provides a defence where a proceeding is commenced beyond “the second anniversary of the day on which the claim was discovered”. Section 5 describes a claim as being discovered (most favourably to the plaintiff) when “a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters” giving rise to the claim.
[13] This is a question of fact with the onus on the plaintiff to show the cause of action did not arise, in this case, before October 7, 2011 or two years prior to the issuance of the Notice of Action. This has not occurred. The plaintiff knew he had been assaulted on the night of the incident, disputes telling police he did not want those responsible prosecuted and began making efforts as early as December, 2009 to identify the defendant.
[14] Further, the principle of discoverability is described in Lawless v. Anderson, 2011 ONCA 102 where, at paragraph 22, the Court of Appeal adopts that “a cause of action arises for the purposes of a limitation period when the material facts on which it is based have been discovered, or ought to have been discovered, by the plaintiff by the exercise of reasonable diligence”. Applied to the facts at hand, the plaintiff knew he was injured as of July 5, 2009, and began making efforts to identify the defendant as early as December, 2009 when he attended at the Municipal Licensing and Standards Office. Thus, the plaintiff knew (as opposed to ought to have known) well before October 7, 2011 that he had the cause of action he has pleaded. This conclusion is sufficient to dispose of the matter. However, I will also address the defendant’s alternate issue.
Issue - Duty of Care
[15] This argument centres on the fact there is no evidence the defendant, as a landlord, had any knowledge the nightclub, Ministry, was operating on occasion out of its premises, likely with the assistance of a tenant. The facts are analogous to those in Kim v. Thammavong, 2007 52791 (ON SC), [2007] O.J. No. 4769, where the plaintiff is assaulted at a party at the defendant’s home hosted by the defendant owner’s daughter who was aware of the daughter’s intention to host a party. While Justice Perell, in his reasons, addresses the duty of care in that decision, it is within the context of a social host basis. As a result, the conclusion there was no duty of care on the part of the homeowner is undermined.
[16] Counsel for the defendant also relied on the decision in Coleiro v. Premiere Fitness Clubs (Erin Mills) Inc., 2010 ONSC 4350 which addressed whether there was a duty of care on the part of the defendant fitness club when one patron assaulted another on the premises. In my view, the conclusion there was no duty of care can be distinguished from the facts at hand which involve the operation of the service of alcoholic beverages after the hours permitted by law.
[17] The defendant’s strongest argument is from the analysis and conclusion of Justice Jennings in Blount v. H. Corp. Coiffeurs Ltd. (c.o.b. L’Attitudes International Image Centres), [2008] O.J. No. 3690 where the plaintiff suffered a head injury in the premises of the defendant spa who was a tenant of the co-defendant landlord. Justice Jennings concluded, (at paragraph 13) there was no duty of care in the circumstances. I would agree no duty of care arises in the circumstances where there is no evidence this defendant was aware of the operation of what is an illegal activity. As a result, the defendant is also entitled to succeed on this argument.
Costs
[18] I neglected to request or obtain a costs outline from the defendant. However, while the legal conclusion is that the defendant is not responsible to the plaintiff, the plaintiff has clearly suffered injuries and incurred compensable damages such that it would be unjust to saddle him with a cost award in the circumstances. In accordance with the general principles and factors set out in Rule 57, there will be no order as to costs.
Mr. Justice G. Dow
Released: September 4, 2015
COURT FILE NO.: CV-13-490261
DATE: 20150904
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MOHAMED HEDI KHERIJI
Plaintiff
– and –
14939201 ONTARIO LIMITED operating as ROYAL QUEEN DEVELOPMENT, JOHN DOE BOUNCERS and DWAYNE SWEENY
Defendants
REASONS FOR JUDGMENT
Mr. Justice G. Dow
Released: September 4, 2015