Hanmer v. Hunter and Thamesford Trojans, 2017 ONSC 6177

CITATION: Hanmer v. Hunter and Thamesford Trojans, 2017 ONSC 6177

COURT FILE NO.: 941/13

DATE: 2017/10/26

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Everett Hanmer, Plaintiff

AND:

Jake Hunter and Thamesford Trojans Hockey Club Inc., Defendants

BEFORE: Justice J.C. George

COUNSEL: Ayren Brown, for the Defendant Jake Hunter Larry Reimer, for the Defendant Thamesford Trojans Hockey Club Inc.

HEARD: September 27, 2017

ENDORSEMENT

[1] The plaintiff, Everett Hanmer fell from the flatbed of a pick-up truck operated by the defendant Jake Hunter (“Hunter”). The two were teammates of the Thamesford Trojans Hockey Club (“the Club”). The Club is a co-defendant. Hunter has cross-claimed against the Club. On consent, the plaintiff’s claim as against the Club has been dismissed.

[2] This is the Club’s motion to dismiss Hunter’s cross-claim. The plaintiff takes no position on this motion and did not participate.

[3] In 2011, the Club won the Provincial Junior D hockey championship. As is custom, the Club participated in a local annual event known as the “Calithumpian” parade. On May 23, 2011 the plaintiff and Hunter attended at the arena and helped prepare the Club’s parade float. The Club planned to use this opportunity to celebrate its success with the community and display its championship trophy.

[4] Club general manager Keith Webb operated the float. Participating teammates, including the plaintiff and Hunter, rode on the float during the parade. By all accounts nothing remarkable happened and, after the parade finished, the players dispersed. Hunter remained with Mr. Webb and retrieved his pick-up at the arena.

[5] The plaintiff chose to walk back after the parade. While walking, Hunter came along and offered him a ride. The plaintiff accepted and climbed onto the pick-up’s flatbed. While the vehicle was in motion, the plaintiff fell out of the back onto the pavement, injuring himself.

[6] The statement of claim pleaded the following respecting the Club:

8. Further and in the alternative, the plaintiff claims that this incident and consequent injuries aforementioned were caused by reason of the negligence, breach of contract, breach of fiduciary duty, breach of the Liquor Licence Act and breach of the Occupiers’ Liability Act of the Club or its employees, servants and/or agents for whom in law it is responsible…

[7] The allegation was two-fold. First, the plaintiff pleaded that the Club allowed Hunter to consume alcohol, or served it to him, knowing that he would become intoxicated before operating his vehicle. There was an entire list of particulars that, except for one, relate to the Club’s facilitation of Hunter’s alcohol consumption. It was alleged that the Club violated the statutory duties imposed on it by the Liquor Licence Act and breached the common law duty of care it owed the public and team members.

[8] Second, the plaintiff attempted to ground liability in the Club’s failure “to ensure that all players from the Trojans Junior D hockey team were safely transported back to the arena after the parade had finished”.

[9] Hunter did not consume alcohol and none was made available by the Club. This is acknowledged by the plaintiff who, as indicated, has abandoned his claim against the Club. For his part, Hunter confirmed during his cross-examination that he did not consume alcohol and did not see anyone else drinking either at the arena or on and around the float.

[10] Hunter opposes the dismissal of his claim against the Club. His cross-claim includes as follows:

20. The defendant, Jake Hunter, claims against the co-defendant, Thamesford Trojans Hockey Club Inc.:

(a) Contribution and indemnity under sections 2 and 3 of the Negligence Act, RSO 1990, c N.1, as amended, for any amounts which this defendant may be found to be liable to the plaintiff;

(b) Contribution and indemnity under the common law and equity for any amounts which this defendant may be found to be liable to the plaintiff…

21. The defendant repeats and relies upon the allegations contained in its defence and in the plaintiff’s pleadings in support of the crossclaim.

[11] The Club’s position is that, in addition to there being no evidence of alcohol consumption, there are no other facts or circumstances that would give rise to liability on the Club’s part. The former is agreed on - there is no evidence of alcohol consumption.

[12] Hunter takes the position that, irrespective of alcohol use, the Club was negligent in failing to ensure that its hockey players were safely transported back to the arena following the parade. This is his theory of liability. He argues there is a genuine issue requiring a trial.

[13] Mr. Webb’s initial affidavit speaks only to the alcohol issue, confirming none was provided to the players. He filed a supplementary affidavit that addressed the potential liability issue arising from the plaintiff not returning to the arena with him. He deposes that the distance from the end of the parade route back to the arena is approximately 1.4 km, which would take about 17 minutes to walk. He deposes that, at the time of the event, both the plaintiff and Hunter were 20 years old. He indicates that there was no specific discussion about how the players would make their way back to the arena (or to wherever else they wanted to go at the parade’s end).

[14] He deposes this at paras. 14 to 16 of his affidavit sworn September 15, 2017:

14. It was however obvious that one option was that they could ride, or continue to ride, on the team float if they so chose as it moved slowly back to the arena given the number of pedestrians and the community festivities.

15. As Mr. Hunter deposes, he, for his part, evidently chose to remain on the float.

16. The 20-year-old Plaintiff, and other individuals, evidently chose to simply walk the 17 minutes (more or less) in the company of other pedestrians in the community.

[15] In his affidavit sworn September 6, 2017 Hunter deposes this at paras. 7 to 10, 16 and 17:

7. When the parade finished, there were no discussions as to how members of my team would get back to the arena. No one from the Thamesford Trojans offered us a ride or otherwise ensured our safe arrival at the arena.

8. Following the parade, my teammates left the float and went out into the community with the trophy. I did not follow my teammates as I was eager to return home to London following the parade.

9. Accordingly, I remained on the float which took me back to the arena. There, I retrieved my pickup truck and proceeded to head to London.

10. As I was heading home, I observed my teammates, including the plaintiff, walking on Dundas Street. I offered to drive them back to the arena before heading home to London. My teammates accepted the offer. They pulled down the lift gate on the cab of my truck and they climbed aboard. Whereas two of my teammates sat on opposite side of the lift gate, the plaintiff was seated in the middle of the lift gate holding the trophy. As I was driving back from the arena, I suddenly heard someone yell “stop”. Accordingly, I stopped my pickup truck, alighted from the vehicle, and observed the plaintiff lying on the ground, writhing in pain.

11. The statement of claim particularizes a number of ways in which the Thamesford Trojans is allegedly negligent. Many of these allegations are based on the theory that members of our hockey team consumed alcohol prior to participating in the parade. In addition to these allegations, however, the statement of claim also alleges that the Thamesford Trojans failed to ensure that hockey players were safely transported back to the arena after the parade had finished.

12. I have been advised by my lawyer, Ayren Brown, and verily believe that this is a valid ground on which the trier of fact may apportion liability to the Thamesford Trojans.

[16] On the issue of the Club’s liability for the plaintiff’s injuries, is there a genuine issue requiring a trial? As the alcohol issue has been disposed of, I am concerned only with whether there is a duty on the Club to ensure the plaintiff returned to the arena safely after the parade finished, and if so, whether the standard of care was breached.

[17] Rules 20.01(3) and 20.09 govern. These provide that:

20.01(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.

20.09 Rules 20.01 to 20.08 apply, with necessary modifications, to counterclaims, crossclaims and third party claims.

[18] Rule 20.04(2.1) permits me to weigh evidence and draw any reasonable inferences from the evidence. On a summary judgment motion, I have jurisdiction to find facts, apply the law to those facts, and make final orders.

[19] These are the elements required to establish a cause of action for negligence:

1. The defendant, in this case the Club, must owe a duty of care to the plaintiff;

2. The Club breached the standard of care;

3. The plaintiff sustained damages; and

4. The plaintiff’s damages were in fact caused by the Club’s breach.

[20] I will address first the duty of care and set out what potential duties exist on these facts. The Anns-Cooper test, articulated originally by the House of Lords in Anns v. Merton London Borough Council [1978] A.C. 728, and since refined by the Supreme Court in Cooper v. Hobart, 2001 SCC 79, sets out a two-stage inquiry to determine whether a duty of care exists:

1. Is there a sufficiently close relationship between the parties (i.e. proximity) to justify the imposition of a duty?; and

2. Are there any policy considerations which ought to negative or limit the scope of the duty, class of person to whom it is owed or the damages to which a breach may give rise?

[21] I resort to this inquiry if the relationship between the plaintiff and Club does not fit into an already recognized category. In other words, Anns-Cooper is to be applied only to novel or new duties of care.

[22] In my view, there is no need for an Anns-Cooper analysis as, if a duty exists, there are two existing possibilities, neither of which are new or novel. First, a hockey club or organization does owe a duty of care to its players to ensure their safety, fitness and health. The question is whether this duty would extend to activities outside the rink and specifically to a ride home from a community event.

[23] Second, it could be said that a duty of care exists because the supervisory role of the Club during the parade is analogous to the obligation a teacher owes their students while on a field trip.

[24] Employer-employee related duties would not, in my view, apply as there is no evidence the Club’s players were remunerated for their services.

[25] Did the Club have an obligation to ensure the plaintiff returned to the arena, his home, or other destination of his choosing, after the parade’s completion? I find that it’s likely the Club did owe a duty to the plaintiff and had a responsibility to at least make available to him a ride back to the arena.

[26] Having said that, and to be clear, while the Club surely did owe a duty to the plaintiff while he was at the arena preparing for the parade, and while on the float, I am not entirely convinced this extended past the parade especially when the plaintiff voluntarily disembarked and began to walk. I will, however, proceed with the analysis assuming there was a duty of care.

[27] Moving on to the standard of care - an analysis based on what a reasonable person would have done in the circumstances - the question is whether there is any evidence to support a finding that the standard of care had been breached? And if there is, am I able to decide the issue at this stage using the enhanced powers available to me on summary judgment?

[28] The evidence is straightforward and not in dispute. The plaintiff travelled the parade route on the Club’s float. No injuries were sustained during the parade, and at its completion the 20-year-old plaintiff did not return to the arena with Mr. Webb. Hunter did. The plaintiff did not suffer from a disability and was not otherwise a vulnerable person. There was nothing remarkable about the weather, or location of the parade or its end-point. There is nothing inherently dangerous about walking the streets of Thamesford during daylight hours. And, as indicated, the plaintiff did not consume alcohol or ingest intoxicants.

[29] There is a complete evidentiary record before me. The parties have filed affidavits and have been cross-examined. On this evidence, there is no basis to find that a reasonable person who owed a duty of care to the plaintiff - based either on the club-player relationship or arising from any analogous supervisory role - would have insisted on driving the plaintiff back to the arena, parade’s starting point, or home. Were any of the factors I list in the preceding paragraph present the result might be different, but here we have an adult leaving the float and deciding not to return with Mr. Webb, when that option was available to him. After weighing this evidence, I find that there was no breach of the requisite standard.

[30] What if I am wrong in concluding that, should a duty of care exist, it falls within an existing category? Even if I had found that a new duty exists upon an Anns-Cooper analysis, it is inconceivable that the Club could be held responsible for not transporting the plaintiff (an adult walking on a sidewalk, in a small town, during daylight hours) back to the arena under that new duty, in the face of the plaintiff making other arrangements.

[31] Therefore, on the issue of the Club’s liability, there is no genuine issue requiring a trial. The Club’s motion is granted. I dismiss Hunter’s cross-claim as against the Club.

[32] A final note on the broader policy question that typically accompanies such motions. This is not a case where I am being asked to shut out a plaintiff. His claim against Hunter remains, which will be heard and adjudicated.

[33] At the end of argument, counsel made cost submissions, assuming complete success. I have considered those submissions, and reviewed their respective cost outlines. In the result, Hunter is to pay the Club its costs of this motion fixed at $6500 inclusive of HST and disbursements.

“Justice J.C. George”

Justice J.C. George

Date: October 26, 2017