COURT FILE NO.: 14-45757
DATE: 2020/12/01
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Mihaly Teglas
Plaintiff
– and –
The Corporation of the City of Brantford and Romex Security Inc.
Defendants
COUNSEL:
Stephen Sloan and Pryam Varma for the Plaintiff
Kenneth Raddatz and Sanket Ullal for the Defendants
HEARD: November 16, 17, 18, 19 and 20, 2020
Turnbull, J.
[1] The plaintiff Mr. Teglas brings this action against the defendants for the damages he alleges he suffered due to their negligence in failing to take proper security measures to keep a parking garage safe for customers. It was owned by the City of Brantford (the City) and the defendant Romex Security was contracted by the City to provide security in the parking garage. The damages were settled before trial and the only issue before me in this trial is liability.
[2] The defendants do not dispute the fact that Mr. Teglas was injured in the assault as he described in his testimony. They simply allege that in law, they are not responsible for what took place as it was not due to any neglect on their part to provide proper security and even if there was such neglect, it was not the cause of his damages.
Summary of the Evidence
[3] The City of Brantford (the City) operates a three level parking garage in downtown Brantford (hereinafter called the parkade). At all material times, Romex Security Inc. (Romex) was the contracted security company on site to provide security for employees, members of the public and for the building.
[4] That parkade is a very large rectangular building extending in an east west direction on the south side of Water Street. In exhibit 3, an aerial view of it is marked as Market Centre Parkade and Parking. With the permission of counsel, I marked the staircase or “tower 2” where the plaintiff entered the parkade on the evening of this incident.
[5] The plaintiff, who lives in Cambridge, began his employment in Brantford in 2010 and his new employer paid for his parking spot in the parkade.
[6] Each day when he finished work, in order to reach Tower 2, Mr. Teglas walked in a westbound direction on Water Street for about 100 meters from the Market Street Walkway. The exterior of the street level, entry door to Tower (staircase) 2 on level two of the parkade is seen in exhibit four. Exhibit five is a photograph of that entry into the parkade taken from across the street on the north side of Water Street looking in a southerly direction. Exhibit 7 shows the interior of the staircase landing where the altercation took place and the interior of the entry door. To the right of the photo, the door leading to the car park area is visible (which is the door and car park area shown in exhibit 1).
[7] After Mr. Teglas’ car window was broken in late 2011 by a vandal, the security personnel at the parkade had urged him to park closer to their administration and security office which was more proximate to tower (staircase) two. He did as they suggested thereafter and he identified the places where he would park in exhibit one, depending on what parking spots were still available when he arrived for work each morning. He always parked on level two, which was at street level.
The Assault:
[8] On February 24, 2012, the plaintiff finished work at his downtown place of employment just prior to 6:00pm and walked back to the parkade where he had parked his car. It was still light outside but the daylight was quickly fading.
[9] When he entered the parking garage at Tower 2, he opened the street level entry door. As he did so, he came face to face with a stranger who was just inside the door. Somewhat shocked to meet someone there, he said “excuse me” as he stepped into the staircase landing. Suddenly, the stranger grabbed him by the lapels of his coat, swung him around towards a glass door leading into the second parking level and began punching him in the face. Mr. Teglas was carrying his briefcase and lunch container and was totally caught by surprise. Shortly after the punching began, another individual also unknown to Mr. Teglas, joined in the attack by also punching him in the face. At that point, the plaintiff stated he was over his initial shock and realized that he had to defend himself. He began trying to punch his assailants. They quickly retreated and exited the staircase door through which he had just entered.
[10] Mr. Teglas was dizzy and stunned. He initially thought that he was going to pass out and noticed he was bleeding profusely from his nose. After a few minutes, he regained his composure and made his way to the administration office for the parkade which was not far from where he regularly parked his vehicle. There, a young security guard offered him some kleenex to stop the nasal bleeding and the police were called. Constable Schmutz of the Brantford Police Service attended and took a statement from him. The perpetrators were never apprehended.
[11] Mr. Teglas ultimately had to undergo surgery to his nose as a result of this assault.
[12] Mr. Teglas was an impressive and forthright witness. He testified that in the period he had been parking in the parkade, it was dirty and unkempt. He stated that generally the stairwells were covered with broken liquor bottles, drug paraphernalia including needles, and human waste. He encountered people who were drunk, choosing not to interact with them.
[13] In cross examination, Mr. Teglas stated that he did not see any video cameras in 2012 in the parkade other than one at the main entrance. He agreed that he was aware there were security staff in the parkade but could not recall seeing them there, other than the one time after his car had been vandalized.
[14] Mr. Raddatz presented him with a series of time stamped photographs pulled from the recording of a video camera located at the north east corner of the parkade pointing in a northbound direction which showed the intersection of the Market Street walkway with Water Street.
[15] In exhibit 9, Mr. Teglas agreed it depicted him walking to the parkade Tower 2 at 6:05:47pm on February 24, 2012. This was less than a minute before the assault occurred.
[16] Mr. Teglas agreed that in exhibit 10, the same camera caught one of the perpetrators running from the scene at 6:06:58pm on February 24, 2012. And just a second later at 6:06:59 pm, he agreed the same camera caught the two perpetrators running northbound towards the Market Street stairs.
[17] As Mr. Teglas reported, the assault did not last two long and there were two perpetrators.
Evidence of David Black
[18] David Black was called as an expert on behalf of the plaintiff. After a brief voir dire on his credentials, and with no objection from counsel from the defendant, I ruled that he be permitted to give expert evidence with respect to threat/risk assessments in a variety of settings including large commercial buildings, including the parkade in question.
[19] He explained that a threat/risk assessment identifies the threats that a facility faces, the problems associated with such a threat actually becoming an incident, its impact and making recommendations to eliminate or minimize such threats.
[20] His Cirriculum Vitae was entered as exhibit 12.
[21] Mr. Black indicated that in his career he has completed approximately 150 of these threat/risk assessments in all sorts of commercial and industrial buildings, ranging from condominium complexes with large underground parking areas to the offices of Crown Attorneys housing just nine lawyers. He started doing these in 1996 when he joined the American Society for Industrial Security (ASIS), took the required courses and earned his professional certification. He recalled that in 2009, the Occupational Health and Safety Act[^1] was amended to impose an obligation on employers to conduct workplace analyses to identify risks which might lead to workplace violence or harassment.[^2] It was due to this amendment being enacted that in 2010, he became very busy conducting what the industry described as a threat/risk assessment.
[22] Mr. Black attended at the parkade at the request of the plaintiff’s lawyer in September 2017, over five years after the incident in question. He attended at the site in the daytime to locate it but waited to approximately 9:30pm in the evening to undertake his physical and visual examination of the facility and the stairwell area where the assault occurred. Prior to doing so, he looked for and found evidence of graffiti in the area which in his experience, is indicative of urban decay and a crime problem that is not being looked after. He focused his analysis primarily on the urban decay in the Brantford downtown area, the condition of the parking garage and the stairways of the building. When he walked through the parkade, he found the smell of urine overwhelming. Homeless people were frequenting the area and he smelled urine in the stairways.
[23] During his examination, he noticed that one of the security guards at the facility was wearing latex gloves which suggested that he was concerned with having to deal with contaminated items and needles. He also did not see any closed circuit TVs (CCTV) in the stairwells and no signage that those areas were under surveillance. There were no panic buttons or alarm systems in view to be activated by the public in the stairwells.
[24] He commented that he had read in the examination for discovery of Mr. McGarrity, a witness produced by the City, that loitering appeared to be a problem in and about the facility as it was mentioned that security guards patrol adjacent areas and move people who were loitering away from the area.
[25] As part of his assessment, he obtained information from the Brantford Police Service identifying the number of assaults reported in the central Brantford downtown area.[^3] Those two zone maps identify that from May 2011 to April 2012, there were 33 assaults and robberies in zone 488 and 93 assaults and robberies in zone 499. From a close review of those exhibits, it is apparent that the portion of the parkade west of the Market Street pedestrian walkway is in zone 488 and the portion of the parkade to the east of that walkway is in Zone 499.
[26] He did not find that a risk/assessment of the facility had previously been done and in his view it ought to have been undertaken to identify the threats to the facility and the people who use it and work there.
[27] He remarked that at page 20 of the contract[^4] between the City of Brantford and the responsible security company, the defendant Romex, each employee of Romex was to have completed the certification program offered by the International Foundation for Protection Officers (IFPO) and was also to be certified as a Protection Officer (CPO). Alternatively, if that CPO training was not provided, equivalent training was to be approved by the City in writing. It appears that the Romex security personnel did not obtain an IFPO certification but on the facts of this case, I find that of no import relative to the occurrence of the incident in question.
[28] Mr. Black explained that IPFO is based in Naples Florida and that it is a highly respected organization in the security industry. In its training program, it covers a wide range of duties that the security guard would be expected to perform which takes 80 hours of extensive training. He added that in Ontario, in addition to IPFO certification, all security guards in Ontario must take security guard training and pass an exam approved by the province and the Registrar of private investigators and security guards. In gathering information for his report, Mr. Black learned that the security guards on duty the day of February 24, 2012 did not have a substitute for IFPO training.
[29] Mr. Black noted that in the contract between Romex and the City of Brantford [^5], paragraph 12 obliges Romex to comply with the provisions of the Occupational Health and Safety Act[^6] and all amendments thereto. He stated, as confirmed by Mr. Bradley of the City, that such a threat/risk study was not undertaken prior to the occurrence in question in February 2012.
[30] He was advised that a Crime Prevention through Environmental Design (CPTED) review was completed in 2008 by the City but emphasized that it is not a replacement for a threat/risk assessment. A copy was entered as exhibit 16. It focused primarily on the office areas of the parkade and the kiosks where vehicle drivers would pay their parking fees as they exited the parkade. It did not address the stairwells or the exterior portions of the building. Mr. Black stated that it is an aid which helps with the security profile of a property in some circumstances but its significant limitation is that it does not identify risks. He suggested that a CPTED report is most applicable at the time of construction of a building but its recommendations can often be retrofitted into existing facilities. He gave the example of the installation of closed circuit TV systems in many buildings long after they have been constructed.
[31] Mr. Black introduced and discussed a document entitled “Canadian Parking Association Facility Security”.[^7] The index breaks security protection into passive and active components. Under the active components, it identifies at pages 8 and 9 the benefits (and detriments in some cases) of security patrols, video cameras, panic buttons and audio surveillance and response systems.
[32] Mr. Black stated that these components together or on their own can increase the perception of security. The basic ideas of a security program are to deter, detect, delay and respond. In his view, passive security can help deter crime by the use of good lighting throughout the premises, having good site lines, signage advising of video cameras and security patrols and the awareness of the fact that customers do have the ability and means to call for assistance.
[33] He was emphatic that deterrence and detection are best effected by patrols and cameras. Mr. Black stated that the security industry realizes that none of these measures work effectively if a timely response is not effected.
[34] In the end, he was of the opinion that it is the owner of the facility who must weigh the risks involved against the cost of increased security measures. He was emphatic that the threats must be identified before considering the risk of a threat occurring. When a threat/risk assessment is being undertaken, he stated that it is necessary to consider what/who you are trying to protect. Only at that point can an informed decision be made. In cross-examination, he stated that there is a difference between a threat (where anything is possible) and the risk, which is the quantification of what the threat may be.
[35] I note that the City had sufficient concern for the safety of its employees, that it required Romex to have two guards physically monitor two locations of the garage when the work day of city employees ended so that their presence was visible and present. It is indicative of security concerns around and in the garage.
[36] Mr. Black was critical of the fact that there were no CCTV cameras in the stairwells. He felt that if there had been, they would be a real deterrent to loiterers or others tempted to use the area for illegal purposes. The cameras are helpful in detecting issues and in assisting in the identification and apprehension of perpetrators of offences.
[37] In the case at bar, I find it is reasonably possible that if video cameras had been properly placed in the stairwell, the perpetrators would have been identified and apprehended. Neither was wearing any face covering.
[38] Mr. Black also stated that signage in the stairwells indicating video surveillance was on the site, that security patrols were checking the premises and that loitering was illegal, would have helped reduce the risks in the parkade, and in particular in the stairwells.
[39] It is clear that this stairwell was not heavily used. Mr. Bradley, the city’s manager of parking at the time, testified that the stairwells adjacent to the elevator shafts on the north side of the building were the points of egress and access by about 95 per cent of the parking customers. The stairwell in tower 2 was one of six on each level which were available for use but not monitored by video surveillance nor fitted with any of the above signage. In other words, upon entry to the stairwell, it is not likely that there would be much pedestrian traffic. At street level, where this incident occurred, an offender could quickly escape on foot or in a vehicle waiting at curbside just a few yards away. The street level staircase landing is behind a solid door so that someone such as Mr. Teglas, who approached the door walking in a westerly direction on Water Street, would be unaware of the presence of anyone behind the door until he had opened it and was face to face with that person.
[40] Mr. Black felt that there was a basic lack of security consideration in the parkade.
[41] In his cross examination, Mr. Black agreed that he was not aware of how many cameras were in the garage at the time of the subject incident nor the considerations taken in determining where they should have been placed. Mr. Bradley testified that in 2012, there were 24 video cameras throughout the parkade.
[42] Mr. Black agreed that there were various deterrents to potentially troublesome people on site which included open site lines enhanced by windows in the stairwells and in the entrances from the stairwells into the garage, security guards on site patrolling in uniform, the presence of other members of the public, the cameras which were on site, the lighting in the building and signage.
[43] In cross-examination, counsel for the defendant had Mr. Black agree that his report had no data on the presence of homelessness in Brantford, no analysis of how homeless people relate to crime, no data to quantify the extent of drug abuse in downtown Brantford and no data to support the suggestion that drug abuse has a relationship to increased violence. He further agreed that he had no evidence of an assault ever having occurred within the parkade itself and that he had no empirical evidence or data of the likelihood a crime would be prevented by the presence of the measures he had recommended. He acknowledged that he had no information about the two assailants other than they were younger than Mr. Teglas, nor did he know their motivation for the attack.
Evidence of Michael Bradley:
[44] Mr. Bradley was called as a witness on behalf of the defendant City. He was the city’s director of fleet services and parking services from approximately 2002 to 2012 when this occurrence took place. A few weeks later, for reasons unrelated to this incident, he became the director of fleet and transit services.
[45] In his day to day work from 2002 to 2012, he spent approximately half his time working on his duties as the director of parking services. That entailed dealing with parking enforcement, dealing with parking tickets at the office counter, managing money, and co-ordinating the parking related budgeting process.
[46] Mr. Bradley recalled being involved in the tendering process which led to Romex being granted a contract[^8] to provide security services to the parkade. They continued providing those services to the time Mr. Bradley changed positions with the city in 2012.
[47] He stated that the parkade provided approximately 950 parking spaces in total on three different levels, with a number of pedestrian entry areas. It is approximately 400 meters long (east to west) and about 25 meters wide (north to south). The main entrances are from the north in the middle of the garage and at the northwest and northeast ends of the garage off Water Street where the elevators are located. Each stairwell has an entrance at street level on Water Street and permits access to all three levels. The stairwells have good lighting and natural light through windows facing Water Street. There are also windows looking out from the stairwell entrances on the south side of the building.
[48] In 2012, the parkade was used by employees of businesses located in the downtown core of Brantford as well as students and staff of Laurier University and employees of the city. Mr. Bradley agreed that the parkade is open to pedestrians walking through it to reach their destination. He had an office on site on the third level where he would work some of the time with a parking enforcement supervisor and a counter clerk. Romex provided two counter staff in that office to help deal with parking pass renewals.
[49] He recalled that in 2008, a CPTED assessment was undertaken because the staff were handling a lot of money in the office. That assessment did not deal with security issues relating to the rest of the building. However, he stated that workplace inspection reports were completed on a regular basis and two of them were entered in evidence.[^9] On review, these reports largely related to the working spaces used by the staff such as washrooms, office space, the manager’s office, the lunch room, kiosks and the elevator room. They did not deal with security issues relating to the rest of the parkade.
[50] When shown the diagrams[^10] of Levels 1, 2 and 3 of the parkade depicting the video camera locations, he agreed those 24 cameras were where they were located in 2012. They had been installed in 2006 or 2007 and the locations did not change up to the time of his departure from the parking department. He stated that the CCTV system was never intended to be monitored. It was installed as an “after the fact” system to assist them in ascertaining what might have occurred and who was involved. He agreed that they did not think it was necessary to have all those cameras monitored by an individual, probably due to the cost involved.
[51] Mr. Bradley stated that he and the City’s property manager at the time decided the location of the cameras. They wanted to cover those areas where there was pedestrian and vehicular traffic coming in and out. He estimated that 95 per cent of the pedestrian traffic entered and exited at the elevator locations marked as E1 to E4 on exhibit 21 which are located on the north side of the parkade exiting out onto Water Street. Signs advising that video cameras were in operation were posted at the same time as the cameras were installed. There were no signs posted that the property was being patrolled by security guards.
[52] He agreed that cameras were not installed in the 12 stairwells because of the cost for the number of cameras which would have been required to cover all the levels and the turns of the staircases. He further justified this because ninety per cent of the pedestrian traffic was not in the stairwells. He was unable to recall any discussions around the number of cameras required to provide coverage.
[53] I must say that that sort of begs the question. Those areas, by virtue of the relatively minimal pedestrian traffic and relative lack of visibility, would appear to benefit from the deterrent effect of video cameras. Because most of the pedestrian traffic enters at street level (level 2), it would seem that a video camera mounted on the wall facing the entry door and another facing the opposite direction capturing those coming up the stairs from level 1 and down the stairs from level 3, would have been visible, secure from vandalism, and able to capture the images of most people passing through those areas.
[54] In cross examination, he also agreed that in the stairwells, there was no signage advising that security guards were patrolling the property, there were no panic buttons and that none of the entry doors to the parking garage stairwells had a glass window so one could see if someone was on the other side of the door.
[55] Mr. Bradley also stated that there were signs near the elevator locations prohibiting loitering and skateboarding and denying any responsibility for theft occurring on the property.
[56] Mr. Bradley testified that the city had contracted security services with Romex at the parkade, seven days per week, twenty four hours per day (7/24). During the afternoon shift from 3:00pm to 11:00pm, the busiest time of the day in the parkade, Romex was required to provide two patrol guards rather than just the one patrol guard on duty at other hours of the day and night. Romex was also contractually bound to provide security officers in the kiosk to collect parking fees and two staff personnel in the parking office at the counter.
[57] Mr. Bradley stated that the city wanted security guards patrolling at every place in the parkade at least once per hour. He described it as a large building, with a number of undulations on each level for drainage purposes. Thus, site lines are disrupted by the contours in the floor created for drainage.
[58] While he was not certain, he believed the janitorial staff were on site 7/24. The parkade was also monitored by by-law enforcement officers to make sure cars were properly parked. They would go through the parkade once or twice per day between 8:00am and 5:00pm.
[59] In the three years prior to the incident involving the plaintiff, Mr. Bradley recalled no assault related complaints in the parkade property.
[60] He testified that he was part of a policy group dealing with the parkade to consider the security of the building. It was supposed to deal with the use of security measures including coverage, quantity, placement and review taking both social and economic factors into account. His recollection of the work of that committee was vague. While he was sure he met with those individuals a few times, he could not recall the discussions which occurred. No minutes of the meetings were presented and he did not think any were kept. He added that it probably was the responsibility of his staff to deal with those things during 2004 to 2005. He did recall that discussions centered around the practicality of security measures depending on their budget. Eventually, he agreed that perhaps there were not any meetings but just a few phone calls with those involved.
[61] He agreed that the policy group did not have anyone familiar with CPTED, its limitations and its prerequisites. When presented with the CPTED report prepared in 2008 for the parkade Parking Office[^11], he was shown the author’s comments at the bottom of page 2 where it stated:
Generally speaking, I have yet to see another office that has as many opportunities for attack and physical assault! The area is extremely concerning for the following reasons:
Issue: Office is remote and has low occupancy.
Issue: CCTV cameras are generally not a deterrent for crime, however they are key to prosecution.
[62] Mr. Bradley never explained why a CPTED was never undertaken for the other areas of the parkade. He agreed that he never asked that a threat/risk assessment be undertaken with respect to the entire garage, explaining that he did not think he was familiar with the concept at the time he was in charge of the parking for the city. He agreed that he would not have expected Romex to undertake such an assessment for the city. Meetings with Romex were not regularly scheduled and occurred on an “as needed” basis. He agreed that at page 11 of the city’s contract with Romex[^12], it provided under the heading “General Conditions: Safety” that the bidder (Romex) was to ensure that all persons present on site practice safe work habits and that all persons will comply with the Occupational Health and Safety Act and regulations thereto.
[63] When shown the contract between the City and Romex, he was directed to page 15 where the Romex guards were contractually obligated to have IFPO certification and to have completed CPO training in Ontario. He was not aware that neither of the security guards on duty on the evening of February 24, 2012 had attained IFPO certification. Because of the long relationship the city had with Romex, he never felt he had to question the qualifications of their security officer.
[64] Mr. Bradley agreed that he never recommended putting up cameras in the stairwells, never recommended putting up signage in the stairwells advising CCTV was on site, never recommended putting up signage in the stairwells advising the premises were subject to security patrols and that he never recommended the installation of panic buttons in the stairwells.
[65] Mr. Sloan presented Mr. Bradley with police call records to the parkade for the years 2007 to 2010[^13]and for the year 2011[^14]. Mr. Bradley expressed surprise that there were only 250 calls to the police for more serious matters in the four year period 2007 to and including 2010. He candidly acknowledged that at the time he was unaware that such statistics existed.
[66] I found Mr. Bradley to be a very fair and forthright witness.
Evidence of Roman Kaczmaret
[67] Mr. Kaczmaret is the president and founder of the defendant Romex Security Inc, which he established in 1998. He graduated from the Law and Security Program at Niagara College in 1997 and shortly thereafter started his own business. His wife obtained her certification as a security guard (OPC) as did he and in due course, she obtained her qualifications to be a security guard course instructor.
[68] He explained that he has his IFPO designation, his CPO designation and his designation as a Certified Security Supervisor (CSS). He has also attended numerous seminars put on by ASIS focusing on security concerns in the industry. Romex provides uniformed security guard services for a wide variety of commercial, industrial and governmental customers. In 2012, he estimated that they had forty to fifty employees.
[69] He confirmed that his firm won the contract with the city to provide security services to the parkade, as explained by Mr. Bradley. At the time of bidding, he inspected the property with his general manager, assessed the security needs and based on the risk, he submitted his bid which was successful. As part of that process, he prepared a Site Post Order which outlined the duties required of their security guards, the layout of the building, patrolling techniques to be employed and other pertinent information to fulfill their contractual obligations. They held that contract until 2014 when they ultimately lost it to a lower bidder.
[70] In his view, at the time of winning the contract, he felt that a uniformed security guard presence was the key to securing the property. Romex had a “hands off” policy which required their guards to detect, observe and report a troublesome situation or individual, but not to get physically involved. They were trained to patrol the parkade on foot every 45 minutes to 60 minutes, always using a different route and arriving at a different time at each location. He testified that on longer tours of approximately 90 minutes, the guards would walk up and down all the staircases.
[71] He agreed with the staffing requirements for Romex as explained by Mr. Bradley. He also explained that each afternoon, two security guards would attend the two different locations where employees who worked for the city would return to the parkade to present a protective presence for them in case anyone tried to harass or otherwise bother them. It is clear to me, that a good number of loiterers, homeless people and other undesirable people frequently attended inside or outside the parkade.
[72] Mr. Kaczmaret said that his company felt it was important to watch the stairwells as they were not in the generally more open areas of the parkade and it was more likely to have something happen there.
[73] Romex used a system called Tour Trax to implement its strategy to minimize illegal activity on site by having a constant, visible but unpredictable security guard patrol every hour of the day. A small sensor was placed on the walls in various locations of the parkade. Those locations were identified by Mr. Kaczmaret at exhibit 32.
[74] As a guard did her patrol, she would use a hand-held device, similar to a cell phone, to swipe the sensor. That would create an entry in a data bank showing the date and time of the swipe and confirming the location of the guard. A print out of the guard’s activities for each hourly patrol could be obtained the next morning by supervisory staff to confirm that a patrol was conducted, that each patrol was different in direction and duration and that the employee was patrolling the parkade. He stated that during their security patrols, his employees would go through the various levels of the building, including the stairwells, and the two pedestrian bridges connecting the parkade to downtown locations. He emphasized that the length and direction of each patrol varied so a pattern of inspection could not be anticipated.
[75] For some unexplained reason, no sensors were placed in any of the stairwells. The security guard patrol records obtained from the Tour Trax system on Feburary 24, 2012 at the time of and proximate to the incident with Mr. Teglas were entered in evidence.[^15] It is clear that the security guards attended various areas where the sensors were located, but there is no evidence they entered and walked up and down any of the six staircases where a sensor was not located. The staircase in tower 2 was one of those. Mr. Kaczmaret said that this was done but he was not present most of the time and no evidence was led to satisfy me that these “non-sensored” staircases were regularly patrolled. The only way to know it had been done was to observe it or alternatively, have a method to record it such as by the use of Tour Trax.
[76] Unfortunately, there were no Tour Trax reports produced to show that 90 minute security tours occurred, and if they did occur, how often they occurred. On the days of February 23 and 24, 2012, the Tour Trax records do not show any 90 minute patrols occurred.[^16] The Tour Trax records for the three security patrols on February 24, 2012 between 5:08pm and 7:42pm show each patrol only took between thirty and thirty six minutes.
[77] Mr. Kaczmaret emphasized that the guards were able to see into the stairwells due to the glass windows and doors separating the parking area from the stairwell. He referred to exhibits 29 and 30 to support this opinion. While that may be true, I find that the stairwells were not entirely and easily visible from those windows. As Mr. Sloan raised in cross examination, only the area directly in front of the door to and from the staircase landing, was a prohibited parking area. The other areas in front of the glass provided parking for vehicles which could fully or partially block visibility into the stairwell area, depending on the size and type of vehicle parked there. Furthermore, there was minimal visibility from the parking garage to the landing level (as distinct from the parking level), as is clear from exhibit 8.
[78] Mr. Kaczmaret explained that the round holes in the street level façade of the parkade (as evidenced in exhibit 5) also enhanced security as any individual acting improperly could be easily viewed from a passerby on the street. He also felt that the extensive window system adjacent to the stair case on each level, as evidenced in the photograph of the lower level of the staircase of tower 2 [^17] improved the safety of the staircases for users of the facility. Nevertheless, the CPTED report conducted by the Brantford Police Service identified blind spots at the bottom of the stairwells as areas of concern.[^18]
[79] He agreed in cross-examination that he was not sure that a workplace threat/risk assessment had been done by Romex with respect to the parkade.
Issues:
[80] At the outset of trial, counsel advised that damages in this action have been agreed. That leaves the following issues to be considered by the court.
a. Did the defendants owe the plaintiff a duty of care?
b. Did the defendants breach that duty of care?
c. Was it reasonably foreseeable that a breach of the duty of care might cause someone injury or loss?
d. Causation: ie: Was the breach of a duty of care the cause of the plaintiff’s loss?
Analysis:
Issue A: Duty of Care of the Defendants:
[81] The parties agreed that as owner of the property, the City was an occupier as defined in the Occupiers Liability Act. (OLA)[^19]. It reads:
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 in subsection (1) applies whether the danger is caused by the condition of the premises or by an activity carried out on the premises.
[82] On the evidence, I do not find that Romex was an “occupier” within the meaning of the OLA. As Mr. Sloan indicated in his helpful submissions, the action sounds in negligence against Romex but in the context of this case, the factors applicable to determine if there is a duty of care and a breach of the duty of care by either defendant, are very similar. In other words, the test to find liability under the OCL is analogous to the common law test for negligence. I concur.
[83] I recognize that an occupier (and a party defendant like Romex), is not an insurer of the premises, required to eliminate all risks from occurring.[^20] It must only take reasonable steps to make sure users of the parkade are safe. I further accept that our courts have been hesitant to find a defendant liable for preventing damage caused by the intentional tort of a third person.[^21]
[84] I find that both defendants assumed responsibility to see that persons entering into the parkade were reasonably safe while on the premises. In so doing, there was sufficient proximity to the members of the public who use the parkade, including the plaintiff, to require the defendants to be mindful of the plaintiff’s interests. [^22]
[85] I find the City and Romex did have a duty of care to the plaintiff and other users of the parkade.
Issue B: Did the Defendants or either of them breach their duty of care?
[86] I find that both defendants did breach their duty of care to the plaintiff. By failing to take reasonable care to carefully consider and recommend and/or implement reasonable measures to make the stairwells of the parkade safe for lawful users, they failed to meet the standard of care to mitigate the foreseeable risk created by potential torts of a third party.
[87] I find the following measures should have been implemented:
a. The City did not undertake a proper threat/risk assessment of the site until 2020 and a CPTED for the entire structure was not undertaken until 2019. Romex, tasked with security on the premises, never made such a recommendation to the City nor undertook these studies themselves.
b. The City did not install signage in the stairwell areas advising the premises were regularly checked by security patrols, subject to video coverage and that no loitering was permitted. Romex did not make these recommendations despite having been on site for over ten years.
c. The City failed to install video cameras in the stairwells, particularly in tower 2, knowing that it was not clearly visible in all areas and knowing that relatively few people accessing or exiting the garage used that staircase. Romex never made such a recommendation to the City.
d. Romex failed to install sensors for the Tour Trax system in any of the stairwells in order to assure supervisory personnel that all stairwells were being examined on a somewhat regular basis by its security guards. In particular, the stairwells identified as ST2, ST3, ST6, ST9, ST10 and ST11 did not have a sensor in the staircases nor in the areas immediately inside entrance doors to the parking areas from the stairwells. [^23]
[88] On the evidence this court heard, I find as a fact that loitering was a significant problem in and around the parkade and both defendants were aware of that. There was apprehension among the city’s own employees to such an extent that Romex was required to position security guards in visible positions at the time the employees left work to return to their vehicles. Homeless people used the parkade from time to time to escape the elements. The incident reports[^24] from the Brantford Police Service for the policing zones in the vicinity of the parkade indicate the parkade was in an area of the city where police were regularly called. The police incident reports relating specifically to attendances by the police at the parkade[^25], which Mr. Bradley nor Romex ever obtained and analyzed from time to time, confirm that the parkade was a regular concern on almost a weekly basis to the police.
[89] In these respects, I find that the City and Romex both breached their duty of care to the plaintiff and other users of the parkade. A defendant’s conduct is negligent if it creates an unreasonable risk of harm.[^26]
Issue C: Reasonable Foreseeability: Was it reasonably foreseeable that a breach of the duty of care might cause someone injury or loss?
[90] In Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114, the court had to consider the degree of probability which would satisfy the reasonable foreseeability test. Mr. Mustapha had purchased a bottle of water and found dead flies in the bottle and in another one he had purchased to replace the first. He alleged that as a result, he had suffered psychiatric injuries. The defendant argued that such an event occurring was not reasonably foreseeable and McLaughlin J., writing for the court stated at para. 13 stated:
…. the degree of probability to meet the foreseeability test was described in The Wagon Mound (No. 2) as a “real risk”, i.e. “one which occurs to the mind of a reasonable man in the position of the defendan[t]…and which he would not brush aside as far-fetched” (Overseas Tankship (U.K.) [page 121] Ltd. v. Miller Steamship Co. Pty., [1967] A.C. 617 (P.C.), at p. 643).
[91] Ten years later, In Rankin (Rankin’s Garage &Sales) v. J.J. 2018 SCC 19, [2018] 1 S.C.R. 587, the Supreme Court held that whether something is “reasonably foreseeable” is an objective test.[^27] In other words, would a third person in the position of the defendant(s) have reasonably foreseen the type of incident which could lead to injury or loss by a lawful user of the premises.
[92] Mr. Black gave his evidence in an objective and dispassionate manner. I find his evidence very persuasive. He was of the opinion that there was a basic lack of security consideration in the parkade and there did not appear to be compliance with the threat/risk assessment requirements of the Occupational Health and Safety Act. I concur.
[93] Mr. Bradley had no specific training in security issues. He and his general manager decided where the cameras should be located. There is no evidence that any expert advice from someone familiar with security issues was sought. Mr. Black is such an expert.
[94] I note that when the Brantford Police Service did ultimately undertake an proper CPTED assessment[^28] of the downtown core of Brantford, the author noted that the parkade’s design “limits visibility and natural surveillance from within the structure”. The existence of blind spots at the bottom of stairwells was noted. The report recommended “increased camera coverage through the structure.”
[95] In 2020, the City retained independent consultants to complete a threat/risk assessment of the parkade.[^29] In determining that the overall existing risk to the parkade was low, a series of recommendations were made to fill some gaps which required corrective actions. None of the recommendations were considered urgent or “Priority One”. Among the recommendations listed as “Priority Two”[^30] were the following:
a. the installation of fencing along the south perimeter of the parkade to prevent unauthorized /unimpeded access by people on foot to Level 1.[^31]
b. the installation of CCTV cameras in the stairwells. The risk mitigation impact “would reduce the likelihood of thefts, assaults, vandalism or other illicit activity”.
[96] The first of these recommendations illustrates what was evident from the evidence of the witnesses in this case that in 2011 and 2012, the parkade was open to access by almost anyone who wanted to enter it in a non-monitored location.
[97] The second recommendation echoes what Mr. Black recommended. I recognize that remedial efforts effected by a tortfeasor after an accident can not be used as evidence of liability. However, those remedial steps can be considered by the court as evidence of “what was reasonable in the circumstances and whether the defendant(s) took reasonable care”.[^32]
[98] I find that it was reasonably foreseeable that the staircases in the parkade were a place of potential danger. Mr. Kaczmaret himself acknowledged that if anything untoward was going to happen, they were a likely location where such an incident might occur.
[99] The nature of the specific occurrence need not be foreseeable. It is sufficient that the general nature of the occurrence be foreseeable. The defendants are not to be held to a standard of an absolute duty to make sure that there is no clandestine activity in the stairwells. The test is whether they have taken reasonable care to limit and control such reasonably foreseeable activities in those locations.
[100] In this case, I find that it was reasonably foreseeable that some form of inappropriate, threatening or harmful action could be applied to an innocent user by someone lurking in or walking through one of the stairwells because of the lack of visibility, lack of cameras to potentially deter and/or identify the perpetrators, and the likelihood that other users will not come upon the place of the incident before the event is completed.
Issue D: Causation: ie: Was the breach of a duty of care the cause of the plaintiff’s loss?
[101] On its own, proof that the defendant(s) breached a duty of care and such breach was reasonably foreseeable, does not make the defendant(s) liable for Mr. Teglas’ loss.
[102] Causation is established where a plaintiff proves on a balance of probabilities that but for the conduct of the defendant(s), the plaintiff would not have suffered injury or loss.[^33]
[103] I am guided in consideration of this issue by the decision of the Alberta Court of Appeal in McAllister v. Calgary (City)[^34]. In that case, the City of Calgary installed a light rail system to service parts of the city. An open air pedestrian walkway was installed to provide access to one of its stations. The walkway and the rail station were covered by 25 surveillance cameras. The plaintiff was injured in an extended and unprovoked New Year’s Eve assault by his girlfriend’s former boyfriend as he was crossing the walkway towards the train station. The assault lasted approximately twenty minutes and two security guards who were monitoring 42 screens visualizing images from approximately 337 security cameras along the light rail system, failed to notice it. The plaintiff sued the City of Calgary under the Alberta Occupiers’ Liability Act which is generally similar to that in Ontario. The Court of Appeal found the City was an occupier and was responsible for some of the plaintiff’s damages because its security personnel did not respond in a timely way. It was not responsible for the damages sustained in the first ten minutes of the assault. In reaching that decision, the court considered the City’s duty to prevent crime and damage caused by third parties, as in the case at bar. At para. 39, the court noted that as with the parkade in Brantford (constructed to provide sufficient parking in the downtown core), the City of Calgary constructed the train system for good public policy reasons (to reduce road traffic). It wrote:
In order to achieve those objectives, the City encourages use of the system, including by an implicit representation that the system is reasonably safe. Further, having built the system, the City wants to maximize its revenue to offset the costs of running it.
[104] The Alberta Court of Appeal reduced the finding of liability and hence, the damages against the defendant because even if all the proper steps had been taken by the defendant’s employees, at least ten minutes would have passed before the police and/or security personnel could have arrived at the scene.
[105] I find in the case at bar that even if all the proper steps to fulfill their duty of care had been done by the defendants, this incident could not have been prevented.
[106] The incident in the case at bar happened very quickly, lasting about thirty seconds. Mr. Teglas confirmed that in his evidence. It was confirmed by the “still” photos drawn from one of the City’s video cameras monitoring the staircase from the Market Street pedestrian bridge leading to Water Street. As noted above in paragraphs 15 and 16, exhibit 9 shows Mr. Teglas on the day of the assault walking east on Water Street towards tower 2 of the parkade at 6:05:47pm. Exhibits10 and 11 show the two assailants fleeing on foot just over one minute later at 6:06:58pm. Mr. Teglas acknowledged that it would have taken him approximately 20 seconds to walk from where he was seen in exhibit 9 to the door entering the staircase landing where he was assaulted. He also agreed that the assailants would have required at least ten seconds to flee from the parkade to the point where they are seen in exhibits. It is apparent therefore that the confrontation and assault with the assailants could not have lasted much more than thirty seconds.
[107] I find that even if the video cameras were installed with a central monitoring system, it is very unlikely that the security guards could have responded in a timely way to prevent Mr. Teglas suffering his injuries.
[108] At best, video cameras would have possibly assisted in the identification and apprehension of the perpetrators. I am not satisfied on a balance of probabilities that they would have deterred the assailants as there is no evidence that they were loitering in the stairwell. The only possible evidence in that respect is in the statement given by Mr. Teglas when he reported the assault to the Romex security guard on duty at the time. [^35] Mr. Teglas had no opportunity to really determine if the assailants were loitering on the premises as the encounter occurred immediately after he opened the door and saw them for the first time.
[109] The entire interaction between Mr. Teglas and the assailants took place for approximately 30 seconds, which is a very short period of time. It is not reasonable to assume that a security guard would have been in or near the very same stairwell at the time of the assault, considering the size of the parkade. Furthermore, the evidence indicates that in the preceding year of 2011, there had been no previously reported criminal assaults in the parkade of which either defendant was aware.
[110] Mr. Kaczmeret explained the pros and cons of putting panic buttons in staircases and I find that it was reasonable not to have installed panic buttons.
[111] The failure of the City to conduct a threat/risk assessment was a violation of the mandatory provisions of the Occupational Health and Safety Act but it does not create a cause of action in the plaintiff. The same conclusion applies to the failure of Romex to conduct or recommend such an assessment. There is no private tort remedy for the breach of a statutory duty.[^36]
[112] I find that the injuries suffered by the plaintiff were not caused by the breach of the duty of care of either of the defendants.
Conclusion:
[113] The plaintiff’s action is dismissed.
Costs:
[114] If the parties can not agree on costs, the defendant is to serve and file submission on costs in writing, including a costs’ summary and supporting dockets and any Rule 49 Offers to Settle on or before December 10, 2020. The plaintiff shall serve and file responding submissions on or before December 20, 2020. The submissions of the defendant and plaintiff shall not exceed three, single spaced typewritten pages. The defendants may file a brief written reply not exceeding two, single spaced typewritten pages on or before December 24, 2020.
Turnbull, J.
Released: December 1, 2020
[^1]: R. S.O. 1990 c. O.1 [^2]: Occupational Health and Safety Act, s. 32.03 enacted 2009, c. 23, s. 3. [^3]: Exhibit 13A and 13B, [^4]: Exhibit 22. The page number referred to in this judgment refers to the printed page number in the contact and not the stamped number 15 appearing in the top and bottom right hand side of the page. [^5]: Exhibit 22. [^6]: R.S.O. 1990, c. O.1 [^7]: Exhibit 17. [^8]: Exhibit 22. [^9]: Exhibit 18: Workplace Inspection Report dated February 28, 2012 Exhibit 19: Workplace Inspection Report dated January 30, 2012. [^10]: Exhibit 21 [^11]: Exhibit 16. [^12]: Exhibit 22 [^13]: Exhibit 23 [^14]: Exhibit 24. [^15]: Exhibit 33. [^16]: Exhibit 31. [^17]: Exhibit 27 [^18]: Exhibit 25, page 37. [^19]: R.S.O. 1990, c. O.2, s. 3. [^20]: McAllister v Calgary, [2019] ABCA 214 at para. 29. [^21]: McAllister, supra, at para. 50. [^22]: Hercules Managements Ltd. v Ernst & Young, 1997 CanLII 345 (SCC), [1997] 2 S.C.R. 165 at para. 24. [^23]: Exhibit 32. [^24]: Exhibits 13 A and 13B. [^25]: Exhibit [^26]: A.M. Linden and B. Feldthusen, Canadian Tort Law, (8th ed. 2006), at p. 130. [^27]: Para. 53 [^28]: Exhibit 25, page 37. [^29]: Exhibit 26. [^30]: Defined in the report at page 20 as “Recommended Action (Action required but may be planned at a later date-2/3 years). [^31]: Exhibit 26, page 20 [^32]: Sandu (Litigation Guardian of) v. Wellington Pace Apartments, 2008 ONCA 215, [2008] O.J. 1148 (ONCA) at para 63. [^33]: Clemens v Clemens, 2012 SCC 32, [2012] S.C.J. No. 32 [^34]: [2019} A.J. No. 699. Leave for appeal refused [2019] S.C.C.A. No. 309. [^35]: Exhibit 31 and Exhibit 34. [^36]: Canada v Saskatchewan Wheat Pool, [1983] 1 SCR 205, 1983 CanLII 21 page 11. The court said:
For all of the above reasons I would be adverse to the recognition in Canada of a nominate tort of statutory breach. Breach of statute, where it has an effect upon civil liability, should be considered in the context of the general law of negligence. Negligence and its common law duty of care have become pervasive enough to serve the purpose invoked for the existence of the action for statutory breach.