Ontario Superior Court of Justice

Court File No.: CV-17-00011871-0000
Date: January 9, 2025

Between:

Ryan Cox and Victoria Tavcar
Plaintiffs / Responding Parties

and

Todd Ball, The Corporation of the Town of Fort Erie, 1118184 Ontario Inc. o/a Madison’s Pub, Tenders Goalie School, and Al Stoddard
Defendants / Moving Parties

Appearances:

• Roelf Swart for the Plaintiffs, Responding Parties
• Robert A. Betts for the defendants, Town of Fort Erie and Al Stoddard, the moving parties
• Sachin Persuad for the defendant, Madison’s, moving party

Heard: July 18 and 19, 2024

Ruling on Summary Judgment Motions
P. R. Sweeny

Introduction

[1] On May 8, 2016, the plaintiff, Ryan Cox (“Cox”), was injured when the defendant, Todd Ball (“Ball”), assaulted him by hitting him in the head with his goalie stick during a game in a three-on-three hockey tournament held at the Fort Erie Leisureplex. Ball has been convicted of assault causing bodily harm.

[2] Cox claims damages for personal injuries against Ball, the Corporation of the Town of Fort Erie—the owner of the arena complex where the tournament was held (“Fort Erie”), the tournament organizer—Al Stoddard (“Stoddard”), and 1118184 Ontario Inc. o/a Madison’s Pub which operates in the arena complex where the tournament was held.

[3] Cox asserts that Fort Erie and Stoddard are liable in negligence for the injuries he sustained; Fort Erie is liable under the Occupiers’ Liability Act, R.S.O. 1990 c. O.2; Madison’s Pub under the Liquor Licence Act, R.S.O. 1990 c. L.19, because the intoxicated defendant Ball was served alcohol.

[4] Ball has been noted in default. The remaining three defendants bring these two motions for summary judgment. They jointly assert that the conduct of Ball was not reasonably foreseeable. They further assert that, if it was reasonably foreseeable, they did not breach the standard of care required of them. The defendants say that the plaintiffs have not led evidence of the standard of care. For the purposes of these motions, I will assume that the plaintiffs rely on the same factual allegations made against Stoddard, to hold the Town liable under the Occupiers’ Liability Act.

[5] The plaintiffs state that there are genuine issues requiring a trial on the issue of foreseeability and standard of care.

[6] These motions for summary judgment were heard by me over two days. This matter was set to commence a six-week judge-alone trial on October 6, 2024, but has since been adjourned to October 2025.

[7] For the reasons that follow, the motions are dismissed. This is not an appropriate case for summary judgment.

Background

[8] Stoddard had been running this hockey tournament since 2005. Each game has two experienced referees plus additional personnel who monitor the game. This game, on May 8, 2016, was described as chippy and aggressive. A player on Ball’s team was ejected from the game. Stoddard considered stopping the game after that ejection. After consultation, he allowed the game to continue. Within a few minutes of the continuation, the assault occurred.

[9] Madison’s Pub operates out of the arena where the tournament is held. There is a dispute in the evidence as to the level of Ball’s intoxication and, also, how he may have appeared. There is evidence he started drinking early in the day. It was his birthday. There are several minutes of video footage of Ball in the Madison’s Pub before the game. However, there is also evidence that Ball may have been at the bar for longer than these several minutes. How much Ball was served in the bar is also at issue.

[10] There is evidence of an incident at Madison’s Pub before the game, where Ball in some way removed a man who was bothering Ball’s then girlfriend, Ashley Cerros. The exact nature of the interaction and the level of violence is in dispute.

Legal Principles

Summary Judgment Motions

[11] In Hryniak v. Mauldin, 2014 SCC 7, Karakatsanis J. laid out the test for, and considerations of, summary judgement applications.

[49] There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[50] These principles are interconnected, and all speak to whether summary judgment will provide a fair and just adjudication. When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.

[51] Often, concerns about credibility or clarification of the evidence can be addressed by calling oral evidence on the motion itself. However, there may be cases where, given the nature of the issues and the evidence required, the judge cannot make the necessary findings of fact, or apply the legal principles to reach a just and fair determination.

[57] On a summary judgment motion, the evidence need not be equivalent to that at trial but must be such that the judge is confident that she can fairly resolve the dispute. A documentary record, particularly when supplemented by the new fact-finding tools, including ordering oral testimony, is often sufficient to resolve material issues fairly and justly. The powers provided in Rules 20.04(2.1) and (2.2) can provide an equally valid, if less extensive, manner of fact finding.

[58] This inquiry into the interest of justice is, by its nature, comparative. Proportionality is assessed in relation to the full trial. It may require the motion judge to assess the relative efficiencies of proceeding by way of summary judgment, as opposed to trial. This would involve a comparison of, among other things, the cost and speed of both procedures. (Although summary judgment may be expensive and time consuming, as in this case, a trial may be even more expensive and slower.) It may also involve a comparison of the evidence that will be available at trial and on the motion as well as the opportunity to fairly evaluate it. (Even if the evidence available on the motion is limited, there may be no reason to think better evidence would be available at trial.)

[12] Further, in Hamilton v. Desert Lake Family Resort Inc., 2017 ONSC 1382, Mew J. noted the following in regard to the evidentiary record required on a summary judgement application:

[26] The plaintiffs’ factum contains the ubiquitous reminder that parties on a summary judgment motion must put their best foot forward. That does not mean that the evidence provided to the court needs to be equivalent to that which would be available at trial, but it must be such that the presiding judge is confident that he/she can fairly resolve the dispute: Hryniak v. Mauldin, 2014 SCC 7 at para. 57.

[27] On the other hand, although a motion judge is required to assume that the parties have, in fact, placed before the court all of the evidence necessary for the judge to be able to confidently resolve the dispute, summary judgment should be denied where it is clear to the judge that there is material evidence that should be before the court but is not: Abuajina v. Haval, 2015 ONSC 7938 at paras. 33-34; Marrocco v. Heft, 2017 ONSC 654 at para. 47.

Intentional Torts

[13] It is exceptional to hold one defendant liable for the intentional torts of another: McAlister v. Calgary (City), 2019 ABCA 214, at paragraph 50. However, there are cases where liability has been imposed on commercial hosts for intentional acts of patrons: see Murphy v. Little Memphis Cabaret Inc., [1996] 20 O.T.C. 313 (S.C.), aff’d.

[14] Liability of a league or the host for the intentional acts of a player in a game (while rarely found) was found in Olinski v. Johnson, 32 O.R. (3d) 774 (S.C.), aff’d, a case in which the referees were assaulted, and the lacrosse league was held liable. The facts in Olinski included an awareness on the part of the league, of potential further assaults based on the prior conduct of the perpetrators. This is discussed further below in relation to the standard of care.

Foreseeability and the Reasonable Person

[15] In Garisto v. Goudie, 2021 BCSC 1257, the plaintiff was assaulted by a patron leaving a bar. The bar moved to have the action dismissed by way of summary trial. In that case, the Court wrote on the principles of foreseeability and reasonability at paragraphs 22-25:

[22] Mr. Richardson submits that the law concerning “the foreseeability of assaults in a commercial host context is well-settled.” I understand him to say that the assault must have been reasonably apprehended or anticipated and such is not the law where the assault was without warning.

[23] In Jonas v. Elliott, 2021 ONCA 124, the Ontario Court of Appeal stated:

[6] The motion judge held that, in this case, there was a relationship of proximity. However, he held the altercation was not reasonably foreseeable because:

a) Experienced and trained staff were hired to serve alcohol and a friend provided security at the door;

b) Both Messrs, Jonas and Elliott had consumed alcohol before attending the party but neither exhibited prior signs of aggressive behaviour or conduct that would suggest they had consumed alcohol before they arrived;

c) Ms. Goudy was unaware of their prior alcohol consumption;

d) The incident was both sudden and brief;

e) There was only one other minor incident that evening involving an intoxicated patron who was appropriately removed from the party, placed in a taxi, and taken home; and

f) The fact that Mr. Jonas was let into the party by Ms. Goudy, was not the cause of the incident.

[7] These findings of facts about the activity at the party are sufficient to demonstrate that the harm was not reasonably foreseeable, and these findings are owed deference. In any event there is no evidence that the altercation was caused or contributed to by intoxication.

[24] I read Jonas as illustrating the need to determine the standard of care in the factual context of the particular case. In Jonas, the Ontario Court of Appeal reviews the factual context, as found by the motion judge, “to demonstrate that the harm was not reasonably foreseeable.” The fact that “the incident was both sudden and brief” was just one factor. In sum, there is not a bright line rule that all sudden and brief assaults are not reasonably foreseeable.

[16] Demonstrating this lack of a bright line are the decisions in Levita v. Alan Crew et al., 2015 ONSC 5316 and Olinski. In Levita, the plaintiff was checked into the boards by the defendant during a hockey game. In discussing the liability of the league, Firestone J. wrote as follows:

[100] … there is insufficient evidence to show that Crew’s hockey history was sufficiently concerning to put True North on notice that he was dangerous and should be expelled from the league. Rather, the evidence illustrates that Crew had fewer penalties than Levita and members of his team. Consequently, there is no evidence illustrating that, in allowing Crew to continue playing, True North fell below the standard of care to facilitate a safe playing environment for its hockey players (a “safe playing environment” judged again by the standard of what a reasonable hockey player would expect, including the necessary risks that accompany the game). [Emphasis added].

[17] These comments can be contrasted with the Court’s consideration of the standard of care owed by the league in Olinski:

[25] Of course, it was never suggested in this case, nor could it be, that the standard of care of the O.L.A. was that of a careful or prudent parent. However, applying Hamstra to this extent, it must take reasonable care in all the circumstances, and in this case, not simply to enforce the rules of the game, but to enforce reasonable order in the arena, as required by its constitution. It did not. The attack on the two referees was reasonably foreseeable, though possibly not its magnitude, given the incident involving Ralph Staatz two months before. [Emphasis added].

The Standard of Care

[18] In Donaldson v. John Doe, 2009 BCCA 38, the Court reviewed the distinction between foreseeability in the analysis of the imposition of a duty and foreseeability with respect to the standard of care.

[19] In this case, there is no question that Madison’s owed a duty to third parties: a commercial host owes a duty to third parties to protect them from alcohol-related injuries caused by intoxicated patrons. The issue is: What is the appropriate standard of care? This depends, in some part, on the level of intoxication of Ball. This is an issue in dispute. If we assume Ball was intoxicated and that he had a previous violent interaction with another person, and that Madison’s knew about it, this could have an impact on the standard of care.

[20] The case of Van Hove v. Boisselle, 2012 BCSC 494, clearly demonstrates that a commercial host’s standard of care can extend well beyond the four walls of their establishment. Van Hove dealt with a motor vehicle accident caused by a drunk driver. The pub, in which the defendant was drinking, was sued. The defendant was driven home after the pub and then decided to drive somewhere else. On an application to dismiss the third-party claim by summary trial, the Pub argued there are no significant facts in dispute. It argued that once the defendant was home safely that satisfied their duty. This was rejected by the judge who held that he needed information about the level of intoxication of the driver and such would inform the standard of care.

[21] There is also no doubt that the tournament organizers owed a duty of care to the participants (see also liability under the Occupiers’ Liability Act). Thus, the issue in relation to Stoddard is the same: What is the appropriate standard of care? This depends on Stoddard’s knowledge and the application of the reasonable person with that knowledge. What Stoddard knew is an important issue. The information that informed Stoddard’s decision not to call the game, and whether this decision was reasonable are crucial questions. This will depend on an assessment of all the evidence including, again, the conflicting evidence about intoxication.

Expert Evidence and the Standard of Care

[22] In Garisto, the admissibility of expert opinion evidence, regarding the relationship between alcohol and sudden aggression was addressed. The Court ultimately held that a trial judge may find such evidence necessary. The specific determination, of whether it was necessary or not, was not made in Garisto.

[23] On the issue of the need for expert evidence, on the standard of care, in the current case, I note that the Court in Bucknol when addressing the standard of care wrote at paragraph 61:

Furthermore, Mr. Bucknol has filed no evidence setting out the relevant standard of care for the bar. If Mr. Bucknol is relying on a standard of care, one would have expected they would have set out evidence as to what this standard of care is. Expert evidence could have been called, or documentation from the City of Toronto setting out the standards for bars in terms of security would have been helpful.

[24] However, in Da Silva v. Gomes, 2017 ONSC 5841, an expert opinion was not required to determine if the defendant met the standard of care of a coach: see paragraph 58.

[25] The law is not clear that expert evidence is necessary to establish a given standard of care.

Analysis

Evidentiary Issues

[26] This matter was set by me for trial commencing October 6, 2024, some time ago. The defendants were allowed by me to bring these motions quite late in the proceeding (five years after the action was commenced). There were objections raised by the defendant moving parties to evidence proffered by the plaintiffs. There was no cross-examination on two affidavits (of Ball and his then girlfriend, Ashley Cerros), filed in support of the plaintiff. This was a result of scheduling difficulties and through no fault of the plaintiffs.

[27] In this case, it is evident that not all the evidence is before me that the parties intend to call. Generally, the motion judge is entitled to assume that all the evidence is before him or her, however in this case, I know that it is not.

[28] There were a further two witnesses (Mr. Hill and Mr. Crosby) who initially spoke with representatives of the plaintiffs, providing relied upon evidence, but would not swear or affirm their affidavits. The plaintiffs sought to tender evidence of the sentencing of Ball. The defendants object to the admission of this evidence.

[29] There were several days of cross-examination of the affiants on their affidavits. The plaintiffs note that there is no evidence from Mr. Strugar, a member of Mr. Ball’s team who spoke with Mr. Stoddard when there was some consideration given to stopping the game.

[30] Finally, the plaintiffs also seek to tender some expert evidence about the effects of alcohol on aggression. The admission of this evidence is challenged by the defendant moving parties. This is an evidentiary issue to be determined by a trial judge.

[31] Credibility is an issue. At least one witness appears to have changed his story from the time of speaking to police to filing affidavits. Jordan Perry told Police that “I believe the goalie [Ball] to have been drinking. Didn’t seem intoxicated but I heard he had been drinking since 10 am”. In contrast, in his affidavit he swore that “I could tell the older team’s goalie was visibly drunk.”

[32] The issue, as I have identified it above, is whether the defendants breached the standard of care owed to the plaintiff. Such depends on a determination of the defendants’ knowledge of the circumstances.

[33] With respect to Madison’s, there is some evidence of a prior interaction between Ball and another patron inside of the bar. There is evidence that Ball was very intoxicated. This is disputed. Madison’s says that he did not appear to be. There is also a dispute as to how long Ball was inside Madison’s.

[34] A commercial host’s knowledge (or that which it ought to have known) of the degree of intoxication of a patron is a relevant factor in determining whether there is a reasonably foreseeable risk of the sudden assault by that patron.

[35] With respect to Stoddard and the Town of Fort Erie, there is evidence of a prior interaction between Ball and Cox in a game the day before. This involved a slash. The nature of the slash is in issue: i.e., whether it was a two-handed chop at the back legs of Cox, similar to the strike the next day. I do note that the plaintiff Cox, himself, did not express any concern regarding playing another game against Ball on the day of the incident.

[36] Stoddard did have the ability to stop the game, and he decided not to do so. His concern was expressed as a concern for player safety. His evidence was, in part:

Question: so overall, when you can contemplate showing [sic] the game down, you prepared to shut the game down because you contemplated players might get violent or hurt?

Answer: I have no way of knowing whether there-there would be that-there be violence, but I didn’t want anyone to get hurt or being a fight, no.

[37] In Da Silva, Gomes punched Da Silva during a soccer game. The plaintiff sued the club (for which Mr. Gomes played), the Ontario Soccer Association Incorporated, and other associated individuals. The defendants, aside from Mr. Gomes, were granted summary judgment dismissing the action against them. The motion judge noted that there was no evidence that Gomes had acted in a physically aggressive or violent manner in any soccer game prior to the game at issue. In upholding the summary judgment, the Ontario Court of Appeal (in 2018 ONCA 610) noted at paragraph 15:

As for the applicable law, the motion judge relied on the school board cases, which provide useful analogues. The law is clear that supervising authorities are not legally responsible for “a sudden unexpected event in the midst of an acceptable, safe activity”: Patrick v. St. Clair Catholic District School Board [2013] O.J. No. 6216, at para. 266. See Lee (Litigation Guardian of) v. Toronto District School Board [2013] O.J. No. 1157 at paras. 104-05; Rollins (Litigation Guardian of) v. English Language Separate District School Board No. 39, [2009] O.J. No. 6193 at para. 170, and cases cited in it, appeal dismissed 2012 ONCA 104, [2012] O.J. No. 646. The motion judge did not err in accepting and applying this law.

[38] In the words of Da Silva, was the incident between Ball and Cox a sudden and unexpected event in the midst of a safe activity? Answering this question requires an examination of all the circumstances and all that was known by Stoddard.

[39] The cases cited to me demonstrate that whether summary judgement is appropriate on cases such as this, is very dependent on the issues and the state of the evidence. There are cases where summary judgment has been granted, and an action dismissed, when the plaintiff sought to impose liability on commercial hosts for the intentional acts of a patron: see Baron v. Clark, 2017 ONSC 728, Bucknol v. 22280882 Ontario Inc., 2018 ONSC 5455; and Jonas.

[40] However, there are also cases where such was not granted:

• In Linton v. Tholos Restaurant Inc., 2016 ONSC 4167, the plaintiff fell down an exterior set of stairs after being overserved at a restaurant. The defendant moved for summary judgement. The motion judge declined to grant summary judgment.
• In Adlam v. Bonnici, 2011 ONSC 2471, McDermott J. dismissed a motion for summary judgment. He held that a trial was necessary for the plaintiff to obtain procedural and substantive justice. This was a case of an assault outside of a bar.
• In Schiavone v. Woods, 2018 ONSC 4789, another case of an assault outside of a bar, Nightingale J. similarly refused to grant summary judgement. Justice Nightingale held that a trial was necessary to deal with issues of foreseeability and causation.

Conclusion

[41] Given the issues that are in dispute, and the state of the evidence before me, this is not a case where justice can be done by way of summary judgement. This is a situation where the full forensic machinery of a trial is necessary.

[42] The motions for summary judgment are dismissed.

[43] My comments should in no way be considered as a determination of any of the issues of liability in this case. I have determined that it is in the interest of justice that the liability, if any, of the moving defendants be determined at a trial as such is necessary to provide the judge with the required degree of confidence in his or her conclusions.

[44] I note that this is a case where bifurcation may be beneficial. The issues of liability are ripe for determination. However, that can only be done on consent or a motion by a party. I am not prepared to seize myself of the trial in this matter given the scheduling realities. The matter is scheduled for trial on October 6, 2025, but an earlier date may be available to address, singularly, the liability of the defendants.

Costs

[45] If the parties are unable to agree upon costs, and I encourage them to do so, I will accept written submissions from the plaintiffs limited to 5 pages plus costs outlines and any offers to settle, to be delivered within 14 days. The defendants have a further 14 days to respond with similar page limits.

P. R. Sweeny