Reasons for Judgment

Court File No.: 17-583951
Date of Judgment: May 12, 2025
Ontario Superior Court of Justice

Between:
Adam (Family of) Davidson
and
Cummer Avenue United Church, Sandra Seepaul and Hub International Insurance

Appearances:

• Adam (Family of) Davidson, self-represented
• Christian Breukelman, Grace Murdoch, for the defendants

Heard: May 13, 14, 15, 2025
Judge: Lise Des Rosiers

Introduction

[1] On October 21, 2015, the plaintiff, Adam (Family of), visited the drop-in center operated by the defendant, the Cummer Avenue United Church (“CAUC”). He witnessed an older couple being berated by a younger man, Joe. Joe was cursing at the older couple, uttering antisemitic slurs, telling the older couple to return to Russia, and using derogatory terms about their Jewish heritage. The plaintiff went to report Joe’s antisemitic behaviour to the program director, the defendant, (“Ms. Seepaul”), asking that Joe be told to leave. Ms. Seepaul told the plaintiff that she could not do anything about a guest’s bad behaviour unless she witnessed it herself. She invited the plaintiff to point out Joe. Ms. Seepaul went with the plaintiff toward Joe. Joe assaulted the plaintiff.

[2] The plaintiff is suing for damages. He suffered injuries as a result of the assault. He was sucker punched, fell back on the floor, and hurt his back and his head. He attended the hospital later that day. He was released without any treatment, except to use ice on his back and head, and to use Tylenol (an anti-inflammatory) for the pain. He also described experiencing a great deal of anxiety as a result of the assault. He has been diagnosed to be on the Autism spectrum, and the assault caused a great deal of stress for him. The plaintiff represented himself at trial. He alleged negligence by the defendant Sandra Seepaul and CAUC, and a breach of the Occupiers' Liability Act, RSO 1990, c O.2. He is claiming damages in the amount of $150,000, including aggravated damages.

[3] This litigation proceeded as a simplified trial under Rule 76 of the Rules of Civil Procedure, RRO 1990, Reg 194, pursuant to S.F. Dunphy J.’s ruling of November 30, 2021.

[4] The defendants deny any liability. They assert that they could not have reasonably foreseen the attack or the outburst of violence on the part of Joe and that they acted reasonably in the circumstances. In the alternative, they plead that their alleged negligence did not cause the injuries, that the plaintiff is 75% responsible for his misfortune because he raised his voice and pointed his finger at Joe, and that, at most, the plaintiff is only entitled to nominal damages in the amount of $500. In particular, they deny that they had the obligation to install cameras or have security guards at the drop-in center.

[5] For reasons below, I find that both CAUC and Ms. Seepaul owed a duty of care to the plaintiff, that they breached the standard of care applicable to them, and that such breach of the standard of care caused the plaintiff’s injuries. I awarded damages to the plaintiff in the amount of $7,500.

Background

[6] CAUC operates a small drop-in center once a week on Wednesdays between 8:30 a.m. and 3 p.m. The drop-in center is meant to be welcoming and provides breakfast and lunch to its visitors, who can also have access to haircuts, showers, clothing, and to speak with representatives from various government programs, including Housing, Ontario Works or the Ontario Disability Services Program.

[7] In October 2015, the defendant Sandra Seepaul had been the program director since 2013. She was a part-time employee. She also worked part-time at a women’s shelter. She has an MSW and a BSW, and had worked in various organizations since her graduation in 2003.

[8] The plaintiff had occasionally attended the drop-in center to get a haircut and socialize. On October 21, 2015, he arrived to have lunch at the center. As he sat down, he witnessed an interaction between a person he did not know, whom we now know as Joe, and a couple, G. and M., who were in their 60s or 70s. In this proceeding and in front of the Human Rights Tribunal of Ontario (“HRT”), the plaintiff has consistently described how Joe berated the couple, calling them filthy Jews and telling them to go back to Russia.

[9] The plaintiff was understandably upset by what he heard. He testified that G. and M. told him that they had been harassed by Joe “for weeks”. The plaintiff decided to speak to the program director, Ms. Seepaul, about such display of antisemitism.

[10] The plaintiff described going to Ms. Seepaul and disclosing the antisemitic statements. In his view, she did not take him seriously. She did not think that she could do anything or ask Joe to leave, which is what the plaintiff thought should happen, unless she had heard the offensive comments herself. She was not going to remove someone from the drop-in center on the basis of a “he says. She says”.

[11] There is agreement between the parties that Ms. Seepaul, who did not know Joe, wanted the plaintiff to identify him. The plaintiff pointed in a general direction, which was insufficient for a proper identification. Ms. Seepaul and the plaintiff walked together toward Joe. She did not give any instructions to the plaintiff as to what to do or not do, or what her intentions were when they got to Joe.

[12] The testimonies of the plaintiff and Ms. Seepaul overlap on several aspects but emphasize different aspects of the interaction. Ms. Seepaul’s recollection after nine and half years is that she was unable to say a word until the plaintiff pointed his finger in Joe’s face and confronted him angrily about his antisemitic remarks. Joe yelled back and both the plaintiff and Joe started pushing each other. She testified that she wanted both of them to go outside to finish it off. The plaintiff and the people around her did not want this to happen. Ms. Seepaul tried to put her arm between the parties. Joe punched the plaintiff who ended up on the floor. She kept telling them to go outside. Her testimony was that she yelled to the other part-time employee, Helen Miller, who was at the top of the ramp, a significant distance away, to call the police. She also testified that some people tried to break off the fight. Eventually, someone dragged Joe off the plaintiff who had received several blows by then.

[13] The plaintiff remembers that he thought the purpose of going to Joe was to confront him about his antisemitic remarks. When Ms. Seepaul did not say anything, he took it about himself to denounce Joe’s comments to G. and M. Joe started to push the plaintiff and the plaintiff pushed back with his hands. The plaintiff remembers Ms. Seepaul telling them to go outside, which he did not want to do since he was not looking for a fight and was apprehensive about Joe’s violence. The plaintiff remembers turning around from Joe and he remembers a head punch, his hoodie being pulled, being on the floor and being punched and kicked. His recollection is that he was on the floor for a while before someone finally removed Joe from him.

[14] The plaintiff introduced an affidavit from Allen Anisman, another guest at the drop-in center, who had testified at the HRT hearing. Mr. Anisman confirmed that he saw the plaintiff being assaulted by Joe and that he, Mr. Anisman, was the one who pulled Joe off the plaintiff.

[15] After assaulting the plaintiff, Joe also struck G.

[16] The police were called. No charges were laid.

[17] Ms. Seepaul determined that Joe should be banned from attending CAUC for 6 months. She also banned the plaintiff from attending CAUC. He recalls it being for two months, but the record indicates one month.

[18] The plaintiff was very upset by the ban imposed on him. He saw himself as the victim of the assault that occurred because he was trying to denounce discriminatory comments directed at some of CAUC’s visitors.

[19] The plaintiff attempted to “appeal” the ban. He spoke to the Minister of the CAUC with whom he said he had a good conversation. There were some administrative mistakes regarding his attempt to speak to the Board Chair, who tried to call him and eventually wrote to him, but never wanted to meet in person. The Board determined, without hearing him in person, that the ban imposed on him was appropriate.

[20] The plaintiff, who is of Jewish descent, complained to the HRT. In his complaint to the HRT, he argued that he had been discriminated against in three ways. First, his application alleged that CAUC had failed to address antisemitism at the drop-in programs. Second, he argued CAUC ignored his complaints and that the Chair of the Board refused to meet with him because of his Jewish heritage. Finally, he argued that because the United Church of Canada supports the Boycott, Divestment and Sanctions (“BDS”) movement, it has discriminated against him as a Jewish person.

[21] The HRT dismissed his complaint. It ruled that CAUC was not aware of antisemitic comments being made before October 21, 2015, and that it reacted promptly when learning of the complaints on October 21, 2015. The HRT found that there was no evidence that the plaintiff was banned because of his Jewish heritage or that the way CAUC treated him during his appeal process was due to the plaintiff’s Jewish heritage.

[22] The present case raises different issues. At trial, the defendants did not raise any arguments with respect to issue estoppel or res judicata.

[23] The present litigation focuses on whether CAUC took reasonable steps to provide for the plaintiff’s safety at the drop-in center. The issues before me are the following:

• Is CAUC liable pursuant to the Occupiers' Liability Act?
• Were the defendants, Ms. Seepaul or CAUC, negligent, that is, did they owe a duty of care to the plaintiff and did they breach a standard of care?
• Did their negligence, if any, cause the plaintiff’s damages?
• Is the plaintiff entitled to damages, and if so, in what amount?
• Was the plaintiff contributorily negligent?

Occupiers' Liability

[24] For reasons below, I find that there was a duty of care to take reasonable measures to provide for the plaintiff’s safety pursuant to the Occupiers' Liability Act. The defendant’s expert testified about the duty to provide some security measures to ensure the safety of participants to a drop-in center, provided that such measures are adapted to the needs of the vulnerable population it serves. I find that the six measures outlined by the defendant’s expert constitute the reasonable standard of care expected from a small drop-in center. In light of the evidence in front of me, I find that CAUC did not meet the standard of care, and therefore that it is liable pursuant to the Occupiers' Liability Act.

[25] The Occupiers' Liability Act presumes that the occupier of a premise, that is, the owner or occupant of the premises, owes a duty of care to persons, such as the plaintiff, who enter their premises. The duty is to take such care as is reasonable in the circumstances.

[26] The Occupiers' Liability Act provides as follows:

Occupier’s duty

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.

Idem

(2) The duty of care provided for in subsection (1) applies whether the danger is caused by the condition of the premises or by an activity carried on the premises.

[27] The determination of liability is fact specific. The occupier, here CAUC, must take reasonable care to make the premises safe. Occupiers are not required to take unrealistic or impractical precautions against known risks, nor are they required to protect against every possible danger: Waldick v. Malcolm, [1991] 2 S.C.R. 456, at pp. 470-72. The standard is not perfection: Kerr v. Loblaws, 2007 ONCA 371, at paras. 19, 24 and 28, cited in Coleiro v. Premier Fitness Clubs (Erin Mills), 2010 ONSC 4350, at para. 18.

[28] The Defendant alleges that they owe no duty of care to the plaintiff because the injury that he suffered was not reasonably foreseeable. It was caused by the unpredictable action of a third party, Joe. The defendants argue that there was no indication for potential for violence at the drop-in center, and that it was not reasonably foreseeable that someone would assault the plaintiff. The defendants rely on the case of Coleiro, mentioned above, to suggest that there was no duty to take any measures in the present circumstances because there had not been any fights before at CAUC, and the police has been called only one other time when a client’s behavior appeared erratic without any incident on the premises.

[29] The defendant also points to the testimony of the other part-time employee and volunteer, Heather Miller who “screens” guests at the door. Her testimony was to the effect that she does not let someone who is clearly intoxicated or “high” on the premises. On October 21, 2015, there was no reason for her to believe that Joe was intoxicated or “high” when he appeared at the door. There had not been any complaints about Joe in the past and there were no reasons not to welcome him to the center.

[30] In Coleiro, Lauwers J. found that there was no duty of care toward the patron of a fitness club who was assaulted by two individuals who had been given entry to the fitness club. Lauwers J. concluded, at para. 22, that

(…) the assault was a completely independent act on the part of the assailants and could have occurred anywhere. It was not something that was provoked by the club. In terms of occupiers’ liability, I find it had to imagine that there could be practical precautions to prevent such random acts of violence. There is no relevant causal link between the tort of assault and any negligence on the part of the club.

[31] The Coliero case is distinguishable on the facts. In Coliero, the club did not create the situation of proximity between the victim and his two assailants. As Lauwers J. explained, the assault could have occurred anywhere. This is not the same here, where the assault occurred as part of a proposed inquiry by the program director about conduct that occurred on the premises. CAUC, through its program director, was not a stranger to the interaction. Ms. Seepaul created the situation of proximity by inviting the plaintiff to accompany her toward Joe.

[32] The defendants also rely on Omotayo v. Da Costa, 2018 ONSC 2187, for the proposition that the defendants did not owe a duty of care to the plaintiff in the circumstances. In Omotayo, the plaintiff was assaulted during a condo board meeting. The trial judge found that although the board meetings had been contentious, there was no reason to foresee that violence would erupt. Citing Coliero, the trial judge was of the view that there is no duty of care when the injury arises out of a third party’s unpredictable action, provided that it was not reasonably foreseeable: at para. 21.

[33] In the present case, the defendants operate a drop-in center for vulnerable adults. They have a duty to ensure the safety of the participants. Such duty, as their own expert testified, is to provide safety measures that are adapted to the vulnerable population and do not create additional barriers to entry for vulnerable adults. The defendant’s expert did provide an overview of the safety measures expected from a small center like CAUC. She did recognize that some safety measures were necessary to ensure the safety of all participants. To the extent that the Omotayo case stands for the proposition that there is no duty of care absent evidence of prior incidents of violence, I find that the present case presents different requirements: some minimal safety measures are required, as the defendants’ own expert opined.

[34] I find that CAUC in setting up a drop-in center had a duty of care towards the participants and visitors to the drop-in center. It had to take reasonable measures to ensure the safety of everyone on the premises, its staff, volunteers, visitors and users of services, as its expert detailed.

[35] Finally, the defendants also rely on the case of Kim v. Ottawa (City), 2022 ONSC 4648, to suggest that a duty of care is not owed. The Kim case involved racist comments and bullying by a patron of a municipal pool toward the plaintiff, Ms. Kim. Ms. Kim had been successful in Small Claims Court against the City of Ottawa. On appeal, the Divisional Court reversed the Small Claims Court decision on the ground that the trial judge had made errors of law. The Kim case involves a different factual scenario, where the City’s employees did attempt to stop the offending patron’s actions. The employees had confronted the offending patron separately and obtained an acknowledgement and an apology from the patron, who, unfortunately, resumed her threatening and harassing behavior. The court found that the Deputy Small Claims Court Judge had not sufficiently identified the standard of care and that her reasoning did not fully review the evidence of the actions taken by the City of Ottawa: at paras. 26 - 27.

[36] The Kim decision stands for the proposition that a trial judge must articulate the standard of care expected from the occupier of premises. This is what I propose to do.

Standard of Care

[37] The plaintiff argues that the safety standards at CAUC were inadequate for a drop-in center catering to a vulnerable population. He suggests that if there had been security guards or employees with a skill set to stop violent interactions, he would not have been assaulted for as long as he was. Someone would have been able to intervene more quickly. The plaintiff also argues that security cameras would act as a deterrent to violence. His position is that if there had been security cameras installed, Joe might have hesitated before striking the first blow.

[38] The defendants introduced expert evidence on the safety arrangements of a drop-in center like CAUC. Their expert witness, Lorie Steer, has a long experience in the management of shelters and drop-in centers. She holds a BSW and an MSW. She participates in the Steering Committee of the Toronto Drop-in Network (“TDIN”), which has over 50 Drop-in members and provides supervisory services to the Manager of TDIN. Ms. Steer also holds certificates and training in Non-Violent Crisis Intervention, Trauma-Informed Care, and Health and Safety. She was qualified to give opinion evidence on the standard of care expected of drop-in centers.

[39] Ms. Steer explained that the choice of not having cameras or security guards is accepted in the field. Drop-in centers aspire to be welcoming places that cater to populations who may have had bad experiences with police or security guards, and who may be triggered by the presence of cameras and other privacy-invasive techniques. In her view, it is acceptable and indeed recommended, to avoid coercive security measures in order to create a low-barrier, accessible, and welcoming place for vulnerable persons. I agree with the defendants’ position on this point.

[40] Ms. Miller, who is the part-time employee and volunteer who was screening guests at the entrance, explained that CAUC chose not to have security cameras and security guards in order to not create obstacles for entry. Cameras and security guards do not reflect the current best practices in striving to serve a population that CAUC aimed to welcome on its premises. It was not a breach of the standard of care to not have cameras or security guards.

[41] The plaintiff argues that even without security guards in uniforms, workers with some skills at managing violent individuals should be on the premises. Ms. Steer indicated that at her current place of employment, there are no security guards, but community workers are at the door, and are screening those who come on the premises.

[42] The plaintiff also relies on the best practices outlined by the TDIN. In her testimony, Sandra Seepaul was adamant that the recommendations of TDIN are not mandatory and she did not have to follow them. Similarly, Ms. Steer explained that the guidelines were just that, guidelines, but they reflect the best practices that the group develops with the expectation that the guidelines would be adapted to each setting and each center.

[43] CAUC was not part of the TDIN network in 2015. To be part of the network, drop-in centers must pay a fee that many centers recoup in the discounts that they obtain on training. There was no explanation as to why CAUC was not a member of the TDIN at that time. Ms. Steer suggested that they may not have known of the existence of the network.

[44] Ms. Steer’s opinion was not that no security is necessary, but rather that security measures must be designed with the vulnerable population in mind. She detailed six elements what she would expect from a small center like CAUC.

[45] Ms. Biasi, the plaintiff’s expert, did not disagree with such elements. Ms. Biasi has a long experience in the shelter sector, with 11 years in managing a drop-in center. She was accepted as an expert on issues of security in a drop-in center.

[46] I find that the six elements detailed by Ms. Steer that Ms. Biasi endorsed constitute the standard of care expected from a drop-in center like CAUC.

[47] The disagreement between the parties is whether CAUC met the detailed elements. Ms. Steer's opinion was that CAUC met all the requirements described. To come to this conclusion, she relied on Sandra Seepaul’s affidavit and other documents provided to her. Ms. Steer did not have the benefit of the evidence and cross-examination that I heard.

[48] Ms. Steer’s report identifies six security elements that she would expect from a small drop-in center such as CAUC:

1. a person in charge with at least 2 years’ experience in managing a drop-in center or something similar who has a de-escalation training;
2. at least 3 staff or volunteers assigned to supervise the drop-in space at all times;
3. an informal screening process at the door;
4. a posted mission statement and set of rules and expectations for those attending the drop-in center;
5. on-going support and training for all employees and volunteers; and
6. policies and procedures related to health and safety including an anti-violence/anti-harassment policy.

[49] I am satisfied that these requirements represent what would be the minimum expectations of a drop-in center in 2015. The creation of a drop-in center is of great benefit to our society and communities. It stems from a generous impulse. The question in the present trial is whether they are minimum standards to be expected from a community group who wants to set up a drop-in center. The defendant’s expert was of the opinion that a minimum should be required, with flexibility. Ms. Biasi, for the plaintiff, was of the same opinion. In my view, CAUC was required to meet the reasonable security standards of a small drop-in center.

[50] Ms. Steer’s opinion is that her review of the materials led her to conclude that “all of these [six mentioned above] expectations are met or exceeded”. Because I heard direct testimony as opposed to only affidavit evidence, my assessment is that some of the expectations were not met. I review each of them in turn with the evidence adduced.

Analysis of the Six Elements

Qualifications of the Person in Charge

[51] Ms. Steer concluded that CAUC met this requirement because Ms. Seepaul had the necessary background and experience. CAUC was managed by a Program Director, Sandra Seepaul, who has a Master's in Social Work and well over two years of relevant experience. She also has training in non-violent crisis intervention.

[52] The testimonies of both experts, Ms. Biasi and Ms. Steer, was that nonviolent crisis intervention training should be updated every two or three years.

[53] There was a debate between the plaintiff and the defendants as to whether Ms. Seepaul’s crisis intervention training credentials were up to date. The curriculum vitae filed with the court indicated that the last time she took a CPI (short form for a crisis intervention training and de-escalation course) was in 2007. Her testimony was that she did not remember when she upgraded her de-escalation credentials, but she believed that she was in compliance with the usual practice of having a refresher course every two years because her other part time job was with a women’s shelter which would have required her to have all her credentials up to date.

[54] I find that Ms. Seepaul’s testimony was credible on this point. Through her various appointments, she would have had to take and keep her CPI up to date. The issue, as detailed below, is whether she implemented the requirements of CPI de-escalation techniques.

Sufficient Number of Assigned Persons to Supervise the Drop-in Center at All Times

[55] Ms. Steer found that there were enough volunteers and staff from different agencies to meet this requirement. Ms. Steer found that, with seven volunteer servers and four volunteers in the kitchen, as well as representatives from different agencies, there were enough people to monitor the space. On cross-examination, she explained that she expected some volunteers to have a supervision role, that is, that they would be there to respond to emergencies or help and assist the program director.

[56] The plaintiff’s expert, Ms. Biasi, described how even in a small drop-in center, she would ensure that “senior volunteers” had de-escalation training through the CPI training. She indicated that as program manager, she would have de-escalation training and ongoing discussions with the staff and volunteers so that everyone had the same understanding of what is acceptable and unacceptable behaviour and the process in place to initiate the de-escalation procedure.

[57] Even without requiring formal CPI training for volunteers, the process at CAUC did not meet the requirement as Ms. Steer explains it. Ms. Seepaul’s testimony was that volunteers were recruited to do a specific job, serving or working in the kitchen. She would interview them to ensure that the volunteer job met their expectations. She did not assess nor ask whether they were willing to take a supervisory role and take responsibility for the proper management of the drop-in center.

[58] She described the interview process for the volunteers as limited to ensuring that the volunteers knew what their tasks were and were satisfied with the tasks assigned to them. There was no discussion of assigning them a supervisory role for the safety and security of the users of the center.

[59] Ms. Miller testified that although there was a range of age and experience among the volunteers, many were retired and trying to help now that they had more time. The plaintiff’s testimony was to the same effect. His recollection was that the volunteers that served the food were generally older adults.

[60] I find that there was no expectation, and no assignation, that specific volunteers would have the responsibility to step up to control a difficult situation. Ms. Seepaul did not assign to anyone in particular a role to help her in case there were some issues. Indeed, it is clear that the plaintiff did not think that he could speak to a volunteer server about what he had witnessed in terms of harassing behavior on the part of Joe toward M. and G.

[61] I also find that although there were representatives from different agencies present, who might have been younger and better trained than the volunteers, it was not expected that they would have an assignation to manage the room as suggested by Ms. Steer in her six-points safety plan.

[62] Ms. Seepaul’s evidence was the person that she asked to call the police was Ms. Miller, the other part-time employee who was at the top of the ramp and in charge of screening the entrance. Ms. Seepaul did not ask anyone else to step up to put an end to the fight, call the police or de-escalate the situation.

[63] The plaintiff had suggested that CAUC should have had two-way radios between staff members to react quickly to unfolding events. This is also a requirement that Ms. Biasi had mentioned. The evidence was that CAUC had two-way radios. Ms. Seepaul’s evidence was it was quicker to call Ms. Miller than to use the two-way radios. The lack of use of the two-way radios does not amount to a breach of the standard of care.

Informal Screening Process at the Door

[64] This requirement was met. The testimony of Ms. Miller indicates that she was assigned to do a form of screening at the door. I find that she conducted a screening as was expected from standard safety measures.

A Posted Mission Statement and Set of Rules and Expectations for Those Attending the Drop-in Centre

[65] This requirement was met as well. Entered as exhibit was the poster which people coming to the drop-in center would see. It stated:

Our mission is to provide a warm, caring, safe environment where our guests can enjoy a hot nourishing lunch, have the opportunity to be with others and receive support and assistance.

An additional sign below that one reads:

No smoking inside the Church. No drinking alcohol inside the Church. No drugs or weapons inside the Church. No aggressive or disruptive behavior.

[66] Ms. Seepaul testified that although the sign did not include all the prohibited grounds of discrimination, or the list of unacceptable behavior, the sign had to be short to be visible and understood by everyone.

[67] I find that this was a sufficient signage to identify the proper rules of behavior at the drop-in center.

On-going Support and Training for All Employees and Volunteers

[68] Ms. Seepaul testified that once a year there would be training for the volunteers. The training was focused on various needs of the clientele. In 2014, the group received Drop-In Mental Health Training facilitated by Toronto North Support Services. In 2015, they received training in understanding Ontario Works and Ontario Disability Services Program from an Ontario Works Outreach Worker.

[69] No evidence was led on what type of training employees, as opposed to volunteers, were receiving. It is clear that there was no anti-harassment or anti-discrimination training, as was evident from Ms. Seepaul’s testimony. When shown CAUC’s Anti-harassment Policy, Ms. Seepaul answered that this was the type of document that “one gets on the first day of work and never reads”.

[70] Because the last safety requirement identified by the defendant’s expert was the existence of an anti-violence and anti-harassment policy, as discussed below, the failure to properly train employees on such policy indicates that the training was insufficient to ensure the respect and safety for users and visitors of CAUC who deserve, like all members of society, to be treated with respect and in compliance with human rights legislation.

[71] Additional training on anti-discrimination and anti-harassment was required pursuant to CAUC’s policy discussed below. The failure to provide such training raises issues as to compliance with the last item required in the six-point safety plan presented by the defendant’s expert.

Policies and Procedures Related to Health and Safety Including an Anti-violence/Anti-harassment Policy

[72] Ms. Steer could not recall which document she identified as the “policies and procedures related to health and safety including an anti-violence/anti-harassment policy” to come to the conclusion that this requirement was met by CAUC. When shown CAUC’s Anti-harassment Policy, which is entitled Occupational Health and Safety Act (OHSA) Harassment Policy, she initially dismissed it as being more of a human resources policy. Since this was the only policy document introduced by the defendants, and the only one reviewed by her, it must be assumed that she was satisfied that this policy fulfilled the last requirement, namely the existence of policies and procedures related to health and safety including an anti-violence/anti-harassment policy.

[73] I reproduced the relevant excerpts from the policy which was adopted in February 2014 by CAUC.

Occupational Health and Safety Act (OHSA) HARASSMENT POLICY

(…) 2.01 Cummer Avenue United Church (CAUC) takes a position of zero tolerance with regard to workplace harassment. No United Church employee or any other individual affiliated with The United Church of Canada under any circumstances is allowed to exhibit harassing behaviour toward others, including but not limited to employees, congregants, volunteers, visitors; consultants, service providers or any other third parties. Should an employee perpetrate an act of workplace harassment, CAUC will exercise measures in response to that employee's behaviour, up to and including termination of employment, subject to any relevant requirements of The Manual of The United Church of Canada. Similarly, should any volunteer perpetrate an act of workplace harassment, CAUC will exercise measures in response to that person's behaviour, up to and including removal from office or membership, subject to any relevant requirements of The Manual of The United Church of Canada.

2.02 The sub-Executive of Toronto Conference will address incidents of Workplace Discrimination and Harassment by responding to incident reports, conducting investigations, decision making processes and prevention plans with the objective of promoting a safe and secure work environment for all employees.

5.3 CAUC will emphasize safety, dignity and respect as core values of The United Church of Canada.

7.06 Toronto Conference will contact the Complainant and Accused separately and inform them regarding the investigation process.

7.07 Toronto Conference will provide guidelines to the complainant should they decide to file a Report of Harassment.

7.08 Toronto Conference will conduct a thorough investigation through the following steps:

• Informing the Presbytery that a workplace harassment investigation is taking place.
• Contacting all the necessary authorities regarding the incident (police, Ministry of Labour).
• Consulting legal counsel for guidance as needed.
• Conducting interviews with complainants, accused and witnesses separately to obtain Incident Reports.

8.4 Employees, volunteers, congregants or others who, with good intentions, provide information about actions they believe to be harassing or potentially harassing, will not be subject to disciplinary actions or negative consequences should an investigation prove their report to be unsubstantiated.

[74] Despite its focus on employee conduct, the Anti-harassment Policy can qualify as an anti-harassment policy sufficient to meet this requirement, provided that it is interpreted by CAUC as such. Because Ms. Seepaul dismissed the document as “one that no one ever reads”, it suggests that CAUC and its employees did not view it as a relevant policy for the operation of the drop-in center.

[75] The requirement to have a policy demands that it be recognized and appreciated by the personnel as an anti-harassment policy to which everyone was bound. The requirement is not only to have a paper copy filed in a drawer but to ensure that all employees know about the policy and know that they have to apply it.

[76] This last requirement is not met.

[77] In conclusion under this part, CAUC failed in its duty of care to take reasonable measures to provide for the safety of the users of its services and its visitors because it does not meet at least two of the requirements that its expert determined were necessary to provide a safe environment for the population that it serves. It failed to have volunteers or employees assigned to help supervise the space at all times (requirement #2). It also failed to have a meaningful anti-harassment policy to which employees felt bound (requirement #6). I also find that the training provided for requirement #5 was sufficient for volunteers but not for employees.

[78] This finding is sufficient to establish CAUC’s liability. Because the plaintiff also raised the issue of negligence, I will deal with the allegations of negligence.

Negligence

[79] The law of negligence requires that the plaintiff must prove:

• that the defendant had a duty of care toward the plaintiff to avoid the kind of loss alleged;
• that the defendant breached the applicable standard of care;
• that the plaintiff sustained damage; and
• that such damage was caused, in fact and in law, by the defendant’s breach: A.M. Linden, B. Feldthusen, M.I. Hall, E.S. Knutsen & H.A.N. Young, Canadian Tort Law, 12th ed. (Toronto: Lexis Nexis Canada, 2022), at p. 130 (§4.01).

Duty of Care

[80] I find that the defendants owe a duty of care to the plaintiff because he was a user of services of the drop-in center and because his injuries were sustained while he was at the center and at a time when he accompanied Ms. Seepaul to identify Joe. Ms. Seepaul created the proximity between Joe and the plaintiff.

[81] CAUC and Ms. Seepaul owed a duty of care to the plaintiff that he would not be harmed while using the services at the drop-in center and while he was attempting to denounce discriminatory conduct.

Standard of Care

[82] To avoid liability in negligence, a program director of a drop-in center must exercise the standard of care that would be expected of a reasonable and prudent director in the same circumstances, and an operator of a drop-in center must exercise the standard of care that would be expected of a reasonable and prudent operator of a drop-in center: Krawchuk v. Scherbak et al., 2011 ONCA 352, at para. 125.

[83] The defendant’s position is that Krawchuk stands for the proposition that a court cannot find that the standard of care has been breached without expert testimony. In my view, Krawchuk is a more nuanced opinion. At para. 125, the Court of Appeal explains that the translation of the standard of care in a particular situation is a question of fact. It goes on to say “[e]xternal indicators of reasonable conducts, such as custom, industry practice and statutory or regulatory standard, may inform the standard. Where a debate arises as to how a reasonable agent would have conducted himself or herself recourse should generally be made to expert evidence.”

[84] In Krawchuk, the trial judge rejected the argument that a real estate agent had breached the standard of care and had rejected the expert evidence tendered for that purpose. The Court of Appeal considered that the trial judge erred by holding that he could determine the standard of care without expert evidence, by refusing to admit the only expert evidence tendered on this issue, and then by not identifying the standard of care: at para. 123.

[85] The trial judge had the Real Estate Code in front of him, but did not refer to the code in his reasons. He did not address the standard of care that applied. The court concludes, “in the particular circumstances of this case, the trial judge erred in concluding that he could identify the applicable standard of care without the benefit of expert evidence”: at para. 129.

[86] The court goes on to add that there could be cases in which expert evidence is not required to provide a realtor’s failure to meet what the court will determine to be the standard of care expected of realtors in particular circumstances. The court explains that there are two exceptions to the general rule that it is not possible to determine professional negligence in a given situation without the benefit of expert evidence: at para. 132. The first exception is when it is possible to reliably determine the standard of care without the assistance of expert evidence, which involves non-technical matters of which an ordinary person may be expected to have knowledge: at para. 133. The second exception applies to cases in which the actions of the defendant are so egregious that it is obvious that the conduct has fallen short of the standard of care, even without knowing precisely the parameters of that standard: at para. 135.

[87] It is noteworthy that the Court of Appeal found that the real estate agent, the professional, was at fault.

[88] The present case is different. Both parties adduced expert evidence. The defendant did not ask their expert to comment on the standard of care appropriate of a program director of a drop-in center faced with an allegation of discrimination. The expert’s report was limited to the issue of whether the general security safety standards met what would be expected of a small drop-in center, as discussed above.

[89] Nevertheless, in her interrogations on discovery and under cross-examination, the expert testified that a good practice would be to separate people who had a disagreement. She confirmed that the TDIN handbook refers to generally accepted standards with respect to de-escalation techniques. The expert confirmed that the summary provided in TDSI represented what a de-escalation technique should cover: it recommends that parties to in a disagreement be handled separately.

[90] Ms. Biasi, the expert for the plaintiff, also testified that in handling a dispute, a standard de-escalation technique is to attempt to separate the protagonists.

[91] The Anti-harassment Policy also indicates that parties of a dispute should be interviewed separately.

[92] The plaintiff alleges that CAUC was negligent in the way in which it handled its response to the denunciation of antisemitism. The plaintiff surmises that because the United Church of Canada had endorsed the BDS movement, its employees were unwilling to recognize antisemitism and act on it. There was no evidence presented at trial that this was the case.

[93] However, the evidence did reveal failures in taking reasonable measures to provide for the plaintiff’s safety in denouncing the discrimination he witnessed.

[94] As stated above, during her cross-examination, Ms. Seepaul was ignorant of the Anti-harassment Policy of CAUC, as a document that “no one was expected to read”. She also agreed that she had no training on how to manage a human rights or discrimination complaint.

[95] I conclude that Ms. Seepaul breached the standard of care in inviting the plaintiff to follow her to identify Joe as opposed to ensuring that the parties did not come into contact. She should have provided instructions to the plaintiff to stay behind and not interfere with her investigation of Joe.

[96] I also find that CAUC breached the standard of care in not providing training to Ms. Seepaul as to how to handle an anti-discrimination complaint, particularly when it had adopted a policy to that effect in February 2014. Ms. Seepaul was left to improvise. Her investigation of the anti-discrimination complaint against Joe in the presence of the plaintiff put the plaintiff at risk of injury. What happened was foreseeable: someone accused of antisemitism or discrimination may react strongly. This is why many anti-discrimination policies prohibit retaliation against the complainant and provide for individual separate interviews with the complainant and the alleged offender: Kim; the Anti-harassment Policy, at para. 7.06.

[97] The breaches of the standard of care on the part of Ms. Seepaul and CAUC caused the plaintiff’s injury which was not remote.

Damages

[98] The defendants allege that the plaintiff has presented no expert evidence to justify his claim for damages for mental distress. The defendants suggest even if there was liability, which they deny, at most the plaintiff is entitled to nominal damages in the amount of $500.

[99] The defendants rely on the opinion of the Court of Appeal in Bothwell v. London Health Sciences Centre, 2023 ONCA 323, to suggest that the plaintiff has not proven his mental distress damages. In Bothwell, the Court of Appeal reversed a trial judge decision which had found that the plaintiff had persistent anger issues, which amounted to mental distress as suggested in Saadati v. Moorhead, 2017 SCC 28.

[100] In Saadati, the Supreme Court of Canada confirmed that expert evidence is not necessary to conclude that a person has suffered from mental distress and should be compensated. In reaching this conclusion, Justice Brown explained that to be compensated, mental distress had to be more than mere inconvenience, it had to cause an impairment of functions and affect one’s ability to carry on one's daily life: at paras. 37 - 38.

[101] In Bothwell, the Court of Appeal concluded that Mr. Bothwell had not proven that he had suffered any impairment or that his ability to live his daily life was affected. The evidence was that he had continued to be a paramedic and had not sought treatment for his mental distress which came from hearing that he had been given the wrong medication: at para. 40. The Court of Appeal disagreed that Mr. Bothwell had experienced a near death experience that would justify compensation: at para. 46.

[102] In the present case, the plaintiff testified that he attended the hospital after the assault. A record of his visit was entered into evidence. He also testified that the assault and its aftermath caused him significant anxiety. He has been diagnosed to be on the Autism spectrum and the event was particularly disturbing to him. He testified how he sought help from his parents in managing the issues. Importantly, he testified, and I find him credible on that point, that he never returned to CAUC after his “appeal” of his ban was ignored and after the assault. I find that the visits to CAUC were part of his daily activities. CAUC was a place where, prior to the assault, he would get a meal, a haircut and socialize. The inability to return to CAUC constitutes a change in his daily activities that warrant compensation.

[103] The plaintiff is claiming aggravated damages for the way he was treated. I find that the plaintiff was humiliated by the one-month ban, which he considered unjust. This added to his feeling of injury and prevented him from returning to CAUC to resume his normal interactions there.

[104] Aggravated damages are awarded to compensate when the conduct of the defendant causes additional harm to the dignity of the plaintiff. This is a case where aggravated damages should be awarded. Denouncing discrimination is a service to an organization: it helps organizations recognize possible shortcomings and helps them get better. The plaintiff was seeking to ensure that the drop-in center was fulfilling its mission of being a welcoming place for all, including persons of the Jewish faith. He sought to bring attention to the issue, was injured in the process of doing so, and was further punished. This was contrary to the letter and the spirit of CAUC’s Anti-harassment Policy, which stipulates that complaints made in good faith, even if they are unsubstantiated, should not lead to disciplinary sanctions.

[105] I award damages in the amount of $7,500 calculated on the following basis: $2,500 for the assault itself and the physical injuries arising out of the assault; $2,500 for the mental distress that came from his anxiety and inability to return to CAUC and resume his interactions and activities at that center; and $2,500 for aggravated damages for failing to treat him with dignity in the pursuit of his anti-discrimination complaint contrary to CAUC’s policy.

Contributory Negligence

[106] The defendants allege that the plaintiff is 75% responsible for the assault. The defendants rely on Ms. Seepaul’s assessment that the plaintiff angrily confronted Joe and that the plaintiff caused his own injuries by angering Joe. As explained above, the breach of standard of care came from the defendants putting the plaintiff and Joe in close proximity, the invitation by Ms. Seepaul to the plaintiff to accompany her to identify Joe, the failure to provide the plaintiff with caution or information about how the interview should be conducted, and the failure to separate the plaintiff from Joe while conducting the human rights investigation.

[107] I am not prepared to find that a reasonable person in the particular circumstances of the plaintiff would have acted differently or expected to be assaulted. The plaintiff did not strike Joe: he raised his finger angrily while voicing his concerns to him. He did not know what was expected of him when meeting with Joe.

[108] The defendants sought to have the plaintiff admit that he was agitated when he came to make his complaint of antisemitism to Ms. Seepaul. If that was the case, it would have been even more prudent to caution him and to ensure that he stayed behind.

[109] The plaintiff was not contributorily negligent and is not responsible for the assault.

Disposition

[110] Judgment for the plaintiff in the amount of $7,500.

Costs

[111] This is not a case where costs should be ordered.

Lise Des Rosiers
Released: June 26, 2025