Court File and Parties
Court File No.: C-973-11 Date: 2018-08-15 Superior Court of Justice - Ontario
Re: Kyle Schiavone, Jack Schiavone and Denise Schiavone, Plaintiffs And: Brandon Woods, Sean Woods, Raital Limited, Ceeps-Barneys Limited carrying on business as The Ceeps, John Doe carrying on business as The Ceeps, Zucchet Family Development Ltd., 1086645 Ontario Inc., and 2265886 Ontario Inc., Defendants
Before: The Honourable Mr. Justice R. J. Nightingale
Counsel: Gordon W. Harris, Counsel, for the Plaintiffs Michelle Durnez, Counsel, for the Defendants, Brenden Woods and Sean Woods Robert A. Betts, Counsel, for the Defendants, Raital Limited and Ceeps-Barneys Limited, carrying on business as The Ceeps and John Doe carrying on business as The Ceeps
Heard: May 18, 2018
Endorsement
1The defendant Ceeps-Barneys Limited carrying on business as The Ceeps (“Ceeps”), brings this motion for summary judgment to dismiss the action against it for personal injury damages claimed by the plaintiffs when the plaintiff Kyle Schiavone was assaulted by the co-defendant Brenden Woods (improperly referred to as Brandon Woods) on October 24, 2009.
2The plaintiffs’ action against the co-defendants other than Brenden Woods, Sean Woods and the Ceeps have been resolved and the actions against them have been dismissed.
Agreement of the Parties regarding the Evidence on the Motion
3The parties filed affidavit evidence from their lawyers in support of their positions which referred to the transcripts of the sworn evidence of the parties and witnesses at the criminal trial in September 2011 of aggravated assault against Brenden Woods because of the incident.
4The parties agreed that although the evidence of their lawyers’ affidavits would not normally be appropriate in a summary judgment motion, the Court on this motion could rely on the sworn evidence of the parties and the witnesses from the criminal trial attached to those affidavits as if they had been filed by the parties as their sworn evidence in this motion.
5The parties also agreed that the defendant Ceeps could rely on its transcript of the evidence of its representative Mr. Tattersall from his examination for discovery as if it had been filed as its affidavit in this motion. Rule 39.04(2) of the Rules of Civil Procedure permits that on consent of the parties.
6The parties also agreed that the evidence from the ambulance records and toxicology reports involving the plaintiff shortly after the assault could be relied upon in this motion for summary judgment by the Court as well as the video of the incident that happened outside of the Ceeps building without the necessity of calling witnesses to prove the authenticity or contents of those records and video.
7The parties also agreed that despite Rules 39.04(1) and 31.11(1) of the Rules of Civil Procedure, both parties could rely on the transcript of the examinations for discovery of the co-defendants Sean Woods and Brenden Woods as part of their case in support of their respective positions on this motion for summary judgment even though normally the transcript would only be evidence in support of the parties’ case against those co-defendants.
Positions of the Parties
8The defendant Ceeps’ position is that there is no genuine issue requiring a trial on the issue of its liability to the plaintiffs requiring a trial based on all the relevant evidence including the expert evidence provided by the plaintiffs. It is not liable and accordingly, summary judgment should be granted dismissing the plaintiffs’ action and the cross-claims of the co-defendants Brenden Woods and Sean Woods against it.
9The plaintiffs’ position is that the defendant’s summary judgment motion should be dismissed as there is a genuine issue requiring a trial on the issue of the defendant’s liability to the plaintiff and for other reasons noted below.
10The parties have agreed that although the counsel for the co-defendants Brenden Woods and Sean Woods filed no materials on the motion but attended on the hearing, if the Court decided that the defendant Ceeps was entitled to an order dismissing the plaintiffs’ action on its summary judgment motion, the cross-claims of the defendants Brenden Woods and Sean Woods would not be proceeding against the defendant Ceeps. On consent, those cross-claims would then also be dismissed against the co-defendant Ceeps on a without costs basis.
Summary Judgment Principles
11In its motion for summary judgment under Rule 20 of the Rules of Civil Procedure, the onus is on the defendant Ceeps to establish on a balance of probabilities that there is no genuine issue requiring a trial with respect to the plaintiffs’ claims against it.
12On a motion for summary judgment, the Court is entitled to assume that the parties have provided all of the relevant evidence that will be presented at the trial and that there will be no further evidence. Each party must put its best foot forward and lead trump or risk losing.
13The Court on a summary judgment motion should first determine if there is a genuine issue requiring a trial based only on the evidence before the court without using the fact-finding powers under Rule 20.04(2.1) of the Rules of Civil Procedure. Under that rule, the motion judge may weigh the evidence, evaluate the credibility of a deponent and draw any reasonable inference from the evidence unless it is in the interests of justice for such powers to be exercised only at trial. Hyrniak v. Mauldin, 2014 SCC 7, [2014] 1 SCR 87.
14There will be no genuine issue requiring a trial if the summary judgment process provides the motion judge the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure.
15If the moving party defendant has discharged its evidentiary burden of proving there is no genuine issue requiring a trial for its resolution, the burden shifts to the responding party, in this case the plaintiffs, to prove that their claims have a real chance of success, i.e., there is a genuine issue requiring a trial.
Evidence of the Defendant Ceeps
16Mr. Tattersal’s evidence was that the Ceeps is a pub/sports bar establishment in London selling alcohol to its patrons. On the night of the incident, it had eight bartenders, nine security staff and one manager. All security staff had taken a 40 hour course and a one-day training course.
17Scott Dunlop, the Ceeps supervisor of security that evening, confirmed that there were nine to twelve security officers on duty that night wearing shirts with the words “Security” on them.
18Mr. Tattersall confirmed that his information received was that the defendant brothers Brenden Woods and Sean Woods were at the Ceeps on the date of the incident. They were on the dance floor when they were asked to leave because one of them was intoxicated. A taxi was not offered as Brenden Woods did not appear to be intoxicated.
19Sean Woods’ evidence was that prior to his attending at the Ceeps that evening, he and his brother Brenden Woods were celebrating Brenden’s graduation from university with family members. He stated he did not recall how much alcohol he had to drink that afternoon and evening before and after he attended at the Ceeps. He recalled being asked to leave by a bouncer and walking out with one. He then recalled being chased by the plaintiff, being on the ground and being punched and that the plaintiff fell while his brother Brenden Woods was in front of him. He and his brother then left the scene.
20Maher Al-Suojhayer’s evidence was that as part of the Ceeps security he asked Sean Woods to leave the Ceeps because he was intoxicated.
21Paul Kent, another security officer, saw Sean Woods leave the bar with Brenden Woods. Sean Woods had a girl around his arm when he walked past the plaintiff who was walking /stumbling down Mill Street towards Richmond Street in an intoxicated manner trying to get into a cab which the driver prevented. Sean Woods with his girlfriend then indicated he would take the cab and slapped the plaintiff on the back not maliciously which the plaintiff took out of context and a scuffle ensued. In the parking lot of the defendant Ceeps, the plaintiff was definitely the aggressor and instigator who then kicked and punched Sean Woods who eventually swung back. Woods ran into the street not wanting anything to do with the plaintiff. On the street, after the initial fight was over and Mr. Dunlop was between the plaintiff and Sean Woods, Brenden Woods then came over from behind Mr. Dunlop and struck the plaintiff in the face.
22That evidence was essentially confirmed by the security guard Mr. Al-Suojhayer.
23There is a significant issue on the evidence as to the amount of alcohol Brenden Woods consumed late that afternoon and evening before his leaving the Ceeps.
24Brenden Woods’ statement to the police that evening was that he had five to six drinks over a five hour span.
25At the criminal trial, he stated under oath that he had consumed two beers at dinner from 3:30 p.m. to 6 p.m. with his family after the graduation ceremony and then one to two beers at a friend’s house for likely a total of four to six beers before arriving to the Ceeps at approximately 11 p.m. that evening. There, he then consumed an additional two to three drinks.
26In his examination for discovery on June 28, 2017, he testified to having consumed between six to eight beers total throughout the night in question. His evidence was that neither his brother Sean Woods or himself were drunk when they arrived at the Ceeps.
27There was no evidence from the records of the Ceeps, their bartenders or serving staff as to how much alcohol Brenden Woods consumed at the Ceeps.
28Brenden Woods’ evidence was that at approximately 1:00 a.m., he was approached by a bouncer who advised his brother Sean Woods had to leave because of his being drunk. Brenden’s observation was that Sean Woods was drunk and he “looked drunker” when exiting the Ceeps than when he initially arrived. However, Brenden Woods stated that he himself was not intoxicated that evening.
29Brenden Woods then voluntarily left the Ceeps to accompany his brother. He was not asked to leave by the Ceeps security in particular because of his state of sobriety. On leaving the Ceeps, he then met Scott Dunlop and said his brother was walking ahead of him. He had a conversation with Dunlop who he knew and then saw his brother and the plaintiff engaged in some form of wrestling with the plaintiff pushing his brother and chasing him in the parking lot of the Ceeps and swinging at him in an aggressive stance with his clenched fist moving towards Sean Woods. He said he saw his brother run away from the plaintiff and heard someone yell “fight”.
30When he saw his brother Sean Woods being chased by the plaintiff, he ran to where the plaintiff and his brother were standing and saw the bouncers running to the same area. He admitted throwing a punch at the plaintiff as he wanted to protect his brother. He denied it was over Mr. Dunlop’s shoulder as he didn’t recall there being a bouncer present. He did say words to the effect “stay away from my family” to the plaintiff. He then left the scene with his brother.
31Scott Dunlop confirms he was initially talking to Brenden Woods as he was leaving near the outside front entrance stairs. He then saw Sean Woods on the ground in the parking lot 50 to 75 feet away and the plaintiff fighting him. He saw Sean Woods running from the plaintiff with the plaintiff pursuing him. He then ran towards the plaintiff and Sean Woods in order to get between them. When he reached the plaintiff, his focus was on the plaintiff and he attempted to get him to calm down putting his hands up and stating “stop” to him. He did not physically touch the plaintiff who was standing still with his hands by his side looking angry. He was focused on the plaintiff and was not aware of the position of Sean Woods or Brenden Woods.
32Mr. Dunlop then unexpectedly saw a fist coming over his left shoulder and strike the plaintiff in the face causing him to fall to the ground. He then turned around and saw Brenden Woods standing beside him stating words to the effect of “don’t mess with my brother” after which Brenden Woods and Sean Woods ran away from the scene.
33The evidence of Scott Dunlop was essentially confirmed by the evidence of Paul Kent and Mr. Al-Suojhayer, the latter of whom had told Mr. Dunlop of the altercation. Scott Dunlop’s evidence was that the altercation had stopped for 15 to 30 seconds before Brenden Woods punched the plaintiff. There was no evidence of any injuries sustained by the plaintiff as a result of his initial altercation with Sean Woods.
34The security video also confirmed the defendant Sean Woods walking out of the Ceeps with Brenden Woods. Sean Woods was walking on the sidewalk adjacent to Mill Street and the plaintiff turned around and approached Sean Woods. A fight ensued and Scott Dunlop and Brenden Woods ran towards the fight. It also confirms Sean Woods and Brenden Woods leaving the area.
35The plaintiff Kyle Schiavone did not recall the incident as his last memory of the night of the incident was of being poured a drink at another bar up the street. He admitted having one beer at a friend’s apartment with the balance of his alcohol consumption he said of three drinks at that bar before leaving. He doesn’t recall consuming marijuana or Benzodiazepines. He admitted being in a fight two days before this incident.
36His friends Vincent Rucci and Cory Berube confirmed that they had been drinking with the plaintiff that evening at a friend’s house before going to the Up on Carling bar where they all consumed more alcohol. The Plaintiff concedes he was ejected from the bar and that his blood-alcohol level was significant at 226 mg of alcohol in 100 mL of blood shortly after the incident. The ambulance call records confirm that he admitted drinking copious amounts of alcohol on the date of the incident and was noted to have an odour of alcohol on him. The toxicology report confirmed that he tested positive for Cannabin and Benzodiazepine in his blood.
37Both Ceeps’ security officers Kett and Al-Suojhayer confirmed that the plaintiff appeared intoxicated while walking down the street before the assault attempting to get into the rear of a taxicab whose driver had locked its doors preventing him from entering.
Plaintiffs’ Expert Evidence
38The plaintiff tendered expert reports from Professor Solomon and Mr. Stephen Summerville to support their allegations that the defendant Ceeps is liable for the plaintiff’s injuries. Their opinions were that the defendant Ceeps breached its common-law duty of care owed by it as a commercial host to the plaintiff who was injured by the actions of its patrons Brenden Woods and Sean Woods, its statutory duty of care under Sections 29 and 39 of the Liquor Licence Act and its statutory duty of care as an occupier under Section 3(1) of the Occupiers' Liability Act.
39Mr. Summerville has extensive experience in matters relating to security including training, use of force and security for licensed establishments. He has been qualified before as an expert in these matters in other cases.
40His expert opinion contained in his affidavit on which he was cross-examined is that the assault on the plaintiff by Brenden Woods was avoidable and could have been prevented by Ceeps security providing appropriate maintenance and/or control and the removal of Sean Woods physically if necessary and by taking proactive measures to have him leave the premises without creating the risk to the plaintiff or other members of the public.
41His opinion was that both Brenden Woods and Sean Woods were permitted to exit the Ceeps without proactive and effective security measures in place resulting in Sean Woods becoming involved in a fight with the plaintiff. His evidence was the defendant Ceeps failed to comply with industry standards for licenced commercial premises including the Smart Serve program regarding the service of alcohol and provision of appropriate security including the use of force model standards he referred to in his evidence. He referred to the industry standard of bars, nightclubs and taverns being required to escort ejected patrons to taxis and buses which if done in this case would have prevented the plaintiff’s injuries.
42His opinion was that the Ceeps breached the industry-standard by not having adequate security staff present outside the Ceeps to prevent an altercation between Sean Woods, failed to deploy sufficient security staff and have security measures in place to prevent third parties including Brenden Woods from getting involved in the altercation and assaulting the plaintiff.
43The expert evidence of Professor Solomon referred to statistics confirming that 50% of assaults happen when both the perpetrator and victim consume alcohol to the point where they were considered drunk. He referred to other research included that there is a direct causal relationship between alcohol intoxication and aggression and that alcohol also impairs cognitive functioning and reduces problem solving ability.
44Professor Solomon’s opinion was that the Ceeps violated industry standards related to the service of alcohol and provision of security. The Ceeps violated industry standards by over serving alcohol to Sean Woods, ejecting him without ensuring he was accompanied by a sober responsible adult, its security staff initially not attempting to stop the fight and not taking reasonable steps to prevent Brenden Woods from joining the fight or blocking his path to the plaintiff.
45The defendants did not provide any responding expert opinion evidence to rebut the plaintiffs’ expert evidence indicated above.
Analysis
46In this case, the material facts on the evidence are that the defendant Sean Woods went to the Ceeps with his brother the defendant Brenden Woods after initially consuming some alcohol. While at the Ceeps, Sean Woods consumed more alcohol and because of his improper behavior and state of intoxication, was asked to leave at approximately 1:05 a.m. according to the surveillance video and was escorted out by staff of the Ceeps.
47The defendant Brenden Woods had also been consuming some alcohol prior to arriving at the Ceeps and while there also consumed some alcohol. The evidence establishes a range of the amount of alcohol he consumed according to the various statements he gave from four to six beers before arriving at the Ceeps that evening and an additional two to three drinks there. However, the time for the consumption of those beers prior to arriving likely started in the late afternoon after the graduation ceremonies.
48Although there was evidence of Sean Woods being significantly intoxicated by alcohol, there was no evidence from any of the witnesses that evening that suggested Brenden Woods was showing signs of intoxication or impairment by his consumption of alcohol. His evidence was that he was not intoxicated by alcohol when he left the Ceeps.
49There was no evidence from Scott Dunlop that when he spoke to Brenden Woods, he noticed any signs of significant alcohol consumption or impairment by him. There was no suggestion or evidence of any improper conduct part of Brenden Woods inside the Ceeps that evening including any threats made or abusive behavior by him. There was no evidence suggesting that anyone from the Ceeps staff was aware that evening of any propensity for physical violence, threats or abusive behavior by Brenden Woods either inside the Ceeps or outside when he was speaking with Scott Dunlop.
50No taxicab or other transportation was called by the Ceeps for Sean Woods as he was with his girlfriend and his brother Brenden Woods who showed no signs of impairment when he left the Ceeps.
51There is evidence that when the plaintiff, who was not at the Ceeps that evening and who was significantly intoxicated by alcohol, started to physically assault Sean Woods on the Ceeps parking lot, the Ceeps security guard Scott Dunlop immediately ran to the scene to intervene and stop it. After being successful in doing that and then calming the plaintiff down for 15 to 20 seconds, the defendant Brenden Woods, who had also run to the scene unknown to Scott Dunlop, threw an unexpected punch over the shoulder of Scott Dunlop striking the plaintiff causing him to fall to the ground resulting in his significant injuries. Brenden Woods denies there were security guards present and states he punched the plaintiff to protect his brother.
52There is the potential inference on the evidence that the three security guards Kent, Suojhayer and Dunlop who were all of outside the Ceeps that evening and witnessed the fight between the plaintiff and Sean Woods, may not have been monitoring the actions of Brenden Woods or blocking his path to that area of the fight or attempting to prevent his striking the plaintiff.
53The defendant Ceeps objected to the admissibility of the expert evidence of Professor Solomon and Stephen Summerville. Its position was that Professor Solomon’s report is essentially a factum and/or statement of law. It submitted that he made findings of fact alluding to industry standards, the standards of care which were breached, establishing causation and that the risk was foreseeable all of which is impermissible expert evidence.
54The defendant’s objection to Mr. Summerville’s expert evidence is that his opinion with respect to the industry standards concerning commercial hosts is irrelevant to the issue of foreseeability. Mr. Summerville’s opinion of foreseeable risk and avoidable risk is for the Court to decide.
55There is some merit to some of the defendant’s submissions in particular relating to the experts’ comments on the applicable law of Ontario.
56Nevertheless, the expert opinion evidence of Professor Solomon and Mr. Summerville confirmed what the applicable industry standards are for commercial hosts and that the available evidence confirms that the Ceeps did not meet those industry standards and applicable standard of care by not providing adequate security on their premises to prevent an assault on the plaintiff by one of its patrons and not ensuring that its patrons who had been over served alcohol on its premises did not pose a risk to members of the public. That would be relevant and necessary evidence for the Court to consider with no potential harm to either the trial process or the hearing of this motion. R. v. Abbey, 2009 ONCA 624.
57The issue of causation and foreseeability of the plaintiff’s injuries i.e. was it reasonably or objectively foreseeable that Sean Woods and/or Brenden Woods would cause harm to others on leaving the premises, would be for the Court to decide based on all of the evidence before it including what weight it would attach to the expert evidence.
58I was not satisfied that the defendant Ceeps had established that the plaintiffs’ proposed experts evidence should be ruled inadmissible because of their assuming the role as an advocate for the plaintiffs. This was not a very clear case in which the experts had been proven by the defendant to be unable or unwilling to provide the Court with their objective and nonpartisan evidence. White Burgess Langille Inman v. Abbott and Halliburton Company, 2015 SCC 23.
59Accordingly, I dismissed the defendant’s motion to exclude all of the evidence of the plaintiff’s experts on this summary judgment motion.
60There is evidence in this case that Brenden Woods had been consuming alcohol that day including his being served more alcohol at the Ceeps prior to this incident. The level of his intoxication and its effect on him is an issue on the evidence. While outside the Ceeps and not supervising his brother, Brenden Woods was alerted by one of the Ceeps security guards of the altercation and that his brother was being beaten up.
61Scott Dunlop, the Ceeps security officer ran towards the plaintiff and Sean Woods but no effort was made by him or any of the other two security guards Kent and Suojhayer to calm Brenden Woods down, discourage him from joining the fight, monitor his actions or block his path to and prevent his assault on the plaintiff.
62As indicated above, there is also a conflict in the evidence on this motion of whether the plaintiff had his fist clenched threatening Sean Woods as Brenden Woods states before he arrived and approached them and whether there was any security guards including Scott Dunlop present at the time he struck the plaintiff in order to protect his brother. Brenden Woods said there was not. Scott Dunlop’s evidence was that the altercation between the plaintiff and Sean Woods was over when Brenden Woods, who he didn’t realize was there, unexpectedly threw a punch over his shoulder and struck the plaintiff.
63The evidence of the plaintiff’s experts, which was not contested by any opposing expert evidence of the defendant Ceeps, was that the available evidence confirms that the Ceeps breached its duty of care based on industry standards owed to the third-party plaintiff under common-law and under the Liquor Licence Act. That included its obligations as a commercial host to provide adequate security and properly supervise Sean Woods and Brenden Woods on leaving its establishment, both of whom had been over served alcohol that evening including preventing any altercation with third parties. It also included its obligations to be vigilant and prevent Brenden Woods as well as others from getting involved with the plaintiff.
64Although the Court in Stewart v. Pettie, 1995 SCC 147, [1995] 1 SCR 131 found that the defendant bar in fact discharged its duty of care to the plaintiff, the evidence and facts are different in this case especially given the uncontested expert opinion evidence of the plaintiffs. In my view, on the issues of the defendant’s standard and duty of care to the plaintiff and breach thereof, the defendant Ceeps has not established that there is no genuine issue requiring a trial. In fact, the plaintiffs have established that there is such an issue.
65With respect to the issue of foreseeability of the plaintiff’s injuries, the Supreme Court of Canada in Stewart at para.35 confirmed that there still must be some foreseeable risk of harm to a third-party requiring the commercial host to take some action.
66The evidence suggests that Brenden Woods had not been involved in any physical altercation or displayed or threatened any disruptive or violent behaviour earlier that evening while inside the Ceeps. Given that evidence, for the purposes of this motion I am not convinced with the evidence of Professor Solomon that violence is a foreseeable or objective consequence of serving patrons past the point of intoxication although that may be a possibility.
67Nevertheless, in my view, there is also a genuine issue requiring a trial on the issue of foreseeability for these reasons.
68The gist of the expert opinion of Mr. Summerville confirms that the security staff of the Ceeps because of their training are required to be vigilant and are required to monitor an altercation involving its ejected patron and monitor and stop others from getting involved in a fight with him and a third-party. That would include the fight between the plaintiff and Sean Woods and its preventing the brother Brenden Woods getting involved who had been drinking alcohol at the Ceeps and who was warned by one of its own security that Sean was being beaten up which at that time was on the parking lot of the Ceeps.
69There is some evidence or an inference from the evidence in this case that despite this training which was obviously because of bars anticipating attempts by third parties to get involved in fights, none of the three security guards witnesses appear to have noticed or monitored Brenden Woods or taken steps to prevent him from becoming involved in the altercation between his brother and the plaintiff. It was because of these anticipated attempts by third parties, including potential friends or relatives of one of the participants at the scene, that the security guards may indeed have been obligated to monitor the situation and prevent any intervention by them.
70Whether or not something is “reasonably foreseeable” is an objective test. The analysis is focused on whether someone in the defendant’s position ought reasonably to have foreseen the harm prior to the incident occurring rather than whether the specific defendant did. Rankin's Garage & Sales v. J.J., 2018 SCC 19, [2018] S.C.J. No.19.
71It is because of these circumstances that could warrant the imposition of a positive obligation to act by the Ceeps security staff which it did not do that results in the defendant Ceeps not being able to establish that there is no genuine issue requiring a trial on the issue of foreseeability.
72In addition, as noted above, the initial altercation took place in the parking lot property of the Ceeps immediately before it finished when Sean Woods ran onto the street. McDermott J in Adlam v. Bonnici, 2011 ONSC 2471 found there to be a genuine issue requiring a trial on whether the defendant bar was an occupier of a sidewalk in front of its premises where its inebriated patron was “sucker punched” by an unknown third-party and whether the bar failed to meet its duty to maintain a safe premises if it was an occupier of that sidewalk.
73In this case, because of that initial altercation on its own parking lot premises and the defendant’s security obligations, in my view there is a genuine issue requiring a trial on whether the Ceeps breached its obligations under Section 3(1) of the Occupiers' Liability Act to take such care as in all the circumstances of the case was reasonable to see that the plaintiff entering on the premises was reasonably safe while on the premises.
74Although the co-defendants Woods have agreed to dismiss its cross-claim against the defendant Ceeps if it is successful in its motion for summary judgment, the fact is that the plaintiffs’ action will nevertheless require a trial in any event against those remaining defendants.
75It is not appropriate in this case to consider granting summary judgment for the dismissal of the plaintiffs’ claims against one defendant where doing so would still see the claim proceed to trial in any event against other defendants; granting partial summary judgment in such circumstances would risk creating duplicative proceedings or inconsistent findings of fact. Hamilton (City) v. Thier + Curran Architects Inc., 2015 ONCA 64; McFayden v. McFayden, 2014 ONSC 6589.
76There are some issues of liability and the credibility and reliability of the parties’ evidence and in particular with respect to the level of intoxication of Brenden Woods, his actions and the presence and actions of Ceeps security staff shortly before and at the assault incident.
77In my view, this is not an appropriate case for my exercising the discretion available to me under Rule 20.04(2.1) of the Rules of Civil Procedure including hearing further oral evidence or conducting a mini trial. In addition to the issue of foreseeability, there is also the issue of causation i.e. whether the plaintiff but for the negligence of the Ceeps security would have suffered his injuries.
78Findings of causation and foreseeability are factual findings and without the benefit of actually hearing the evidence, including determining the number of security guards who were in the area of the fight and making findings of credibility on the conflicting evidence, it is more appropriate that these matters be left to the jury to decide at trial. Given the jury notice, this is not an exceptional case justifying the exercise of my potential fact-finding function allowed under Rule 20.04(2.1) of the Rules of Civil Procedure. Mitsev v. General Motors, 2014 ONSC 2342; Wettlaufer v. K2D2 Investments Inc., 2018 ONSC 408.
79Moreover, there are issues of the plaintiff’s own contributory negligence regarding his injuries and damages because of his level of intoxication and actions before he was struck by Brenden Woods. No doubt, all or most of the witnesses referred to on this motion will still be necessary witnesses at trial on that issue. There would be no savings in terms of time or expense to resolve the liability issues between the plaintiff and other defendants including the plaintiff’s own contributory negligence if summary judgment is granted in favor of the one defendant Ceeps.
80Lastly, there is the potential of inconsistent trial findings and injustice to the parties because of the dispute on Brenden Woods’ evidence that he may have struck the plaintiff who had just assaulted his brother so as to protect his brother which evidence does not seem to be supported by the evidence of Ceeps security staff.
81The plaintiffs have not asked that the Court conclude that the defendant Ceeps is liable to the plaintiffs based on the available evidence on this motion. They request that that matter be reserved for a trial in front of the jury. In the circumstances, I agree that that is the appropriate disposition of this motion.
82Accordingly, the motion for summary judgment of the defendant Ceeps is hereby dismissed.
83Given the jury notice, it is not required that I remain seized of this matter. The action is apparently in Trial Scheduling Court in October 2018 and can be heard for trial if the parties wish at the November 2018 sittings in Kitchener. My comments on the evidence before me and decision are not relevant or binding on the trial judge or jury.
84If the parties are unable to resolve the issue of the costs of this motion, the plaintiffs can make brief submissions of no more than two pages in length together with a bill of costs within 10 days from the date of this decision. The defendant Ceeps shall be entitled to similarly respond within 10 days thereafter. If no such submissions are received, the parties will be deemed to have resolved the issue of costs of this motion.
The Honourable Mr. Justice R. J. Nightingale
Date: August 15, 2018