Cyr v. Calypso Parc Inc., 2016 ONSC 7636
CITATION: Cyr v. Calypso Parc Inc., 2016 ONSC 7636
COURT FILE NO.: 12-54440
DATE: 2016/12/09
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Francine Cyr, Plaintiff
AND
Calypso Parc Inc., Defendant
BEFORE: Madam Justice Sylvia Corthorn
COUNSEL: Richard Auger, for the Plaintiff
Sally Gomery and Mark Gallagher, for the Defendant
HEARD: September 29, 2016
endorsement
corthorn j.
Introduction
[1] The defendant appeals the May 2016 order (“the Order”) of Master Champagne (“the Master”) in which she granted the plaintiff leave to amend her statement of claim. The amendments include allegations with respect to incidents at the defendant’s waterpark (“the Waterpark”) and a regulatory proceeding arising from the investigation of those and other incidents (“the Regulatory Proceeding”). All of the incidents referred to in the amendments and the Regulatory Proceeding relate to events that occurred at the Waterpark between one and three years subsequent to the date on which the plaintiff alleges she was injured.
[2] The defendant also appeals the portion of the Order providing for disclosure of the file of Technical Standards and Safety Authority (“the TSSA”), the body which carried out the investigation of the manner in which the defendant was operating the Waterpark (“the Investigation”).
History of the Litigation
[3] The plaintiff’s action arises from an incident that occurred at the Waterpark in August 2010 (“the Incident”). She was riding the Canyon Rafting slide, while seated in a raft that holds up to six people. The plaintiff alleges that while on the slide she collided with another rider and suffered facial and other injuries as a result.[^1]
[4] The statement of claim was issued in May 2012. The sole cause of action which the plaintiff pleads is negligence. The allegations of negligence relate to the management and operation of the Waterpark, including with respect to instructions given to the plaintiff prior to riding Canyon Rafting.[^2] The defendant denies the allegations of negligence; says that it operated the Waterpark in a manner that was safe for its users; and says that its employees were properly trained. The defendant also alleges contributory negligence on the part of the plaintiff.[^3]
[5] The damages claimed by the plaintiff fall under the headings of pain, suffering and loss of enjoyment of life; loss of income; out-of-pocket expenses; and cost of care. The plaintiff is not advancing a claim for punitive damages.
[6] The statement of defence was prepared and served in the summer of 2012. The examinations for discovery of the parties were conducted in 2014. The plaintiff set the action down for trial in October 2014.
[7] In 2014, the plaintiff brought a motion for and obtained an order that the defendant produce, as part of the documentary discovery process, the reports of the TSSA from its investigation of incidents that occurred at the Waterpark (“the Incident Reports”). In compliance with that order, the defendant produced copies of the Incident Reports.
[8] A pre-trial conference was held in May 2015. The trial of this action was originally scheduled to proceed for two weeks before a judge and jury in April 2016.
[9] The trial was adjourned on consent in early 2016, specifically to permit the plaintiff to bring the motion for leave to amend her pleading, which she did. The action is now scheduled to be tried before a judge and jury in September 2017. When the trial was adjourned, the trial time was increased from two to four weeks to allow the additional time required if the plaintiff were granted leave to amend the pleading.
[10] After the trial was adjourned the plaintiff brought the motion for production of the TSSA file.
The Motions – April 2016
[11] In support of the relief requested on her behalf, the plaintiff relies on the evidence of a paralegal (“Ms. Campbell”) within the office of counsel for the plaintiff. Separate affidavits sworn by Ms. Campbell were filed in support of the pleadings amendment motion and the production motion (“Affidavit No. 1” (or 2), respectively).
[12] In Affidavit No. 1, filed in support of the pleadings amendment motion, Ms. Campbell makes reference to the Incident Reports, the Regulatory Proceeding, and the conviction on several of the counts with which the defendant was charged. Copies of the Incident Reports are included as an exhibit to Affidavit No. 1. The events described in the Incident Reports occurred in June and July 2011 (two events in total) and in July and August 2013 (18 events in total).
[13] Ms. Campbell also includes as an exhibit to Affidavit No. 1 a copy of the proposed amended pleading. The particulars of the proposed amendments are discussed below in the Analysis section below.
[14] The relief requested on the production motion is for:
An order compelling the Technical Standards and Safety Authority and/or the Ministry of the Attorney General to release and to make available to the lawyers for the Plaintiff, a complete and unedited copy of the investigation file related to the charges brought against the Defendants under the Technical Standards and Safety Act regarding the operation of the [Waterpark].
[15] The notice of motion provides further particulars of what is meant by “a complete and unedited copy of the investigation file”. Eleven items are identified including, for example, “All investigation documents”, “Documentation in relation to all violations of the Technical Standards and Safety Act”, “Unedited versions of any incident reports”, and “Copies of all photographs”. The parameters of the documentary disclosure sought are not in any way limited by a start date, an end date, or a stated period prior and subsequent to the date of the Incident.
[16] In her affidavit filed in support of the production motion, Ms. Campbell refers to the Investigation, events that occurred at the Waterpark in 2011 and 2012, and the Regulatory Proceeding. The Investigation led to the defendant being charged with 20 counts. The Regulatory Proceeding was conducted in 2015 on 11 of the original 20 counts.
[17] In April 2015 the defendant was found guilty on six of the 11 counts. The sentencing hearing was conducted in June and the sentence was rendered in July 2015. The defendant received fines totalling $400,000.[^4] Included as exhibits to Affidavit No. 2 are copies of the decisions on conviction and sentencing.
[18] The plaintiff highlights that the motion for leave to amend her pleading was initiated in December 2015, approximately five months after the decision on sentencing was released and four months subsequent to the end of the period within which the defendant could appeal the sentence. The production motion was initiated in February 2016. The two motions by the plaintiff were heard together by the Master in April 2016.
[19] In paragraph 17, above, I use the word “initiated” loosely. In neither notice of motion did the plaintiff identify rule 48.04(1) of the Rules of Civil Procedure[^5] as one of the rules relied upon in support of the relief requested. Copies of the facta delivered on behalf of the parties with respect to both motions are included in the appeal record. Despite the fact that the plaintiff did not identify rule 48.04(1) in the notices of motion, both parties addressed it in written argument.
Decision of the Master
[20] The plaintiff was granted leave to amend her pleading to include (a) similar fact allegations related to incidents at the Waterpark in 2011, 2012, and 2013; (b) references to the Investigation and the charges arising from it; and (c) references to the Regulatory Proceeding. An order was also made requiring the TSSA to produce its investigation file to the parties.
[21] In her endorsement dated May 11, 2016 (“the Endorsement”), the Master makes no mention of rule 48.04(1) of the Rules of Civil Procedure. The Endorsement does not include an order granting the plaintiff leave to initiate either the motion for leave to amend her pleading or the documentary discovery motion.
[22] At paragraph 23 of the Endorsement, the Master made the following findings and reached the following conclusions:
- The ‘similar fact’ amendments proposed by the plaintiff are not frivolous, vexatious, or an abuse of process.
- The proposed amendments do not fail to disclose a reasonable cause of action.
- The proposed amendments support the plaintiff’s claim in negligence.
- The prejudice, if any, to the defendant by reason of both further examination for discovery arising from the amendments to the plaintiff’s pleading and a lengthier trial can be compensated for in costs.
- It will be up to the trial judge to deal with the issue of admissibility of the ‘similar fact’ evidence.
The Issues
[23] The primary issue on this appeal is: When is it appropriate, in the context of a civil proceeding, to allow a party to include post-incident similar fact allegations in their pleading? The secondary issue is the relevance, if any, of post-incident occurrences to the discovery process.
Standard of Review
[24] The defendant’s position is that the standard of review to be applied is that set out in the decision of the Divisional Court in Zeitoun v. Economical Insurance Group: “The decision will be interfered with only if the master made an error of law or exercised his or her discretion on the wrong principles or misapprehended the evidence such that there is a palpable and overriding error”.[^6]
[25] The plaintiff relies on two decisions, both of which pre-date Zeitoun, to support her position that the standard of review is whether the decision of the Master is “clearly wrong”.[^7] Both decisions relied on by the plaintiff were considered by the Divisional Court in Zeitoun for their historical position within competing lines of cases. The Divisional Court found the two lines of cases to be irreconcilable and determined that the standard of review on appeal from a decision of a master is as quoted in paragraph 23, above. [^8]
[26] I agree with the defendant. On this appeal I have applied the standard of review established by Zeitoun. I note, however, that if I were to apply the standard of review of “clearly wrong”, proposed by the plaintiff, the outcome of the appeal would be the same.
Positions of the Parties
a) The Defendant
[27] The defendant relies on the second and third elements of the standard of review in Zeitoun. The defendant submits that the Master (a) exercised her discretion on the wrong principle or principles; (b) misapprehended the evidence; and (c) in so doing, made a palpable and overriding error.
[28] The defendant submits that the Master erred in failing to consider the preliminary issue of whether the plaintiff was, pursuant to rule 48.04(1) of the Rules of Civil Procedure, entitled to leave to proceed with the pleadings amendment and the documentary discovery motions.
[29] Leaving aside the failure to address rule 48.04(1), the essence of the defendant’s position is that the Master applied the mandatory wording of rule 26.01 of the Rules of Civil Procedure, applicable to the amendment of pleadings, without considering the specific nature of the proposed amendments. The Master failed to consider the test to be applied when the proposed amendments reference similar facts and result in substantial complexity of the trial. The defendant characterizes the latter test as falling within the Court’s ‘gatekeeper’ function.
[30] The defendant submits that the Master failed to fulfil the gatekeeper function by failing to:
a) Consider whether the proposed amendments include allegations probative of any question properly at issue in the action; and
b) Weigh any such probative value against:
i) The potential prejudice to the defendants if leave to amend the pleading is granted; and
ii) The complexity resulting from the proposed amendments.
[31] It is also the defendant’s position that the Master misapprehended the onus of proof on a defendant in addressing the issue of potential prejudice to a defendant in response to the plaintiff’s request for leave to amend her pleading.
b) The Plaintiff
[32] The plaintiff’s position is that the decision of the Master to grant leave to amend the pleading was a discretionary one. The Master properly exercised her discretion and deference is to be given to her decision.
Leave to Initiate the Motions
[33] The plaintiff set the action down for trial in the fall of 2014. Pursuant to rule 48.04(1) of the Rules of Civil Procedure, the consequence of having done so is that the plaintiff “shall not initiate or continue any motion or form of discovery without leave of the court.”
[34] The plaintiff’s position is that the timing of the production by the defendant of the Incident Reports is relevant to the timing of the pleadings amendment motion. The plaintiff submits that it was not until after she became aware of the contents of the Incident Reports that she determined it was necessary to pursue the pleadings amendment motion.
[35] There was no evidence filed on the motion and no evidence before me when the appeal was argued as to the date on which the defendant produced the Incident Reports to the plaintiff. The plaintiff attempted, subsequent to the date on which the appeal was heard, to file additional evidence in that regard. The defendant objects to that evidence being filed.
[36] Neither of the parties was granted leave on the appeal to file additional evidence with respect to the timing of production of the Incident Reports. I agree with the defendant that the additional evidence filed by the plaintiff is not properly before the Court. In deciding the appeal I have not considered that additional affidavit evidence.
[37] The timing of the production of the Incident Reports is, in any event, only one of the factors to be considered with respect to the timing of the plaintiffs’ two motions. Other factors to be considered include the timing of each of the Regulatory Proceeding, the sentencing, and the expiration of the appeal period with respect to the outcome of that proceeding (including the sentence). Those events occurred in June 2015 or within several months thereafter.
[38] I find that in all of the circumstances it was reasonable for the plaintiff to wait until the outcome of the Regulatory Proceeding, including the expiration of the relevant appeal period, before proceeding with the two motions that are the subject of this appeal. I am satisfied that it is in the interests of justice that the plaintiff be granted leave to proceed with the two motions.
[39] In the circumstances, the failure of the Master to address rule 48.01(4) of the Rules of Civil Procedure is not a palpable and overriding error.
The Proposed Amendments
[40] The proposed amendments are numerous and lengthy. They fall into the following general categories:
- Additional particulars of the negligence alleged on the part of the defendant;[^9]
- Reference to the 11 counts and six convictions under the Technical Standards and Safety Act[^10] that were pursued before the Ontario Court of Justice; [^11] and
- Allegations of patterns of behaviour including unsafe operations, inadequate maintenance of rides, and inadequate training and supervision of staff – all of which are consistent with the negligence particularized in the statement of claim. As part of these allegations, reference is made to the charges, convictions, and incidents alleged to be similar to the Incident.[^12]
[41] The alleged similar incidents to which reference is made in the proposed amendments occurred on the Canyon Rafting slide in June and July 2011 and in the months of June to September 2013.[^13] Each of the similar incidents involves contact between two riders, with one of the riders suffering injury. The injuries suffered include a nose bleed; pain in the face, head, or back; a facial laceration; an ankle injury; and to loss of tooth. It appears that the injuries suffered in the similar incidents were less severe than the injuries the plaintiff alleges she suffered and for which she seeks compensation.
[42] The incidents giving rise to the eleven counts occurred in June, July, or September 2011 and in June 2012 (approximately one to two years after the date of the Incident). None of the charges relate to the Canyon Rafting ride.[^14]
a) Claim in Negligence
[43] In her analysis of the pleadings amendment motion, the Master identified that the test for leave to amend a pleading is prescribed by rule 26.01 of the Rules of Civil Procedure. That rule provides as follows: “On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.” It is clear from her analysis that the Master understood that despite the mandatory wording of rule 26.01, she was required to exercise discretion when determining whether to grant the plaintiff leave to amend her pleading.
[44] I find that the Master made a palpable and overriding error in exercising her discretion to grant the plaintiff leave to include in the amended pleading reference to the alleged similar incidents, the 11 counts, and six convictions arising from the Regulatory Proceeding. The error is evident from the Master’s conclusion that the proposed amendments support the plaintiff’s claim in negligence.
[45] There is in my view no basis upon which it can be said that the defendant’s conduct one to three years subsequent to the date of the Incident, the charges arising from that conduct, or the conviction at the conclusion of the Regulatory Proceeding are relevant to the plaintiff’s claim based solely in negligence. To succeed with her claim the plaintiff must satisfy the Court that:
a) The defendant owed her a duty of care;
b) The acts and omissions of the defendant fell below the standard of care which the plaintiff was entitled to expect the defendant to exercise; and
c) It was reasonably foreseeable, as of the date of the Incident, that the plaintiff would suffer injury as a result of the defendant’s acts and omissions.
[46] I agree with the statement made by Murray J. at paragraph 13 of his decision in Woods v. Jackiewicz et al: “Subsequent negligence is irrelevant to the proof of prior negligence.”[^15]
[47] The first principles of pleading and how similar fact allegations are to be addressed pursuant to those principles were extensively reviewed by Master MacLeod (as he then was) in Toronto (City) v. MFP Financial Services Ltd. [^16] In that case, the plaintiff sought leave to amend its pleading prior to the action being set down for trial. Several types of amendments were proposed including paragraphs related to the manner in which MFP dealt with two other municipalities, a public inquiry launched by one of the other municipalities, and litigation commenced by both municipalities. Those paragraphs were described as similar fact allegations. The plaintiff was granted leave to amend the pleading in a limited manner. Leave to include the similar fact allegations was denied.
[48] Master MacLeod summarised the principles of pleading as they relate to similar fact allegations as follows:
a) If similar facts will be material to a portion of the claim including punitive damages, they may be pleaded in order to give fair notice that they will form part of the discovery and will be part of the case at trial (citations omitted);
b) Similar facts that are mere evidence and are not in themselves material facts should not be pleaded as doing so offends [r]ule 25.06(1) (citation omitted);
c) Similar facts that are not material and are irrelevant should be struck pursuant to [r]ule 25.11(b) as scandalous, frivolous or vexatious but even relevant similar facts may be struck out under [r]ule 25.11(a) if they will prejudice or delay the fair trial of the action (citations omitted).
d) Even in those cases where the similar facts are relevant and material, they should not be permitted if the added complexity arising from their pleading does not outweigh their potential probative value.[^17]
[49] The decision in MFP further emphasizes that for similar fact allegations in a pleading to stand they must be material and relevant to the issues to be determined in the action.
[50] In summary, I find that the similar fact allegations set out in paragraphs 8 to 13 of the proposed amended pleading included as exhibit ‘F’ to Affidavit No. 1 are neither material nor relevant to the plaintiff’s claim in negligence.
b) Claim for Punitive Damages
[51] The plaintiff submits that the proposed amendments demonstrate a pattern of behaviour that is relevant to her claim for punitive damages. The plaintiff’s position is that the absence of a claim for punitive damages in her pleading does not preclude her from advancing a claim for damages under that heading. The plaintiff relies on the 1986 decision of Potts J. in Briand v. Sutton[^18] in support of her position.
[52] The defendant submits that the decision in Briand and its predecessor cases are no longer good law.
[53] I agree with the defendant. In the 2002 decision of the Supreme Court of Canada in Whiten v. Pilot, Binnie J. emphasized the requirement to specifically plead a claim for punitive damages:
There is some case law that says a claim for punitive damages need not be specifically pleaded as it is included conceptually in a claim for general damages: (citations omitted). In my view, the suggestion that no pleading is necessary overlooks the basic proposition in our justice system that before someone is punished they ought to have advance notice of the charge sufficient to allow them to consider the scope of their jeopardy as well as the opportunity to respond to it. This can only be assured if the claim for punitive damages, as opposed to compensatory damages, is not buried in a general reference to general damages… Ontario’s Rule 25.06(9) also has the effect of requiring that punitive damages claims be expressly pleaded…[^19]
[54] The proposed amendments do not include any amendments to the prayer for relief set out in paragraph 1 of the statement of claim. The prayer for relief on behalf of the plaintiff includes only two paragraphs in which the damages claimed are particularized. The plaintiff’s claim is for, “a) damages in the amount of $1,500,000.00; and b) special damages in the amount of $25,000.00”.
[55] Nowhere in the statement of claim or proposed amendments is a claim for punitive damages plead or referenced in any way. In paragraphs 11 and 12 of the proposed amendments reference is made to “patterns of behaviour”. However, in each of those paragraphs the “patterns of behaviour” are alleged to be “consistent with the allegations of negligence made by the Plaintiff in this action”.
[56] I find that the plaintiff is not making a claim for punitive damages. I agree with the defendant that absent a claim for punitive damages the similar fact allegations set out in paragraph 8 to 13 of the proposed amended statement of claim are neither material nor relevant to the plaintiff’s claim.
c) Additional Particulars of Negligence
[57] The particulars of negligence that the plaintiff seeks leave to add to her pleading are set out in paragraphs 7(d), (k) − (p), and (r) of the proposed amended statement of claim (“the Additional Particulars”).
[58] The only evidence in support of the request to amend the statement of claim to include the Additional Particulars is that of Ms. Campbell in Affidavit No. 1. In that affidavit, Ms. Campbell refers to incident reports with respect to other individuals who were injured while riding on Canyon Rafting. As noted above, those incidents occurred in 2011 and 2013.
[59] Ms. Campbell’s evidence is based in part on information from Alexander Hartwig. She does not identify who that individual is. However, Ms. Campbell states that based on information from that individual she believes “that the incident reports are relevant to the Plaintiff’s claim as they demonstrate actions and patterns of behaviour by the Defendants similar to the allegations of negligence in the Plaintiff’s Statement of Claim.” Ms. Campbell offers no other explanation, by way of substantive evidence or exhibits, in support of the request for leave to include the additional particulars of negligence in the proposed amended pleading.
[60] Based on my review of the incident reports included as exhibits to Affidavit No. 1, I find there is nothing to tie them in any way to the further particulars of negligence the plaintiff seeks leave to include in the proposed amended statement of claim.
[61] In summary, there is no evidence to explain the basis for the Additional Particulars. As a result, the plaintiff is not entitled to leave to amend the particulars of negligence set out in paragraph 7 of the statement of claim.
Production of the TSSA File
[62] As noted in paragraph 1 of the Endorsement, on the return of the motion the defendant conceded that if the plaintiff was granted leave to amend her pleading, an order for disclosure of the TSSA investigation file should also be made. Having granted the plaintiff leave to amend her pleading, the order for disclosure of the TSSA investigation file was also made by the Master.
[63] On the appeal, the parties agreed as follows:
a) If the defendant was not successful on its appeal with respect to the pleadings amendment motion, then the defendant would not pursue the appeal of that portion of the Order requiring the TSSA to produce its file; and
b) If the defendant was successful on its appeal with respect to the pleadings amendment motion, then I am, as a single judge of the Divisional Court, to determine the appeal of that portion of the Order requiring the TSSA to produce its file.
[64] Given the outcome of the appeal on the pleadings amendment motion, I am required to determine the appeal by the defendant of the order for disclosure of the TSSA file.
[65] As noted above, the evidence of Ms. Campbell addresses a TSSA file that relates solely to the investigation of and charges arising from events that occurred subsequent to the date of the Incident. There is no evidence to indicate that the TSSA file is in any way related to the Incident or to any events at the Waterpark that pre-date the Incident. None of the incident reports attached as exhibits to Affidavit No. 2 relate to an event that occurred prior to the date of the Incident.
[66] The relevance (or lack thereof) of post-incident events to the issue of negligence, in the context of the discovery process, is addressed in ICI Canada Inc. v. Selena Coffee Ltd.[^20] Wilson J. upheld the decision of Master Sproat with respect to a ruling on a ‘refusals’ motion. The defendant was not required to answer questions relating to post-incident similar fact evidence because such questions do not satisfy the semblance of relevancy test; post-incident similar fact evidence does not go to the negligence of the defendant as alleged.
[67] In the absence of any evidence that the TSSA file is in any way related to the operation of the Waterpark on or before the date of the Incident, there is no basis upon which to order production of the file.
Disposition
[68] In summary, I order as follows:
The appeal by the defendant from the order of Master Champagne dated May 11, 2016 is allowed.
The plaintiff is granted leave to pursue the pleadings amendment motion and the production motion.
The plaintiff’s motion for an order granting her leave to amend her pleading in accordance with the draft amended pleading at Tab 5F of the appeal record is dismissed.
The plaintiff’s motion for an order requiring the Technical Standards and Safety Authority to produce its file, as particularized in the notice of motion at Tab 6 of the appeal record is dismissed.
Costs
[69] In the event the parties are unable to agree upon costs of the appeal, they may make written submissions as follows:
a) The submissions shall be limited to a maximum of five pages, exclusive of a bill of costs;
b) Written submissions shall comply with Rule 4 of the Rules of Civil Procedure including that they shall be double-spaced and in the requisite font size;
c) Hard copies of any case law or other authorities shall be provided with the submissions and shall be in the requisite font size;
d) Submissions, bills of costs, and case law or other authorities shall be single-sided;
e) Written submissions shall be delivered by 5:00 p.m. on the tenth business day following the date on which this decision is released; and
f) If either party determines that it is necessary to deliver submissions in reply, then the reply submissions shall be limited to three pages, conform to paragraphs (b), (c), and (d) above, and be delivered by 5:00 p.m. on the fifteenth business day following the date on which this decision is released.
Madam Justice Sylvia Corthorn
Released: December 9, 2016
CITATION: Cyr v Calypso Parc Inc., 2016 ONSC 7636
COURT FILE NO.: 12-54440
DATE: 2016/12/09
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Francine Cyr, Plaintiff
AND
Calypso Parc Inc., Defendant
BEFORE: Madam Justice Sylvia Corthorn
COUNSEL: Richard Auger, for the plaintiff
Sally Gomery and Mark Gallagher, for the defendant
endorsement
Madam Justice Sylvia Corthorn
Released: December 9, 2016
[^1]: Statement of claim, paras. 3 − 5.
[^2]: Statement of claim, paras. 6 and 7(a) − (j).
[^3]: Statement of defence, paras. 4 − 9.
[^4]: The regulatory proceeding was conducted by Justice of the Peace Lauzon of the Ontario Court of Justice.
[^5]: R.R.O. 1990, Reg. 194.
[^6]: 2008 CanLII 20996 (ON SCDC), 91 O.R. (3d) 131 (Div. Ct.), at para. 40.
[^7]: Marleen Investments Ltd. v. McBride et al (1979), 1979 CanLII 1895 (ON SC), 23 O.R. (2d) 125 (H.C.J.); and Hudon v. Colliers Macaulay Nicolls Inc. (2001), 147 O.A.C. 163 (Div. Ct.).
[^8]: Zeitoun, at para. 22.
[^9]: Amended statement of claim, paras. 7(d), (k) – (p), and (r).
[^10]: S.O. 2000, c. 16; and O. Reg. 221/01.
[^11]: Amended statement of claim, paras. 8 – 10.
[^12]: Amended statement of claim, paras. 11 – 13.
[^13]: The number of incidents in each month were as follows: June 2011 – one incident; July 2011 – one incident; June 2013 – one incident; July 2013 – seven incidents; August 2013 – eight incidents; and September 2013 – one incident.
[^14]: The amusement devices for which the defendant was charged were Pirate’s Aquaplay, Bobsleigh, and Steamer.
[^15]: 2013 ONSC 519, at para. 13, 226 A.C.W.S. (3d) 377.
[^16]: 2005 CarswellOnt 3324, [2005] O.T.C. 672.
[^17]: MFP, at paras. 29 − 30.
[^18]: [1986] O.J. No. 2323, 15 C.P.C. (2d) 32.
[^19]: 2002 SCC 18, at para. 86, [2002] 1 S.C.R. 595. The decision of Binnie J. was written for the majority.
[^20]: 2008 CarswellOnt 3941, 168 A.W.C.S. (3d) 278 (Ont. S.C.).