COURT FILE NO.: CV-09-383809 DATE: 20160825
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
TIMOTHY BONELLO, TED BONELLO, ANNE CUTAJAR WAGNER, ANDREW BONELLO and MARK BONELLO Plaintiffs – and – GORES LANDING MARINA (1986) LIMITED, JOSEPH DAVIES, and MURRAY E. CARSLAKE and JOSEPH DAVIES JR. also known as JOEY DAVIES Defendants – and – CHRIS KANE, CHRIS RYAN, ANTHONY COOK, GABE MANSUETO, GERALD CHESTNUT, JEFF JAGLEL, FRANK BUTTIGIEG, DAN RULE, MIKE BUTTIGIEG Third Parties
COUNSEL: Ava Hillier and Rosemary Book for the Plaintiffs R. Steven Baldwin for the Defendants Gores Landing Marina (1986) Limited and Joseph Davies
HEARD: August 10, 2016
PERELL, J.
REASONS FOR DECISION
A. INTRODUCTION AND OVERVIEW
[1] On August 4, 2007, the Plaintiff Timothy Bonello participated in a recreational game of tug-of-war among the summer-season tenants of the Defendant Gores Landing Marina (1986) Limited. He was injured, and his hand was amputated.
[2] In 2009, Mr. Bonello sued Gores Landing Marina and Joseph Davies, Sr., the then owner-operator of Gores Landing Marina. Later, he amended his claim to sue Joseph Davies, Jr., who facilitated the tug-of-war by providing a rope that happened to be the property of Gores Landing Marina.
[3] After Gores Landing Marina and Mr. Davies, Sr., were sued. They in turn, brought third party proceedings against: (a) Chris Kane, Gerald Chestnut, and Dan Rule, who were cottagers at Gores Landing Marina who participated in the tug-of-war; (b) Chris Ryan, Gabe Mansueto, Jeff (properly Chandrick) Jaglel, Frank Buttigieg, and Mike Buttigieg, who were campers at Gores Landing Marina that participated in the tug-of-war; and (c) Anthony Cook, who was a visitor at Gores Landing Marina who participated in the tug-of-war. The third parties defended the third party claims and some of them defended the main action.
[4] After examinations for discovery in the main action and in the third party proceeding, some of the third parties brought summary judgment motions to have the third party proceedings and various crossclaims dismissed.
[5] After the third parties brought their motions for summary judgment, Gores Landing Marina and Mr. Davies, Sr. brought a summary judgment motion to have the main action dismissed. In that motion, which is now before the court, Mr. Bonello submits that there are genuine issues that require a trial and that the Defendants’ summary judgment motion should be dismissed.
[6] I disagree; for the reasons that follow, Mr. Bonello’s action should be summarily dismissed.
[7] It follows that Mr. Davies, Sr.’s and Gores Landing Marina’s third party proceedings and the various crossclaims should be dismissed subject to the determination of costs in the main action and in the third party proceedings.
B. PROCEDURAL HISTORY
[8] The tug-of-war took place on August 4, 2007.
[9] On July 27, 2009, Mr. Bonello issued his Statement of Claim against Gores Landing Marina and Mr. Davies, Sr.
[10] On February 17, 2010, Gores Landing Marina and Mr. Davies, Sr. delivered a Statement of Defence and issued a Third Party Claim.
[11] On May 19, 2010, Mr. Chestnut delivered a Statement of Defence and Crossclaim in the third party proceedings along with a jury notice. He also delivered a Statement of Defence in the main action.
[12] On May 26, 2010, Mr. Cook delivered a Statement of Defence to the Third Party Claim and to the main action.
[13] On June 7, 2010, Mr. Frank Buttigieg delivered a Statement of Defence and Crossclaim in the third party proceedings.
[14] On July 8, 2010, Mr. Mike Buttigieg delivered a Statement of Defence and Crossclaim in the third party proceedings.
[15] On June 8, 2011, Mr. Mansueto delivered a Statement of Defence and Crossclaim in the third party proceedings. He also delivered a Statement of Defence in the main action.
[16] On June 9, 2011, Mr. Jaglel delivered a Statement of Defence and Crossclaim in the third party proceedings.
[17] On September 24, 2013, Mr. Bonello was examined for discovery.
[18] On September 25, 2013, Mr. Davies, Sr. was examined for discovery personally and on behalf of Gores Landing Marina.
[19] On September 26, 2013, Frank and Mike Buttigieg and Mr. Jaglel were examined for discovery.
[20] By order of Master Brott dated November 13, 2013, the Statement of Claim was amended to add Joseph Davies, Jr. as a Defendant.
[21] On November 29, 2013, Mr. Cook delivered an amended Statement of Defence and Crossclaim in the third party proceeding and a defence to the main action.
[22] On October 14, 2014, Mr. Davies, Jr. and Mr. Cook were examined for discovery.
[23] On October 15, 2014, Mr. Chestnut was examined for discovery.
[24] In December 2015, Mr. Chestnut brought a summary judgment motion to have the third party claim dismissed.
[25] In January 2016: (a) Mr. Jaglel brought a summary judgment motion to have the main action, the third party claim and all crossclaims against him dismissed; and (b) Mr. Cook brought a summary judgment motion to have the third party claim and all crossclaims against him dismissed.
[26] Also in January 2016, Gores Landing Marina and Mr. Davies, Sr. brought a summary judgment motion to have the main action dismissed. This is the motion that is now before the court.
[27] In February 2016, Mr. Mansueto brought a summary judgment motion to have the third party claim dismissed and all crossclaims against him dismissed.
C. EVIDENTIARY BACKGROUND
[28] In its motion for a summary judgment, Gores Landing Marina relied on the affidavit evidence of Mr. Davies, Sr. and on evidence from Mr. Bonello’s examination for discovery.
[29] In resisting the motion and in submitting that there were genuine issues requiring a trial, Mr. Bonello relied on: (a) an affidavit sworn on February 22, 2016 from Joan Scott, a senior litigation clerk working for Mr. Bonello’s lawyer; (b) an affidavit from Mr. Bonello sworn on February 23, 2016; (c) an affidavit from Mr. Chestnut sworn on November 30, 2015, which he had delivered in his motion for summary judgment in the third party proceeding; (d) excerpts from the examination for discovery of Mr. Davies, Sr.; and (e) excerpts from the examinations for discovery of Mr. Davies, Jr., Frank Buttigieg, and Mike Buttigieg.
[30] Mr. Davies, Sr. and Gores Landing Marina submit that: (a) paragraphs 2, 3, 4, and 11 of the affidavit of Joan Scott, which refer to the discovery evidence of Mr. Davies, Sr., are inadmissible hearsay and should be struck from the affidavit and not received as evidence on the summary judgment motion; and (b) paragraphs 21 to 48 of her affidavit, which refer to the discovery evidence of Mike Buttigieg, Frank Buttigieg, and Mr. Davies, Jr. should be struck from the affidavit and not received as evidence on the summary judgment motion.
[31] Mr. Davies, Sr.’s and Gores Landing Marina’s submissions raise the question of what is admissible evidence on a summary judgment motion. Several rules of the Rules of Civil Procedure are pertinent to answering this question. In particular, the question is governed by rules 20.01 (1), 20.01 (3), 20.02 (1), 20.02 (2), 31.11, 39.01 (1), 39.01 (4), 39.01 (5), 39.01 (7), 39.02 (1), 39.03 (1), 39.03 (2), 39.03 (4), and 39.04 which state:
WHERE AVAILABLE
To Plaintiff
20.01 (1) A plaintiff may, after the defendant has delivered a statement of defence or served a notice of motion, move with supporting affidavit material or other evidence for summary judgment on all or part of the claim in the statement of claim.
To Defendant
(3) A defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim.
Evidence on Motion
20.02 (1) An affidavit for use on a motion for summary judgment may be made on information and belief as provided in subrule 39.01 (4), but, on the hearing of the motion, the court may, if appropriate, draw an adverse inference from the failure of a party to provide the evidence of any person having personal knowledge of contested facts.
(2) In response to affidavit material or other evidence supporting a motion for summary judgment, a responding party may not rest solely on the allegations or denials in the party’s pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial.
USE OF EXAMINATION FOR DISCOVERY AT TRIAL
Reading in Examination of Party
31.11 (1) At the trial of an action, a party may read into evidence as part of the party’s own case against an adverse party any part of the evidence given on the examination for discovery of,
(a) the adverse party; or
(b) a person examined for discovery on behalf or in place of, or in addition to the adverse party, unless the trial judge orders otherwise,
if the evidence is otherwise admissible, whether the party or other person has already given evidence or not.
Impeachment
(2) The evidence given on an examination for discovery may be used for the purpose of impeaching the testimony of the deponent as a witness in the same manner as any previous inconsistent statement by that witness.
Qualifying Answers
(3) Where only part of the evidence given on an examination for discovery is read into or used in evidence, at the request of an adverse party the trial judge may direct the introduction of any other part of the evidence that qualifies or explains the part first introduced.
Rebuttal
(4) A party who reads into evidence as part of the party’s own case evidence given on an examination for discovery of an adverse party, or a person examined for discovery on behalf or in place of or in addition to an adverse party, may rebut that evidence by introducing any other admissible evidence.
Party under Disability
(5) The evidence given on the examination for discovery of a party under disability may be read into or used in evidence at the trial only with leave of the trial judge.
EVIDENCE BY AFFIDAVIT
Generally
39.01 (1) Evidence on a motion or application may be given by affidavit unless a statute or these rules provide otherwise.
Contents — Motions
(4) An affidavit for use on a motion may contain statements of the deponent’s information and belief, if the source of the information and the fact of the belief are specified in the affidavit.
Contents — Applications
(5) An affidavit for use on an application may contain statements of the deponent’s information and belief with respect to facts that are not contentious, if the source of the information and the fact of the belief are specified in the affidavit.
Expert Witness Evidence
(7) Opinion evidence provided by an expert witness for the purposes of a motion or application shall include the information listed under subrule 53.03 (2.1)..
EVIDENCE BY CROSS-EXAMINATION ON AFFIDAVIT
On a Motion or Application
39.02 (1) A party to a motion or application who has served every affidavit on which the party intends to rely and has completed all examinations under rule 39.03 may cross-examine the deponent of any affidavit served by a party who is adverse in interest on the motion or application.
EVIDENCE BY EXAMINATION OF A WITNESS
Before the Hearing
39.03 (1) Subject to subrule 39.02 (2), a person may be examined as a witness before the hearing of a pending motion or application for the purpose of having a transcript of his or her evidence available for use at the hearing.
(2) A witness examined under subrule (1) may be cross-examined by the examining party and any other party and may then be re-examined by the examining party on matters raised by other parties, and the re-examination may take the form of cross-examination.
At the Hearing
(4) With leave of the presiding judge or officer, a person may be examined at the hearing of a motion or application in the same manner as at a trial.
EVIDENCE BY EXAMINATION FOR DISCOVERY
Adverse Party’s Examination
39.04 (1) On the hearing of a motion, a party may use in evidence an adverse party’s examination for discovery or the examination for discovery of any person examined on behalf or in place of, or in addition to, the adverse party, and rule 31.11 (use of discovery at trial) applies with necessary modifications.
Party’s Examination
(2) On the hearing of a motion, a party may not use in evidence the party’s own examination for discovery or the examination for discovery of any person examined on behalf or in place of, or in addition to, the party unless the other parties consent.
[32] I agree with the Defendants’ objection to paragraphs 2, 3, 4, and 11 of Ms. Scott’s affidavit. Her evidence is hearsay, and although hearsay evidence is admissible on an motion, including a summary judgment motion, pursuant to rules 20.02 (1) and 39.01 (4), it is only admissible if the deponent makes it clear about the source of his or her information and belief, which Ms. Scott fails to do apart from alluding to the fact that she has worked extensively on the case with Mr. Bonello’s counsel. While it is obvious that Ms. Scott has carefully reviewed the transcripts of the discoveries, that just makes her hearsay, double hearsay, and as I shall explain below, her references to the discoveries of Messrs. Davies, Jr. and Buttigiegs does not yield admissible evidence.
[33] I do not agree with the Defendants’ objection to paragraphs 15 to 20 of Ms. Scott’s affidavit. This evidence is admissible pursuant to rule 39.04 (1), which provides that on the hearing of a motion, a party may use in evidence an adverse party’s examination for discovery and rule 31.11 (use of discovery at trial) applies with necessary modifications.
[34] I agree with the Defendants’ objection to paragraphs 21 to 48 of Ms. Scott’s affidavit, which refer to the discovery evidence of Mike Buttigieg, Frank Buttigieg, and Mr. Davies, Jr. This evidence should be struck from the affidavit and not received as evidence on the summary judgment motion. The problem with this evidence is that it can only be read in as evidence against the adverse party that was examined for discovery. In other words, for example, the discovery evidence of Mr. Davies, Jr. that is incorporated by reference is not evidence at large as against Mr. Davies, Sr.
[35] On the hearing of a motion, while a party can use discovery evidence from an adverse party against that adverse party, the evidence is not useable against other adverse parties. The use of discovery evidence is limited to be the party who gave the evidence; that is, it cannot be read in against any party other than the party who gave it: Urbacon Building Groups Corp. v. Guelph (City), 2013 ONSC 5773 (Ont. S.C.J.); Cain v. Peterson (2005), 24 C.P.C. (6th) 298 (Ont. S.C.J.); MacEachern v. Rennie (2009), 80 C.P.C. (6th) 1 (B.C.S.C.).
[36] On the summary judgment motion in the main action, Mike Buttigieg, Frank Buttigieg, and Mr. Davies, Jr. did not file affidavits for either party to the main action nor were they summonsed as witnesses by either party. Had they delivered affidavits, then they could have been cross-examined pursuant to rule 39.02 and their evidence would have been evidence at large for the purposes of the summary judgment motion. Had they been summonsed as witnesses, their evidence would have been available for use at the hearing pursuant to rule 39.03.
[37] I should add that although I shall strike the hearsay evidence of Ms. Scott and the evidence from Mr. Davies, Jr.’s and the Buttigiegs’ examinations for discovery, I am obviously aware of the evidence having read it, and being aware of it, I can say that, for the most part, their evidence simply confirms the admissible evidence from Mr. Bonello and Mr. Davies, Sr. which evidence is more than sufficient to tell the sad story of what happened to Mr. Bonello and why it happened. Thus, I do not understand why the Defendants objected to the evidence other than on technical grounds.
[38] As the next section of these Reasons will reveal, the factual background to this summary judgment motion is that the tenants of Gores Landing Marina had the tacit if not express permission of the Defendants to organize a holiday weekend recreational at the campground and Gores Landing Marina, with knowledge of the tenants’ plans, did nothing to stop or to supervise those activities. The unsupervised tenants organized a tug-of-war and Mr. Bonello, without receiving any warnings or instructions about how to participate in this simplest of sports, was horribly injured.
D. FACTUAL BACKGROUND
[39] Based on the admissible evidence, the factual background is as follows.
[40] Gores Landing Marina owns a 10-acre property at the southwest end of Rice Lake in the County of Northumberland, where it rents cottages and sites for vacation trailers. It is a commercial undertaking operating as a seasonal campground with 60 trailer sites, 19 rental cottages, and 102 boat slips.
[41] Mr. Davies, Sr., was the principal owner of Gores Landing Marina. Mr. Davies, Sr. is now 76 years of age and is retired. Before his retirement, he was the person in charge of the operation of the campground.
[42] Some years before the events of August 4, 2007, Gores Landing Marina had hosted a “Jimmy Buffet Day” celebration for the cottage and trailer tenants on the August long weekend. The celebration included a barbeque, a volleyball match, horseshoes, cards, and games for the children. Mr. Davies, Sr. would buy hips of beef and pieces of chicken, which would be cooked all night long. He would put every tenant's name in a hat and if a tenant's name was picked, he or she had to participate in an event. Notably, Jimmy Buffet Day did not include a tug-of-war contest.
[43] And, some years before the events of August 4, 2007, Gores Landing Marina ended its sponsorship of Jimmy Buffet Day. Thereafter, the celebration of the August long weekend holiday was organized by the campsite tenants. The organizers posted flyers and posters around the campground, which included a schedule for the events. In recent years, the organizers introduced a tug-of-war contest.
[44] The Defendants were aware of the holiday weekend celebration, and did nothing to discourage it or to supervise it. Although Mr. Davies, Sr. was aware that there would be a Jimmy Buffet Day celebration on the campground, he did not plan, organize, invite, nor sponsor the day or the tug-of-war.
[45] On August 4, 2007, while Mr. Davies, Sr. was off site, at the residence where he lives, Mr. Bonello, who was 22 years old at the time, came to the campground to visit his mother, who rented a trailer at the site. Mr. Bonello’s uncle, Frank Buttigieg, and his cousin, Mike Buttigieg, were also renters at Gores Landing Marina.
[46] The tug-of-war was to be the final contest of the day. The event was not supervised by anybody, and it certainly was not supervised by Gores Landing Marina nor by Mr. Davies, Sr. who was off site during the day. There was no safety equipment, such as a whistle to order a stop to the pulling.
[47] The tug-of-war pitted 20 or so trailer renters against 20 or so cottage renters. Mike Buttigieg, who is Mr. Bonello’s cousin, invited Mr. Bonello to join the tug-of-war.
[48] The tug-of-war began. Mr. Bonello and Messrs. Kane, Chestnut, Rule, Ryan, Mansueto, Jaglel, Frank Buttigieg, Mike Buttigieg, and Cook were among the participants.
[49] Mr. Davies, Jr., whose role and relationship with Gores Landing Marina is a disputed matter, was asked to provide a rope. He provided a rope from a shed on the property. The rope, which belonged to Gores Landing Marina, had been used for children’s swings.
[50] Unfortunately, Mr. Davies, Jr. supplied a rope which had several loops or knots along its length. And more unfortunate still, Mr. Bonello placed his forearm into one of the loops as the tug-of-war got underway. Mr. Bonello deposed that he thought the loops were grips to get better traction.
[51] The loop constricted on Mr. Bonello’s arm, and although he screamed in agony, the shouting of the participants and of the audience drowned out his cries. As already noted, there was no whistle to sound a stop to the contest. Mr. Bonello’s brother, Andrew, intervened in an attempt to stop the contest, but it took about half-a-minute before the contestants stopped pulling. By this time, Mr. Bonello had suffered a serious injury that eventually led to the amputation of his left forearm and hand.
[52] Those in attendance tried to attend to Mr. Bonello. There was no first aid equipment, and because cell phone coverage was poor, it took some time for an ambulance to arrive to tend to Mr. Bonello and to take him to a hospital.
[53] It was around the time that the paramedics were attending to Mr. Bonello that Mr. Davies, Sr. arrived at the campsite. He saw only the aftermath of the tug-of-war and learned what had happened from witnesses to the events.
[54] As a part of the litigation process, Mr. Davies, Sr., the other parties, and the court had the benefit of photographs of the start of the tug-of-war.
E. ANALYSIS AND DISCUSSION
[55] It was not disputed that the Defendants were occupiers, and thus, the determination of their liability is governed by sections 3 and 4 of the Occupiers' Liability Act, R.S.O. 1990, c. 0.2, which state:
3.(1) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.
(2) The duty of care provided for in subsection (1) applies whether the danger is caused by the conditions of the premises or by an activity carried on on the premises.
- (1) The duty of care provided for in subsection 3(1) does not apply in respect of risks willingly assumed by the person who enters on the premises but in that case the occupier owes a duty to the person to not create a danger with the deliberate intent of doing harm or damage to the person or his or her property and to not act with reckless disregard of the presence of the person or his or her property.
[56] The decision of the Ontario Court of Appeal in Waldick v. Malcolm (1989), 70 O.R. (2d) 717 (ON CA), aff'd Waldick v. Malcolm, [1991] 2 S.C.R. 456 is the leading case about an occupier's duty of care. In that case, the Court emphasized at p. 723 that what constitutes reasonable care will turn on the specific facts of each case:
All courts have agreed that the section imposes on occupiers an affirmative duty to make the premises reasonably safe for persons entering them by taking reasonable care to protect such persons from foreseeable harm. The section assimilates occupiers' liability with the modern law of negligence. The duty is not absolute and occupiers are not insurers liable for any damages suffered by persons entering their premises. Their responsibility is only to take "such care as in all the circumstances of the case is reasonable". The trier of fact in every case must determine what standard of care is reasonable and whether it has been met.
[57] Cases under the Occupiers' Liability Act are determined on their own particular facts in accordance with the evidence: Winters v. Haldimand (County), 2015 ONCA 4096 at para. 6.
[58] Applying the Occupiers' Liability Act to the facts of the immediate case, the issue to determine is whether the Defendants breached the duty of care that they owed to Mr. Bonello under s. 3(1) of the Act. That duty was to take such care as in all the circumstances was reasonable to ensure that Mr. Bonello was reasonably safe while on the campgrounds of Gores Landing Marina.
[59] Since for the reasons that follow, I conclude that the Defendants met the standard of reasonableness, it is not necessary to determine whether the Defendants breached the duty imposed by s. 4(1) of the Act for circumstances where a person willingly assumes the risks of entering premises.
[60] Mr. Bonello’s argument is that there is a genuine issue for trial about whether Mr. Davies, Sr. and Gores Landing Marina were negligent as alleged in paragraph 34 of the Amended Statement of Claim, which states:
- The Plaintiff, Timothy Bonello, further states that his injuries and damages as described were caused as a result of the negligence of Joseph Davies, and Murray E. Carslake, Joey Davies and the principals of Gores Landing Marina 1986 Limited in that:
(a) they failed to ensure the Plaintiff would be reasonably safe while occupying the premises;
(b) they permitted a dangerous condition to exist on the premises knowing that participants in the planned activities of Gores Marina would be exposed to danger;
(c) they failed to post or broadcast any warning that the sporting event was inherently dangerous due to the equipment used and lack of supervision;
(d) they failed [to] instruct their employees as to the safe conduct of the sporting event, equip them with proper equipment including a method of immediately stopping the event if an emergency arose and, failed to provide properly trained medical personnel to assist the team member should an emergency arise.
(e) they permitted persons who were not properly trained, lacking in acquired qualifications and/or incompetent to conduct a sporting event on their premises;
(f) they failed to inspect the rope for the existence of dangerous conditions or defect;
(g) they prepared and or distributed a rope which they knew or ought to have known was faulty, and was not fit for the purpose for which it was intended;
(h) they failed to take all reasonable precautions to ensure that the equipment system would function properly without causing injury;
(i) they failed to make a proper inspection of the rope prior to starting the tug-of-war to ensure that the participants could participate in safety;
(j) they failed to warn the Plaintiff that the subject rope was not fit for its intended purpose;
(k) such further and other particulars of negligence, as shall become known to the Plaintiffs.
[61] In my opinion, Mr. Davies, Sr. and Gores Landing Marina met the reasonableness standard of care mandated by s. 3 (1) of the Occupiers’ Liability Act.
[62] In Winters v. Haldimand (County), 2013 ONSC 4096, affd. 2015 ONCA 4096, the plaintiff Eric Winters climbed a tree in a municipal park, fell and was rendered a paraplegic. Mr. Winters was a teenager at the time of the accident and generations of teenagers had gathered at the tree and some of them would climb and sit in the branches. Justice Parayeski dismissed Mr. Winters’ action against the municipality. He concluded that it was not unreasonable for the municipality to fail to inspect and to not monitor the use of the tree by teenagers. He concluded that it was not unreasonable for the municipality to not implement and enforce rules against climbing trees in the park.
[63] Justice Parayeski stated that it was not reasonable to expect an occupier to eliminate all possible risks. At paragraph 40 of his judgment, he stated:
- The question, of course, is whether it would have been reasonable to call upon the County to pass a by-law prohibiting tree climbing in the park, put signs in place to that end, and then patrol for compliance. In the circumstances of this case, I am not prepared to find that such was required here. The County does not have limitless resources. It ought not to be obliged to manifestly forbid all activities which, with hindsight, might prove to be dangerous. There has to be a reasonable limit to such prohibitions on human activity.
[64] In Oppedisano v. Agustino, [1997] O.J. No. 790 (Gen. Div.), the Gioiosa Ionica Social Club obtained a permit from the City of North York to use a municipal park for a day-long celebration of a religious festival. One of the activities was a children's piñata game. The plaintiff, though not a member of the Club, was in attendance at the festival and he was injured when particles from the shattered clay piñata struck him in the eye. He sued the Club, the individuals running the piñata game, and the City of Toronto. The Club withdrew its defence, and the action was discontinued against the other individual defendants. Justice Lederman dismissed the action against the City. He stated at paragraph 15 of his decision:
Given that the standard to be met by an occupier is reasonableness, not perfection, it seems that the City's actions in the circumstances of this case were reasonable. Holding it liable for the injury suffered by the plaintiff would be tantamount to making it an insurer for the unfortunate accident which occurred. It does not seem reasonable to expect the City, in giving a permit for an event such as the festival in question, to be required to inspect, monitor and evaluate every apparently innocuous activity taking place on the premises. Such a requirement would place an onerous burden on the City. It might in fact, require additional personnel being assigned to events, and it could seriously curtail the activities which might take place in a public park. Even a game of soccer or frisbee presents a potential risk, as does flying a kite, but most would not argue that the City should have to investigate how the games are to be played or what safeguards will be put into place before permitting them to occur. The City is therefore not liable for the plaintiff's injury.
[65] In Alchimowicz v. Schram, [1999] O.J. No. 115 (C.A.), Mr. Alchimowicz, while grossly intoxicated, dove from the railing of a dock in a park owned by the City of Windsor. The water was too shallow for diving, and he was rendered a quadriplegic. He sued a number of individuals who had accompanied him to the park, and he sued the City of Windsor. In a judgment affirmed by the Court of Appeal, the trial judge found that Mr. Alchimowicz was the sole cause of his injuries, and dismissed the action. At paragraphs 13 and 14 and of its affirming judgment, the Court of Appeal stated:
In any event, we see no merit in the appellant's argument that Windsor was negligent in failing to install a railing that was not flat. In fulfilling its duty as an occupier, it was not incumbent upon Windsor to guard against every possible accident that might occur. Windsor was only required to exercise care against dangers that were sufficiently probable to be included in the category of contingencies normally to be foreseen: Wade v. Canadian National Railway Co., [1978] 1 S.C.R. 1064 at 231. In our view, an adult diving off the dock at night into shallow water was not one of these contingencies. To exact a standard as suggested by the appellant would effectively make Windsor an insurer against all possible risks. The law imposes no such duty.
Finally, we are not persuaded on the evidence that a round railing, any more than a "no diving" sign would have been an effective deterrent to the appellant.
[66] Alchimowicz v. Schram, supra was applied in Galka v. Stankiewicz, 2010 ONSC 2808, affd. 2011 ONCA 428. In that case, Mr. Galka and his friend went to an archery range managed by the City of Toronto. In order to find lost arrows, Mr. Galka went out on the range and Mr. Stankiewicz launched arrows over the archery targets. One of Mr. Stankiewicz’s arrows struck Mr. Galka, who suffered a brain injury. He sued Mr. Stankiewicz for negligence and the City for occupier’s liability. Justice Baltman granted judgment against Mr. Stankiewicz, but she dismissed the action against the City. At paragraph 80 of her judgment, she stated:
- It is true that archery, by its very nature, can be hazardous and cause potentially catastrophic injuries, as this case makes clear. But so can golf, swimming and numerous other activities, where courts have declined to impose liability on the occupier upon finding the plaintiff was responsible for his own demise or the occurrence itself was simply unforeseeable. The governing principle was articulated by the Ontario Court of Appeal in Alchimowicz v. Schram, [1999] O.J. No. 115: …
[67] In St. Anne (Litigation guardian of) v. Hamilton (City), [2001] O.J. No. 1807 (S.C.J.), Howard St. Anne was participating in a game of slow pitch baseball at a municipal park in the City of Hamilton. While fielding a fly ball, he slipped on Canada geese excrement on the field and injured himself. Justice Lofchik dismissed Mr. St. Anne’s action against the City. There was no evidence that there were any effective measures to keep the geese away. Justice Lofchik was not persuaded that warning signs would have made any difference, and he did not think that it would have been reasonable for the City to have incurred the expense of safeguarding the grounds from geese excrement or of prohibiting the playing of baseball. He stated at paragraph 19 of his decision:
In my view, it would be unreasonable, for the defendant City of Hamilton, to incur the expense involved in picking up the goose excrement from the diamonds at Globe Park if it were found that such constituted such a hazard as to warrant action on the part of the defendants to make the premises around the diamonds reasonably safe for persons on the premises playing baseball. The only reasonable action to be taken by the defendants, if the goose excrement on the ground constituted a hazard to those playing baseball on the premises, would be to prohibit the playing of baseball because of the danger, unless one of the defendants was prepared to undertake the extraordinary expense of removing the excrement, something which in my view, would be above and beyond its reasonable obligations under the Occupiers Liability Act.
[68] Gores Landing Marina submits that it is not reasonable: (a) that it should have a rule prohibiting its tenants from organizing tug-of-war as part of recreational activities at the campsite; (b) that it should have a rule requiring the tenants to obtain permission from Gores Landing Marina to organize recreational activities at the campground; or (c) that it should have a duty to supervise the recreational and social activities of the tenants at the campground.
[69] I agree. The Defendants’ responsibility is only to take such care as in all the circumstances of the case is reasonable. They are not obliged to prohibit recreational activities that might prove to be dangerous because virtually no activity, including sitting, is risk free. Campgrounds are a place for recreational sports and games, and properly supervised, tug-of-war is not a particularly dangerous sporting activity. The Defendants undoubtedly foresaw that games and sports like tug-of-war would take place at the campground, but they did not fail to take reasonable care to protect the participants in this sporting activity from foreseeable harm. The Defendants could not have reasonably foreseen that the rope for the tug-of-war would be taken from its supply shed and even if they had purposefully provided the rope, they could not have reasonably foreseen that the participants in the tug-of-war would not properly prepare the rope for the tug-of-war or have the rudimentary safety equipment necessary to officiate the event. I agree with what Justice Lederman said in that virtually every game presents a potential risk but the occupier of a recreational property should not have to investigate how the games are to be played or what safeguards will be put into place before permitting them to occur. As the Court of Appeal noted in Alchimowicz v. Schram, supra, an occupier is not an insurer against all possible risks from activities on his, her, or its property.
[70] For the above reasons, I grant the Defendants’ summary judgment motion.
F. CONCLUSION
[71] For the above reasons, the main action against Mr. Davies, Sr. and Gores Landing Marina and their third party proceedings should be dismissed.
[72] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with the submissions of the parties claiming costs within thirty days of the release of these Reasons for Decision followed by the written submissions of the responding parties within a further thirty days.
Perell, J.
Released: August 25, 2016
COURT FILE NO.: CV-09-383809 DATE: 20160825
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: TIMOTHY BONELLO, TED BONELLO, ANNE CUTAJAR WAGNER, ANDREW BONELLO and MARK BONELLO Plaintiffs – and – GORES LANDING MARINA (1986) LIMITED, JOSEPH DAVIES, and MURRAY E. CARSLAKE and JOSEPH DAVIES JR. also known as JOEY DAVIES Defendants – and – CHRIS KANE, CHRIS RYAN, ANTHONY COOK, GABE MANSUETO, GERALD CHESTNUT, JEFF JAGLEL, FRANK BUTTIGIEG, DAN RULE, MIKE BUTTIGIEG Third Parties
REASONS FOR DECISION
PERELL J. Released: August 25, 2016