CANADIAN CASES on the LAW of TORTS Third Series/TroisiÈme SÉrie Recueil De Jurisprudence Canadienne En ResponsabilitÉ Civile VOLUME 87 (Cited 87 C.C.L.T

CANADIAN CASES ON THE LAW OF TORTS Third Series/Troisième série Recueil de jurisprudence canadienne en responsabilité civile VOLUME 87 (Cited 87 C.C.L.T. (3d))

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ISSN 0701-1733 ISBN 978-0-7798-0484-9 Printed in Canada by Thomson Reuters

CARSWELL, A DIVISION OF THOMSON REUTERS CANADA LIMITED One Corporate Plaza Customer Relations 2075 Kennedy Road Toronto 1-416-609-3800 Toronto, Ontario Elsewhere in Canada/U.S. 1-800-387-5164 M1T 3V4 Fax 1-416-298-5082 www.carswell.com E-mail www.carswell.com/email More v. Bauer Nike Hockey Inc. 181

[Indexed as: More v. Bauer Nike Hockey Inc.] Sucha More, Cindy More and Darren More by his Litigation Guardian Sucha More (Appellants / Plaintiffs) and Bauer Nike Hockey Inc., Bauer Hockey Corp. and Canadian Standards Association (Respondents / Defendants) British Columbia Court of Appeal Docket: Vancouver CA038535 2011 BCCA 419 Levine, Tysoe, Bennett JJ.A. Heard: September 13-14, 2011 Judgment: October 27, 2011 Torts –––– Negligence — Duty and standard of care — Duty of care –––– Plaintiff suffered devastating brain injury playing ice hockey — At time of accident, plaintiff was wearing helmet manufactured by company B — Plaintiff suffered torn bridging veins as result of rear-helmeted impact — Plaintiff brought action against company B, responsible for design and manufacture of hockey helmet, and Canadian Standards Association, organization responsible for setting minimum standards for impact resistance applicable to ice hockey helmets — Action was dismissed — Trial judge found that medical doctor who testified on behalf of plaintiff had made significant errors in his report — Trial judge found that rear impact attenuating qualities of hockey helmet did not protect against effect of rotational impacts — Plaintiff appealed — Appeal dismissed — Trial judge correctly concluded that plaintiff could not prove that any failure to warn cause injury — Evidence was clear that helmet plaintiff was wearing when he was injured met and exceeded then-existing standards — Trial judge did not err in his finding that while head impact was primarily translational, there was also some degree of brain rotation involved — Company B offered reasonable level of safety for rear impacts having regard to risk of wearer sustaining serious head injury. Cases considered by Levine J.A.: Anns v. Merton London Borough Council (1977), (sub nom. Anns v. London Borough of Merton) [1977] 2 All E.R. 492, [1978] A.C. 728, [1977] 2 W.L.R. 1024, 121 S.J. 377, [1977] UKHL 4 (U.K. H.L.) — followed Baker v. Suzuki Motor Co. (1993), 12 Alta. L.R. (3d) 193, 1 M.V.R. (3d) 110, 143 A.R. 1, [1993] 8 W.W.R. 1, 17 C.C.L.T. (2d) 241, 1993 CarswellAlta 88, [1993] A.J. No. 605 (Alta. Q.B.) — referred to Canadian Bar Assn. v. British Columbia (2008), 290 D.L.R. (4th) 617, 422 W.A.C. 76, 252 B.C.A.C. 76, 2008 BCCA 92, 167 C.R.R. (2d) 161, 2008 182 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

CarswellBC 379, 76 B.C.L.R. (4th) 48, [2008] 6 W.W.R. 262 (B.C. C.A.) — considered Cooper v. Hobart (2001), [2002] 1 W.W.R. 221, 2001 CarswellBC 2502, 2001 CarswellBC 2503, 2001 SCC 79, 8 C.C.L.T. (3d) 26, 206 D.L.R. (4th) 193, 96 B.C.L.R. (3d) 36, (sub nom. Cooper v. Registrar of Mortgage Brokers (B.C.)) 277 N.R. 113, [2001] 3 S.C.R. 537, (sub nom. Cooper v. Registrar of Mortgage Brokers (B.C.)) 160 B.C.A.C. 268, (sub nom. Cooper v. Registrar of Mortgage Brokers (B.C.)) 261 W.A.C. 268, [2001] S.C.J. No. 76, REJB 2001-26862 (S.C.C.) — referred to Hollis v. Birch (1995), 1995 CarswellBC 967, 1995 CarswellBC 1152, (sub nom. Hollis v. Dow Corning Corp.) [1995] 4 S.C.R. 634, (sub nom. Hollis v. Dow Corning Corp.) 129 D.L.R. (4th) 609, (sub nom. Hollis v. Dow Corning Corp.) 190 N.R. 241, (sub nom. Hollis v. Dow Corning Corp.) 67 B.C.A.C. 1, (sub nom. Hollis v. Dow Corning Corp.) 111 W.A.C. 1, [1996] 2 W.W.R. 77, 14 B.C.L.R. (3d) 1, 27 C.C.L.T. (2d) 1, 26 B.L.R. (2d) 169, EYB 1995-67074, [1995] S.C.J. No. 104 (S.C.C.) — referred to Hughes v. Sunbeam Corp. (Canada) Ltd. (2002), 2002 CarswellOnt 2919, 28 B.L.R. (3d) 1, 61 O.R. (3d) 433, 165 O.A.C. 68, 25 C.P.C. (5th) 230, 219 D.L.R. (4th) 467, [2002] O.J. No. 3457 (Ont. C.A.) — considered Knight v. Imperial Tobacco Canada Ltd. (2011), 2011 CarswellBC 1968, 2011 CarswellBC 1969, 2011 SCC 42, 86 C.C.L.T. (3d) 1, 21 B.C.L.R. (5th) 215, [2011] 11 W.W.R. 215, 25 Admin. L.R. (5th) 1 (S.C.C.) — referred to Lamb v. Kincaid (1907), 38 S.C.R. 516, 1907 CarswellYukon 51, 27 C.L.T. 489, [1907] S.C.J. No. 19 (S.C.C.) — referred to More v. Bauer Nike Hockey Inc. (2010), 2010 CarswellBC 838, 2010 BCSC 473 (B.C. S.C.) — considered O’Bryan v. O’Bryan (1997), 97 B.C.A.C. 62, 157 W.A.C. 62, 43 B.C.L.R. (3d) 296, 1997 CarswellBC 2069, [1997] B.C.J. No. 2161 (B.C. C.A.) — referred to Osborne v. Pavlick (2000), 2000 CarswellBC 120, 2000 BCCA 11 (B.C. C.A.) — considered Stiles v. Beckett (1993), 22 C.P.C. (3d) 145, 1993 CarswellBC 690, [1993] B.C.J. No. 3 (B.C. S.C.) — referred to Stiles v. Beckett (1996), 45 C.P.C. (3d) 48, 17 B.C.L.R. (3d) 144, 69 B.C.A.C. 139, 113 W.A.C. 139, 1996 CarswellBC 29, [1996] B.C.J. No. 19 (B.C. C.A.) — referred to Sylvan Lake Golf & Tennis Club Ltd. v. Performance Industries Ltd. (2002), 98 Alta. L.R. (3d) 1, 283 N.R. 233, [2002] 5 W.W.R. 193, (sub nom. Performance Industries Ltd. v. Sylvan Lake Golf & Tennis Club Ltd.) [2002] 1 S.C.R. 678, 2002 SCC 19, 2002 CarswellAlta 186, 2002 CarswellAlta 187, 50 R.P.R. (3d) 212, 299 A.R. 201, 266 W.A.C. 201, 20 B.L.R. (3d) 1, 209 More v. Bauer Nike Hockey Inc. Levine J.A. 183

D.L.R. (4th) 318, [2002] S.C.J. No. 20, REJB 2002-28038 (S.C.C.) — followed

APPEAL from judgment reported at More v. Bauer Nike Hockey Inc. (2010), 78 C.C.L.T. (3d) 89, 2010 BCSC 1395, 2010 CarswellBC 2629, 13 B.C.L.R. (5th) 61, [2011] 5 W.W.R. 105 (B.C. S.C.), dismissing action in negligence against company.

J.A. Macaulay, Q.C., M.L. Macaulay, for Appellants V.R.K. Orchard, Q.C., S. Kerwin, for Respondents, Bauer Nike Hockey Inc. and Bauer Hockey Corp. M.D. Adlem, M.E. Mitchell (Articled Student), for Respondent, Canadian Stan- dards Association

Levine J.A.: Introduction 1 Darren More suffered a serious head injury in a hockey game in 2004, when he was 17 years old. He was wearing a hockey helmet designed and manufactured by Bauer Hockey Corp. and certified to the minimum standards of the Canadian Standards Association (CSA). Darren More and his parents claimed Bauer was negligent in the design and manufacture of the helmet he wore, and CSA was negligent in failing to develop and adopt a more rigorous standard for hockey helmets. The trial judge dismissed these claims. 2 On appeal, the appellants’ principal argument is that the trial judge made a palpable and overriding error of fact in determining the nature of the forces that caused the injury, and erred in law in failing to find that Bauer and CSA had failed to warn of the limitations of the protection afforded by the helmet. 3 The appellants’ position on appeal concerning the forces that caused the injury reverses the position they took at trial, and the respondents argue they should not be permitted to restate their case on appeal. Bauer takes the position that the appellants should not be permitted to raise on appeal the claim that it failed to warn of the limits of protection of the helmet, as they abandoned this claim before trial. Both respondents argue that in any event the trial judge correctly concluded that the appellants could not prove that any limitations of the protection offered by the helmet or any failure to warn caused the injury. 4 I conclude that it is open to the appellants to argue that the trial judge made a palpable and overriding error of law, but he made no such error. 184 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

It is not open to the appellants to argue that Bauer owed them a duty to warn of the limitations of protection of the helmet, having abandoned that claim before trial. In any event, I agree with the respondents that the trial judge correctly concluded that the appellants could not prove that any failure to warn caused the injury. 5 It follows that I would dismiss the appeal. 6 I will refer in these reasons for judgment to Darren More as “Darren”, to distinguish him from his father, to whom I will refer as “Mr. More”. In this, I mean no disrespect to Darren, who is now a man of 25 years old.

Background and Reasons for Judgment 7 Darren’s head injury occurred during an organized hockey tourna- ment. The trial judge found that either as a result of a check or in trying to avoid the check and catching an edge, Darren rotated, fell and slid on his rear end, hit the boards back first and also struck the boards with the back of his helmeted head (at para. 33). 8 Darren suffered a subdural hematoma (SDH), or bleeding in the brain. The trial judge found the SDH was caused by “torn veins leading from the brain into the vascular channels in the dura covering the brain”, a “bridging vein” tear (at paras. 37, 48). 9 A major issue at trial, and on appeal, was whether the injury was the result of translational (linear) or rotational (angular) forces, or a combination of the two. As the trial judge explained (at para. 48): This question is significant because ice hockey helmets are designed primarily to protect against translational rather than angular applications of force. The theory of the plaintiffs is that the helmet was inadequate for its primary purpose. 10 After reviewing the medical and biomechanical evidence, the trial judge concluded (at para. 190): “While the impact was primarily translational, there was also some degree of brain rotation involved.” 11 This finding supported the appellants’ theory of the case at trial, which was, stated simply, that the helmet was designed to protect against translational applications of force, and since it did not protect Darren from the injury he suffered, Bauer and CSA were negligent. The evidence was clear that the helmet Darren was wearing when he was injured met and exceeded the then-existing standards. Thus, the appellants’ argument focused on an alleged breach of the duty of Bauer and CSA to develop and adopt a more rigorous certification standard for hockey hel- More v. Bauer Nike Hockey Inc. Levine J.A. 185

mets. The appellants argued that the standard in place in 2003 should have been changed, as it was later, in 2009. 12 The trial judge concluded that neither defendant was liable for failing to change the certification standard (at para. 224). The evidence showed that the helmet would have satisfied the higher standard suggested by the plaintiffs’ expert and adopted in 2009. Thus, any failure to change the standard could not satisfy the “but for” test for causation (at paras. 225- 227). Nor was the type of injury suffered by Darren reasonably foreseeable: it was exceedingly rare, and the trial judge did “not accept that the defendants ought to have known that players were unreasonably at risk of suffering a serious head injury like an SDH while wearing a certified helmet” (at para. 228). The trial judge concluded with respect to liability for negligence (at para. 229): In all the circumstances, I am satisfied that the Bauer design of the HH5000L helmet offered a reasonable level of safety for rear impacts having regard to the risk of the wearer sustaining a serious head injury like an SDH while playing hockey. There was no substantial likelihood of the alleged harm associated with its ordinary use. Nor did the evidence demonstrate that it was feasible to design the helmet in a safer manner to protect against such risk. 13 The trial judge also dismissed the appellants’ claim that CSA was liable for negligent misrepresentation or failure to warn with respect to CSA certification labels attached to the hockey helmets manufactured by Bauer. 14 The trial judge described the CSA certification label and the warning attached to the helmet, and other warnings that came with the helmet (at paras. 97-100): [97] Darren’s father purchased the accident helmet new for him at a local sporting goods store in January 2003. At the time of purchase, the helmet bore a CSA sticker number 13021. The sticker signified that the helmet met the requirements of M90 and was not a “prohibited product” within the meaning of the Hazardous Products Act. [98] At the time of purchase, in addition to the CSA sticker, the helmet had a warning label in a conspicuous place on the rear outside. The warning, or one very similar to it, read: Ice hockey is a collision sport which is dangerous. This helmet affords no protection from neck or spinal injury. Severe head, brain or spinal injury including paralysis or death may occur despite using this helmet ... 186 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

It is likely that, in about January 2004, Darren removed the warning label from its position at the back of the helmet and replaced it with his team number. Darren played the remainder of that season with a higher level Junior B team, the Kerry Park Islanders. [99] Other warnings would have been apparent when Mr. More bought the helmet for Darren. The owner’s information attached to the chinstrap reiterated the risk of serious injury associated with ice hockey and stated in part: Protective equipment will not eliminate all injuries but may reduce their severity and frequency. This product is designed to minimize the effect of superficial injuries. This helmet affords no protection from neck, spinal or certain types of brain injuries including those that may be caused by rotational forces. Severe head, brain and spinal injuries including paralysis or death may occur despite using this helmet. Similarly, the box in which the helmet was packaged had a visible warning: WARNING: Ice hockey is a collision sport which is dangerous. These helmets afford no protection from neck, spinal or certain types of brain injuries including those that may be caused by rotational forces. Severe head, brain or spinal injuries including paralysis or death may occur despite using this helmet. [100] At the time of his accident Darren also wore a protective facial cage attached to his helmet. The cage had a warning label that also emphasized the risk of injury associated with hockey. 15 The appellants’ argument at trial focused on the CSA label that stated: “Certified Hockey Helmet”. They complained that the label was not qualified in any way, in particular by stating that the helmet was designed and certified to protect from linear focal impacts only (at para. 233). The trial judge noted that since Darren’s injury involved the application of linear rather than rotational forces, it was irrelevant whether the CSA had a duty to warn that its testing process involved only linear forces (at para. 234). He went on to find that even if the appellants could establish a negligent misrepresentation or failure to warn, “they would not be able to establish causation”. 16 The trial judge dealt with the issue of causation (at paras. 235-245): [235] By alleging either negligent misrepresentation or failure to warn, the plaintiffs are saying that the CSA did not provide enough More v. Bauer Nike Hockey Inc. Levine J.A. 187

information for the plaintiffs to make an informed choice of whether to use the helmet. They say that the CSA knew that users of CSA certified helmets would assume that the certification label would apply to all kinds of injuries, would rely on CSA certification as a representation regarding safety, and that users would not understand the limited nature of CSA testing that underlies the certification labels. [236] The plaintiffs focus solely on the small CSA label on the helmet that simply says “Certified Hockey Helmet”. They ignore the larger label also on the helmet that states severe head and brain injuries may occur despite wearing the helmet. Considering the effect of the smaller CSA sticker without taking the larger sticker into account is misleading. [237] The plaintiffs also ignore the owner’s information that was originally attached to the chin strap of the Bauer helmet. The owner’s information had a warning which included the following statement: “This helmet affords no protection from neck, spinal, or certain types of brain injuries including those that may be caused by rotational forces. Severe head, brain, and spinal injuries including paralysis or death may occur despite using this helmet.” The box that the helmet originally came in had a similar warning on it. It is unclear on the evidence whether CSA mandated these warnings, or whether Bauer provided them of their own volition. [238] Taking both warnings on the helmet together, there is insufficient evidence for a finding of negligent misrepresentation because the labels were not misleading and Darren did not rely on them in any event. As stated in Queen v. Cognos, [1993] 1 S.C.R. 87, both of these preconditions must be present to ground a finding of negligent misrepresentation. [239] The CSA labels on the helmet are in no way misleading. The larger label clearly states that severe brain injuries may occur despite wearing the helmet. The label informs the prospective user that even if they wore the helmet they may suffer injury. [240] The same reasoning applies to the claim that the CSA breached its duty to warn. In Buchan v. Ortho Pharmaceutical (Canada) Ltd. (1986), 54 O.R. (2d) 92 (C.A.), Robins J. aptly describes the duty to warn at paras. 16-18: As a matter of common law, it is well settled that a manufacturer of a product has a duty to warn consumers of dangers inherent in the use of its product of which it knows or has reason to know. The guiding principle of liability underlying the present law of products liability in this country was formulated by Lord Atkin in his classic 188 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

statement in M’Alister (or Donoghue) v. Stevenson, [1932] A.C. 562 at p. 599 (H.L.): ... a manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer’s life or property, owes a duty to the consumer to take that reasonable care. This statement has been the source of subsequent devel- opments in products liability law based on negligence. The rationale is that one who brings himself into a relation with others through an activity which foreseeably exposes them to danger if proper care is not observed must exercise reasonable care to safeguard them from that danger. It can now be taken as a legal truism that the duty of reasonable care which lies at the foundation of the law of negligence commonly comprehends a duty to warn of danger, the breach of which will, when it is the cause of injury, give rise to liability: see, generally, Fleming, The Law of Torts, 6th ed. (1983), at p. 459 ff., and Linden, Canadian Tort Law, 3rd ed. (1982), at p. 563 ff. Once a duty to warn is recognized, it is manifest that the warning must be adequate. It should be communicated clearly and understandably in a manner calculated to in- form the user of the nature of the risk and the extent of the danger; it should be in terms commensurate with the grav- ity of the potential hazard, and it should not be neutralized or negated by collateral efforts on the part of the manufacturer. The nature and extent of any given warning will depend on what is reasonable having regard to all the facts and circumstances relevant to the product in question. [241] The CSA had a duty to warn the public of the amount of protection a CSA helmet provides. As discussed earlier, the CSA certifies helmets for public use. Consumers cannot buy a hockey helmet in Canada unless the CSA certifies it. Therefore, the CSA must exercise reasonable care to safeguard users of certified helmets by in- forming them that injury can occur while playing hockey despite wearing a certified helmet. [242] The question then is whether the CSA’s warning was adequate. The warning does not mention whether the helmet protects from lin- More v. Bauer Nike Hockey Inc. Levine J.A. 189

ear or rotational injuries or both. Such wording is unnecessary in this situation. While there are situations where more detailed warnings are necessary, adding technical terms such as “rotational” or “linear” to the CSA warning adds little to a typical consumer’s understanding of the type of injury the helmet protects against. The warning on the helmet is clear that serious injury may occur despite wearing the helmet. [243] Darren also had other warnings of the type of injuries one could sustain while wearing a helmet and chose to continue playing hockey regardless of those warnings. One was attached to the helmet’s chin strap when he bought it and clearly stated the helmet did not provide protection from rotational injuries. [244] Equally important, before his accident Darren was aware that people suffer head injuries while playing hockey despite wearing the CSA approved helmets. Darren himself suffered two concussions prior to the accident, and at least one other teammate had suffered a concussion while wearing a CSA approved helmet. Darren was clearly aware of the risks associated with playing hockey, even while wearing a helmet, and like hundreds of thousands of other Canadians, chose to play anyway. [245] The plaintiffs’ claims against the CSA for negligent misrepresentation and failure to warn are dismissed. The plaintiffs failed to prove any statement or omission on the CSA’s part contributed in any way to Darren’s injury. 17 In the result, the trial judge dismissed all of the appellants’ claims.

The Appeal 18 The appellants raise eight grounds of appeal. Their principal argument on appeal is that the trial judge erred in finding Darren’s injury was caused by linear, not rotational, forces. On the basis of that ground of appeal, they argue that Bauer was negligent in not designing and manufacturing a helmet that would protect from injury caused by rotational forces, and had a duty to warn of the relevant limits on protection offered by the helmet, including concussion caused by rotational forces. In relation to the allegation that CSA had a duty to warn, they argue that the trial judge erred in finding that a warning about injury caused by rotational forces was irrelevant, and that the CSA certification label was not misleading. 19 The appellants’ raise three other discrete grounds of appeal: that the trial judge erred in finding that Darren assumed the entire risk of any injury that might occur in playing hockey, wrongly applying the volenti 190 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

defence; in finding that Darren did not rely on the CSA label in the absence of any evidence from Darren as to his subjective state of mind; and in considering that Darren was predisposed to injury.

Discussion 20 The three discrete grounds of appeal are easily dealt with.

Volenti Defence 21 The defendants did not plead the defence of volenti, and the trial judge did not find that Darren assumed the entire risk of injury or apply the volenti defence. The trial judge’s analysis of Darren’s conduct in con- tinuing to play hockey in spite of his knowledge and experience of concussions (at para. 244) was relevant only to the conclusion that any misrepresentation or failure to warn was not causative of Darren’s injury.

Darren’s Reliance 22 A similar analysis applies to the claim that the trial judge erred in finding that Darren did not rely on the CSA label. The fact that Darren was unable to testify about whether he would have continued to play hockey had he been “properly” warned did not preclude that trial judge from finding, on the evidence, that Darren’s conduct at the time showed that he would not have discontinued playing hockey if the warnings had been different: see Hollis v. Birch, [1995] 4 S.C.R. 634 (S.C.C.).

Predisposition to Injury 23 After concluding that Darren’s injury was caused primarily by linear forces, the trial judge commented (at para. 192): Darren’s injury is a highly unusual one in hockey ... This unfortunate accident may have occurred, as Dr. Hoshizaki suggested, because Darren was predisposed to such injury. 24 This reference to Darren possibly being predisposed to injury played no part in the trial judge’s analysis of causation, as suggested by the appellants. It is no more than a speculative comment about the possible cause of Darren’s injury, which was shown to be extraordinarily rare in modern ice hockey. 25 I would not accede to any of these three grounds of appeal. More v. Bauer Nike Hockey Inc. Levine J.A. 191

Linear or Rotational Forces 26 Four of the eight grounds of appeal focus on the finding of the trial judge that Darren’s injury was caused by translational (linear), not rotational (angular), forces: The learned trial judge erred in finding that Darren’s head injury was caused by a primarily translational or linear force rather than rotational force. The expert evidence was overwhelming that the injury was caused by a rotational force for which the Darren Helmet provided no protection. The learned trial judge erred in finding that the design of the Bauer HH5000L hockey helmet, including the Darren Helmet offered a reasonable level of safety when in ordinary use in circumstances where it offered no level of safety for rotational forces. The learned trial judge erred in failing to find that the warnings Bauer provided with the Darren Helmet were inadequate where such warnings made no mention of the relevant limits of protection offered by the helmet, and made no mention of concussion resulting from rotational forces. The learned trial judge erred in holding that whether CSA had a duty to warn consumers that its testing process underlying its certification and the CSA certification labels involved linear but not rotational forces was irrelevant. 27 These grounds of appeal effectively reverse the position taken by the appellants at trial. There, they argued, based primarily on the evidence of Dr. Richard L. Stalnaker, a biomechanical engineer, that Darren’s injury was caused by linear forces resulting from Darren’s head striking the boards when he fell. 28 The other expert witnesses gave varying opinions as to whether linear or rotational forces caused the injury. As noted by the trial judge (at para. 62), Dr. Charles Tator, a neurosurgeon, “did not accept that rotation was a factor in causing Darren’s SDH”. Another neurosurgeon, Dr. Christo- pher Honey, “considered the combination of bridging vein tear and SDH ‘strong evidence that [Darren] sustained some component of a rotational injury’” (at para. 63). Dr. Thomas A. Gennarelli, a neurosurgeon, opined that “translational motion can cause SDH, but rotational motion causes more severe SDH” (quoted at para. 64). Biomechanical experts, Dr. T. Blaine Hoshizaki, Dr. Patrick J. Bishop, and Dr. James A. Newman, all suggested that rotational forces may have caused the SDH. 29 The trial judge reviewed all of this evidence. He found Dr. Stal- naker’s evidence wanting in several respects, and gave it very little 192 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

weight (at para. 104). After reviewing the evidence of the other experts, he concluded (at para. 190), that “While the impact was primarily translational, there was also some degree of brain rotation involved.” 30 The appellants now rely on the evidence of the experts (other than Dr. Stalnaker) to argue that the trial judge made a palpable and overriding error in finding that Darren’s injury was caused by primarily translational forces. 31 This argument leads to a new theory of the case. The appellants now claim that since hockey helmets are designed and manufactured primarily to protect against injury from translational forces, Bauer was negligent in not designing a helmet to protect from injuries caused by rotational forces, and Bauer and CSA were negligent in failing to explicitly warn users of the helmets of the limits of protection from rotational-force injuries. 32 Bauer and CSA argue that it is contrary to the interests of justice to allow the appellants to raise this new argument on appeal, citing the reasons of Madam Justice Southin in Osborne v. Pavlick, 2000 BCCA 11 (B.C. C.A.) at para. 10: ... the interests of justice are not properly served when litigants go to trial on certain issues and those issues are resolved in a way that one litigant considers unsatisfactory, and he or she then seeks to put before this Court a wholly new theory and to raise evidence in support of a theory that is completely different from that which engaged the learned trial judge. 33 Further, Bauer argues that the appellants cannot raise on appeal the claim that Bauer failed to warn of the limits of protection of the helmet, because they abandoned that claim before the trial. 34 The general rule is that the Court will not consider matters not pleaded or argued at trial unless the evidence on the matter is as complete as if the controversy had been dealt with at trial: Sylvan Lake Golf & Tennis Club Ltd. v. Performance Industries Ltd., 2002 SCC 19, [2002] 1 S.C.R. 678 (S.C.C.) at para. 32, quoting Lamb v. Kincaid (1907), 38 S.C.R. 516 (S.C.C.), at 539; O’Bryan v. O’Bryan (1997), 43 B.C.L.R. (3d) 296 (B.C. C.A.), at 304. 35 The issue of whether the injury was caused by linear or rotational forces was the threshold issue for the appellants’ theory of negligence. Bauer and CSA will not be prejudiced from the Court considering the argument that the trial judge erred in finding that the impact was prima- More v. Bauer Nike Hockey Inc. Levine J.A. 193

rily translational rather than rotational — all of the relevant evidence was adduced at trial and that issue was fully argued. 36 There is no basis to conclude, however, that the trial judge erred in his finding that “While the impact was primarily translational, there was also some degree of brain rotation involved.” From my review of the submissions of the parties and the relevant evidence, that is an accurate reflection of the experts’ opinions as applied to the facts as the trial judge found them. 37 At the time the experts gave their opinions, the exact nature of Dar- ren’s accident, and in particular, whether his head hit the boards, had not been determined. The trial judge found that his head did hit the boards. This finding of fact is not disputed on the appeal. Dr. Stalnaker’s opinion was that generally, the impact of such a hit is primarily translational or linear — the head moves back to front or front to back (at para. 64). As I understand the opinions of the experts, other than Dr. Stalnaker, whose opinion was discredited and given little weight, and Dr. Tator, the nature of Darren’s injury, an SDH from a bridging vein tear, is more normally caused by rotational forces — the brain rotating within the skull. 38 The trial judge was aware of, and weighed, all of this evidence in reaching the conclusion he did. It is a trite principle of appellate review that a trial judge’s findings of fact are to be given deference in the absence of a palpable and overriding error. The appellants have not demonstrated that the trial judge made any error, much less a palpable error, in finding that the impact was primarily translational and also involved some brain rotation. 39 Since the appellants’ theory of the case on appeal turns on reversing that finding of fact, my finding that the trial judge made no palpable and overriding error effectively ends the appeal. However, the appeal was fully argued on the other issues raised, so I will include an analysis of those issues in these reasons for judgment.

Failure to Design a Helmet to Protect Against Rotational-Force Injuries 40 The appellants argue that if rotational forces caused Darren’s injury, then Bauer was negligent in failing to design a helmet to protect from rotational-force injuries. 41 In support of this argument, the appellants rely on evidence that in 2004 Dr. Bishop suggested to the CSA Technical Committee that determined the minimum standards for helmets, that the standards be revised 194 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

in light of information that there were increasing incidents of concussion in hockey. The trial judge discussed this evidence (at paras. 165-173). 42 This argument has two major flaws. The first is that the trial judge found that the helmet worn by Darren met and exceeded the revised standards suggested by Dr. Bishop in 2004 and by the appellants through Dr. Stalnaker (at paras. 173, 189, 222-224). The second is that there was no argument at trial about designing helmets to protect from concussions or rotational-force injuries. Dr. Hoshizaki gave some evidence that labora- tory studies were being conducted into rotational-force injuries, but there was no evidence that there was any reliable method of testing, measuring and designing a helmet for that purpose. If this had been an issue raised at trial, there would have been additional evidence and the trial judge would have addressed it. 43 Thus, had the appellants been successful in demonstrating that the trial judge erred in not finding the forces causing Darren’s injury were primarily rotational, I would not in any event accede to this ground of appeal.

Failure to Warn 44 The appellants claim that both Bauer and CSA were negligent in failing to warn that Darren’s helmet would not protect from rotational-force injuries. 45 The allegation of failure to warn against Bauer was abandoned before trial and cannot be raised on appeal. Quite apart from the absence of evidence and the trial judge’s consideration and findings on the issue, fairness to Bauer prevents consideration of this issue. The appellants made a considered decision to delete the claim from their amended statement of claim. During the trial, the trial judge ruled that certain questions and answers from examinations for discovery could not be used by the appellants because they addressed matters not raised by the pleadings, “as amended shortly before trial” (2010 BCSC 473 (B.C. S.C.)) at para. 18). He said it was a matter of trial fairness, and underlined the importance of the purpose of pleadings (at paras. 17, 19). These comments reflect the principles set out by this Court as to the purpose of pleadings: “pleadings prevent expansion of the issues, give notice of the case required to be met, and provide certainty of the issues for the purposes of appeal” (Canadian Bar Assn. v. British Columbia, 2008 BCCA 92 at para. 60, 76 B.C.L.R. (4th) 48 (B.C. C.A.)). More v. Bauer Nike Hockey Inc. Levine J.A. 195

46 The allegation of failure to warn against CSA was considered by the trial judge (though CSA argues on appeal that the appellants had not alleged failure to warn in their statement of claim), and dismissed on the basis that the appellants had failed to show that any failure to warn caused Darren’s injury. Although the trial judge was considering injuries caused primarily by translational forces, his conclusions on causation would apply equally had it been shown that primarily rotational forces were involved. 47 The appellants’ argument that CSA failed to warn of the limits of protection of the helmet was based on their claimed reliance on the CSA certification label, which stated only: “Certified Hockey Helmet”. As the trial judge found, they ignored the larger label on the helmet that expressly warned that serious head injury may occur despite wearing the helmet (at para. 236). They also ignored the other information included with the helmet at the time of sale. Both the warning on the tag attached to the chin-strap and on the box expressly stated: “This helmet affords no protection from ... certain type of brain injuries including those that may be caused by rotational forces. Severe head, brain, and spinal injuries ... may occur despite using this helmet” [underlining added] (at para. 237). 48 In dismissing the appellants’ claim of negligent misrepresentation against CSA, the trial judge found that the labels were not misleading and Darren did not rely on them in any event (at para. 238). These findings cannot be disputed. The warnings were explicit that the helmet may not protect from serious head and brain injuries, and expressly referred to injuries caused by rotational forces. The appellants’ claim ignored these warnings. They claimed only that they relied on the CSA certification label. They cannot now say that they relied on warnings that were insufficient, when their case was based on not having relied on those warnings. 49 The trial judge found that the “same reasoning applies to the claim that CSA breached its duty to warn” (at para. 240). While the CSA warning on the helmet did not refer expressly to injuries caused by rotational forces, it clearly warned that severe head and brain injuries could occur despite wearing the helmet. The trial judge found that an explicit reference in the CSA warning to rotational forces would not have added to a typical consumer’s understanding of the type of injury the helmet protects against (at para. 242). Indeed, the evidence in this case demon- strates that it is not at all clear that certain types of impacts create particular forces that cause particular injuries. All of the experts in this case 196 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

were somewhat equivocal about the types of forces at play in causing Darren’s very rare injury. The important information to convey to consumers of hockey helmets is that the helmet will not protect against all injuries that may occur, including very severe head and brain injuries. The warnings on the helmet and the attached information clearly provided that information. 50 Nor, as the trial judge found, would a more explicit warning have affected Darren’s conduct (at paras. 243-244). There was no evidence, either direct (from Darren) or indirect (from his parents or any other source) to suggest that Darren (or his parents) had read the warnings that came with the helmet, or that if the warnings had included more details about rotational-force injuries, Darren would not have continued to play hockey. This was fatal to the appellants’ claims that insufficiency of the warnings had any causative relationship to his injuries: see Stiles v. Beck- ett (1993), 22 C.P.C. (3d) 145 (B.C. S.C.), at 166-168, aff’d (1996), 17 B.C.L.R. (3d) 144 (B.C. C.A.) at 150; Baker v. Suzuki Motor Co. (1993), 12 Alta. L.R. (3d) 193, [1993] 8 W.W.R. 1 (Alta. Q.B.), at 29-30. 51 It is apparent from Darren’s history of having suffered a concussion while wearing a helmet and his knowledge of a teammate similarly suffering a concussion while wearing a helmet that any more detailed warnings would not have changed his mind about playing hockey. The onus was on the appellants to prove that different warnings would have resulted in different conduct: that Darren would not have continued to play hockey had the warnings stated he could suffer an SDH from rotational forces. There is no evidence to support any such conclusion. The evidence before the trial judge was clear that the warnings included with the helmet made no difference to his decision to play. 52 Thus, the appellants’ claim of failure to warn cannot succeed.

CSA Duty of Care 53 CSA argues that the trial judge erred in finding that it owed a duty of care to Darren or to any consumer of a hockey helmet. It says that it has no relationship with Darren or any consumer that would satisfy the test of proximity, as required by the first part of the Anns test (Anns v. Merton London Borough Council (1977), [1978] A.C. 728 (U.K. H.L.), as applied in Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537 (S.C.C.) and more recently, in Knight v. Imperial Tobacco Canada Ltd., 2011 SCC 42 (S.C.C.)), and that the nature of CSA and the manner in which it develops minimum standards raise policy considerations that More v. Bauer Nike Hockey Inc. Levine J.A. 197

should be found, in applying the second stage of the Anns test, to negate any prima facie duty of care. 54 The trial judge distinguished Hughes v. Sunbeam Corp. (Canada) Ltd. (2002), 61 O.R. (3d) 433 (Ont. C.A.), where the Ontario Court of Appeal found that a standards setting organization owed no duty of care to users of goods that the organization tested and approved, on the basis that the claim in that case was for economic loss, not for damages for personal injury. 55 The trial judge found there was “sufficient proximity in the present case for a prima facie duty of care” (at para. 214). He reasoned that “it was reasonably foreseeable that a wearer of a hockey helmet might suffer harm if the CSA set the certification standard unreasonably low in the circumstances” and the player was “closely and directly affected by the CSA decision affecting the adequacy of the certification standard” because the player must wear a certified helmet to participate in organized hockey (at para. 212). 56 The trial judge rejected the three policy considerations identified in Hughes as negating any prima facie duty of care. He found that indeterminate liability was not a factor, because of the rarity of Darren’s injury, unlike potentially widespread economic loss. Nor would a claim against CSA be like a free insurance scheme, again because of the rarity of Dar- ren’s particular injury. He agreed that manufacturers were in a better position to ensure the adequacy of hockey helmets, but suggested that because manufacturers participate in the standards setting process, “this might encourage some manufacturers to maintain the bar at an artificially low level” (at paras. 216-217). 57 Lastly, the trial judge cited broad policy considerations that apply to allegations of negligence causing physical rather than economic harm, quoting Lewis Klar, Tort Law, 4th ed. (Toronto: Carswell, 2008) at 225, to the effect that imposing liability in negligence for physical injury has important deterrent and educative functions. 58 The trial judge’s views on whether CSA owed the appellants a duty of care was, in the result, obiter, as the outcome of the case turned on their failure to prove causation. Similarly, this Court’s opinion on that question will be obiter, as the appeal must be dismissed on the ground that the appellants have not proved that the trial judge made any error. However, whether the CSA owes an individual who is physically injured while using a certified product a duty of care is an important question — one that, as the trial judge recognized, “might impact its ability to carry 198 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

on” (at para. 215). The issue was fully argued on the appeal. For those reasons, I will set out my views. 59 While the trial judge cited the Anns test as set out in Cooper (at para. 204), he approached his analysis on the basis of whether Hughes was distinguishable. He found the distinction primarily in the difference between a claim for damages for personal injury and a claim for economic loss. Certainly there are broad policy considerations, relevant to the proximity analysis, for limiting claims for economic loss, which do not apply to claims for personal injury. Nonetheless, I question whether that difference, and the requirement that a hockey player wear a certified hockey helmet, creates the “close and direct relationship” necessary for creating a new category for imposing a prima facie duty of care. 60 If the trial judge’s analysis of proximity is correct, I would not reject, as he did, the policy considerations that would negate a prima facie standard of care. First of all, in rejecting the considerations of indeterminate liability and creating a free insurance scheme, the trial judge focused on Darren’s rare injury, while the reality of finding a duty of care would be that any injured hockey player, or injured consumer, could make a claim against CSA. Secondly, while the trial judge acknowledged the “public service aspect to [CSA’s] performance”, he did not consider further that extending the risk of liability to CSA might impact on its ability to carry on and jeopardize the valuable public service it provides. In my opinion, the threat of legal action creates the very real risk that CSA could not continue to operate, which would result in harm not only to wearers of hockey helmets, but to manufacturers, and ultimately, consumers of goods that now benefit from the establishment and certification of minimum standards. Third, the suggestion that representatives of manufacturers who participate in the Technical Committees that establish standards might “maintain the bar at an artificially low level” casts unfounded doubt on CSA’s process for establishing standards. That process, in the case of hockey helmets, involves volunteers representing not only manufacturers, but representatives of hockey associations and leagues, consumers, academics, medical professionals, business and government, who reach decisions by consensus (as described by the trial judge at paras. 80-82). 61 In my opinion, for policy reasons, CSA does not have a duty of care in negligence to hockey players who are injured while wearing certified hockey helmets. More v. Bauer Nike Hockey Inc. Bennett J.A. 199

Conclusion 62 In the result, whether the trial judge found that the impact was primarily rotational or translational was irrelevant. The case was dismissed on the basis that the appellants had not proved any negligence in designing or manufacturing the helmet, the helmet met and exceeded any increased standard suggested by the appellants’ expert, and the appellants had failed to prove there was any failure to warn and if there was, that it bore any causal relationship to Darren’s injury. 63 For all of these reasons, I would dismiss the appeal.

Tysoe J.A.:

I agree

Bennett J.A.:

I agree Appeal dismissed. 200 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

[Indexed as: Hubley v. Hubley Estate] Denise Hubley (Appellant) and The Public Trustee as Litigation Administrator of the Estate of Philip Douglas Hubley (Respondent) Prince Edward Island Court of Appeal Docket: S1-CA-1211 2011 PECA 19 David H. Jenkins C.J.P.E.I., John A. McQuaid, Michele M. Murphy JJ.A. Heard: June 1, 2011 Judgment: November 24, 2011 Civil practice and procedure –––– Pleadings — Statement of claim — Strik- ing out for absence of reasonable cause of action — General principles –––– Plaintiff wife was passenger in husband’s vehicle when husband’s negligence caused collision — Wife was injured and husband died from his injuries — Wife brought action against defendant estate for injuries as well as damages for economic loss from husband’s death and loss of care, guidance and companionship — Estate moved to strike portion of pleadings relating to economic loss and care and companionship — Estate’s motion was granted — Wife appealed — Appeal dismissed — Central issue in appeal was whether motions judge erred in finding that husband did not owe duty of care to wife to protect her from losses that happened as result of his negligence — Proposed duty of care was too remote and did not fit into any of existing categories — Portion of action at issue was claim for pure economic loss which required close proximity not found by trial judge — Policy considerations were against allowing duty of care as it could lead to indeterminate liability for actions of deceased defendants. Remedies –––– Damages — Damages in tort — Death — Claim by family member for pecuniary loss — Eligible claimants –––– Plaintiff wife was passenger in husband’s vehicle when husband’s negligence caused collision — Wife was injured and husband died from his injuries — Wife brought action against defendant estate for injuries as well as damages for economic loss from husband’s death and loss of care, guidance and companionship — Estate moved to strike portion of pleadings relating to economic loss and care and companionship — Estate’s motion was granted — Wife appealed — Appeal dismissed — Central issue in appeal was whether motions judge erred in finding that husband did not owe duty of care to wife to protect her from losses that happened as result of his negligence — Proposed duty of care was too remote and did not fit into any of existing categories — Portion of action at issue was claim for pure Hubley v. Hubley Estate 201 economic loss which required close proximity not found by trial judge — Policy considerations were against allowing duty of care as it could lead to indeterminate liability for actions of deceased defendants. Torts –––– Negligence — Fatal accidents acts — Common law rules –––– Plaintiff wife was passenger in husband’s vehicle when husband’s negligence caused collision — Wife was injured and husband died from his injuries — Wife brought action against defendant estate for injuries as well as damages for economic loss from husband’s death and loss of care, guidance and companionship — Estate moved to strike portion of pleadings relating to economic loss and care and companionship — Estate’s motion was granted — Wife appealed — Appeal dismissed — Central issue in appeal was whether motions judge erred in finding that husband did not owe duty of care to wife to protect her from losses that happened as result of his negligence — Proposed duty of care was too remote and did not fit into any of existing categories — Portion of action at issue was claim for pure economic loss which required close proximity not found by trial judge — Policy considerations were against allowing duty of care as it could lead to indeterminate liability for actions of deceased defendants. Cases considered by John A. McQuaid J.A.: Anns v. Merton London Borough Council (1977), (sub nom. Anns v. London Borough of Merton) [1977] 2 All E.R. 492, [1978] A.C. 728, [1977] 2 W.L.R. 1024, 121 S.J. 377, [1977] UKHL 4 (U.K. H.L.) — followed Canadian National Railway v. Norsk Pacific Steamship Co. (1990), 104 N.R. 321, 3 C.C.L.T. (2d) 229, [1990] 3 F.C. 114, 1990 CarswellNat 693, 1990 A.M.C. 1902, 65 D.L.R. (4th) 321, 1990 CarswellNat 138 (Fed. C.A.) — considered Canadian National Railway v. Norsk Pacific Steamship Co. (1992), 11 C.C.L.T. (2d) 1, 91 D.L.R. (4th) 289, 137 N.R. 241, 1992 A.M.C. 1910, (sub nom. Norsk Pacific Steamship Co. c. Cie des Chemins de Fer nationaux du Can- ada) [1991] R.R.A. 370, [1992] 1 S.C.R. 1021, 1992 CarswellNat 168, 53 F.T.R. 79, 1992 CarswellNat 655, EYB 1992-67217, [1992] S.C.J. No. 40 (S.C.C.) — considered Cooper v. Hobart (2001), [2002] 1 W.W.R. 221, 2001 CarswellBC 2502, 2001 CarswellBC 2503, 2001 SCC 79, 8 C.C.L.T. (3d) 26, 206 D.L.R. (4th) 193, 96 B.C.L.R. (3d) 36, (sub nom. Cooper v. Registrar of Mortgage Brokers (B.C.)) 277 N.R. 113, [2001] 3 S.C.R. 537, (sub nom. Cooper v. Registrar of Mortgage Brokers (B.C.)) 160 B.C.A.C. 268, (sub nom. Cooper v. Registrar of Mortgage Brokers (B.C.)) 261 W.A.C. 268, [2001] S.C.J. No. 76, REJB 2001-26862 (S.C.C.) — followed D. (B.) v. Children’s Aid Society of Halton (Region) (2007), 39 R.F.L. (6th) 245, 49 C.C.L.T. (3d) 1, 284 D.L.R. (4th) 682, 2007 CarswellOnt 4789, 2007 CarswellOnt 4790, 2007 SCC 38, 365 N.R. 302, 227 O.A.C. 161, (sub nom. Syl Apps Secure Treatment Centre v. D. (B.)) [2007] 3 S.C.R. 83, 86 O.R. 202 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

(3d) 720 (note), (sub nom. Syl Apps Secure Treatment Centre v. D. (B.)) [2007] S.C.J. No. 38 (S.C.C.) — considered Fraser v. Westminer Canada Ltd. (2003), 34 B.L.R. (3d) 245, 17 C.C.L.T. (3d) 1, 228 D.L.R. (4th) 513, 215 N.S.R. (2d) 377, 675 A.P.R. 377, 2003 NSCA 76, 2003 CarswellNS 275, [2003] N.S.J. No. 266 (N.S. C.A.) — considered Hunt v. T & N plc (1990), 1990 CarswellBC 216, 43 C.P.C. (2d) 105, 117 N.R. 321, 4 C.O.H.S.C. 173 (headnote only), (sub nom. Hunt v. Carey Canada Inc.) [1990] 6 W.W.R. 385, 49 B.C.L.R. (2d) 273, (sub nom. Hunt v. Carey Canada Inc.) 74 D.L.R. (4th) 321, [1990] 2 S.C.R. 959, 1990 CarswellBC 759, 4 C.C.L.T. (2d) 1, (sub nom. Hunt v. Carey Canada Inc.) [1990] S.C.J. No. 93, EYB 1990-67014 (S.C.C.) — referred to Knight v. Imperial Tobacco Canada Ltd. (2011), 2011 CarswellBC 1968, 2011 CarswellBC 1969, 2011 SCC 42, (sub nom. British Columbia v. Imperial Tobacco Canada Ltd.) 419 N.R. 1, 86 C.C.L.T. (3d) 1, (sub nom. British Columbia v. Imperial Tobacco Canada Ltd.) 335 D.L.R. (4th) 513, 21 B.C.L.R. (5th) 215, [2011] 11 W.W.R. 215, 25 Admin. L.R. (5th) 1 (S.C.C.) — considered Martel Building Ltd. v. R. (2000), 2000 SCC 60, (sub nom. Martel Building Ltd. v. Canada) [2000] 2 S.C.R. 860, 36 R.P.R. (3d) 175, (sub nom. Martel Building Ltd. v. Canada) 193 D.L.R. (4th) 1, 2000 CarswellNat 2678, 2000 CarswellNat 2679, 3 C.C.L.T. (3d) 1, 5 C.L.R. (3d) 161, (sub nom. Martel Building Ltd. v. Canada) 262 N.R. 285, 186 F.T.R. 231 (note), [2000] S.C.J. No. 60, REJB 2000-21224 (S.C.C.) — considered Nielsen v. Kamloops (City) (1984), [1984] 5 W.W.R. 1, 1984 CarswellBC 476, 66 B.C.L.R. 273, [1984] 2 S.C.R. 2, 10 D.L.R. (4th) 641, 54 N.R. 1, 11 Admin. L.R. 1, 29 C.C.L.T. 97, 8 C.L.R. 1, 26 M.P.L.R. 81, 1984 Car- swellBC 821, [1984] S.C.J. No. 29 (S.C.C.) — followed Statutes considered: Fatal Accidents Act, R.S.P.E.I. 1988, c. F-5 Generally — referred to Survival of Actions Act, R.S.P.E.I. 1988, c. S-11 Generally — referred to Rules considered: Rules of Civil Procedure, P.E.I. Rules R. 21 — considered R. 21.01 — considered R. 21.01(1) — considered R. 21.01(1)(b) — considered

APPEAL by plaintiff individual from judgment reported at Hubley v. Hubley Estate (2010), 2010 CarswellPEI 57, 2010 PESC 38, 954 A.P.R. 323, 307 Nfld. Hubley v. Hubley Estate John A. McQuaid J.A. 203

& P.E.I.R. 323, 90 C.P.C. (6th) 383, 60 E.T.R. (3d) 307, 324 D.L.R. (4th) 69, 77 C.C.L.T. (3d) 104 (P.E.I. S.C.), dismissing action against defendant estate.

Bruce W. Evans for Appellant Tracey L. Clements, Q.C., Rosemary Scott, Q.C. for Respondent

John A. McQuaid J.A.: Introduction 1 On June 28, 2004, there was a collision between two motor vehicles at the intersection of Routes 4 and 5 in Prince Edward Island. The appellant, Denise Hubley, was a passenger in the motor vehicle driven by her husband, Phillip Douglas Hubley. The collision was caused by the negligence of Mr. Hubley. As a result of the accident, the appellant suffered personal injuries, and Mr. Hubley died on July 12, 2004. 2 On April 6, 2006, the appellant commenced an action in the Supreme Court of Prince Edward Island by issuing a statement of claim against the respondent, the Estate of Phillip Douglas Hubley. The statement of claim was amended on April 20, 2006. 3 In the amended statement of claim the appellant seeks to recover damages for the losses she sustained as the result of her personal injuries. She also claims damages for the losses she suffered resulting from her husband’s death. The particulars of these last mentioned claims are set forth in paragraphs 11 and 11A of the amended statement of claim which read as follows: 11. As a result of the negligence of Philip, the Plaintiff sustained economic losses, including the loss of benefits to her from Philip’s employment earnings and Philip’s retirement pension benefits. 11A. As a result of the negligence of Philip, the Plaintiff has lost the care, guidance and companionship of her husband, Philip. 4 On October 29, 2009, the respondent made a motion in the Supreme Court for an order pursuant to Rule 21.01(1)(b) of the Rules of Court to strike out paragraphs 11 and 11A of the amended statement of claim. The grounds for the motion were that these claims do not disclose a reasonable cause of action against the respondent. 5 Campbell J. heard the motion and on September 7, 2010, he issued reasons for judgment granting the motion. See: Hubley v. Hubley Estate, 2010 PESC 38, 307 Nfld. & P.E.I.R. 323, 324 D.L.R. (4th) 69 (P.E.I. S.C.). On November 19, 2010, an order was filed in the Supreme Court striking paragraphs 11 and 11A from the amended statement of claim as 204 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

well as any claim for damages made in connection with the allegations in those paragraphs, including those claims in paragraphs 1(j) and 1(k) of the amended statement of claim. The appellant was also ordered to pay the respondent’s costs of the motion. 6 The appellant filed a notice of appeal in this Court on December 15, 2010. She requests that the order of the motions judge be set aside and that the court reinstate the claims set forth in paragraphs 11 and 11A of the amended statement of claim as well as the related claims referred to above.

Disposition 7 I would dismiss the appeal and confirm the order of the motions judge.

Grounds of Appeal 8 The appellant relies on ten grounds of appeal. Furthermore, the second ground of appeal includes reliance upon five principles which the appellant argues were applicable to the issues in the motion and which she asserts the motions judge either ignored or addressed incorrectly. 9 Many of the grounds of appeal, including the five principles, relate to whether there exists in law a reasonable cause of action for loss of shared family income, loss of care, guidance and companionship, non-pecuniary loss, as well as losses under the Survival of Actions Act, R.S.P.E.I. 1988 Cap. S-11, and the Fatal Accidents Act, R.S.P.E.I. 1988 Cap. F-5. 10 I do not take issue with many of the five principles stated by the appellant in the second of the ten grounds of appeal, and I do not take issue with many of the other general principles in the other grounds of appeal. However, I cannot accept they assist the appellant in establishing a reasonable cause of action in negligence against the respondent to recover the losses in the impugned paragraphs of the amended statement of claim. 11 In my opinion, the issue in this appeal is not whether the appellant has a reasonable cause of action in negligence to recover the losses referred to above against a party who caused injury or death to her husband. The above statutes and the common law make it clear that such a cause of action exists. 12 The facts as pleaded in the amended statement of claim and as they relate to the impugned paragraphs of the amended statement of claim do not disclose that the appellant’s claims in paragraphs 11 and 11A of the Hubley v. Hubley Estate John A. McQuaid J.A. 205

amended statement of claim are of this nature. The impugned claims arise from the appellant’s allegations that Mr. Hubley suffered a loss of life, which was caused by his own negligence, and this resulted in losses to her. She alleges that her husband owed her a duty of care not to cause injury or death to himself, and she has a reasonable cause of action in negligence against the respondent. 13 The appellant also asserts that the category of relationship between she and her late husband - she as the passenger in the vehicle and he as the driver of that motor vehicle - has been recognized by judicial authority as giving rise to a duty of care on her late husband to protect her from all losses she suffered as the result of his negligence, including the losses she suffered as the result of his death. 14 The respondent, on the other hand, asserts there was no duty of care on the appellant’s late husband to protect her from his negligent act of causing his own death. According to the respondent’s position, there is no proximity between the negligent act of the late Mr. Hubley and the types of losses claimed by the appellant in paragraphs 11 and 11A of the amended statement of claim.

Issue 15 Therefore, the central ground of appeal and thus the central issue in this appeal relates to whether the motions judge erred in finding that the late Mr. Hubley did not owe the appellant a prima facie duty of care to protect himself from injury and/or death. 16 This issue raises a question of law. The order of the motions judge is, therefore, reviewable by this Court on the standard of correctness.

Disposition 1. Rule 21 of the Rules of Court 17 Rule 21.01(1) of the Rules of Court provides as follows: 21.01(1) A party may move before a judge, (a) for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs; or (b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence, and the judge may make an order or grant judgment accordingly. 206 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

(2) No evidence is admissible on a motion, (a) under clause (1)(a), except with leave of a judge or on consent of the parties; (b) under clause (1)(b). 18 Pursuant to Rule 21.01, a party may move to strike a pleading, or any part of a pleading that does not disclose a reasonable cause of action or a reasonable defence. A pleading may fail to disclose a reasonable cause of action or defence if it does not contain sufficient material facts which, if proven at trial, would constitute at law a cause of action or defence. 19 Parties are not entitled to present evidence in support of or in opposi- tion to the motion because the material facts as pleaded in the relevant pleading are accepted as being capable of proof at trial. It is crucial that the material facts necessary to prove the claim or sustain the defence are pleaded. At trial it may be determined these facts are incapable of proof; however, they must be pleaded as the party relying on the pleading does not have the opportunity on the presentation of the motion to assert that the material facts will be subsequently pleaded or brought forward at trial. 20 Recently the Supreme Court of Canada addressed this question in the context of a rule in the British Columbia Supreme Court which is analo- gous to Rule 21.01(1)(b). In Knight v. Imperial Tobacco Canada Ltd., 2011 SCC 42 (S.C.C.), McLachlin C.J.C. writing for the Court stated at paragraph 22: 22. ... It is incumbent on the claimant to clearly plead the facts upon which it relies in making its claim. A claimant is not entitled to rely on the possibility that new facts may turn up as the case progresses. The claimant may not be in a position to prove the facts pleaded at the time of the motion. It may only hope to be able to prove them. But plead them it must. The facts pleaded are the firm basis upon which the possibility of success of the claim must be evaluated. If they are not pleaded, the exercise cannot be properly conducted. 21 Before the court may strike a pleading or any part of a pleading, it must be plain and obvious the pleading or the part sought to be struck does not disclose a reasonable cause of action or defence in fact or law. The length or complexity of the proceeding or the novelty of the cause of action are not factors which weigh in the court’s consideration as to whether the pleading should be struck. See: Hunt v. T & N plc, [1990] 2 S.C.R. 959 (S.C.C.) at p. 978. Hubley v. Hubley Estate John A. McQuaid J.A. 207

22 In the case at bar there is no dispute as to the sufficiency of the facts pleaded in the Amended Statement of Claim. The issue in this appeal turns on whether in law, accepting the material facts pleaded in the statement of claim as proven, the appellant has a reasonable cause of action against the respondent for the impugned claims. 23 There is no question the appellant has a reasonable cause of action in negligence against the respondent to recover the losses resulting from the personal injuries she suffered in the accident. All paragraphs in the amended statement of claim, other than paragraphs 11 and 11A, set forth the particulars of these claims. They were not challenged by the respondent on the motion and thus they are not in issue in this appeal. 24 However, the appellant claims she suffered losses as the result of the death of Mr. Hubley in addition to the losses she suffered as the result of her personal injuries. She alleges that she suffered a loss because, for example, she no longer has the benefit of his employment income and pension benefits. She also alleges she suffered the loss of his care, guidance and companionship. For purposes of the motion pursuant to Rule 21.01(1), the court must accept as fact that she has suffered these losses, that she can quantify them and that at trial they will be proven. 25 Speaking generally, an injured party does not have a reasonable cause of action in negligence unless the person who caused the injury owed the injured party a prima facie duty of care. There is no question Mr. Hubley owed a duty of care to all passengers in his vehicle, including the appellant, to protect them from injuries which result from his negligent operation of the motor vehicle. The question is whether he owed them a duty of care to protect them from losses which resulted from injuries or death to him. 26 If he did, the impugned claims establish a reasonable cause of action in law, and they are entitled to remain in the amended statement of claim. If he did not, the claims do not constitute a reasonable cause of action in law, and the motions judge was correct in striking them from the amended statement of claim.

2. Negligence and duty of care 27 It is now trite law that for a plaintiff’s claim against a defendant to disclose a reasonable cause of action in negligence, the defendant must owe the plaintiff a duty of care. The approach to be taken by the court is assessing whether a duty of care is owed by a defendant to a plaintiff is set forth in the decision in Nielsen v. Kamloops (City), [1984] 2 S.C.R. 2 208 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

(S.C.C.). In accordance with this approach the court must address whether the plaintiff’s loss was foreseeable by the defendant and whether there is a sufficient relationship of proximity or neighborhood such that in the reasonable contemplation of the defendant, carelessness on his part would likely cause damage to the plaintiff. If the finding on these issues is positive, the court finds there is a prima facie duty of care owed by the defendant to the plaintiff subject to a consideration of the second part of the test, that is, whether there are any residual policy concerns which would negate a prima facie duty of care. 28 In Cooper v. Hobart, [2001] 3 S.C.R. 537 (S.C.C.), the Court recognized that in the future, as cases come before courts, there will be categories of relationships where, in previous cases, the court imposed a duty of care. The Court also confirmed the steps in Kamloops which had been adopted from the decision of the House of Lords in Anns v. Merton London Borough Council (1977), [1978] A.C. 728 (U.K. H.L.). At paragraph 30 and 31 of the decision in Cooper v. Hobart, McLachlin C.J.C. stated as follows: [30] In brief compass, we suggest that at this stage in the evolution of the law, both in Canada and abroad, the Anns analysis is best understood as follows. At the first stage of the Anns test, two questions arise: (1) was the harm that occurred the reasonably foreseeable consequence of the defendant’s act? and (2) are there reasons, notwithstanding the proximity between the parties established in the first part of this test, that tort liability should not be recognized here? The proximity analysis involved at the first stage of the Anns test focuses on factors arising from the relationship between the plaintiff and the defendant. These factors include questions of policy, in the broad sense of that word. If foreseeability and proximity are established at the first stage, a prima facie duty of care arises. At the second stage of the Anns test, the question still remains whether there are residual policy considerations outside the relationship of the parties that may negative the imposition of a duty of care. It may be, as the Privy Council suggests in Yuen Kun Yeu, that such considerations will not often prevail. However, we think it useful expressly to ask, before imposing a new duty of care, whether despite foreseeability and proximity of relationship, there are other policy reasons why the duty should not be imposed. [31] On the first branch of the Anns test, reasonable foreseeability of the harm must be supplemented by proximity. The question is what is meant by proximity. Two things may be said. The first is that “proximity” is generally used in the authorities to characterize the type of Hubley v. Hubley Estate John A. McQuaid J.A. 209

relationship in which a duty of care may arise. The second is that sufficiently proximate relationships are identified through the use of categories. The categories are not closed and new categories of negligence may be introduced. But generally, proximity is established by reference to these categories. This provides certainty to the law of negligence, while still permitting it to evolve to meet the needs of new circumstances. 29 As McLachlin C.J.C. points out, at the first stage of the Anns/Kamloops test it is not sufficient to focus only on whether the injuries and losses to the plaintiff were foreseeable on the part of the defendant, the court must also consider whether the relationship between the defendant’s negligent act and the plaintiff’s alleged loss is sufficiently proximate to make it just and fair to impose a prima facie duty of care on the defendant. Therefore, the court must find both foreseeability of harm and proximity of the parties. 30 In considering whether the relationship is sufficiently proximate to give rise to a prima facie duty of care, the court considers first, whether the type of relationship in issue has been previously found to give rise to a duty of care. If it has, a prima facie duty of care is established subject to a consideration of the second part of the test, namely, whether there are residual policy considerations which would negate the prima facie duty of care. 31 If the relationship between the parties has not been previously considered as giving rise to a duty of care, the court must determine, considering the relationship in issue, whether it should create a new category of relationship which would give rise to a prima facie duty of care. The court will consider a number of factors, including the expectations of the parties, representations made and reliance on those representations as well as the property or other interests involved. The factors are diverse and there is no single factor which is determinative of whether the relationship is sufficiently proximate. Generally, the factors are those which assist the court in determining the closeness of the relationship and whether it would be just and fair to impose a duty of care in the context of that relationship. See: Cooper v. Hobart at paragraphs 34 and 35. 32 In D. (B.) v. Children’s Aid Society of Halton (Region), 2007 SCC 38, [2007] 3 S.C.R. 83 (S.C.C.), Abella J. stated that policy concerns enter into the consideration of the proximity analysis at the first stage of the Anns/Kamloops test. These policy concerns are different from those under consideration at the second stage of the test in that they are policy concerns which relate only to the particular relationship. At the second 210 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

stage of the test, the court’s focus is not on the specific relationship but on whether there are residual policy concerns which would negate the prima facie duty of care. These are policy concerns which relate to external factors and a consideration whether, generally, at law it would be fair and just to impose a prima facie duty of care. 33 I agree with the motions judge that the case at bar does not fit into any of the existing categories of negligence law in which proximity has been found. The relationship is not, as the appellant argues, a relationship between the negligent act of the driver of a motor vehicle and the injuries suffered by a passenger in that or another motor vehicle. 34 The category of relationship raised by the impugned claims is between the negligent driver and his spouse who sustained losses attributable solely to the negligent driver’s death. This is not a category of relationship where the courts in previous cases have determined there is sufficient proximity to give rise to a prima facie duty of care upon the negligent driver. 35 The necessity of first determining if an alleged wrongdoer owed a victim a duty of care serves as a mechanism by which the court controls the potential for unlimited liability in negligence law. Not every negligent act imposes liability for the losses of all who may have suffered as the result of the negligent act. As I stated at the outset of this discussion, the alleged wrongdoer must owe a duty of care to the victim before negligence will be established. See: Fraser v. Westminer Canada Ltd., 2003 NSCA 76 (N.S. C.A.) at paragraph 43. 36 In cases where the loss claimed is purely economic, that is where the plaintiff has not suffered any personal injury, the concept of duty of care takes on additional significance. In Fraser v. Westminer at paragraph 26 Cromwell J.A. defined pure economic loss as “... financial loss which was not causally consequent upon physical injury...” to the plaintiffs or their property. 37 Historically courts were reluctant to award damages where the loss was purely economic without physical injury or damage to the plaintiff. While the underlying concept of compensating a person for a loss which is the fault of another would dictate that where the fault is negligence, based on the duty one should reasonably foresee as being owed to the injured party, courts realized that for practical and pragmatic reasons there would have to be additional limits when the claim was for pure economic loss. This is so because the potential for an indeterminate Hubley v. Hubley Estate John A. McQuaid J.A. 211

scope of liability is greater when the claim is that the negligence caused pure economic loss. 38 The seminal case addressing when a duty of care is created, where the claim is for pure economic loss, is Canadian National Railway v. Norsk Pacific Steamship Co., [1992] 1 S.C.R. 1021 (S.C.C.). In this case the railway brought an action against the steamship company alleging it suffered losses which resulted from the steamship company’s negligence while towing a barge damaged a bridge owned by a third party. The railway leased the bridge from the third party, and its losses arose because it was unable to use the bridge as the result of the damage it sustained. The property of the railway did not suffer any physical damage nor did any of its employees suffer personal injury. Its losses were, therefore, purely economic as the result of not being able to use the bridge after the accident. 39 The issue was whether the steamship company owed the railway a duty of care, and thus, whether it was liable to the railway company in negligence for the economic losses. McLachlin J. stated that the proximity inquiry becomes important in determining whether it would be just and fair to impose a duty of care. 40 She quoted the following passage from an English case which was relied upon by MacGuigan J.A. in the Federal Court of Appeal decision under appeal to the Supreme Court of Canada. See: Canadian National Railway v. Norsk Pacific Steamship Co. (1990), 65 D.L.R. (4th) 321 (Fed. C.A.). This passage explains proximity and its place in the application of the duty of care analysis as the controlling limit on the imposition of liability when the fault of a defendant is framed in negligence. McLachlin J. states as follows: [255] The doctrinal inquiry introduces considerations which the cases have traditionally treated under the concept of proximity. Proximity may be usefully viewed, not so much as a test in itself, but as a broad concept which is capable of subsuming different categories of cases involving different factors. Deane J. in Sutherland Shire Council v. Heyman (1985), 60 A.L.R. 1, at pp. 55-56, in a passage cited by MacGuigan J.A., in the judgment below at p. 165, describes proximity as follows: • The requirement of proximity is directed to the relationship between the parties in so far as it is relevant to the allegedly negligent act or omission of the defendant and the loss or injury sustained by the plaintiff. It involves the notion of near- ness or closeness and embraces physical proximity (in the sense of space and time) between the person or property of 212 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

the plaintiff and the person or property of the defendant, cir- cumstantial proximity such as an overriding relationship of employer and employee or of a professional man and his cli- ent and what may (perhaps loosely) be referred to as causal proximity in the sense of the closeness or directness of the causal connection or relationship between the particular act or course of conduct and the loss or injury sustained. It may reflect an assumption by one party of a responsibility to take care to avoid or prevent injury, loss or damage to the person or property of another or reliance by one party upon such care being taken by the other in circumstances where the other party knew or ought to have known of that reliance. Both the identity and the relative importance of the factors which are determinative of an issue of proximity are likely to vary in different categories of case. That does not mean that there is scope for decision by reference to idiosyncratic notions of justice or morality or that it is a proper approach to treat the requirement of proximity as a question of fact to be resolved merely by reference to the relationship between the plaintiff and the defendant in the particular circumstances. The requirement of a relationship of proximity serves as a touch- stone and control of the categories of case in which the common law will adjudge that a duty of care is owed. Given the general circumstances of a case in a new or developing area of the law of negligence, the question what (if any) combination or combinations of factors will satisfy the requirement of proximity is a question of law to be resolved by the processes of legal reasoning, induction and deduction. On the other hand, the identification of the content of that requirement in such an area should not be either ostensibly or actually [page1152] divorced from notions of what is “fair and reasonable ...” 41 McLachlin J. summarized the applicable law in this manner at paragraph 258 of Norsk: [258] In summary, it is my view that the authorities suggest that pure economic loss is prima facie recoverable where, in addition to negligence and foreseeable loss, there is sufficient proximity between the negligent act and the loss. Proximity is the controlling concept which avoids the spectre of unlimited liability. Proximity may be established by a variety of factors, depending on the nature of the case. To date, sufficient proximity has been found in the case of negligent misstatements where there is an undertaking and correlative reliance (Hedley Byrne); where there is a duty to warn (Rivtow); and where a Hubley v. Hubley Estate John A. McQuaid J.A. 213

statute imposes a responsibility on a municipality toward the owners and occupiers of land (Kamloops). But the categories are not closed. As more cases are decided, we can expect further definition on what factors give rise to liability for pure economic loss in particular categories of cases. In determining whether liability should be extended to a new situation, courts will have regard to the factors traditionally relevant to proximity such as the relationship between the parties, physical propinquity, assumed or imposed obligations and close causal connection. And they will insist on sufficient special factors to avoid the imposition of indeterminate and unreasonable liability. The result will be a principled, yet flexible, approach to tort liability for pure economic loss. It will allow recovery where recovery is justified, while excluding indeterminate and inappropriate liability, and it will permit the coherent development of the law in accordance with the approach initiated in England by Hedley Byrne and followed in Canada in Rivtow, Kamloops and Hofstrand. 42 The relevant proximity of relationship is that which exists between the acts of the negligent actor and the loss suffered by the victim. In determining whether the relationship is sufficiently proximate, the court is required to assess the relationship between the parties to the extent that relationship is relevant to the negligent act or omission of a defendant and the loss suffered by a plaintiff. It is not enough to assess the proximity of the relationship between the parties simply on the basis of their physical closeness or marital relationship without regard to the nature of the negligent act or omission and the nature of the loss suffered. 43 At paragraph 261 McLachlin J. stated: [261] In many of the cases discussed above, the judiciary has focused upon the relationship between the tortfeasor and the plaintiff as an indication of proximity, a focus closely related to the foreseeability analysis inherent to all negligence actions. In the classic case of Hed- ley Byrne, the reliance analysis focuses upon the connection between the party who made the negligent misstatement and the injured party, i.e., is that plaintiff a party that the tortfeasor ought reasonably to have foreseen would rely on his or her statement? The judgments below focused on the relationship between the tortfeasor Norsk and the plaintiff CN both within and outside their discussion of proximity. A more comprehensive, and I submit objective, consideration of proximity requires that the court review all of the factors connecting the negligent act with the loss; this includes not only the relationship between the parties but all forms of proximity — physical, circum- stantial, causal or assumed indicators of closeness. While it is impossible to define comprehensively what will satisfy the requirements of 214 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

proximity or directness, precision may be found as types of relationships or situations are defined in which the necessary closeness between negligence and loss exists. 44 McLachlin J. continued at paragraph 262 by stating that because proximity is in and of itself concerned with policy (the justness and fairness of imposing liability) the court is required to review, considering the nature of the relationship, the purposes served by permitting recovery and the imposition of a duty of care for pure economic loss. The implication being that policy considerations can be taken into account at the first step of the Anns/Kamloops test as subsequently held by the Court in D. (B.). 45 In Martel Building Ltd. v. R., 2000 SCC 60, [2000] 2 S.C.R. 860 (S.C.C.) at paragraphs 36 and 37, the Court reaffirmed that it should proceed with caution in allowing recovery for economic loss when the plaintiff had suffered neither physical harm nor property damage. Also see: Fraser v. Westminer at paragraph 44.

3. Application of the law to the relevant pleadings 46 The appellant takes the position that because she suffered personal injury, the impugned claims are for consequential economic loss and not pure economic loss. I am unable to agree. First, there is no causal connection between her personal injuries and the losses she claims in the impugned claims. The latter arise from the death of her husband and not from her personal injuries. 47 Second, as the motions judge noted there is a certain lack of consis- tency in this argument. As the motions judge stated at paragraph 25 of his reasons: [25] In the circumstances before the court, the Plaintiff wife claims she can recover from her husband’s estate for relational economic loss because she suffered some physical injury as well as economic loss. In my view, it is illogical to suggest that if she escaped any physical injury, she would be barred from recovering for the loss of care, guidance and companionship, but if she so much as cut her fin- ger or bruised her toe, she could recover. 48 The appellant also argues that because she was a passenger in the car the late Mr. Hubley drove negligently and because she is his spouse, there is sufficient proximity to establish a prima facie duty of care on him to not cause his own death. While this relationship is important in assessing the sufficiency of the proximity, reliance on it alone overlooks Hubley v. Hubley Estate John A. McQuaid J.A. 215

the purpose of proximity as applied in the duty of care analysis; the focus must also be on the closeness between the defendant’s negligent act and the plaintiff’s loss. 49 I agree with respondent’s counsel that the essence of the appellant’s position is that because her husband drove the car negligently, she is entitled to recover full compensation, that is, all pecuniary and non-pecuniary losses resulting from his negligence. This position if adopted would completely overlook the purpose of the duty of care analysis which serves to govern the scope of liability in causes of action founded in negligence and the loss suffered is a pure economic loss. 50 In this case, and particularly in the context of the impugned paragraphs of the amended statement of claim, the circumstances are these. The negligent act is Mr. Hubley’s driving which caused his own death. The loss is the appellant’s loss of economic and other intangible benefits the appellant would have enjoyed had Mr. Hubley not died as the result of his own negligence. The issue is whether there is sufficient proximity between this negligent act and these types of losses to make it just and fair to impose upon Mr. Hubley a prima facie duty of care. 51 Contrast this with the question as to whether there is sufficient proximity between the appellant and Mr. Hubley to impose upon him a prima facie duty of care not to cause injury to the appellant. The negligent act is the careless driving of Mr. Hubley and the loss is the personal injury suffered by the appellant. In this situation, there is a direct relationship between the negligent act of the late Mr. Hubley and the appellant’s loss. 52 On the facts as pleaded in the amended statement of claim as they relate to the loss claimed in the two impugned paragraphs, there is not a direct relationship between the negligent act and the loss suffered by the appellant. The intervening fact is the death of Mr. Hubley which breaks the chain of proximity. The losses claimed by the appellant flow from his death and not her injuries. 53 The recognition of a new duty of care in circumstances similar to those of the case at bar may have far-reaching policy consequences, the most significant being the prospect of indeterminate liability. It could lead to complex and unsettled questions as to how people lead their lives. Questions will arise as to which family members could sue. The liability could extend to not only self-inflicted death but as well self-inflicted injury. There will be issues as to the nature of the damages that could be claimed. There could be a whole range of situations giving rise to law 216 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

suits ranging from one’s failure to wear a seat belt to risking one’s own health by lifestyle choices. 54 Another significant question is how the imposition of a duty of care in these circumstances would impact on one’s right to self-determination and freedom of choice. 55 Therefore, considering the first stage of the Anns/Kamloops test, there is an insufficient proximity of relationship to impose a prima facie duty of care on the late Mr. Hubley not to cause his death. In the circumstances of the facts as pleaded in the amended statement of claim, and as those facts relate to the impugned paragraphs, it would be unfair and unjust to impose such a duty of care on the late Mr. Hubley. 56 If the claim for loss of care guidance and companionship is to be treated separately from the claim for pure economic loss, I agree with the motions judge that on the Cooper v. Hobart test, the late Mr. Hubley did not owe the appellant a prima facie duty of care in this respect.

4. The application of Rule 21 57 The appellant argues that because proximity deals with policy at the first stage of the Anns/Kamloops test and because the second stage of the test is concerned with residual policy issues, the court should not resolve the issue of whether there was a prima facie duty of care on a Rule 21 motion to strike the impugned paragraphs of the amended statement of claim. The appellant argues that facts need to be presented and thus the issue of duty of care should not be resolved until after a trial is held. 58 With respect I do not agree. The issue of proximity, so vital to the determination of whether a new duty of care should be recognized, arises as a question of law where a number of factors and the combination of those factors are assessed to determine if the necessary proximity has been established. The issue “... is a question of law to be resolved by the process of legal reasoning, induction and deduction.” See: Norsk at paragraph 255. 59 Therefore, utilizing the facts as pleaded in the impugned pleading, all of which are, for purposes of the motion to strike, accepted as true, the court can apply the law. In doing so, the court can assess whether the late Mr. Hubley owed the appellant a prima facie duty of care to protect her from any losses she may have suffered from his death and thus whether her claims against his estate for these losses disclose a reasonable cause of action in negligence. Hubley v. Hubley Estate Michele M. Murphy J.A. 217

5. Conclusion and costs 60 In conclusion, I would dismiss the appeal and award the respondent costs of the appeal on a partial indemnity basis. If the parties are unable to agree on costs, the respondent shall file submissions on costs within 30 days of these reasons and the appellant shall have 30 days to respond to those submissions.

David H. Jenkins C.J.P.E.I.:

I agree

Michele M. Murphy J.A.:

I agree Appeal dismissed. 218 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

[Indexed as: Salamon v. Toronto (City)] Nimrod Salamon and Meryl Salamon (Plaintiffs / Respondents on Appeal) and City of Toronto (Defendant / Appellant) Ontario Superior Court of Justice (Divisional Court) Docket: Toronto 486/10 2011 ONSC 4192 Swinton J. Heard: June 22, 2011 Judgment: August 29, 2011 Civil practice and procedure –––– Pleadings — General requirements — Departure from pleadings –––– Failure to assert issue in pleadings — Duty to warn — Plaintiff property owners suffered property damage as result of flood caused by sanitary sewer backup — Defendant municipality had duty to maintain sewer, but by operation of s. 393 of City of Toronto Act, 2006, was immune from actions in nuisance for sewer backup — Defendant accordingly brought action for damages in negligence — Pleadings did not allege that defendant had failure to warn plaintiffs of risk of flooding inter alia after previous area flooding which did not effect plaintiffs — Plaintiffs raised failure to warn issue for first time at trial — Failure to warn claim was permitted to proceed and trial judge held that defendant breached duty to warn plaintiffs — Action was allowed and defendant appealed — Appeal allowed and action dismissed — Stan- dard of review on questions of law was correctness — Proceeding to hear claim founded on failure to warn “deprived [defendant] of an opportunity to lead evidence and to make full argument on this issue, particularly with respect to causation”, constituting reversible error of law — Accordingly trial judge erred in law in finding liability based on failure to warn and action was properly dismissed. Torts –––– Negligence — Duty and standard of care — Duty of care –––– Duty to warn — Plaintiff property owners suffered property damage as result of flood caused by sanitary sewer backup — Defendant municipality had duty to maintain sewer, but by operation of s. 393 of City of Toronto Act, 2006, was immune from actions in nuisance for sewer backup — Defendant accordingly brought action for damages in negligence — Pleadings did not allege that defendant had failure to warn plaintiffs of risk of flooding inter alia after previous area flooding which did not effect plaintiffs — Plaintiffs raised failure to warn issue for first time at trial — Failure to warn claim was permitted to proceed and trial judge held that defendant breached duty to warn plaintiffs — Action was allowed and defendant appealed — Appeal allowed and action dismissed — Standard of review on questions of law was correctness — Proceeding to hear Salamon v. Toronto (City) 219 claim founded on failure to warn “deprived [defendant] of an opportunity to lead evidence and to make full argument on this issue, particularly with respect to causation”, constituting reversible error of law — In any event, in order to find failure to warn trial judge was required to find duty to warn plaintiffs, breach of that duty and caution, and trial judge “did not set out these steps of analysis, nor did he refer to any case law on the duty to warn” — Positive duties to warn are exceptional, and while defendant conceded duty “to warn of harm that is foreseeable”, no basis existed to find positive duty on defendant “to warn [plaintiffs] about ways to manage storm water or avoid sewer backups” — Accordingly trial judge erred in law in finding liability based on failure to warn and action was properly dismissed. Torts –––– Negligence — Duty and standard of care — Exercise of statutory powers –––– Municipal “work plan” — Flooding — Plaintiff property owners suffered property damage as result of flood caused by sanitary sewer backup — Defendant municipality had duty to maintain sewer, but by operation of s. 393 of City of Toronto Act, 2006, was immune from actions in nuisance for sewer backup — Defendant issued work plan which had seven-year cycle for investigations of sewers and four-year period for completion of assessment of chronic sewer flooding areas — Defendant accordingly brought action for damages in negligence — Action was allowed and defendant appealed — Appeal allowed and action dismissed — Defendant had significant sewer undertakings within his jurisdiction — Work plan was policy decision and “there has been activity undertaken in compliance with the time frames for sewer inspection adopted by [defendant] in the body of the work plan” — As evidence disclosed that sewer on plaintiffs’ street was last flushed in 2005, defendant “was compliant with the policy decision in the Work Plan to investigate on a seven-year cycle” — Ac- cordingly defendant used reasonable care in circumstances, and in any event trial judge erred in law in finding causation — Judgment allowing action contained reversible errors of law and action was properly dismissed in circumstances. Cases considered by Swinton J.: Brighton Heating & Air Conditioning Ltd. v. Savoia (2006), 2006 CarswellOnt 340, 49 C.L.R. (3d) 235, 79 O.R. (3d) 386, 207 O.A.C. 1, [2006] O.J. No. 250 (Ont. Div. Ct.) — considered Brown v. British Columbia (Minister of Transportation & Highways) (1994), 164 N.R. 161, 112 D.L.R. (4th) 1, 1994 CarswellBC 1236, 1994 CarswellBC 128, [1994] 4 W.W.R. 194, 20 Admin. L.R. (2d) 1, 89 B.C.L.R. (2d) 1, 19 C.C.L.T. (2d) 268, [1994] 1 S.C.R. 420, 42 B.C.A.C. 1, 67 W.A.C. 1, 2 M.V.R. (3d) 43, [1994] S.C.J. No. 20, EYB 1994-67080 (S.C.C.) — considered Carson v. Gloucester (City) (2000), 2000 CarswellOnt 8567, [2000] O.J. No. 3863 (Ont. S.C.J.) — distinguished 220 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

Hollis v. Birch (1995), 1995 CarswellBC 967, 1995 CarswellBC 1152, (sub nom. Hollis v. Dow Corning Corp.) [1995] 4 S.C.R. 634, (sub nom. Hollis v. Dow Corning Corp.) 129 D.L.R. (4th) 609, (sub nom. Hollis v. Dow Corning Corp.) 190 N.R. 241, (sub nom. Hollis v. Dow Corning Corp.) 67 B.C.A.C. 1, (sub nom. Hollis v. Dow Corning Corp.) 111 W.A.C. 1, [1996] 2 W.W.R. 77, 14 B.C.L.R. (3d) 1, 27 C.C.L.T. (2d) 1, 26 B.L.R. (2d) 169, EYB 1995-67074, [1995] S.C.J. No. 104 (S.C.C.) — considered Housen v. Nikolaisen (2002), 10 C.C.L.T. (3d) 157, 211 D.L.R. (4th) 577, 286 N.R. 1, [2002] 7 W.W.R. 1, 2002 CarswellSask 178, 2002 CarswellSask 179, 2002 SCC 33, 30 M.P.L.R. (3d) 1, 219 Sask. R. 1, 272 W.A.C. 1, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, REJB 2002-29758 (S.C.C.) — referred to Knight v. Imperial Tobacco Canada Ltd. (2011), 2011 CarswellBC 1968, 2011 CarswellBC 1969, 2011 SCC 42, (sub nom. British Columbia v. Imperial Tobacco Canada Ltd.) 419 N.R. 1, 86 C.C.L.T. (3d) 1, (sub nom. British Columbia v. Imperial Tobacco Canada Ltd.) 335 D.L.R. (4th) 513, 21 B.C.L.R. (5th) 215, [2011] 11 W.W.R. 215, 25 Admin. L.R. (5th) 1 (S.C.C.) — considered Kreutner v. Waterloo-Oxford Co-operative Inc. (2000), 1 C.P.C. (5th) 237, 50 O.R. (3d) 140, 2000 CarswellOnt 2883, 135 O.A.C. 216, [2000] O.J. No. 3031 (Ont. C.A.) — referred to Oosthoek v. Thunder Bay (City) (1996), 34 M.P.L.R. (2d) 81, 29 C.L.R. (2d) 157, 30 O.R. (3d) 323, 21 C.E.L.R. (N.S.) 77, 139 D.L.R. (4th) 611, 93 O.A.C. 131, 1996 CarswellOnt 3513, [1996] O.J. No. 3318 (Ont. C.A.) — distinguished TSP-Intl Ltd. v. Mills (2006), 19 B.L.R. (4th) 21, 2006 CarswellOnt 4037, 212 O.A.C. 66, 81 O.R. (3d) 266, [2006] O.J. No. 2702 (Ont. C.A.) — referred to 936464 Ontario Ltd. v. Mungo Bear Ltd. (2003), 74 O.R. (3d) 45, 258 D.L.R. (4th) 754, 2003 CarswellOnt 8091, [2003] O.J. No. 3795 (Ont. Div. Ct.) — considered Statutes considered: City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A s. 390 — considered s. 393 — considered

APPEAL by defendant municipality from judgment reported at Salamon v. Toronto (City) (2010), 2010 CarswellOnt 10907 (Ont. Small Cl. Ct.), allowing plaintiff property owners’ action for damages sustained as result of sewer backup.

David Fogel, for Plaintiffs / Respondents on Appeal Douglas O. Smith, Chad Leddy, for Defendant / Appellant Salamon v. Toronto (City) Swinton J. 221

Swinton J.: Overview 1 The City of Toronto appeals from the judgment of Deputy Judge Richardson of the Small Claims Court, dated August 24, 2010, in which he awarded damages of $25,000.00 to the respondents, Nimrod and Meryl Salamon, as a result of a sanitary sewer backup.

Background 2 The respondents live in a home at 88 Waterloo Avenue in the former City of North York. Separate sanitary and storm sewers serve that street. 3 On December 24, 2008, there was a major flood in the respondents’ basement that was caused by a blockage in the main sanitary sewer. The blockage was found in front of 82 Waterloo Avenue and caused flooding in two homes. A flusher truck cleared the blockage the same day. Ac- cording to the evidence, the last time prior to the December flood that the sanitary sewer on Waterloo Avenue had been inspected and flushed was in April 2005. 4 At trial, Frank Casciaro, a District Operations Supervisor for Toronto Water, testified that sanitary sewer blockages can result from a number of causes — for example, infiltration of pipes by tree roots or a build-up of debris, such as broken branches, mud, grease, sanitary toilet products and other materials. The exact nature of the December 2008 blockage was never known. In Mr. Casciaro’s opinion, the blockage was “mild”, as it was easily cleared with water (Transcript at p. 71). 5 The respondents had experienced one other basement flood, which occurred on June 23, 2008. A City Water Services Investigator, Selim Boutsov, investigated and determined that there was no blockage in the sanitary sewer at the time. He concluded that the flood probably resulted from a heavy rain, where the storm water created a “bathtub effect”. This occurs where the ground is saturated with rainwater to such an extent that the water pools around the foundation of a home and backs up through the floor drain into the residence. 6 On August 19, 2005, the City had experienced a very severe rain- storm. North of Highway 401, the storm exceeded a 100-year event with over 150 mm of rainfall in a three-hour period. The storm resulted in the flooding of approximately 3,600 homes. 7 After the 2005 storm, the City sent an information package to the 3,600 residents who had been affected by flooding and had submitted 222 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

complaints. The package contained recommendations as to how to reduce the danger of future flooding. Information about possible measures could also be found on a City website, and it was published in a number of community newspapers. 8 In response to the flooding, in September 2005 City Council commis- sioned Toronto Water to undertake an engineering review of the flood damaged areas. The resulting report, “Work Plan for the Engineering Re- view Addressing Basement Flooding (City-wide)” (“the Work Plan”) recommended a number of measures to prevent future basement flooding caused by rainstorms. They included assessment of the sewer system, with priority given to areas at high risk for basement flooding, as well as pilot projects and remedial measures. The Work Plan was adopted by City Council in April 2006. The respondents filed it as an exhibit at trial. 9 The respondents’ residence is located within Area 19, one of 32 chronic basement flooding areas designated by the City in the Work Plan, although their residence did not flood in 2005. Mr. Salamon gave evidence that no sewer work was done on his street until early 2009, when there were inspections of the sewers and remedial work undertaken.

The Decision of the Trial Judge 10 The trial judge put great weight on the evidence concerning the Au- gust 2005 flooding. He found that the City had a duty to warn the respondents, and concluded that the damage that occurred in December 2008 was foreseeable (Reasons at pp. 7-8). 11 He also concluded that the evidence showed no steps were taken to implement the Work Plan until after the December 2008 flood. He then stated at pp. 8-9 of his reasons, While no expert evidence was provided, based on the history of the basement flooding in that area and the City’s engineers own recommendations I find that on the balance of probabilities, the sewer damage to the plaintiff’s home was caused by the City’s failure to properly maintain the sewer system and follow it’s [sic] own plan and policy. In the approximate three years between the adoption of the work plan and the December flood, the City had not reached the stage of implementation of that plan by adopting the recommendations which would alleviate, if not totally eliminate, the problems with the sewers causing the backup and thus flooding the basement in the chronic flooding areas. Salamon v. Toronto (City) Swinton J. 223

He went on to find that the City breached its duty of care “by not eagerly and conscientiously attempting to rid the area of further flooding due to overburdened sewers during heavy rainfalls” (Reasons at p. 9). 12 The trial judge found there was a failure to warn because an information package was not sent to all residents in areas with a high risk of flooding. He concluded that the respondent Mr. Salamon “is a dependa- ble and intelligent man who would have taken all necessary steps to protect his property had he been given the requisite information” (Reasons at p. 10). 13 The trial judge rejected the City’s argument that it was immune from liability because of s. 390 of the City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A, which bars an action based on negligence in connection with the exercise or non-exercise of a discretionary power where the action or inaction of the City results from a policy decision made in good faith. The trial judge characterized the adoption of the Work Plan as a policy decision. However, he found that the failure of the City to take action on the Work Plan before the December flood was an operational decision, and the City was negligent in the operation and enforcement of its policy (Reasons at p. 14). At p. 15, he stated, In my view if the City had acted properly either with respect to inspections or warnings, the damage might have been avoided, in particular it is likely that the very steps which the plaintiffs took after the December flood to prevent the sewer back-up could have been taken earlier. 14 The trial judge also rejected the City’s argument that it was caught by surprise at trial because the respondents’ pleading contained no reference to the duty to warn and did not refer to the failure to implement the Work Plan as a basis for finding negligence. While he acknowledged that the City’s claim of surprise with respect to these issues “may be a very valid point”, he rejected the City’s objection because counsel for the City had not asked for an adjournment to address these issues (Reasons at p. 16).

The Issues 15 The City raised a number of issues on this appeal: 1. Did the trial judge err in law by allowing the respondents to raise new allegations at trial that were not originally pleaded? 2. Did the trial judge err in law in finding that the respondents met their burden of proof with respect to the new allegations? 224 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

3. Did the trial judge err in law and misapply inappropriate legal principles applicable to the tort of negligence? 4. Did the trial judge err in law in finding that the City’s actions or inactions were not immune from liability for policy reasons? 5. Did the trial judge commit a palpable and overriding error by making inappropriate or unsupported factual determinations?

The Standard of Review 16 An appellate court will not interfere with a trial judge’s findings of fact unless the judge has made a palpable and overriding error in assessing the evidence (Housen v. Nikolaisen, [2002] 2 S.C.R. 235 (S.C.C.) at para. 10). On issues of law, the trial judge must be correct (Housen at para. 8).

Analysis The Legal Context 17 Section 393 of the City of Toronto Act exempts the City from liability for nuisance caused by the escape of water or sewage from water works or sewage works. Therefore, in order for a municipality to be held liable because of the escape of sewage from sewer works, the plaintiff must prove negligence. In other words, a municipality cannot be found liable for its failure to inspect, maintain or repair a sewer unless negligence is proved. Therefore, the onus was on the respondents to prove the City had a duty of care to them; that it breached the standard of care set by law; that the respondents suffered damages that were caused by the negligent conduct of the City; that the damage was not too remote; and that there was no contributory negligence by the respondents. 18 In determining whether the City has a duty of care, a distinction must be made between policy decisions and operational decisions. Govern- ments are immune from liability in negligence where they have made a policy decision, provided the decision was made in good faith and was not patently unreasonable (Brown v. British Columbia (Minister of Transportation & Highways), [1994] 1 S.C.R. 420 (S.C.C.), at p. 435). 19 Section 390 of the City of Toronto Act now explicitly confers a statutory immunity for policy decisions made in good faith. It states: No proceeding based on negligence in connection with the exercise or non-exercise of a discretionary power or the performance or non- performance of a discretionary function, if the action or inaction re- Salamon v. Toronto (City) Swinton J. 225

sults from a policy decision of the City or a local board of the City made in a good faith exercise of the discretion, shall be commenced against, (a) the City or a local board of the City; (b) a member of city council or a member of a local board of the City; or (c) an officer, employee or agent of the City or an officer, employee or agent of a local board of the City.

The Claim 20 The respondents’ claim pleads that the City was negligent in main- taining the proper function of the sanitary sewer on their street, which was last flushed in April 2005. It also refers to the June 2008 basement flood and states that the City did not take any steps to ensure the sewer line was working properly after that flood. In January 2009, the City investigated the sewer line and found tree roots in the line on the City boulevard. 21 The claim makes no mention of a failure to warn, nor does it refer to the City’s Work Plan or the failure to implement that Plan. The principal allegation is that the City should have done an inspection and remedial work following the June 2008 flood.

Liability for the Failure to Warn 22 The City argues that the trial judge erred in allowing the respondents to raise the theory of a failure to warn when that theory of liability was not originally pleaded and was first raised at trial. 23 The Court of Appeal has found reversible error when a trial judge has decided a case on the basis of a theory of liability not raised in the pleadings, because this causes unfairness to the party affected, who is unable to respond adequately (see, for example, TSP-Intl Ltd. v. Mills, [2006] O.J. No. 2702 (Ont. C.A.) at para. 35). 24 The respondents rely on cases which have demonstrated a more re- laxed approach to pleading in the Small Claims Court, where many litigants appear without legal representation. They argue that the pleadings must be given a liberal interpretation. As Heeney J. stated in 936464 Ontario Ltd. v. Mungo Bear Ltd. (2003), 74 O.R. (3d) 45 (Ont. Div. Ct.) at para. 45, Essentially, the litigants present a set of facts to the deputy judge, and it is left to the deputy judge to determine the legal issues that emerge 226 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

from those facts and bring his or her legal expertise to bear in resolving those issues. In that case, the plaintiff had pleaded breach of contract, but liability was imposed on the basis of the doctrine of quantum meruit, as no contract was found. 25 Even if pleadings should be read liberally, they are still important in Small Claims Court, so that the defendant has notice of the case to be met. This is particularly true now that damages of up to $25,000 can be awarded in Small Claims Court. As Quinn J. stated in Brighton Heating & Air Conditioning Ltd. v. Savoia (2006), 79 O.R. (3d) 386 (Ont. Div. Ct.), the Small Claims Court can grant relief that was not pleaded, but should do so only if (i) there is no need for evidence beyond that led at trial in support of the relief pled, and (ii) it is not unfair to grant such relief (at para. 40). There, the Court held that it was unfair for the trial judge to have found against the defendant on the basis of a trust claim not pleaded. 26 In the present case, the failure to warn was not pleaded. Moreover, the opening statement of Mr. Salamon did not refer to a duty to warn; rather, he suggested that the June flood gave notice to the City of a sewer problem and the City failed to act (Transcript at p. 3). As a result of the way the case had been framed and the lack of notice respecting the duty to warn, the City was deprived of an opportunity to lead evidence and to make full argument on this issue, particularly with respect to causation. In my view, given the unfairness to the City in allowing the respondents to proceed on this ground, the trial judge erred in law in basing liability on the duty to warn. 27 In addition, the trial judge erred in law in finding liability on this ground. In order to find liability for the failure to warn, the trial judge was required to find that the City had a legal duty to warn the respondents about basement flooding, that it failed to meet the requisite standard of care, and that its negligence caused the damage suffered by the respondents in December 2008. The trial judge did not set out these steps of analysis, nor did he refer to any case law on the duty to warn. 28 A duty to warn often arises in product liability cases, where the defendant is found to have a duty to warn of risks arising from the use (and sometimes the improper use) of a product it has produced or designed. The duty arises where the manufacturer knows or ought to know of the risks inherent in a product’s use (see, for example, Kreutner v. Waterloo- Salamon v. Toronto (City) Swinton J. 227

Oxford Co-operative Inc., [2000] O.J. No. 3031 (Ont. C.A.) at para. 13; Hollis v. Birch, [1995] 4 S.C.R. 634 (S.C.C.) at para. 20). 29 As the Supreme Court of Canada has recently stated in Knight v. Imperial Tobacco Canada Ltd., 2011 SCC 42 (S.C.C.) at para. 108, “the tort of failure to warn requires evidence of a positive duty towards the plaintiff. Positive duties in tort law are the exception rather than the rule.” 30 The City does not dispute that it has a duty to warn of harm that is foreseeable, but it disputes a duty to warn was breached here, or that any damage was caused as a result. I agree with these submissions. 31 In the present case, the City learned in June 2008 that the respondents had suffered a basement flood. This was the first time the City was alerted to a flood at the respondents’ address. The opinion of the City investigator was that this was a result of excess storm water that could not be drained away from the residence and not a sanitary sewer backup. 32 There is no evidence that the City’s actions or inaction respecting the sewer system created any risk of flooding to the respondents at that time. This was not a situation where the City put the respondents at risk. Therefore, there is no basis to find that the City had a legal duty to warn the respondents about ways to manage storm water or avoid sewer backups. 33 The trial judge seems to have been influenced by the fact that the City had provided information about flood prevention to 3,600 residents after the severe storm in August 2005. It is notable that the information was provided because the recipients were victims of flooding after that storm, and they had made complaints to the City. The decision to provide information about protection against basement flooding was a policy decision taken by the City to assist a particular group. Its decision to provide information to one group after a particular event does not create a corre- sponding legal duty to provide such information every time a homeowner suffers a basement flood. 34 However, even if the City has a duty to warn in certain circumstances, it will be liable for breach of the duty only if it failed to act reasonably in the circumstances. As the Supreme Court of Canada observed in Hollis, above, the nature and scope of the duty to warn varies with the danger associated with the use of a product (at para. 22). 228 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

35 The trial judge does not refer to the standard of reasonable care. There was no evidence before him as to what other municipalities do in terms of warning homeowners about floods from storm water. 36 Moreover, the trial judge erred in finding liability without first finding that the City’s failure to warn caused the respondents’ damage. In the present case, to prove causation, the respondents would have to show that “but for” the breach of the duty to warn, they would not have suffered the flood damage in December 2008. That would require them to show they did not have access to information about flood prevention from other sources, such as the City’s website or other publications or from tradespeople they used; that they would have followed the remedial advice, if received, in a timely way; and, most importantly, that the remedial measures they would have taken would have prevented the damage caused by the December backup in whole or in part. 37 The trial judge did not consider these issues directly. He had evidence that the respondents installed a backflow valve after the December flood. The trial judge said, at p. 15 of his reasons, that the damage “might” have been avoided if the respondents had taken these steps earlier. However, there was no evidence before him about the effectiveness of the backflow valve in preventing the type of damage that occurred in December. Mr. Salamon testified that he was told the valve was not a 100% cure. 38 Finally, the test for causation is not whether the damage “might” have been avoided, as the trial judge stated, but whether, on a balance of probabilities, the December flood would have been avoided but for the lack of advice from the City on how to avoid it. 39 For these reasons, the trial judge erred in law in finding liability on the basis of the duty to warn.

Negligent Investigation 40 The City argues that the trial judge also erred in finding it liable in negligence because of its failure to investigate the sanitary sewers in the respondents’ immediate area prior to the December 2008 flood. Again, the City argues that the respondents failed to plead that it was liable because of the failure to implement the Work Plan, and it was prejudiced as a result. 41 The City also argues that the trial judge erred in finding that the tim- ing of investigations of the sewers was an operational decision, rather than a policy decision. In Brown, above, the Supreme Court of Canada described an operational decision as one “concerned with the practical Salamon v. Toronto (City) Swinton J. 229

implementation of the formulated policies, it mainly covers the performance or carrying out of a policy” (at p. 441). 42 I do not find any error on the part of the trial judge in concluding that the adoption of the Work Plan was a policy decision, and that the implementation of the assessment of the sewer system was an operational decision. Nevertheless, he made a number of legal errors in finding liability for negligent investigation. 43 To find liability for negligent investigation, the trial judge was required to find that the City failed to use reasonable care in investigating the sanitary sewer system and its failure caused the damage. I note again that he did not refer to the standard of reasonable care, instead concluding that the City failed to maintain the sewer system “properly” and to follow the Work Plan schedule. The trial judge never considered the issue of what a municipality must do, acting with reasonable care, to inspect and maintain its sewer system. For example, there was no discussion of what other municipalities do in the way of sewer inspections. That was an error of law. 44 The respondents led no expert evidence as to what constitutes reasonable care by a municipality in the investigation and maintenance of sewers. The trial judge said that this was not necessary, given that this was a Small Claims Court proceeding. He implied in his reasons that the City improperly failed to disclose what it did and did not do, and “has not spelled out what it deems to be its own duty of care” (Reasons at pp. 8 and 11). These and other comments are troubling, since the onus was on the respondents, as plaintiffs, to prove the elements of negligence, including the scope of the duty of care, the failure to meet the requisite standard of care and causation. The onus was not on the City, as defendant, to disprove negligence. 45 In the pleading, the respondents alleged that the City knew of the risk to them of basement flooding after the flood in June 2008, and it failed to take any steps to investigate and resolve the problem. 46 The evidence at trial does not show that the City’s investigations following the June flood fell below the standard of care. The evidence shows that the June flood was likely a storm water flood, not a sanitary sewer backup. At least, that was the opinion of the City investigator, and the trial judge did not dispute that conclusion (Reasons at p. 5). 47 The evidence did not show that the June 2008 flood was the result of any problems with the City’s sanitary sewer system. Therefore, this is 230 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

not a case where the City was alerted to a problem with its sewers in June 2008, which it failed to address with reasonable care. 48 Thus, this is not a case like Carson v. Gloucester (City), [2000] O.J. No. 3863 (Ont. S.C.J.), where a municipality was held liable for the damage caused by basement flooding in a residence as a result of a flooded ditch. In that case, a supervisor for the municipality had inspected the problem and then sent a contractor to clear it, but the remedial measures undertaken by the contractor were improper. In contrast, the June 2008 flood did not suggest any problem with the sanitary sewers in the area of the respondents’ home that required remedial action by the City. When the December flood occurred, the City investigated, found the blockage in the sanitary sewer and immediately acted to clear it. 49 The trial judge appears to rest his conclusion that the City was negligent on the basis that it did not comply with a timetable for inspections and remedial work found in an appendix to the 2006 Work Plan. He concluded that the damage was caused “by the City’s failure to properly maintain the sewer system and follow it’s [sic] own plan and policy” (Reasons at p. 8, emphasis added). 50 In reaching this conclusion, the trial judge found that there had been no action on the Work Plan. In his words (at p. 8 of his Reasons), “[t]he uncontradicted evidence of the plaintiff and the defendant’s witness was that no steps were taken to implement the plan, not even interim steps, until after the 2008 flood.” 51 The trial judge relied on Mr. Salamon’s evidence, which indicated that nothing had been done in his immediate area until 2009. Mr. Salamon had obtained this information from the City after a Freedom of Information request about work on his street and those streets close by his home. Mr. Salamon also referred to a website showing work on another street in his ward. Mr. Salamon did not provide any other information about the implementation of the Work Plan elsewhere in his area, (Area 19/Ward 10) or in other parts of the City. 52 The trial judge also concluded that Mr. Casciaro’s evidence showed that nothing had been done to implement the Work Plan. As a result, the trial judge found liability for the City’s failure to follow the Work Plan. 53 In my view, the trial judge made a palpable and overriding error when he concluded that the evidence showed nothing had been done under the Work Plan. Mr. Salamon’s evidence dealt only with work on his street and immediate area. Salamon v. Toronto (City) Swinton J. 231

54 More importantly, the evidence of Mr. Casciaro does not support the conclusion of the trial judge that nothing was done under the Work Plan. A reading of the transcript suggests that there was confusion about the work done. The issue of the Work Plan was raised by the trial judge during Mr. Casciaro’s testimony, but the trial judge subsequently cut off questioning by counsel about the City’s maintenance and inspection practices. 55 The problems start at p. 72 of the transcript, where the trial judge began questioning Mr. Casciaro about the Work Plan. The recommenda- tion about which he was concerned in the following exchange is not identified. THE COURT: Okay, now, if the City was to act on that recommen- dation, what would it have done? A. Well, it all depends if their house was in that ... THE COURT: I’m assuming that their house was in the ‘danger zone’, or ‘high risk’, I’m not sure how it would be labelled [sic]. A. Your Honour, he’s in Ward 10. Ward 10, the flooding area could have been at the north section of Ward 10. 56 An exchange follows about the information package provided to victims of the 2005 flooding, and then the questioning continues (at p. 73): THE COURT: I thought that this document recommends that the City take a number of steps to correct this for the future? A. In that flooding area, in that flooding area, which they have started. If you notice, they are doing storm ... THE COURT: What I’m saying is, at the time, when did they start it? A. They started, I believe, last year. THE COURT: After this event? A. Yes, but the, high flooding areas were all over the city. 57 The trial judge then posed a number of questions within one long question, which the witness was understandably unable to answer. When counsel for the City asked if he could put questions to the witness to obtain basic information about the City’s inspection and maintenance program, the trial judge refused to allow the line of questioning (Tran- script at p. 74). In my view, it was unfair to the City for the trial judge to have opened this line of questions and then prevented clarification. 232 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

58 Moreover, the trial judge erred in finding that the evidence showed that no work had been done to implement the Work Plan. At most, the evidence shows that there had been no work done on the respondents’ street until early 2009. That was not sufficient to prove a breach of the standard of care in the circumstances of this case. 59 This is not a case like Oosthoek v. Thunder Bay (City), [1996] O.J. No. 3318 (Ont. C.A.), on which the trial judge relied. There, the Court of Appeal upheld the trial judge’s finding that the City of Thunder Bay was negligent in failing to enforce a by-law requiring that downspouts on residences be detached from the sewer system. As a result of the inaction, some of the plaintiffs suffered damages from flooding in their base- ments, because the sewer system could not handle the storm water. In that case, there was no operational compliance with the by-law. 60 In contrast, the evidence in the present case shows that there has been activity undertaken in compliance with the time frames for sewer inspection adopted by the City of Toronto in the body of the Work Plan. 61 The Work Plan states that the City has thousands of kilometers of sewers within its jurisdiction. When the Work Plan is read as a whole, one sees that the City made a policy decision to assess the state of the sewers first in the areas of chronic basement flooding. However, there were 32 of these areas throughout the City, and the maps in the Work Plan show that the flooding occurred in various locations even within these areas. Therefore, in carrying out the assessment of the sewer system, City employees had to decide which of the chronic areas in the City, and which locations within those areas, would be investigated first (Work Plan at p. 5). 62 The Work Plan also addressed the frequency of sewer inspections in chronic basement flooding areas (at p. 10): In the short term, visual inspection and smoke testing of the sanitary and storm sewer systems are being undertaken to identify system cross-connections and illicit stormwaterflow [sic] connections to the sanitary sewer system, with priority given to the areas hardest hit by the August 2005 storm event. In the long term, all sewers in the chronic basement flooding areas are to be CCTV inspected on a seven-year cycle through the City’s Sewer Infrastructure Renewal Program. The adoption of a seven-year cycle was a policy decision by the City. 63 I also note that the Work Plan indicated that it would take three to four years to complete the sewer system assessment for all the chronic Salamon v. Toronto (City) Swinton J. 233

basement flooding areas in the City, and remedial work would follow (at pp. 11 and 13). That three to four year period would have expired somewhere between April 2009 and April 2010. 64 The evidence indicated that the sanitary sewer on the respondents’ street was last flushed in April 2005. Therefore, the City was compliant with the policy decision in the Work Plan to investigate on a seven-year cycle, as the sanitary sewers in the respondents’ neighbourhood were inspected within that time frame. 65 The Work Plan contemplates assessments of the state of the sewer system over a four-year period, with priority given the areas worst hit in August 2005. That did not include the respondents’ street. Again, the inspection in early 2009 fell within the range contemplated by the Work Plan. 66 The respondents led no expert evidence to show that sewers should be inspected more frequently than the ranges adopted by the City. Given that the City met the time frames in the Work Plan, I see no basis to find a breach of the standard of care. 67 However, even if the City failed to use reasonable care, the trial judge erred in law in finding causation. He concluded that the City breached its duty of care by “not eagerly and conscientiously attempting to rid the area of further flooding due to overburdened sewers during heavy rainfalls” (Reasons at p. 9). Even if that were a reasonable conclusion, it does not support the case for liability in negligence here, as the damage to the respondents’ basement was not caused by a storm water event. It was caused by a sewer blockage. 68 For the City to be liable in negligence as a result of the failure to investigate in accordance with the Work Plan schedule, the respondents would have had to prove that the damage caused in December 2008 would not have occurred had the City investigated the sanitary sewers earlier — for example, in 2006 or 2007, in accordance with the timetable. 69 The evidence showed that there was a blockage in the sanitary sewer down the street from the respondents’ home on December 24, 2008. That blockage was dislodged the same day, and it could have resulted from a number of causes, including actions taken by homeowners. There was no evidence to show that an investigation of the sanitary sewers some years earlier would have led to the finding of the blockage and allowed it to be rectified before the backup occurred in December 2008. 234 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

70 There was no problem with the sanitary sewer in June 2008, and there is no way of knowing whether the blockage existed prior to that date or whether it occurred later. Therefore, the respondents have not proved that the City’s failure to investigate the sewers on the street in 2006 or 2007 caused the damages suffered as a result of the December 2008 flood. 71 For these reasons, the trial judge erred in law in finding negligence on the basis of a failure to investigate.

Conclusion 72 For these reasons, the appeal is allowed, the judgment of the trial judge is set aside, and the action is dismissed. Costs to the City are fixed in the amount of $7,500.00, the amount agreed upon by the parties, paya- ble if requested. Appeal allowed; action dismissed. Burnett v. Moir 235

[Indexed as: Burnett v. Moir] Garrett Burnett (Plaintiff) and Scott Moir, Garry Todoruk, George Holmes, Sunny Jara, Jeremy Wocknitz, Tyler Wocknitz, Paul Uppal, Lorne Pike, Jim Cessford, The Corporation of Delta, John Does 1 to 10 and Employees 1 to 10 (Defendants) British Columbia Supreme Court Docket: Vancouver S088358 2011 BCSC 1469 A.F. Cullen J. Heard: April 4-8, 11-15, 18-21, 26, 28; May 2-6, 9-12, 16-18, 2011 Judgment: November 1, 2011 Torts –––– Negligence — Duty and standard of care — Duty of care –––– Plaintiff was severely assaulted while patronizing nightclub in Municipality of Delta — Assault occurred while plaintiff and other patrons were being pushed outside through door; assault was captured by surveillance camera — Recording was not sufficiently clear to allow identification of assailant and subsequent police investigation could not determine his identity — Plaintiff suffered moderately severe traumatic brain injury which significantly compromised his future — Plaintiff brought action in negligence against local police department as well as municipality — Action dismissed — Defendants did not have requisite relationship with plaintiff to establish duty of care and were not liable to plaintiff for negligence — Plaintiff failed to meet burden of establishing proximity necessary to prove liability against municipality or police — Pre-assault, municipality did not have necessary close and direct relationship to plaintiff necessary to establish private law duty of care — There was no evidence that plaintiff relied on licensing issued by municipality as warranting particular standard of behaviour at bar — Post-assault, nexus between alleged negligence and harm was weak — Policy reasons intrinsic to relationship between investigator and victim dictated against finding that it was close and direct in sense contemplated by proximity analysis — There was no duty of care owed by defendants to plaintiffs either pre- or post-assault. Law enforcement agencies –––– Police — Duties, rights and liabilities of officers — Conduct of officers — Negligence –––– Plaintiff was severely assaulted while patronizing nightclub in Municipality of Delta — Assault occurred while plaintiff and other patrons were being pushed outside through door; assault was captured by surveillance camera — Recording was not sufficiently clear to allow identification of assailant and subsequent police investigation 236 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d) could not determine his identity — Plaintiff suffered moderately severe traumatic brain injury which significantly compromised his future — Plaintiff brought action in negligence against local police department as well as municipality — Action dismissed — Defendants did not have requisite relationship with plaintiff to establish duty of care and were not liable to plaintiff for negligence — Plaintiff failed to meet burden of establishing proximity necessary to prove liability against municipality or police — Pre-assault, municipality did not have necessary close and direct relationship to plaintiff necessary to establish private law duty of care — There was no evidence that plaintiff relied on licensing issued by municipality as warranting particular standard of behaviour at bar — Post-assault, nexus between alleged negligence and harm was weak — Policy reasons intrinsic to relationship between investigator and victim dictated against finding that it was close and direct in sense contemplated by proximity analysis — There was no duty of care owed by defendants to plaintiffs either pre- or post-assault. Municipal law –––– Municipal liability — Negligence — Building review, inspections and permit issuance –––– Plaintiff was severely assaulted while patronizing nightclub in Municipality of Delta — Assault occurred while plaintiff and other patrons were being pushed outside through door; assault was captured by surveillance camera — Recording was not sufficiently clear to allow identification of assailant and subsequent police investigation could not determine his identity — Plaintiff suffered moderately severe traumatic brain injury which significantly compromised his future — Plaintiff brought action in negligence against local police department as well as municipality — Action dismissed — Defendants did not have requisite relationship with plaintiff to establish duty of care and were not liable to plaintiff for negligence — Plaintiff failed to meet burden of establishing proximity necessary to prove liability against municipality or police — Pre-assault, municipality did not have necessary close and direct relationship to plaintiff necessary to establish private law duty of care — There was no evidence that plaintiff relied on licensing issued by municipality as warranting particular standard of behaviour at bar — Post-assault, nexus between alleged negligence and harm was weak — Policy reasons intrinsic to relationship between investigator and victim dictated against finding that it was close and direct in sense contemplated by proximity analysis — There was no duty of care owed by defendants to plaintiffs either pre- or post-assault. Cases considered by A.F. Cullen J.: Abarquez v. Ontario (2009), 2009 CarswellOnt 2380, 189 C.R.R. (2d) 131, 95 O.R. (3d) 414, 2009 ONCA 374, 66 C.C.L.T. (3d) 169, 75 C.C.E.L. (3d) 159, 310 D.L.R. (4th) 726, 252 O.A.C. 267, [2009] O.J. No. 1814 (Ont. C.A.) — referred to Athey v. Leonati (1996), [1997] 1 W.W.R. 97, 140 D.L.R. (4th) 235, 81 B.C.A.C. 243, 132 W.A.C. 243, 203 N.R. 36, [1996] 3 S.C.R. 458, 31 Burnett v. Moir 237

C.C.L.T. (2d) 113, 1996 CarswellBC 2295, 1996 CarswellBC 2296, [1996] S.C.J. No. 102 (S.C.C.) — considered Attis v. Canada (Minister of Health) (2008), 59 C.P.C. (6th) 195, 300 D.L.R. (4th) 415, 2008 CarswellOnt 5661, 2008 ONCA 660, 254 O.A.C. 91, 93 O.R. (3d) 35, [2008] O.J. No. 3766 (Ont. C.A.) — referred to Beckstead v. Ottawa (City) (1997), 155 D.L.R. (4th) 382, (sub nom. Beckstead v. Ottawa (City) Chief of Police) 37 O.R. (3d) 62, 1997 CarswellOnt 4960, [1997] O.J. No. 5169 (Ont. C.A.) — referred to Clements (Litigation Guardian of) v. Clements (2010), 327 D.L.R. (4th) 1, 12 B.C.L.R. (5th) 310, (sub nom. Clements v. Clements) 505 W.A.C. 56, (sub nom. Clements v. Clements) 298 B.C.A.C. 56, 2010 CarswellBC 3477, 2010 BCCA 581, 79 C.C.L.T. (3d) 6, 4 M.V.R. (6th) 1, [2010] B.C.J. No. 2532 (B.C. C.A.) — considered Cooper v. Hobart (2001), [2002] 1 W.W.R. 221, 2001 CarswellBC 2502, 2001 CarswellBC 2503, 2001 SCC 79, 8 C.C.L.T. (3d) 26, 206 D.L.R. (4th) 193, 96 B.C.L.R. (3d) 36, (sub nom. Cooper v. Registrar of Mortgage Brokers (B.C.)) 277 N.R. 113, [2001] 3 S.C.R. 537, (sub nom. Cooper v. Registrar of Mortgage Brokers (B.C.)) 160 B.C.A.C. 268, (sub nom. Cooper v. Registrar of Mortgage Brokers (B.C.)) 261 W.A.C. 268, [2001] S.C.J. No. 76, REJB 2001-26862 (S.C.C.) — referred to Dorset Yacht Co. v. Home Office (1970), [1970] 1 Lloyd’s Rep. 453, [1970] A.C. 1004, [1970] 2 All E.R. 294, [1970] 2 W.L.R. 1140 (U.K. H.L.) — considered Edwards v. Law Society of Upper Canada (2001), 34 Admin. L.R. (3d) 38, 2001 CarswellOnt 3962, 2001 CarswellOnt 3963, 2001 SCC 80, 8 C.C.L.T. (3d) 153, 13 C.P.C. (5th) 35, 206 D.L.R. (4th) 211, 277 N.R. 145, [2001] 3 S.C.R. 562, (sub nom. Edwards v. Law Society of Upper Canada (No. 2)) 56 O.R. (3d) 456 (headnote only), 153 O.A.C. 388, [2001] S.C.J. No. 77, REJB 2001-26863 (S.C.C.) — referred to Eliopoulos v. Ontario (Minister of Health & Long Term Care) (2006), 35 C.P.C. (6th) 7, 2006 CarswellOnt 6777, 43 C.C.L.T. (3d) 163, 82 O.R. (3d) 321, 217 O.A.C. 69, 276 D.L.R. (4th) 411, [2006] O.J. No. 4400 (Ont. C.A.) — referred to Hanke v. Resurfice Corp. (2007), 69 Alta. L.R. (4th) 1, 404 A.R. 333, 394 W.A.C. 333, 2007 CarswellAlta 130, 2007 CarswellAlta 131, 2007 SCC 7, [2007] 4 W.W.R. 1, 45 C.C.L.T. (3d) 1, 278 D.L.R. (4th) 643, [2007] R.R.A. 1, 357 N.R. 175, [2007] 1 S.C.R. 333, [2007] S.C.J. No. 7 (S.C.C.) — followed Hill v. Chief Constable of West Yorkshire (1988), [1988] 2 W.L.R. 1049, [1989] A.C. 53, [1988] 2 All E.R. 238 (U.K. H.L.) — considered Hill v. Hamilton-Wentworth (Regional Municipality) Police Services Board (2005), 202 O.A.C. 310, 36 C.C.L.T. (3d) 105, 2005 CarswellOnt 4589, 76 238 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

O.R. (3d) 481, 33 C.R. (6th) 269, 259 D.L.R. (4th) 676, [2005] O.J. No. 4045 (Ont. C.A.) — referred to Hill v. Hamilton-Wentworth (Regional Municipality) Police Services Board (2007), 2007 SCC 41, 2007 CarswellOnt 6265, 2007 CarswellOnt 6266, 87 O.R. (3d) 397 (note), 40 M.P.L.R. (4th) 1, 64 Admin. L.R. (4th) 163, 50 C.C.L.T. (3d) 1, 368 N.R. 1, 285 D.L.R. (4th) 620, [2007] 3 S.C.R. 129, [2007] R.R.A. 817, 50 C.R. (6th) 279, 230 O.A.C. 253, [2007] S.C.J. No. 41 (S.C.C.) — followed Jane Doe v. Metropolitan Toronto (Municipality) Commissioners of Police (1989), [1989] O.J. No. 471, (sub nom. Doe v. Metropolitan Toronto (Municipality) Commissioners of Police) 58 D.L.R. (4th) 396, 39 O.R. (3d) 47, (sub nom. Jane Doe v. Police Bd. of Commissioners (Metropolitan To- ronto)) 48 C.C.L.T. 105, 1989 CarswellOnt 684 (Ont. H.C.) — referred to Jane Doe v. Metropolitan Toronto (Municipality) Commissioners of Police (1990), (sub nom. Doe v. Metropolitan Toronto (Municipality) Commissioners of Police) 1 C.R.R. (2d) 211, (sub nom. Doe v. Metropolitan Toronto (Municipality) Commissioners of Police) 72 D.L.R. (4th) 580, 1990 CarswellOnt 442, (sub nom. Jane Doe v. Board of Police Commissioners of Metropolitan Toronto) 40 O.A.C. 161, 5 C.C.L.T. (2d) 77, (sub nom. Doe v. Metropolitan Toronto (Municipality) Commissioners of Police) 74 O.R. (2d) 225, 50 C.P.C. (2d) 92, [1990] O.J. No. 1584 (Ont. Div. Ct.) — referred to Jane Doe v. Metropolitan Toronto (Municipality) Commissioners of Police (1998), 160 D.L.R. (4th) 697, (sub nom. Doe v. Metropolitan Toronto (Municipality) Commissioners of Police) 39 O.R. (3d) 487, 43 C.C.L.T. (2d) 123, 126 C.C.C. (3d) 12, 1998 CarswellOnt 3144, [1998] O.J. No. 2681 (Ont. Gen. Div.) — considered Mooney v. British Columbia (Attorney General) (2004), [2004] 10 W.W.R. 286, 25 C.C.L.T. (3d) 234, 2004 BCCA 402, 2004 CarswellBC 1707, 31 B.C.L.R. (4th) 61, 202 B.C.A.C. 74, 331 W.A.C. 74, [2004] B.C.J. No. 1506 (B.C. C.A.) — considered N. (D.) v. Oak Bay (District) (2005), [2005] B.C.T.C. 1412, 261 D.L.R. (4th) 692, 2005 BCSC 1412, 2005 CarswellBC 2469, [2005] B.C.J. No. 2268 (B.C. S.C.) — considered Norris v. Gatien (2001), 2001 CarswellOnt 4006, 151 O.A.C. 394, 8 C.C.L.T. (3d) 220, 56 O.R. (3d) 441, 41 M.V.R. (4th) 260, [2001] O.J. No. 4415 (Ont. C.A.) — considered Odhavji Estate v. Woodhouse (2003), 19 C.C.L.T. (3d) 163, [2004] R.R.A. 1, 233 D.L.R. (4th) 193, 11 Admin. L.R. (4th) 45, [2003] 3 S.C.R. 263, 70 O.R. (3d) 253 (note), 2003 SCC 69, 2003 CarswellOnt 4851, 2003 CarswellOnt 4852, 312 N.R. 305, 180 O.A.C. 201, [2003] S.C.J. No. 74 (S.C.C.) — considered Project 360 Investments Ltd. v. Toronto Police Services Board (2009), 2009 CarswellOnt 3418, [2009] O.J. No. 2473 (Ont. S.C.J.) — considered Burnett v. Moir A.F. Cullen J. 239

Schacht v. R. (1974), 3 N.R. 453, (sub nom. O’Rourke v. Schacht) 55 D.L.R. (3d) 96, 1974 CarswellOnt 251, 1974 CarswellOnt 251F, [1976] 1 S.C.R. 53 (S.C.C.) — considered Small v. Stec (2009), 186 C.R.R. (2d) 363, 2009 CarswellOnt 511 (Ont. S.C.J.) — considered Traversy v. Smith (2007), 52 C.C.L.T. (3d) 109, 2007 CarswellOnt 7452 (Ont. S.C.J.) — considered Wellington v. Ontario (2011), 2011 CarswellOnt 2334, 2011 ONCA 274, 81 C.C.L.T. (3d) 230, 333 D.L.R. (4th) 236, 105 O.R. (3d) 81, 277 O.A.C. 318 (Ont. C.A.) — considered Williams v. Canada (Attorney General) (2009), 2009 CarswellOnt 2378, 95 O.R. (3d) 401, 57 M.P.L.R. (4th) 164, 2009 ONCA 378, 66 C.C.L.T. (3d) 193, 249 O.A.C. 150, 70 C.P.C. (6th) 213, 310 D.L.R. (4th) 710, [2009] O.J. No. 1819 (Ont. C.A.) — referred to Statutes considered: Liquor Control and Licensing Act, R.S.B.C. 1996, c. 267 Generally — referred to Police Act, R.S.B.C. 1996, c. 367 s. 34 — considered Regulations considered: Liquor Control and Licensing Act, R.S.B.C. 1996, c. 267 Liquor Control and Licensing Regulation, B.C. Reg. 244/2002 Generally — referred to

ACTION by plaintiff seeking damages in negligence from both defendant municipality and police department relating to assault suffered by plaintiff at nightclub.

J. Vilvang, Q.C., T.G. Lewis, for Plaintiff J.M. Poole, J.A. Dowler, M. Chorlton, for Defendants, Corporation of Delta, Paul Uppal, Lorne Pike, Jim Cessford

A.F. Cullen J.: A. Introduction i. The Action 1 This case raises a number of legal and factual issues, but the foremost question is, in what circumstances will police officers be subject to a private law duty of care for acts or omissions committed in the exercise of their public responsibility to preserve the peace and prevent the commission of offences? 240 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

2 The plaintiff, Garrett Burnett, was brutally assaulted early in the morning of December 26, 2006 while he was a patron of Cheers Night- club, located in the North Delta Inn (“NDI”), in the Municipality of Delta. The assault occurred as Mr. Burnett and other patrons were being pushed from the pub out through a door into an adjacent sidewalk and roadway. The assault was captured on video-tape from a surveillance camera which showed an assailant striking the plaintiff on the head with a bar stool taken from the premises after he apparently stumbled and fell to the ground as he and the others were being ejected. The video recording is not sufficiently clear to allow an identification of the assailant and the subsequent police investigation did not determine who he was. 3 As a result of the assault, the plaintiff has suffered a moderately severe traumatic brain injury which has had a significant impact on the course of his life over the past four and a half years and which will significantly compromise his future. 4 The plaintiff brought a law suit against the owner of the Cheers pub, Three Jay Holdings Ltd., doing business as the North Delta Inn and the Cheers pub, and John Doe 1 and John Doe 2 under action number S073004. Mr. Burnett subsequently commenced a second lawsuit against the owners, the management and certain employees of Cheers as well as against Chief Constable Jim Cessford (“Cessford”), Inspector Lorne Pike (“Pike”), Constable Paul Uppal (“Uppal”) of the Delta Police Depart- ment (“DPD”), the Corporation of Delta, John Does 1 to 10 and employees 1 - 10. For ease of reference, where appropriate I shall refer to the members of the DPD and the Corporation of Delta as the “Delta Defend- ants”. The Delta Defendants filed a Third Party Notice against Three Jay Holdings. The two actions were ordered to be tried together, but before the commencement of the trial, the plaintiff settled his claim against the owners, the management and the various employees of the NDI and Cheers pub and filed a Notice of Discontinuance against those parties. 5 In the result, this action proceeded only as against the Delta Defend- ants, alleging liability in negligence. The Delta Defendants do not dispute that the plaintiff has suffered significant loss and damage, but they take the primary position that the plaintiff has not established one or more of the elements essential to affixing them with liability in negligence. 6 The defendants’ alternative position is that the plaintiff’s own conduct contributed significantly to his injuries and he should be found contributorily negligent for the events leading to his loss. Burnett v. Moir A.F. Cullen J. 241

7 For the reasons that follow, I conclude that the defendants are not liable to the plaintiff for negligence.

ii. The Plaintiff 8 The plaintiff at the time of trial was 35 years old. He grew up in the lower mainland area of British Columbia, with his mother, Vicci Burnett, his father, Bob Burnett, and his younger sister Andrea Burnett. He was married for a relatively short time, but divorced in 2004. 9 His sister, Andrea, presently lives with her fianc´e, Justin Lieberich. Mr. Burnett’s parents and sister live in New Westminster where he presently resides as well. 10 Both Mr. Burnett Sr. and Mrs. Burnett retired in 2006 from long-term careers with their respective employers. 11 At the time of his injury, the plaintiff was in a relationship with a woman by the name of Carla Guttierez. He had recently returned to Van- couver, on December 23, 2006 and was living with her in her family’s home in North Vancouver. 12 Growing up, the plaintiff was very active in sports including hockey, soccer, lacrosse, baseball, swimming, rugby and football, but as he got into high school, he concentrated on hockey and lacrosse as his primary sports. 13 He first left home at age 18 in 1993 to play hockey in a number of small towns in the interior of British Columbia. The following year he went to Ontario and played with two junior teams in the Ontario Hockey League. His aspiration was to play in the National Hockey League. 14 After starting the next year with a junior team, he ended up playing in the professional or semi-professional leagues, including the new IHL, CHL and ECHL. He played in the ECHL from 1995/96 to 1997/98 when he graduated to the AHL, initially with the Philadelphia Phantoms. He played in the AHL until the end of the 2002/2003 season except for a number of stints in the IHL. 15 In 2003/04 he realized his aspirations by signing with the Anaheim Mighty Ducks of the NHL and playing 39 games with that team. He scored one goal, made two assists and served 184 minutes in penalties. His primary role throughout his professional career was as an enforcer; a fact which is reflected in his statistics, showing relatively high penalty minutes and low point totals throughout the years which he played. 242 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

16 In 2004/05 the NHL underwent a lockout. For part of that year, the plaintiff played with the Danbury Thrashers of the new IHL. The following year, 2005/06, he signed a contract with the Dallas Stars of the NHL, but was with Dallas only for the pre-season when he suffered a hand injury. He went on to play ten games with the Iowa Stars of the AHL and finished the season with Phoenix Road Runners of the ECHL, playing 29 games there. 17 The following year, he worked out in Vancouver with a number of NHL players including Trevor Linden, who testified as to his fitness and dedication, but he was unable to secure a contract with an NHL team or otherwise. Later on in 2006 he signed a contract with the St. Jean Sum- mum Chiefs in the LNAH, a league based in Quebec that features fighting as a prime attraction. 18 He was suspended from the league after playing four games with the Chiefs. The original suspension was for three games, but it was increased by the league to 36 games. The team did not appeal the suspension as Mr. Burnett’s injury, at the heart of this action, prevents him from playing any further hockey, makes such an appeal moot. 19 After his suspension which occurred on December 17, 2006, Mr. Bur- nett flew to Dallas where his vehicle was, and drove home to Vancouver from Dallas, arriving on December 23, 2006.

B. Liability - The Plaintiff’s Case i. The Pleadings 20 The plaintiff’s claim against the Delta Defendants rests on assertions of negligence both before and after the assault. It is not alleged that the Delta Defendants had any direct involvement in the specific events leading up to or comprising the attack on the plaintiff. Rather, it is alleged that the Delta Defendants, specifically, Cessford, Pike and Uppal, failed to properly identify Cheers as a nuisance to the public, a trap for the unwary, and to take pre-emptive steps to abate the danger it represented to potential patrons. 21 It is also alleged that in the wake of the attack upon the plaintiff, the Delta Defendants, specifically the defendants Uppal and Pike, were negligent in the way they responded, initially in seeking “first responder assistance for the plaintiff” and subsequently in investigating the assault, resulting in a failure to capture potential evidence of the identity of the Burnett v. Moir A.F. Cullen J. 243

assailant or assailants responsible for the attack, and in the loss of a surveillance video containing a depiction of the events at issue. 22 More specifically, the allegations are that the defendants Cessford, Pike and Uppal failed to warn of the dangers of entering Cheers; that the defendants Cessford, Pike, Uppal and the Corporation of Delta were negligent in allowing Cheers to continue to operate, thereby creating a nuisance to the public and a trap for the unwary; that the defendants Cess- ford, Uppal and Pike failed to report incidents of violence at Cheers to the Corporation of Delta for by-law enforcement purposes or to the Li- quor Control and Licensing Branch (“LCLB”) of the Government of British Columbia; that the defendant Uppal failed to call for First Re- sponder assistance for the plaintiff; that the defendant Uppal failed to conduct a full and thorough investigation of the witnesses to the assault, and failed to keep any adequate record of such an investigation; and that the defendant Pike lost or destroyed a hard drive and/or video surveillance video depicting the events at issue.

ii. The Evidence (1) Statistics of Service Calls to NDI 23 A significant part of the foundation for the plaintiff’s action against the Delta Defendants comes from a letter directed to the plaintiff’s mother, Ms. Vicci Burnett, dated April 2, 2007 from the DPD in response to her request for information concerning “police statistics pertaining to the business ‘Cheers’ located at 11920 - 70th Avenue, Delta, B.C.” 24 The letter set out information gathered from “police statistics from all [their] records and databases beginning from January 1st, 1998 to March 21st, 2007.” According to the letter, there were a total of 2,410 police service calls to Cheers during that period, 231 of which were for assaults, 9 of which were for uttering threats, 10 of which were obstructing a peace officer, 138 for suspicious person/vehicle occurrences, 200 of which were for creating a disturbance, 217 for “unspecified assistance” and 1,605 of which were for “other”. 25 In the period for which such statistics were available, from February 2005 forward, there were a total of 38 arrests and charges forwarded to Crown Counsel, including 7 in 2005, 28 in 2006, and 3 to the end of March 2007. The yearly number of service calls were set out as follows: • 1998 - 292 244 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

• 1999 - 267 • 2000 - 267 • 2001 - 242 • 2002 - 331 • 2003 - 274 • 2004 - 243 • 2005 - 199 • 2006 - 258 • 2007 - 37

(2) The Anselmo Letter 26 There were additional documents evidencing the history of occurrences at Cheers. Council for the Municipality of Delta received a letter dated October 24, 2006 concerning an assault at Cheers, and complaining about the police response (the “Anselmo Letter”). Council referred the letter to Cessford for a review and report “including a review of the history of complaints relating to this property” for a future executive meeting. On November 20, 2006, Cessford reported orally at a council meeting that the specific matters raised in the letter had been dealt with and resolved to the satisfaction of the writer and no further action was required. According to the Minutes, he advised council that 392 complaints over the past 22 months had been registered, not all attributable to management of the bar and the management of the bar had cooperated with the department through the installation of security cameras, improved lighting and sound attenuation. 27 Council moved to have “staff report back regarding the specific nature of the police complaints related to the activities at the NDI and [the] potential success of show cause hearing.” The report from staff was scheduled to be given at a meeting on December 18, 2006, but that meeting was cancelled by council.

(3) The Liquor Inspector 28 The plaintiff called Kane Scott, an inspector with the LCLB since 1998. His area of responsibility includes White Rock, Delta and New Westminster. He swore an affidavit dated November 26, 2009 to which a number of documents were exhibited. The documents were admitted as authentic by the defendants. Mr. Scott’s evidence was that Cheers pub was part of the NDI which had several different liquor licenses, including Burnett v. Moir A.F. Cullen J. 245

two liquor primary licenses for Cheers, another liquor primary license for a separate premises called “All Stars”, one food primary license and one license for a cold beer and wine store. 29 Mr. Scott conducted random inspections of the liquor licensed premises in his jurisdiction, primarily to inspect for over-crowding, intoxication and service to minors. He detailed the means of ensuring compliance, including discussions, correspondence and issuance of contravention notices which could lead to enforcement actions. He identified a schedule of penalties applicable to various contraventions including license suspensions and financial penalties for “riotous conduct”. He is the person responsible for initiating procedures against offending premises and would get the necessary information from his inspections, from complaints from members of the pubic, from information from other agencies, or information from police through the issuance of licensed premises checks (“LPCs”). The LPCs were issued on pre-printed forms provided to the police, copies of which were to be sent to the LCLB. He identified several issued LPCs and accompanying police reports issued in October of 1999 and September of 2001 relating to events at Cheers, indicating that the matters at issue were resolved without enforcement actions being taken. 30 In May of 2005, Mr. Scott received a report of “riotous conduct” at Cheers, but decided not to pursue further action. 31 In August 2005 in an inspection visit, he found evidence of minors being served at Cheers and of a fight which events were resolved by a monetary penalty being imposed after an enforcement action was taken. His last visit to the bar before the assault on the plaintiff was on Novem- ber 25th, 2006. On that occasion he prepared a Compliance and Enforce- ment Contravention Notice relating to service of a minor. 32 Mr. Scott was not aware of the number or nature of service calls to Cheers between 1998 and the end of March 2007 as set out in the summary sent to Ms. Burnett. He was only advised of the assault upon the plaintiff through media reports, but he testified there was no expectation that the police would advise the LCLB one way or the other of incidents related to premises. He had meetings with Cheers management about matters subject to regulation by the LCLB. Mr. Scott made numerous visits to Cheers where no enforcement action was taken as a result. He noted that Cheers had two separate areas, each subject to a separate liquor licence. His jurisdiction did not extend outside of the licensed bar areas or into the parking lot, and so he would not need to know what 246 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

went on in the parking lot unless the police thought there was something he needed to know. The use of LPCs was discretionary by the police and that was only one of several ways for Mr. Scott and other liquor inspectors to determine what was going on at bars within their jurisdiction. He noted Cheers had staff at the front door, did “pat downs” for patrons, had security staff monitoring the conduct of patrons, used head sets to communicate, and wore identifiable clothing. The Cheers approach to patron control was consistent with other similar bars. 33 Mr. Scott conducted approximately 32 inspections in all over the years from 1998 to 2006. He noted that altercations including pushing and shoving were occurrences at every bar and what occurred at Cheers was not unique to Cheers. He was aware bar staff would call the police when necessary and cooperate with the police when they attended. Those circumstances would factor into whether an enforcement action would be taken or not. If matters went to a hearing, the penalty he recommended would not always be imposed. In the case of serving the minor in 2005 he recommended a two day suspension, but the adjudicator imposed a $3,000 fine instead. 34 The more contraventions by a premise, the higher the penalty and serial contraventions could ultimately lead to closure. He was aware of other bars where that had happened but it was a last resort and there were many other enforcement steps to be taken before that ultimate one. 35 Mr. Scott had imposed a 24-hour suspension on one of the other premises at the NDI - All Stars - but not at Cheers. 36 He was never aware of any other occasion at Cheers where there was an assault as extreme as that on Mr. Burnett. He noted that the service calls to the NDI encompassed all the areas of the complex, not just Cheers. It would encompass the NDI, the cold beer and wine store, All Stars, and the Cheers pub. 37 He agreed that if fights began in the bar and spilled out onto the street or parking lot, that would be of interest to him and he would have the authority to deal with it and could investigate with a view to possible enforcement action. 38 Mr. Scott would not expect an LPC for each “little incident” at NDI - it was not something he could follow up on. Burnett v. Moir A.F. Cullen J. 247

(4) The Licensed Premises Agreement 39 On July 2, 2002, Cheers entered into a Licensed Premises Agreement through its owners with the Corporation of Delta. The agreement provided in part, as follows: 3. The Owners undertake to work with Delta Police Department to reduce calls for Police attendance related to the operation of the North Delta Inn and to attend meetings upon request by Delta Police Department; 4. The following measures will be implemented by the Owners: ... 3. There will be complete support for, and cooperation with, the Delta Police Department Licenced Premises Walk-Throughs; 4. When incidents occur which require police involvement, all North Delta Inn staff will cooperate with police members and will not im- pede or obstruct the investigation in any way; ... 7. Security cameras, linked to video recording equipment, will be maintained on the interior as well as on the outside of the building on 70th Avenue, at the entrance to Cheers, at the south exits to Cheers and in the parking lot east of the building. Any videos that are so required will be surrendered immediately to the Delta Police Depart- ment for investigative or evidentiary purposes; ... 10. The Owners will employ security staff, who will be dressed in a clearly identifiable manner, to patrol the premises and to monitor the activity of the patrons immediately outside the North Delta Inn, particularly at closing time to ensure orderly dispersal. 40 The agreement also provided as follows: THE Corporation of Delta and The Owners recognize that participation in this Agreement is voluntary. Further, there is recognition that the Liquor Control and Licencing Act, the Policies of the Liquor Control and Licencing Board, City Bylaws, and other Statutes and Legislation shall at all times take precedence over this Agreement. The Owners have voluntarily entered into the Agreement. The Cor- poration of Delta would like to commend the North Delta Inn, its owners and principals, for their recognition of their civic responsibil- ities and their commitment to fostering a good working relationship with The Corporation of Delta and its neighbours. 248 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

The Owners recognize that the Business Licence shall be subject to cancellation, after consideration by Council, if there has been violation of any conditions of this agreement or the proprietor has failed to maintain law and order on the premises, as stipulated in the Agreement. The Corporation of Delta is committed to the vitality of the 120th Street commercial core and welcomes the owners of the North Delta Inn as active partners in this process. 41 On an earlier occasion, on March 5, 1996, the regional manager of the LCLB wrote to Cessford. The letter concerned the then named “Delta Scottsdale Inn Hotel - Liquor Specials at Cheers Pub - complaint of Councillor Krista Engelland”. The letter referred to a meeting between DPD members and branch members and read in part, as follows: Our meeting explored the complaint of Councillor Engelland regarding constant requirement of police presence at the Delta Scottsdale to deal with drinking and fighting, particularly on cheap drink nights. We were advised by Insp. Rankin at that time that most problems occurred in the parking lot outside the licensed premises. Insp. Rankin also advised that Delta Police no longer write Licensed Pre- mise Check Slips (LPC’s) except when a violation of the Liquor Act or it’s Regulations are observed. This office has received no LPC’s for any licensed premises from your Department for about 3 years. Can we assume that no LPC’s were written or that perhaps you no longer forward LPC’s to this office for enforcement action? In light of the Attorney General’s indication that there will be increased monitoring of the licensed establishment to ensure compliance with the law, we are requesting an updated report on the current situation. In the interim, I wish to re-iterate that our Liquor Inspectors are prepared to work closely with your Department to monitor compliance in all licensed establishments in Delta Municipality including Scotts- dale Inn Hotel.

(5) Discovery of the Delta Defendants 42 The plaintiff also read in and relied on portions of Cessford’s examination for discovery in support of the contention that his conduct was negligent. Burnett v. Moir A.F. Cullen J. 249

43 Cessford has been the chief of the DPD since February of 1995 and as such, was in charge of “structuring the intentions and directions of the police force” and agreed it is better to be “proactive rather than reactive”. 44 Chief Cessford noted in his discovery that the total number of service calls for DPD in 2006 was 30,341 and the total number of service calls to Cheers for the same period was 258. 45 He agreed that after the October 24, 2006 letter of complaint concerning the assault at Cheers, municipality staff were asked to prepare a report on the possibility of a show cause for Cheers, arising out of the number of police service calls to that location. He said that initiative would come not from the police, but from the municipality’s staff through the municipality’s legal department. 46 Cessford was aware of the requirement for pubs like Cheers to be licensed by the LCLB to be operated as a liquor selling establishment. There is no policy that a Delta police officer must report “each and every response to a service call to a liquor selling establishment, but they were instructed to advise the LCLB if they have problems and there are issues occurring at a particular bar.” 47 He noted that the DPD put out monthly bulletins on its website, in part to alert the public to areas of criminal activity. The DPD did not provide any statistics of service calls to Cheers to LCLB representatives. 48 There is no record of any response to the LCLB general manager’s letter of March 5, 1996. He only recalled a meeting between his staff and management of Cheers to discuss assaults on one occasion when a shooting took place at a hotdog stand in the parking lot. 49 There was no meeting with the owners and management of Cheers over the assault on the plaintiff and no report was ever filed with Crown Counsel seeking approval of charges. 50 The only licensed premises checks which were kept by the DPD in relation to Cheers were those contained in the documents provided to the plaintiff by the DPD marked as Exhibit 9 at the Examination for Discov- ery of Cessford. 51 The plaintiff also relied on read-ins of Uppal’s Examination for Dis- covery. Uppal acknowledged knowing some of the management at Cheers. He had never been asked to compile or record his attendance at Cheers prior to the assault on the plaintiff. He had never completed any LPCs in respect of Cheers or otherwise. 250 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

52 Portions of Pike’s Examination for Discovery were also read in by the plaintiff. Pike had been with the DPD since 1986. He testified he could not clarify the bar as “rough” in the sense of a likelihood on a weekly basis of an assault taking place, but he would not “take his wife there for a drink”. Pike testified there were no statistics kept on Cheers by the DPD and he was not aware of any warnings, suspensions, or citations issued to Cheers. He believed the compilation of LPCs was part of DPD’s officers’ duties to report to the LCLB to keep it informed of occurrences at licensed premises. He did not believe any LPCs were written with respect to the assault on the plaintiff.

(6) The Evidence of the Plaintiff 53 In his evidence, Mr. Burnett was unable to cast much light on the specific events leading up to and comprising the assault on him because of the nature and extent of his head injury and accompanying memory loss. 54 He recalled being at his sister’s apartment in New Westminster on Christmas morning. The previous evening (Christmas Eve) he had been with his girlfriend and her family in North Vancouver. He was at his sister’s with his girlfriend, Carla, his sister, her fianc´e Justin Lieberich, and for a period, his parents. He and Carla then returned to her parents’ place. The plaintiff made a number of telephone calls and ended up talking to Greg Allan, a friend or acquaintance from Vancouver. He arranged to meet with Greg later for dinner downtown. He did not recall if he had anything to drink. They then went looking for some place where people were “up-beat and celebrating”. They went to several places and then Greg suggested they go to Cheers in Delta. He did not recall going to Cheers or how he got there. The surveillance video showed him, Greg Allan and Greg Allan’s girlfriend Sharon Catanghal, but he did not inde- pendently remember whether Sharon was with them or not. 55 Mr. Burnett’s next memory was being in the hospital, with his parents, sister and his sister’s fianc´e present. 56 Mr. Burnett testified he was not the sort of person to get involved in fights off the ice and had not before. He would tend to try and calm things down. Mr. Burnett testified he barely drank alcohol because of his training regime and need to eat properly. Even in the off-season he would train hard. He denied ever using anabolic steroids, but said he used supplements that would parallel the kind of benefit he would get Burnett v. Moir A.F. Cullen J. 251

from steroids, but “without breaking the law”. He would get the supplements from supplement stores in the U.S. and Canada. 57 Mr. Burnett saw a Dr. Lee in California, where he was prescribed several medications including testosterone, but testified it had to do with his own sexual heath, not to counteract the effects of steroids. He never failed any tests for the use of steroids or other drugs during his hockey career. Mr. Burnett acknowledged having used cocaine before. He testified it was “very minimally”. He “never actually purchased it” himself and used it “only a handful of times” if something was going on or at a gathering and he was “pressured into it”. He used it in the off-season at parties. Mr. Burnett did not believe he used cocaine in the summer of 2006 while he was training in Vancouver and playing lacrosse, or in the fall before he went to play in Quebec, or while playing in Quebec. He did not use any cocaine after leaving Quebec and returning to Vancouver on December 23, 2006. 58 It was pointed out to Mr. Burnett that some blood test results in Van- couver taken after the assault showed an amount of cocaine in his blood. He said he did not remember taking any cocaine, but if there was some in his blood, he “could see a possibility someone had some and [he] did a bit.” 59 In cross-examination, Mr. Burnett was probed about the use of “en- hancements” for his hockey career. Although he maintained that he only used supplements that mimic the effects of anabolic steroids and his use of testosterone and other drugs had nothing to do with off-setting the effects of actual steroid use, I am satisfied on all the evidence including his examination for discovery on the balance of probabilities that the plaintiff did indeed use steroids to enhance his performance as a professional athlete. Indeed, in argument, his counsel fairly conceded that likelihood and attributed the plaintiff’s reticence to admit it to the effect of his head injury and accompanying diminished judgment. 60 The plaintiff acknowledged being in bars when fights or altercations broke out. He agreed one of the bars he went to both before and after his injury was the Roxy on Granville Street in downtown Vancouver. He was aware of altercations there and aware staff would sometimes eject would-be combatants. He had seen fights on the streets outside many bars. He made sure he was “not involved in that kind of stuff”. 61 Mr. Burnett had not lived in Delta since he was five years old, did not read the local papers, and had never read the DPD website before the assault upon him. 252 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

62 The plaintiff did not call Greg Allan as a witness. Mr. Burnett’s mother testified that attempts to locate him and his girlfriend Sharon Cat- anghal were unsuccessful.

C. Liability - The Defendant’s Evidence 63 At the close of the plaintiff’s case, the defendants brought a no evidence motion seeking to have the action dismissed on the basis that there was no evidence to support at least one essential element relating to each cause of action that makes up the plaintiff’s case. I dismissed the application holding that there was some evidence to consider in respect of each of the essential elements of negligence which was in substance, the basis of the plaintiff’s claim against the Delta Defendants. As a result, the defendants called a body of evidence that addressed both the issue of liability, and, in the alternative, damages. 64 It was the defendant’s ultimate submission that taken as a whole, the evidence fails to establish, to the required degree, the essential elements of negligence. In particular, the defendants in argument focussed on the alleged deficiencies in the evidence cogent to establishing a duty of care, and also on the absence of sufficient evidence relevant to the issue of a standard of care or that the acts or omissions of the defendants amounted to a breach of such a standard.

i. Expert Report of Dr. John McNeill 65 The defendants rely on the report of Dr. John McNeill, a Professor and Dean Emeritus, in the Faculty of Pharmacological Sciences at the University of British Columbia to provide expert opinion evidence on two questions that potentially relate to the issue of liability: 1. what effect, if any, would the alcohol and cocaine present in Mr. Burnett’s system likely have had on his physical condition, mental state and behaviour on the evening and early morning of Decem- ber 25/26, 2006? 2. assuming Mr. Burnett used steroids in 1998 - 2004 and in Novem- ber and December 2006, what effect, if any, would this use have had on his physical condition, mental state and behaviour on the evening and early morning of December 25/26, 2006. 66 The assumptions on which Dr. McNeill based his opinion or set out in his report as follows: For the purpose of providing my opinion, I have been asked to assume the following: Burnett v. Moir A.F. Cullen J. 253

1. Garrett Burnett was born on September 23, 1975. 2. Garrett Burnett began using steroids after a major knee injury sustained during the 1998/1999 season of the American Hockey League. Following that, he continued to use a variety of nutritional supplements and steroids, including anabolic steroids that he injected, to assist with his training for professional hockey throughout most of his career. He continued to use steroids in order to remain competitive with other players, improve his endurance and to assist him in bouncing back from his injury. 3. Between the end of summer 2004 and mid-November 2006, Garrett Burnett continued to take caffeine and ephedrine but did not use anabolic steroids because the NHL began drug testing and he did not want to be caught using illegal supplements. 4. As of mid-November 2006, Garrett Burnett used oil-based steroids to assist with his training in preparation for playing in the Ligue Nord-Americaine de Hockey (LNAH), a semi-professional league which does not test players for steroids. 5. In early December 2006, Burnett began playing professional hockey for the St. Jean Chiefs of the Ligue Nord-Americaine de Hockey (LNAH). 6. On the night of the incident, December 25, 2006, Garrett Bur- nett was approximately 6'3" tall and weighed approximately 240 pounds. 7. On the night of the incident, Burnett had consumed a quantity of alcohol and a quantity of cocaine. 8. From 2004 to 2006, Garrett Burnett was prescribed medications and/or supplements to enhance his testosterone levels. 9. Following the incident, Garrett Burnett continued to take medications and/or supplements to enhance his testosterone. 67 Dr. McNeill noted, that in his review of Mr. Burnett’s medical records “there are numerous references to a drug and alcohol problem”. He also noted that while Mr. Burnett was at G.F. Strong Rehabilitation Centre, both as an in-patient and out-patient following the assault, he was seen by a drug and alcohol counsellor. 68 So far as the alcohol present in Mr. Burnett’s system was concerned, Dr. McNeill reasoned that if at the time of testing he had 123 mg per 100 ml of blood (what the plasma alcohol reading of 29.8 mm ultimately amounts to) he would have had between .133 to .153 mg per 100 ml of 254 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

blood at the time of the assault. He noted that at that level, “individuals are impaired and are more likely to engage in arguments and physical confrontations.” 69 Insofar as the presence of cocaine in Mr. Burnett’s system is concerned, Dr. McNeill noted that “it is a stimulant drug”. It “can produce arousal, alertness, wakefulness and euphoria with an increased sense of energy, alertness and hyper-vigilance.” Dr. McNeill cited an article that stated “that both cocaine and alcohol increase violence and decrease impulse control” and when given together, “their effects are at least addi- tive”. Dr. McNeill noted: In the case of Mr. Burnett, there is the possibility of the drugs acting together in this manner. However, we do not know the quantity of cocaine taken by Mr. Burnett or when it was taken. 70 In terms of the plaintiff’s steroid use and its effect upon him, Dr. Mc- Neill noted that “anabolic steroids are drugs that mimic the effects of the male sex hormone testosterone”. He referenced a review which states that “aggression and violence, mania psychosis and suicide have been associated with anabolic steroid abuse”. He concluded that “steroids taken in November and December of 2006 could certainly have influenced Mr. Burnett’s mental state and affected his behaviour on Decem- ber 26, 2006 at the time of the incident.” He noted “anabolic steroid use from 1998 to 2004 would most likely not affect his mental state in 2006.” 71 He noted, based on his review of Mr. Burnett’s medical records, that Mr. Burnett was receiving treatments for adverse effects of steroid use in 2008 and 2009. The effects noted by Dr. Dahl, an endocrinologist who was treating Mr. Burnett in 2008 and 2009 for the effects of steroid use, according to Dr. McNeill “indicate either a long term adverse effect of anabolic steroids or the continued use of those drugs”. He noted “long- term effects on the personality including hypomania aggression and depression have been found in some individuals”. 72 Dr. McNeill concluded: In summary, Mr. Burnett had consumed three types of drugs, all of which are known to increase aggressiveness prior to the incident of December 26, 2006. The amount of alcohol consumed was calculated and found to be in a range that produces decreased inhibitions and increased aggression. The amount of anabolic steroids consumed was significant since side effects of their use were noted. The amount of cocaine consumed is not known and it may or may not have contributed to Mr. Burnett’s behaviour on that date. Burnett v. Moir A.F. Cullen J. 255

ii. The Evidence of Dr. James Kennedy 73 Dr. James Kennedy is an expert in internal medicine and clinical pharmacology and toxicology and was able to give opinion evidence on the effects of the use of alcohol, cocaine and anabolic steroids. He was retained by the Delta Defendants to proffer an opinion on the effects of the use of those substances on the plaintiff on the night in question. 74 By an agreed statement of facts, it was established that analysis of a blood sample and a urine sample from the plaintiff after the assault at 2:40 a.m. on December 26, 2006 revealed the presence of alcohol and cocaine. Dr. Kennedy estimated Mr. Burnett’s blood alcohol reading at the time of the assault to be approximately .139 - .146 mg/100 ml of blood. The urine test for cocaine was not quantitative but the positive test indicated a quantity of at least 300 nanograms of cocaine per millilitre. Dr. Kennedy noted that with the presence of alcohol, cocaine has a life of two to two and a half hours, which allowed him to conclude at the time of the assault at about 1:40 a.m., Mr. Burnett was under the influence of cocaine. Dr. Kennedy testified cocaine increases a person’s level of energy, self-confidence, and gregariousness. It can make a person feel self- confident, powerful and sometimes stimulate aggression. It produces adrenaline which is part of the “flight or fight” mechanism. In circumstances of a confrontation with others, a person having ingested cocaine is more likely to be aggressive and more violent than if he had not ingested it. Taking alcohol with cocaine will prolong the effects of the cocaine. Alcohol is a disinhibitor and will break down day to day control mechanisms. The combination of alcohol and cocaine would have an ad- ditive effect and would render a subject more likely to be aggressive and prone to violence. 75 As far as steroids are concerned, the effect is very variable, and dependent on amounts in the time frame over which it was used. It can lead to feelings of power, inner strength and lack of judgment depending on the circumstances. It can lead to impairment of impulse control. 76 If a person had been taking steroids within the last two months, used cocaine within the last two hours and had alcohol measurements of .37 to .146, he would “be asking for trouble”. The combination of drugs would amplify violent or combative tendencies. 77 Dr. Kennedy reviewed the clinical records of Dr. Lester Lee who prescribed various medications to the plaintiff in California. In his report of 256 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

January 10, 2011, Dr. Kennedy detailed his review of Dr. Lee’s notes as follows: Opinion: Anabolic steroid use has many and varied long term toxic effects. The likelihood of both short and long term toxic effects is greatly increased with the use of multiple steroid drugs at the same time in various patterns. A common pattern is 1 to 3 times weekly injections, in 4 to 12 week cycles. Dr. Lester Lee’s notes from Janu- ary 2004 to June 2006 describe such a coincident multiplicity of steroid drug use by Mr. Burnett over this time. He already has toxic effects of previous anabolic steroid use when he sees Dr. Lee in January, 2004: hypogonadism (long term effect), low HDL choles- terol (increased cardiac risk), and mild liver damage (short term effect). Over this time, Dr. Lee further prescribes both oil-based and injectible steroids, and other oral agents. These drugs include human Growth Hormone (GH) for muscle bulk and strength, human Chori- onic Gonadotropin (hCG) and Clomid to stimulate testosterone pro- duction, and Tamoxifen to block the effects of steroid-induced es- trogen (gynecomastia). He has this tender breast enlargement toxic effect of steroid use during the time that he saw Dr. Lee. Also during this time he had a thigh abscess, secondary to oil-based steroid injec- tion, another acute side effect. Dr. Lee also prescribed Zoloft, an anti depressant, implying that Dr. Lee has diagnosed a mood disorder. 78 Dr. Kennedy agreed with the proposition put to him in cross-examination that the circumstances in which a person consumes alcohol produced greater changes than the alcohol itself. He agreed that if the circumstances are happy and tranquil as opposed to threatening, that will have a significant influence on the effect of the alcohol, and that is the same with cocaine. He agreed it is the existing state of mind that is exaggerated. If the person affected by alcohol and cocaine went into a bar with fights going on, he might react in an exaggerated way. If confronted by violence, he would be more likely to react in an exaggerated way. He agreed that at the plaintiff’s level of alcohol ingestion, he would be moderately intoxicated. He also agreed that cocaine stays in the body for a longer period than it has a psychological effect for and there is nothing to permit him to say that the plaintiff was under the influence of cocaine at the time of the assault as the psychological effects of cocaine will disap- pear after one and a half to two hours. 79 As far as steroids are concerned, the psychological effects vary. As with alcohol, the effect of steroids could vary in reaction to the circumstances and rage has to be triggered by some external event. Burnett v. Moir A.F. Cullen J. 257

iii. The Evidence of Jeremy Wocknitz 80 Jeremy Wocknitz was employed by Cheers as part of the security team for about two and a half years prior to the incident. He was one of the individual defendants in the settled action against Cheers. He was, at the relevant time, the head of security. He was responsible for scheduling security personnel, the overall supervision and reporting of security and of reporting to management. Decisions on how to deal with security issues in the bar were ultimately his. 81 The Cheers bar was a split level with two separate spaces. The total capacity was about 600 people. It was open Thursday to Saturday and on long weekends from 9:00 p.m. to 2:00 a.m. There was music and a dance floor and on special occasions the bar had live bands. The clientele was diverse, but mostly under 25. It was only suspected, not confirmed, that gang members attended but the wearing of gang colours was strictly prohibited. 82 The security staff were usually positioned two at the front door, two in the entrance past the coat check area, one in the smoking room, one at the washrooms, one at the rear exit and one on the stairs between the two levels. The job of security staff was to observe the behaviour of patrons and prevent anything from happening. 83 The security staff and management had two way radios with ear pieces. There were codes to identify the levels of response required for an incident or occurrence. The bar itself was broken down into eight sections. The objective was to calm people down or get them to leave if they remained too agitated to calm down. The term “Code Red” required an immediate response to an ongoing physical altercation. The term “Code Yellow” was used to identify an argument or potential problem. Code Yellows would happen three to five times a night. Code Red sometimes none, sometimes two. Police would be called if any injury occurred or the fighting carried on or broke out outside the bar. The management of Cheers would make the call and police would respond quickly, within two to three minutes. 84 Repeat offenders would be barred from the pub. If they offended a second time, they would be barred a week. If they offended a third time, they would be barred indefinitely. He had barred 12 - 13 people in the course of his time at Cheers. 85 Occasionally it would be necessary to call police to deal with those who were being refused entry to Cheers. 258 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

86 Police would make regular nightly checks and sometimes do walk- throughs of the bar and check the identification of the patrons. At closing time, police would make their presence known and would routinely patrol the parking lot, and monitor the park located across the street. The police presence both inside and outside the bar was supported by the management and staff. 87 Liquor inspectors would also come by for checks. Mr. Wocknitz estimated at least one time a month a liquor inspector would come and do a walk through the bar and conduct surveillance of anything considered necessary. 88 He was present on the evening that Mr. Burnett was assaulted and injured. The regular security staff were present. He was at the front door and heard a “Code Yellow” being called over the radio near the exit doors of the upper area of the bar. He closed the front doors and went to the area of the exit doors in the upper bar area. When he got there, he saw the door staff trying to intervene in what appeared to be an argument that had started. There appeared to be two groups: one Caucasian, the other East Indian. Nothing physical had happened at that point. He tried to intervene to calm the parties down. He spoke to Mr. Burnett and told him the night was over, it was not worth it, and they should go their separate ways. Another security staffer, Grant Hart, was already dealing with the East Indian group. He described Mr. Burnett as agitated and not responsive to his comments. There appeared to be a couple of other people with him. Mr. Burnett reached over to a nearby table and picked up and threw a highball glass at the other group. The two groups then con- verged and it became a physical confrontation. The immediate response of the security staff was to eject everyone involved. They could not separate, so they surrounded and pushed all the combatants out the door. The security staff were identifiable by their clothes. They wore black pants, white shirts and some had black arm bands. 89 As the staff pushed the group out the door, punches were being thrown between the two groups. The plaintiff stumbled and fell onto his hands and knees. This occurred about 30 seconds after he threw the glass. After that, Mr. Wocknitz saw the flash of a stool being swung outside but then lost sight of it while still removing other combatants. He did not see anyone actually being hit. He went outside briefly. 90 He had watched the video from the surveillance camera and identified Grant Hart as the first security person out through the doorway. He noted the plaintiff on the ground, injured, but did not see who had swung the Burnett v. Moir A.F. Cullen J. 259

stool. He originally told the police he thought it was someone named Ricky Guy who he saw outside in the area. He testified he just assumed it was Ricky Guy although he had not known him to be in any previous altercations. 91 He was aware that in 2005, there were two incidents at Cheers involving stabbings. That resulted in an increase in security at the front door and physical searches or “pat downs” at the coat check area. In 2006 there was another stabbing injury which led to having a female staff member to search women as well. He wasn’t aware of any incidents involving the use of bar stools as weapons and he regarded significant injuries as being uncommon. 92 In cross-examination, he noted after the incident he went to the front doors to let patrons out. He agreed he was at the front door when the plaintiff came in, but could recall no issues with the plaintiff and he did not see him again until the confrontation upstairs. The police arrived because of the assault and injury to the plaintiff. He assumed that much of the crowd had dispersed by the time the police arrived. 93 He estimated that there were around 12 - 20 involved in the two groups. Code Yellow meant it was an argument that could escalate. He attended, and his brother Tyler Wocknitz was present too. 94 When the police arrived, he did not speak with them or tell them what happened. He made a brief note, but did not talk to the police until two years later. When he did talk to the police, he told them he thought the plaintiff was in the bar with some bikers; although he did not arrive with bikers. 95 After the assault he and Sunny Jara, one of the bar managers, returned three bar stools from outside to the inside of the bar. He said he did not approach the police because he was taking care of the premises which still had many patrons in it. He denied his failure to talk to police was because of outstanding warrants for his arrest at the time. He agreed he was in custody when the police finally approached him for a statement in December 2008. He was aware they were on the scene, but never approached them, despite what he saw and believed to have happened. 96 There was a meeting of the staff afterward to discuss the incident, but he could not recall speaking to Grant Hart about what he saw. He viewed some of the surveillance video and identified his brother as having ejected a patron at about 1:32 a.m., seven or eight minutes before the assault. 260 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

97 He was then shown a segment of the video, apparently depicting another incident after the assault but could not recall it. He could not recall picking up the stool he brought inside, but he recalled Sunny Jara taking two stools inside. 98 He was cross-examined on his examination for discovery at question number 222 where he testified as follows: Q And you saw someone that you knew to be Ricky Guy with a stool? A Yes. 99 He was asked if the answer was true, and he said he never actually saw the stool connect, but that’s who he believed hit the plaintiff. The following questions and answers were put to him: Q Do you remember telling Mr. - Constable West that you saw Mr. Guy hit Mr. Burnett with a stool? A I remember the conversation. Q And you remember telling him what I just read to you, don’t you? A No. Q You went on to tell Constable West that then the police were called, and they showed up. And then you say: They showed up and started dispersing the fight. A little further down you say: No one questioned us. We were told to go back to our job and that was the end of that. Now, on the night of - the early morning hours of the 26th after this incident did you talk to any police officers at all about this incident? A We explained the incident. We didn’t give a formal statement. Q Well, when you say “we”, did you talk to a police officer? A Yes. Q Did you explain to the police officer what had happened? A Yes. Q You said to Constable West, “No one questioned us.”” A We didn’t give a formal statement, no. Q That’s what you meant when you say that? A Yes. Burnett v. Moir A.F. Cullen J. 261

100 He testified he couldn’t recall if he had a conversation with the police at the scene. 101 He testified he believed he saw the glint of the stool when it was in Ricky Guy’s hands, but “never saw it 100% all the way through”. 102 He was also cross-examined on a statement he gave to Constable Al West (“West”) of the DPD on December 16, 2008. There he asserted the plaintiff came in with a group of known bikers and he assumed that the plaintiff was a biker. He agreed that there could be one fight a week “some more, some less”. People sometimes got injured and required medical attention. He said ambulances were fairly regular occurrences “it would be no surprise to see ambulances one time a week in that complex”. He said one reason for ambulance attendance was over service, another was due to injury from fights. He agreed the liquor inspector would show up for inspections fairly early in the evening when the bar was not very full and relatively quiet. He did not agree there were three to four small fights and one big one every week. 103 In his statement to West, he told him the plaintiff was throwing “highball glasses”. He also said in the statement as follows: A We didn’t get involved. They said that it was - you know, it was kind of settled. The other gang was predominantly East Indian and Asian. The next thing we know someone threw a glass from one side of the bar to the other, striking - striking the East Indians. A fight broke out inside the bar. Mister - Mr. Burnett was basically the first one in there throwing glassware. He was throwing highball glasses at them, trying to get at them. 104 He said he could not recall saying that or what it meant. 105 In his statement to West, he also said as follows: A The fight was taking place in the rear corner doors. There was fighting back and forth. Basically, we pushed the entire fight outside - Q Okay. A - to, you know, get it out that way from the bar, away from the patrons. Several bartenders and porters and bussers came to help us with the fight because it was a fairly large fight. And when we got outside, Mr. Burnett fell and tripped over the curb. After he tripped over the curb - what’s his name? I think his name is Ricky. Ricky Guy. Q Ricky what, sorry? 262 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

A Ricky Guy. Q Guy? A I believe that’s the name. Q Okay. A Had a stool. Q Okay. A We went to get the stool from him. He brought the stool down on top of Mr. Burnett’s head. He went - Mr. Burnett went down. Collapsed. One of his friends that he was with which was, you know, a group white guys - Q Right. A - knocked out Mr. Guy. He was on the ground unconscious as well. At this point, we continued to deal with the rest of the fights because there was glassware. There was everything else. Basically two guys on the ground is less guys that we have to deal with. So the Delta PD was called. I don’t know who called them, but I know that they were called. They showed up. They showed up and started dispersing the fight. The only people that we let back into the bar were - were staff, and everybody else was kind of questioned at that point and that was it. No one questioned us. We were told to go back to our job and that was the end of that. 106 He testified he could not recall telling West that. He recalled a guy being hit and going down. He then referred to Greg Allan as the person he referred to as Guy being hit and going down. He agreed he did not tell the police when they arrived on the scene that Ricky Guy was involved in the assault. 107 He said there were some incidents that occurred at All Stars and about once a month he would be called to deal with a situation there. He agreed he didn’t tell the police at the time of the incidents that he saw Mr. Burnett being hit, that he took a stool from Ricky Guy; that he saw Mr. Burnett throw a glass or that Mr. Burnett was part of some biker gang. He agreed he did say all of those things when he was interviewed at the Surrey Pre-Trial on December 16, 2008. 108 He was not shown any video by the police. He disagreed that the call before the assault was a Code Red and he disagreed with the suggestion that he never said anything to Garrett Burnett. He denied the fight was on when he arrived and that he just pushed the protagonists outside. Burnett v. Moir A.F. Cullen J. 263

109 He testified he expected the police would investigate and take a statement from him while he still worked there, but that did not happen. He said he never saw anyone apart from the plaintiff actually throw a glass, but he did hear glasses breaking so he assumed others had as well.

iv. The Evidence of Tyler Wocknitz 110 Tyler Wocknitz is Jeremy Wocknitz’s brother. He was employed as security staff at Cheers the night the plaintiff was assaulted. He had worked at Cheers for less than a year at that time. He estimated that there were two to three Code Yellows a night and maybe one Code Red per weekend. The management and staff at Cheers were in favour of calling the police whenever necessary. 111 On the evening of the assault, a few minutes before it occurred, he removed a patron, but he couldn’t recall why, perhaps it was to do with fighting. 112 It was not unusual to see the police around outside the bar and they would come inside and do walk-throughs two to three times a month. Police vehicles were often in the parking lot around closing time. 113 He recalled the incident as starting with a Code Yellow. He went to the area and saw two large groups having a verbal confrontation. He said his brother Jeremy was talking to them, trying to defuse the situation but it escalated when the plaintiff threw a highball glass. It went into the crowd. He described Mr. Burnett as being in an aggressive mood and after the glass was thrown, people started throwing punches. Grant Hart and his brother got out of the middle of the confrontation; other staff members assisted them by surrounding the group and pushing it into the outside area. 114 He was one of the last people out and saw the plaintiff on the ground. There were people with bottles and stools. He took one stool away - he was not aware that Mr. Burnett had been hit with a stool. He assumed that the person holding the stool had struck Mr. Burnett, but did not see it. He described the person he took the stool from as an East Indian male. He said they waited for the crowd to disperse and then went inside. He did not recall where he left the stool. 115 He said people were grabbing stools as they were being pushed outside the door. Mr. Burnett was throwing punches as were others. He said nobody was looking for a way out of the confrontation. Mr. Burnett was not looking for a way out of the confrontation or playing a peace- maker’s role. The fight broke out when he threw a glass. 264 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

116 He first spoke to the police in February 2007. 117 He could not recall seeing his brother approach anyone and take a stool away. When he got outside, he saw a stool in someone’s hand and he took it so it could not be used as a weapon. It was not Ricky Guy he took the stool from and he never saw anyone hit Garrett Burnett with a stool. 118 When he was interviewed by West on February 1, 2007 he did not mention that his brother was present; he did not mention that a glass was thrown or how the fight started. He agreed he said, and it was true, that “there was usually a big fight every weekend; at least one - we get small ones all the time - probably one-half dozen a weekend”. 119 He never saw anyone strike the plaintiff with a stool and his brother never told him Ricky Guy struck the plaintiff with a stool. He did not recall if he told his brother Ricky Guy did not hit the plaintiff with a stool. He testified he believed Ricky Guy was there at the scene and was pushed out the door with the others, but he did not recall seeing him outside. 120 He said by small fights he meant verbal confrontations; big ones were not necessarily related to the number of participants. Anything that came to blows did not always result in an injury.

v. The Evidence of Cory Philpot 121 Cory Philpot is a former football player who was employed as a manager at Cheers between 1995 and 2005 and was involved in security issues at the establishment. After leaving Cheers around Christmas of 2005, he continued to do some promotions for Monday night football at All Stars, the adjacent bar, and he visited Cheers two to three nights a week. He was present on the evening of December 25th and 26th, 2006. He was in the lower bar of Cheers with some friends. He saw a large man come into the bar some time after midnight and walk into the crowd and bump into people without apologizing. He described the male as having dark hair, a dark shirt and jeans. He described his attitude as not caring, just pushing his way through. He saw him go to the upper bar after having a drink. He became aware of the assault the next day. In cross-examination he said he had no dealings in his capacity of manager of Cheers with Cessford of the DPD, but did have dealings with Inspector Charna. He had a conversation with DPD about cheap drink nights. He said the police thought it was a problem and mentioned that to the management and that they would not support it. He said while he was there, security Burnett v. Moir A.F. Cullen J. 265

did not use numerical or colour codes. They kept a list of banned people at the front door. 122 He was working with the new ownership of the NDI/Cheers. He took over when George Holmes was let go. The bar went in a different direction to appeal to different people after it was sold in 2007. He did not think there were frequent fights or police calls to Cheers; some calls went to All Stars. He agreed there were fights in the parking lot and there were two stabbings in 2005. He agreed that under the old regime, people did not feel safe.

D. Police Witnesses i. Constable Uppal 123 Uppal began his police career with training on the job in May 2004. In December 2006 he was assigned to general duties with the DPD. His role was to respond to calls as they came in and perform general traffic duties. He was familiar with Cheers and the NDI. He would attend at Cheers in response to general calls from time to time and sometimes would go to the Cheers location to be “proactive”. The calls which he responded to would depend on the days he was working. Some days were quieter than others. 124 He sometimes would go at closing time to the general area to monitor and ensure patrons would leave in an orderly fashion and he would stand by and keep the peace. He saw a few altercations or fights in the parking lot and would walk over to break them up. He said that a police presence was often enough to disperse groups who might be inclined to fight. He experienced no difficulties in dealing with the staff or management of Cheers. Occasionally he would be asked to park his police vehicle in the parking lot to establish a police presence or to check identifications at the entrance. That occurred in August and September of 2005. 125 The subject of Cheers would occasionally come up at briefings if there was a particular promotion or special event going on. The police would check on issues of over-service, over-crowding or any problematic people attending at the bar. 126 He was on shift overnight December 25/26, 2006. He heard the dispatch to Cheers and because he was close, he let dispatch know and attended to the scene. He identified a transcript of the dispatch as depicting the communication. The dispatch indicated that the call to police was initiated by Emergency Health Services, which meant that they were ei- 266 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

ther already at the scene or had been called to attend and were proceeding there. 127 He arrived within a few moments. According to the surveillance video taken from surveillance cameras at the Cheers pub, his arrival was at 1:43 a.m. He had already been told by dispatch that “EHS is en route” before he got there. After he got there, he requested that dispatch “send him EHS Code 3”. Code 3 meant he requested EHS get there as quickly as possible. He made that request within the first minute or so of his arrival on the scene. On his arrival, he saw the plaintiff on the ground unconscious being tended to by what turned out to be an off duty fire fighter named Steve Brewer, who had placed the plaintiff in a recovery position. It was at that time that he called for EHS to arrive promptly. 128 He noted the plaintiff’s friend Greg Allan in the company of a female person. Allan had a ripped shirt and blood on his face. Uppal determined he was with the plaintiff - he learned that both from Greg Allan and from people standing at the door. According to Uppal, Greg Allan told him that the assailants were “long gone” and indeed he reported that back to dispatch. 129 He described Allan himself as “quite agitated, worked up, angry, very uncooperative”. He did not provide Uppal with “the information he needed in a timely manner”. Uppal’s synopsis which he inputted into his computer at 2:44 a.m. read as follows: Fight at Cheers. Upon police arrival, observed BURNETT lying in a small pool of blood and his friend ALLAN and CATANGHAL standing near by. ALLAN was also involved in the fight and sustained several cuts to his face. ALLAN was hostile and uncooperative. ALLAN iniatilly [sic] declined to be checked by EHS. BUR- NETT transported to RCH and ALLAN transported to SMH. No witness available that were able to recall what had transpired. AL- LAN would only say that they were possibly hit by a chair and physically assaulted by a group of Caucasians [sic] males who had fled the scene prior to police arrival. ALLAN unwilling to provide identification. Identification obtained by girlfriend CATANGHAL. 130 He said that is what Allan had told him about the events. 131 Subsequently, Uppal completed a longer report at the end of his shift. In it he recounted a further discussion he had with Allan, later by cell phone. He summarized that conversation in his report as follows: Cst P UPPAL spoke with Greg by cell phone requesting further details of the incident. Greg indicated that he had brushed up against Burnett v. Moir A.F. Cullen J. 267

some u/k male inside Cheers and that the other male’s drink had spilled, which lead [sic] to a physical fight between them and Greg and Garrett. All parties were kicked out of the club. As soon as they exited, the other group was already waiting outside. Greg indicated one or two of the males had in their possession chairs that they used to assault Greg and Garrett. Cst P UPPAL requests day shift member to attend Cheers in an effort to obtain surveillance footage of the incident. 132 Allan gave no further description of the assailants. 133 Uppal requested “day shift members” to attend Cheers to obtain surveillance tapes. He also indicated in his report that Constable Formby (“Formby”) and Steve Bentley (“Bentley”) arrived on the scene and assisted in trying to locate any witnesses. After Uppal left the scene, he went to the Royal Columbian Hospital. He checked with the Head Nurse and contacted the plaintiff’s family. He arranged to have the plaintiff’s clothing seized for possible forensic evidence. He himself did not look at the video surveillance from the cameras. 134 He had a conversation with an employee of Cheers while at the scene, but his handwritten notes do not reflect that conversation. He had attended Cheers before, possibly for fights, but could not recall having seen ambulances there. 135 No one in DPD had identified Cheers to him as a “hot spot” of frequent illegal activity. He may have had a licensed premises check book- let with pre-printed LCP forms in his duty bag that evening. He did not utilize one that night and never had before. He did not find it necessary. 136 He was the lead investigator by virtue of being the first to attend. He agreed that of the later two officers to arrive, one was just a trainee, that is, Steve Bentley. Uppal was in charge and had the ability to direct the investigation. 137 He agreed with the following timeline on the basis of the time set out in the video: • the blow with the bar stool 1:39:31 • the off duty firefighter coming to the aid of the plaintiff 1:42:47 • Constable Uppal’s arrival 1:43:44 • second vehicle arrives 14:44:30 • ambulance arrives 1:52:16 • ambulance leaves 2:04 268 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

• third police vehicle arrives 2:04:55 and leaves at 2:06 • Constable Uppal leaves 2:07 138 Uppal agreed it was important to get as much information as possible in an investigation and one way to get that information was to talk to people involved. He agreed Greg Allan seemed agitated, uncooperative and intoxicated and he “wasn’t giving information he could have”. He agreed that at some point he talked to a bouncer at the pub. He agreed he advised the plaintiff’s family that the people involved had left the scene, based on what Greg Allan and the bouncer had said. He agreed everyone else said they had not seen anything. He stayed near the injured plaintiff at the scene. The only information he had about the assailants at that point was from Greg Allan and the bouncer. There were people standing around the front door. He remembered asking people what they saw, but how close he got when he was speaking to them he could not recall. 139 He agreed the employees of the pub might be a source of information. They were likely to be sober and might tend to be reliable. He did not talk to any other employee at Cheers apart from the bouncer. He explained his focus was on the plaintiff and ensuring that when EHS arrived, he could give them an indication of his condition or any changes. 140 He agreed he could probably have stayed and conducted further in- quiries of employees and remaining patrons at the pub. He testified because the Cheers employees were known, it would be possible to go back and do follow-up interviews the following day or later on. He did not ask for a list of employees who were present at that time. He agreed he considered it might be possible to identify the assailant from the video tape but he did not ask to see the video tape at that time as the staff were busy at Cheers and he knew they could get it another time. 141 The information he had from Greg Allan was that the assailants were long gone. 142 He only talked to Formby about looking for witnesses, not to Bentley, who was the trainee. He believed the other officers told him they were not successful in obtaining further information. He agreed he believed the chance of altercations occurring at places where alcohol was served, was increased. He agreed with the following questions and answers from his examination for discovery: Q I’m assuming that - perhaps more than what I said there and I don’t want to mislead you. This paragraph alleges that if Cheers pub was a place of violence, that fact was known to Mr. Burnett before he went there. Now, my question is very Burnett v. Moir A.F. Cullen J. 269

specific. Do you have any information or facts which would support Mr. Burnett knowing that this bar was a place of violence before he went there? A So let me just paraphrase that back to you so I understand it. You’re asking me if I know of any prior knowledge that Mr. Burnett would have had that this was a place of violence. Q Yes. A I don’t know of any specific information that would have lead me to believe that he would know that there was a specific - that this was a violent place. It would just - it would be my understanding that if you’re attending a nightclub where alcohol is served that any person in their right mind would know that this is a - being that alcohol is served and it’s a crowded establishment - that there could be altercations as happens many times in many different places where alcohol is served. ... Q Yeah. A I just think - just personally - is that if you’re going into a liquor establishment where liquor is being served, a night club - it doesn’t matter if it’s Cheers or clubs in Vancouver - fights break out all the time. And if you don’t want to go into a hostile situation like that or a volatile situation like that, then it’s best to avoid it. Q And is every establishment in your mind and in your opinion that serves liquor a hostile and violent situation? A Adding liquor to an establishment can create that environment. Doesn’t mean everyone is - every environment is, no. But situations can arise and incidents can happen. And from that perspective, like I said, it’s no different - Cheers would be - as far as I’m concerned, Cheers would be no different than any other liquor establishment. It just depends on totality of circumstances. Q Like the Four Seasons restaurant in the City of Vancouver? A No, not that. 143 Uppal was not under the impression that there were gangs involved in the assault. He thought there were two groups. He saw Greg Allan as the best potential witness. He was aware Allan’s girlfriend said she did not see anything. He wanted to contain the scene and protect the victim until the ambulance took him away. 270 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

144 In this case, further investigation was required and he passed on his report to the Sergeant on the next shift. He believed this investigation would be a longer term one.

ii. Constable Formby 145 Formby has been an officer with the DPD since 2002. He was on duty overnight of December 25th and 26th, 2006 and on patrol with a trainee by the name of Bentley. 146 He was familiar with the NDI and Cheers. He had responded to calls there in the past involving intoxicated people, theft, fights, impaired driv- ers and other similar issues. He sometimes would patrol in the vicinity of Cheers and its parking lot without being called. From time to time he would conduct walk-through patrols of the Cheers pub. 147 Closing time at Cheers was 2:00 a.m. and he had previously attended at closing time to check and monitor departing patrons. In particular, police would attend on specific occasions, such as long weekends or on “FUBAR” nights or when the pub was featuring live bands. The police would patrol both inside and outside on occasions such as that; to establish a police presence and attempt to maintain order. 148 There were some occasions when the DPD would establish a mobile command post near Cheers on special event nights to show a police presence. He never issued any LPCs for Cheers. 149 He sometimes was called on to break up fights. The fights involved only minimal injuries. He had to assess whether the fights were consen- sual or not and he said it was hard to make that assessment in many cases. He never went inside to deal with fights. The staff had the ability to deal with things occurring inside the bar. 150 Formby identified a police report he authored relating to an incident at Cheers on March 4, 2006 involving a man arrested in the Cheers parking lot, intoxicated, belligerent and resisting arrest. He said that sort of thing would happen quite commonly and there could be arrests, depending on the level of intoxication and the behaviour of the subject. The arrests would be for being in a state of intoxication in a public place. 151 Another report dated December 2, 2006 noted a fight in the parking lot involving about ten Indo-Canadian males who dispersed when police arrived. 152 He was also referred to a call he responded to on December 26, 2006 at 1:09 a.m. in which a man and his wife claim to have been assaulted by Burnett v. Moir A.F. Cullen J. 271

a bouncer at Cheers. It was determined by the investigation that there was no assault, but that the man and his wife were “escorted out of Cheers by the bouncer after getting caught in the middle of a physical altercation in the bar.” They had both been drinking. 153 Formby didn’t recall how long he dealt with those people in the parking lot that evening, but when the dispatch for the assault on the plaintiff came, he came from somewhere else and saw Uppal already on the scene and a gathering of people at the front entrance to Cheers. 154 He spoke to Greg Allan who was in a state of rage at the scene and not being helpful in providing information. He and Bentley tried to gather information from those in the area. He spoke with some people at the scene. He also spoke with the off duty firefighter, Steve Brewer and his friend Richard Mulenar and some people at the door, but it did not lead to anyone who had seen the actual assault. 155 He submitted a report that reflected his involvement. He summarized speaking with the off duty firefighter at the scene and his dealings with Greg Allan, both at the scene and subsequently at Royal Columbian Hos- pital. In his report, he summarized Allan’s statement to him at the hospital as follows: • he was walking thru the nightclub and a drink was spilled, someone hit him • a few punches were thrown, him and his buddy (Garrett) got into a fight with 5 or 6 guys • the 5 or 6 guys went outside and the bouncers threw them out to them • they (5 or 6 guys) hit him and Garrett with some chairs • that’s the last thing he really remembers and his friend (Gar- rett) was on the ground • it was a bunch of redneck guys, all white guys • one guy had a white shirt and jeans, one guy had a blue shirt and jeans and one guy had a red shirt and jeans • he bumped into the guy and the guy spilled his drink on him and then the guy hit him so he hit him back • Garrett was with him the whole night • he suffered a swollen left eye, cut under his right eye that needed 4 stitches and bunch of bruises and scrapes • his buddy (Garrett) and he both got hit with a chair outside the bar 272 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

• the fat bouncer at the front door punched him in the head 156 He described Allan as reluctant to engage in the interview which lasted only a few minutes. 157 He had never before responded to an assault with a bar stool at Cheers. He had responded to fight calls at other drinking establishments, but Cheers is larger and holds many more patrons. 158 In cross-examination, he estimated he was involved in setting up a command post at Cheers about a half a dozen times at special events. He agreed that “FUBAR” was an acronym for “fucked up beyond all reason” and Cheers held such events usually the night before a holiday. The reason for a command post at Cheers was to show a visible police presence to avoid large crowds getting out of control. There were fights which broke out which Cheers staff were able to control within the bar and police would intervene in the parking lot if fights broke out or people were being too boisterous. 159 He agreed that there was a nearby Denny’s Restaurant which was affected by confrontations among Cheers patrons after closing and police recommended that Denny’s close for the period around the Cheers closing time, around 1:00 - 3:00 a.m. 160 He could not recall submitting an LPC which covered various violations of the Liquor Control and Licensing Act including rowdiness and fighting and over-service of alcohol. He agreed that such information would be of interest to the LCLB authorities. He agreed he may have been on scene at the time of the first assault call, longer than for the assault on the plaintiff. 161 Most of the assault calls he responded to at the NDI address were in relation to Cheers and not the other locations. Formby explained that any call or incident resulted in a report being logged onto the computer, and each report would be reviewed by a supervisor. 162 Despite being involved in investigations involving intoxicated and assaulted parties at or outside of Cheers, Formby did not submit LPCs. 163 He did not review video surveillance during his time at the scene of the assault on the plaintiff, but he knew it would be viewed the next day by other investigators. Uppal did not ask him to interview staff, but he approached the people standing at the door outside the Cheers pub to canvass with them about whether they saw the assault and he wasn’t sure whether they were patrons or staff or both. Uppal told them they needed to locate witnesses. He and Bentley spoke to the fireman, Mr. Brewer Burnett v. Moir A.F. Cullen J. 273

and his friend, Mr. Mulenar, but neither of them had seen what happened. 164 He agreed no forensic assistance was called to the scene; no photo- graphs were taken and the scene was not taped or roped off to preserve it for further investigation. He agreed that no “licensed premises check form” was completed or submitted, at least by him, and he left the scene at 2:09 a.m. He agreed that Uppal did not direct him to stay behind to interview staff and he felt that in his experience, there would be opportu- nities in the ensuing days to get full statements from staff members. 165 He later went to the hospital and spoke with Greg Allan after he spoke to the duty sergeant.

iii. Constable Bentley 166 The evidence of Bentley was similar to that of Formby. He was a trainee at the time of the assault. He recounted the first attendance at Cheers in relation to the complaint by the couple, that they had been assaulted by being ejected from Cheers. He described the dealings he had with Greg Allan after attending to Cheers in response to the dispatch arising from the assault on the plaintiff. He described Allan as agitated and uncooperative. 167 He spoke with the friend of the off-duty fireman who was attending to Mr. Burnett who reported that he had not witnessed the assault. 168 He confirmed that he and Formby later attended Royal Columbian Hospital where they spoke again with Greg Allan and Allan gave more detail to them about the incident. He agreed no pictures were taken of the scene and no tape to keep it free of bystanders. He did not recall Uppal asking him to do anything in particular, although he understood that he and Formby were looking for witnesses while staying close to the victim until the ambulance arrived. 169 He did not talk to any of the security staff but agreed they would be the best potential source of information. Neither he nor Formby took possession of any stools. They did not ask who the head of security was at Cheers or try to find him. He agreed they could have stayed at the scene after the ambulance left to follow up with staff, but he had no recollection of being asked or directed to do so.

iv. Sergeant Ryan Hall 170 Sergeant Hall (“Hall”) joined the DPD in 1995. He spent some time on patrol and in investigation divisions of the department. He was pro- 274 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

moted to the position of Sergeant in 2005 and has fulfilled both a super- visory and investigative role. He was familiar with Cheers along with various other pubs that he patrolled and checked for compliance. The DPD initiated a tactical management team to analyze information and to provide directions to patrol officers to prevent criminal activity. Cheers was a place that was identified from time to time as requiring checking on or a police presence at. 171 The police would generate a file any time there was an incident that they were called to involve themselves in. The file would be reviewed by a supervisor who would direct further investigation as necessary. 172 He identified several reports arising from incidents at Cheers that he had had some involvement with. He identified one case where there was an alleged assault, but where the suspect was never identified and no charges were laid. He identified another case involving the arrest of a person in a state of intoxication in a public place. 173 He testified Cheers was the largest drinking establishment in Delta with about 600 seats for patrons and it was the busiest. The police service calls included reports of assaults, potential impaired driving charges, damage to vehicles and other similar incidents to deal with. He did not, however, see any fights when he went through Cheers in walk-throughs. He was familiar with licensed premises checks which would be issued for non-compliance with the Liquor Control Act and Regulations. He testified that generally, misconduct outside the establishment would not result in licensed premise checks being prepared or issued. 174 He was on night shift starting at 6:00 p.m. on December 26, 2006 and was assigned to investigate the assault on Mr. Burnett. He went to Cheers that evening to obtain video surveillance tapes of the incident. After a discussion with George Holmes, the manager, he returned to the office, prepared an Information to Obtain, and obtained a search warrant on De- cember 27, 2006 which he used to seize the DVR to download all the video taken from the various surveillance cameras at Cheers. He then interviewed George Holmes, Sunny Jara and a person of interest that they indicated, named Kevin Williams. He also did a background check on Mr. Burnett and Greg Allan, the victims of the assault. 175 He contacted Allan by telephone. Mr. Allan expressed reluctance to speak to the police, but Hall eventually located and interviewed him between about 9:00 - 9:15 p.m. on December 27th, 2006. Burnett v. Moir A.F. Cullen J. 275

176 In a report which he submitted, he summarized Allan’s interview as follows: On December 26th, 2006 from approximately 21:00 hours to 21:17 hours A/Sgt. Hall interviewed ALLEN a second time to clarify some of the details from the assault the night before. The interview was recorded without ALLEN’s knowledge as A./Sgt. Hall had the audio recorder on in his pocket. ALLEN stated in part: a) He was afraid to put himself and BURNETT in jeopardy by talking to the police; b) He did not know who “the guys” were from the night before or he would be dealing with things himself; c) He and “Garrett” (BURNETT) were walking through a group of “guys” and spilled some liquor on them, they swore at each other and a fight ensued; d) The bouncers walked he and BURNETT outside; e) He wanted back in and he pushed one of the bouncers and the bouncer hit him back; f) The police were there while the people who assaulted him were at the front door; g) He was enticing the other people while the police were there; h) He received a black eye and some stitches, possibly with an orbital fracture; i) When the bouncers grabbed them, the other “guys” began hit- ting them with the chairs; j) One of the guys was bald, 5'10, 190 pounds, white, clean shaven and wore a white collared shirt with jeans, ALLEN did not see any further details on the shirt; k) The bouncers threw six of the twelve “guys” out before he and BURNETT were thrown out; l) One of the guys may have been a “bigger” east Indian male with a brown collared shirt; m) ALLEN said he would not pick anyone out of the video if he had the opportunity, and indicated he did not want to cooperate with the investigation; n) The “guys” who were fighting with them kept yelling “Bring them outside?” to the bouncers as he and BURNETT were being escorted outside; o) Some of the clothes DPD seized the night before may have some of the suspects blood on them; 276 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

p) Three of the suspects were “Laid out on the floor” or “Knocked the hell out?” and may have been hurt at some time; q) He said BURNETT may not cooperate with the investigation when he wakes up; r) ALLEN did not see what happened to BURNETT and did not see if he was hit with a stool, but thinks BURNETT may have been hit with a stool as he had been; s) ALLEN was hit with the stool outside after being thrown out. 177 He testified that his impression of Allan at the time was that he was not cooperative. 178 He had to get a warrant to obtain the hard drive of the computer that stored the video surveillance and he also downloaded the disk that had earlier been seized of portions of the video surveillance. That disk was downloaded onto the DPD computer hard drive and it was saved there. 179 He initially viewed Kevin Williams as a “person of interest” based on statements from George Holmes and Sunny Jara, but he ruled him out after interviewing him and viewing the video tapes. 180 On December 28, 2006, the police obtained a bar stool, said to be the one used in the assault from George Holmes. Hall sent it to forensic services for testing for blood samples and fingerprinting. 181 In cross-examination, he agreed he was familiar with entertainment district night clubs from his work with the anti-gang task force initiative. He was asked about other bars that had been closed or suspended. He was aware of actions taken in relation to other bars but had no direct involvement in those events. 182 There was no record kept of walk-throughs at Cheers, only of service calls in response to incidents or apparent incidents. Minor things would not be recorded if no action was called for. He never issued an LPC form. He agreed the LCLB authorities would want to know about infrac- tion of the Act and Regulations. He agreed there were various incidents which required police involvement at Cheers that may be of interest to the LCLB but which were not reported by LPC forms. He agreed that Greg Allan spoke to the police two times, but he regarded him as being evasive as he had to track him down and he appeared reluctant to talk. Burnett v. Moir A.F. Cullen J. 277

v. Inspector Pike 183 Pike had been with the DPD since 1986. He had been in general patrol at various times and at the time of the assault, in 2006, he was the Sergeant in the Criminal Investigation Branch. He is now an Inspector. 184 His patrol experience familiarized him with the NDI and Cheers. Cheers required attention from police patrols around closing time on Fri- day and Saturday nights. He also conducted walk-throughs of Cheers. He described Cheers as catering to a younger crowd. He was aware of fights and altercations both inside and outside the bar. His experience with Cheers pre-dated 1999 while he was still on patrol duties. 185 He said there was a shooting at Cheers in 2003 or 2004 which he became involved in the investigation of. There was an arrest and charges arising from that incident. He also became involved in several of the bar watch programs with other police officers and liquor inspectors, where they would walk through some of the rowdier bars and establish a presence. He did one walk-through of Cheers in September or October of 2006 with a reporter for the local paper, the Delta Optimist and other officers and liquor inspectors. The reporter was there as a ride-along to cover and report on the initiative. In the same night they also visited bars in Langley, Surrey and Maple Ridge. Some of the bars appeared to have a gang presence, but he did not notice that at Cheers. He identified an article written about the bar watch program and the events of that evening in the Delta Optimist by the ride-along reporter. 186 He was also assigned to deal with special events by Inspector Charna (“Charna”) of the DPD. He was the field commander. In those situations, the police would establish a field command post and use video cameras as part of the process of monitoring the behaviour of the patrons at Cheers. There was some interaction with Cheers management in such circumstances as the management tended to be cooperative. 187 He was also a member of the department’s tactical management committee which he described as a group formed to look at the department’s operation and identify specific ongoing issues to deal with. He identified a number of reports detailing occurrences at Cheers and the NDI generally over the years. In particular, he referred to a report of a stabbing incident outside of Cheers in 2005 where there was no or insufficient evidence for charges to proceed. He also referred to minutes of a tactical management meeting on October 18, 2005 referring to information concerning a vehicle being searched for the presence of a gun, where none was found. That vehicle was in the Cheers parking lot. 278 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

188 He became involved in the investigation of the assault upon the plaintiff. He said there was no advance warning of any intended assault at Cheers. 189 On the 26th he was the Staff Sergeant in charge of the criminal investigation branch of the department, but he was filling in for the Staff Ser- geant for patrol. He was informed of the events, he reviewed the file as it was submitted and he assessed the case as a serious one. He directed Hall to get a search warrant for the hard drive of the video camera or the computer storing the video from the video surveillance cameras. He was aware of the need to try and get a description of the suspect in the assault. 190 Because of the severity of the injuries to the plaintiff, the criminal investigation branch took on the file. In a case such as this, the expectations of the patrol officer on scene was initially to protect the life of the victim, to gather evidence, if possible, to identify the suspect and effect an arrest. There was an initial indication that the suspect or suspects were Caucasian, but it then changed to an indication that it was an Indo-Cana- dian. Based on his review of the file, he did not regard the witness Allan as being cooperative with the investigation. He noted that Allan’s background showed some association with a criminal gang, and he indicated that would change the way of conducting the investigation. As a result, he assigned the file to experienced investigators. He noted that there were other serious investigations going on as well at the time and it was necessary to prioritize the investigations. 191 One of the things done to attempt to get information was to solicit an anonymous tip through the Crimestoppers program by drafting a description of the event for publication and seeking assistance from members of the public who may have seen the event. No tips were received as a result of that process. 192 Pike identified the timeline of the investigation from the police report. His role was to coordinate the flow of information and direct the investigation. He noted that the investigators became aware of Jeremy Wocknitz as a potential interest, but had some difficulty in locating him. He was eventually interviewed in pre-trial custody on December 16, 2008. 193 He testified there was never enough evidence gathered to forward a report to Crown Counsel seeking charges against any particular individual. He did not feel the investigation was hampered by a failure to rope off the crime scene or talk to Cheers staff the evening of the assault. He Burnett v. Moir A.F. Cullen J. 279

said the file was open still and it was not uncommon for files such as that one to remain open for some time. 194 In cross-examination he agreed patrol officers play an important role in the investigative process and he as the principal investigator would rely on information acquired and provided by the patrol officer, particularly where they were first responders. 195 When he assumed conduct of the investigation on December 27th, 2006, he had the occurrence report prepared by Uppal at the end of his shift. He did not have the attending officer’s notes and had only a “snip- pet” of video which he did not review at the time, but instead directed a search warrant to get the full surveillance camera videos from the hard drive and to have it mirrored, that is, replicated. He first viewed the video in early January. Pike was cross-examined about whether there was a camera in the upper bar not working and whether anyone checked on that. He was unable to say, but referred to the fact that the hard drive comprising the captured video surveillance was seized and mirrored. He could not say whether a camera in the upper bar was connected to the system or not. 196 He agreed Uppal would not have known Mr. Burnett’s condition or whether it was life threatening until after he left the scene. 197 He thought some of the security staff were identified and interviewed. He said there was a list of those working that day and they were interviewed. He agreed Hart was interviewed on October 29, 2009. Hart said he did not see who had hit the plaintiff. One of the staff members who was not working the night of the assault said in an interview on October 31, 2007 that he heard rumours that it was a staff member who hit the plaintiff over the head with a stool. 198 He agreed that Greg Allan was interviewed on the 26th and again on the 27th of December; George Holmes was interviewed on the 27th of December, 2006, Kevin Williams was interviewed on January 3, 2007; Danielle Tardiff, a security staff member, was interviewed on March 1, 2007; Kyla Johnson, a staff member, was interviewed on March 30, 2007; Mr. Burnett was interviewed on June 5, 2007. 199 He agreed Jeremy Wocknitz was not interviewed until nearly two years later and at that time identified the person by the name of Ricky Guy as the assailant with the bar stool. He noted that Wocknitz also said at that time that Ricky Guy was then hit and knocked out by one of the plaintiff’s friends. 280 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

200 He agreed that if that information had come sooner, it would have been useful, but he noted that Wocknitz had left the employ of the bar and it took some time to track him down to interview him. 201 He agreed that Jeremy Wocknitz was not formally interviewed the night of the assault and no information was taken from him. He agreed that Jeremy Wocknitz definitely identified Ricky Guy but then changed his mind several days later and phoned the investigator to say he was not the person who hit Mr. Burnett with the stool. 202 The investigators concluded that Guy was not a viable suspect one or two months later, after some re-interviews, using photos from the surveillance. There was no other credible evidence that he was involved in the assault. 203 Pike agreed the article in the Delta Optimist which he had referred to, referenced closures and/or suspension at bars in jurisdictions other than Delta. He thought there was one suspension in Delta before the article was written. He agreed there was evidence of late service and underage service at Cheers the night the bar watch initiative took place and he said the question of sanction was for the liquor inspector who was present at the time.

vi. Constable Al West 204 West was the principal investigator assigned by Pike. He has been with the DPD since 2001. He served his first four years in patrol, then was with the drug section for a period and in the last three to four years has been a major crime investigator. 205 While on patrol, he was aware of Cheers and would drive through the parking lot on the busier nights. He also did periodic walk-throughs of the bar to check for underage drinking and other Liquor Act infractions. The idea behind that was to establish a police presence to enforce compliance. 206 During that period, he never saw anything get out of control. He had not previously been involved in an investigation featuring Cheers. He became involved in the case in January 2007. He reviewed the video, the patrol reports and any other reports concerning the assault. He prepared a synopsis and a time line for the investigation which he added to as the investigation evolved and developed. Burnett v. Moir A.F. Cullen J. 281

207 The synopsis he prepared reads as follows: On December 26, 2006 at approximately 0140 hours an altercation took place in the upstairs bar area of the Cheers Nightclub. The altercation involved two large groups of males. Several Cheers doormen attended the fight scene and corralled the two groups of approximately 30 patrons outside of an emergency exit. Once outside of the emergency exit Garrett BURNETT (‘BURNETT’) was hit over the head by an unknown person with a barstool which had been brought outside of the nightclub. BURNETT was knocked unconscious after being struck by the barstool. Greg ALLEN (‘ALLEN’) who accompanied BURNETT in the nightclub was also injured in the altercation. DPD and EHS were dispatched to the scene after 911 calls were received by EHS. BURNETT was transported to Royal Columbian Hospital (‘RCH’) by EHS, and then moved to Vancouver General Hospital (‘VGH’) to receive additional treatment for his closed head injury. ALLEN was transported to Surrey Memorial Hospital (‘SMH’) where he was treated for facial injuries. On December 27, 2006 a search warrant was executed and a digital video recorder was seized. A review of the seized video recorder showed a large group of approximately 30 people exit the club. Al- though the video is of poor quality an unknown male can be seen lifting a dark object (believed to be bar stool) above his head and swinging it downwards. BURNETT is then observed lying motionless. 208 Under the heading “overview of investigation: he wrote as follows: December 26, 2006 a) At approximately 0140 hours an altercation took place between two large groups of customers at the Cheers Nightclub. b) At 0146 hours DPD dispatch were advised by EHS via ECOMM of an assault which had occurred at the Cheers Nightclub. c) At 0148 hours Cst Paul UPPAL (Echo 15) was dispatched to a fight at Cheers in which two males were knocked unconscious. Unit Echo 14 was also dispatched to the call but was advised to stand down by Echo 12 (Cst J. FORNBY and Cst BENTLEY) as they were closer to scene. Patrol Units Echo 11 and Echo 14 were confirmed by dispatch as standing down from the call. Cst J. FORNBY and Cst. BENTLEY arrived at Cheers at approximately 0148 hours. 282 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

d) At 0149 hours Cst UPPAL requested DPD dispatch EHS Code 3. e) At 0150 hours Cst UPPAL advised dispatch Subject of Com- plaint “long gone”. f) At 0153 hours Cst UPPAL asked dispatch for an ETA of EHS. g) At 0157 hours EHS arrived at Cheers. h) At 0209 hours EHS transported BURNETT to Royal Colum- bian Hospital arriving at 0224 hours. i) Greg ALLEN (who stated he was BURNETT’S friend) was injured in the altercation and transported to SMH by a second EHS Crew who attended the scene. ALLEN was hostile and uncooperative at the scene. j) Greg ALLEN’S girlfriend Sharon CATANGHAL was standing near ALLEN and BURNETT when police arrived on scene. k) At 0454 hours Cst FORNBY interviewed ALLEN at SMH. Cst BENTLEY seized ALLEN’S white t-shirt, runners and jeans for possible suspect DNA. l) BURNETT’S jeans, black t-shirt, under wear, socks and belt were seized by police. m) At 1330 hours Cst EWING attended the Cheers Nightclub and obtained a Video CD (Video contained CCTV of assault) from Manager George HOLMES. The video was submitted to DPD FISS for enhancement. n) At 2100 hours A/Sgt HALL conducted an interview of AL- LEN at his girlfriend’s (Sharon CATANGHAL’S) residence (CATANGHAL had accompanied ALLEN at Cheers the night of the assault). 209 He then summarized the seizure of the “digital recorder” (which) contained video captured on eight cameras on December 27th at 10:51 p.m. and summarized a review of those recordings. He then listed the date of each witness’ interview and summarized the witness’ evidence. The interviews that were conducted were as follows: • George Holmes, manager of Cheers, December 27, 2006 at 23:23 hours; • Sunny Jara, manager of Cheers, January 1, 2007; • Kevin Williams, witness, January 3, 2007; • Tyler Wocknitz, doorman, February 1, 2007; Burnett v. Moir A.F. Cullen J. 283

• Baljit Mann, taxi driver, February 1, 2007; • Rob Fai, bartender, February 2, 2007; • Steve Norton, doorman, February 20, 2007; • Matt Steinsvik, doorman, March 1, 2007; • Danielle Tardiff, doorman, March 1, 2007; • Matt McGee, doorman, March 8, 2007; • Adam Rosler, doorman, May 30, 2007; • Kayla Johnson, Cheers employee, May 30, 2007; • Garrett Burnett, complainant, June 5, 2007; • Jared Green, doorman, October 31, 2007; • Jeremy Wocknitz, doorman, December 16, 2008 & December 18, 2008. 210 West also noted that the bar stool said to have been involved in the assault was seized on December 28, 2006 at 9:40 p.m. 211 In the course of the investigation after receiving Jeremy Wocknitz’s information concerning Ricky Guy, West identified him by the name Sengpeth Thammavong. He detailed his attempts to obtain a statement from Thammavong who advised through his counsel that he had nothing to do with the assault at Cheers and was not willing to provide a statement. 212 At the conclusion of his report, West identified what he considered to be discrepancies in the description of the assailant as follows: After interviewing numerous witnesses, the following information was obtained describing a possible suspect in the assault; a) It was a bunch of redneck guys all white guys. Caucasian, 5'10" 190 llbs [sic], clean shaven, white shirt and jeans. (Greg ALLEN) b) East Indian male approximately 5'11" with a skinny build. (Tyler WOCKNITZ) c) A “big guy” grabbed a barstool and hit BURNETT. (George HOLMES). d) East Indian male wearing hat and Nike threw a punch which knocked BURNETT to the ground. e) Heard a rumor [sic] a doorman may have hit BURNETT with a barstool. (Jared GREEN). f) BURNETT was hit with a chair by an Asian male (Jeremy WOCKNITZ). 284 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

g) Heard a rumor [sic] it was people from White Rock that were involved in the altercation (Matt MCGEE). 213 He concluded as follows: To date investigators have been unable to obtain sufficient evidence to positively identify a possible suspect. Although Sengpeth Tham- mavong was identified as a possible suspect by one witness, he has refused to provide a statement and at this time, there are insufficient grounds to make an arrest. 214 Delta Police have not received any tips as a result of the media cover- age and Crimestoppers tips. None of the approximately 30 persons in the altercation or any of the nightclub patrons in the club at the time of the incident have provided any information which would assist the investigation. In the absence of receiving information which would insist investigators, the only investigative avenue left for investigators to obtain evidence is to target Sengpeth Thammavong to ascertain what involvement, if any, he has had in this investigation. West also testified about developing the Crimestoppers tip in furtherance of trying to obtain information from the public about the events of the evening. He also testified about a YouTube video which purported to depict the confrontation inside Cheers, but he could not locate the person who created the video to ver- ify it. 215 In cross-examination he agreed he was familiar with the concept of intelligence-led policing and the idea that preventing crime lessens the need to respond. He agreed that police patrols are effective in preventing offending, but when patrol officers are responding to service calls, they are serving in a preventative role. He agreed Uppal, who was the first to respond to this incident, was in charge of the investigation initially. Gen- erally a crime scene will be cordoned off to allow the collection of evidence, but the importance of it depends on the circumstances of the crime. In this case, it doesn’t appear anyone took blood samples or foot- prints from the crime scene, there were no photos of the scene and no measurements taken. He wasn’t aware of Uppal specifying anyone for Fornsby or Bentley to speak to. He agreed it could be useful to get information immediately after an event. In this case, some of the Cheers staff were not interviewed until months later and Jeremy Wocknitz was not interviewed until December 16, 2008. West identified inconsistent descriptions of the assailant as being one of the problems with the case. He agreed the best identification was from Jeremy Wocknitz, who purported to name and know the assailant. He said the reason for the delay in interviewing Wocknitz was that the police had no address for him and their Burnett v. Moir A.F. Cullen J. 285

attempts to locate him failed. They entered his name on the police computer information system known as CPIC. He did not know why there was no interview of him before he left Cheers in February 2007. He agreed it was possible that if Wocknitz had provided his evidence sooner and the identified assailant was checked, it might have produced evidence of injury consistent with him having been in a fight. 216 West said other people were still describing different suspects and that would not change their descriptions and West “could not speak to” what Jeremy Wocknitz would have said at or near the time of the assault. 217 West said what he used to review the events was a mirrored copy of the hard drive. He said the hard drive was never destroyed, only the original of a CD burnt from a portion of the video captured on the hard drive, but the CD had already been saved to the DPD computer network, so nothing was lost. His recollection was that although there was a camera in the upper bar area, it was not working, but he could not recall where he got that information. 218 In a letter dated December 4, 2009, counsel for the Delta Defendants sent responses to requests for additional information at the discoveries of Uppal, Pike and Cessford. 219 Included in the letter, was the following question and response: At approximately 1:30 p.m. on December 26, 2006 Constable Sandberg and Constable Ewing attended at the liquor store at the North Delta Inn and met with George Holmes. AT that time Mr. Holmes showed them video surveillance footage on the computer in the office and burned a computer disk showing some of the footage from an exterior surveillance camera. Both Constable Ewing and Constable Sandberg saw at that time the video footage that was burned to the computer disk. The computer disk was later provided to Acting Sergeant Ryan Hall. Acting Sergeant Hall viewed the video on the computer disk and also saved it to the computer system of the Delta Police Department. A copy of this video saved to the Delta Police computer system has previously been delivered to counsel for all parties under cover of a letter dated November 30, 2009. The computer disk obtained from George Holmes on December 26, 2006 and discussed herein is the same as the computer disk that was later inadvertently destroyed.

vii. Inspector Charna 220 Charna started with the DPD in 1986. He worked through the ranks to his present position as an inspector. Along the way, he had responsibility 286 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

for the patrol division and he became familiar with the Cheers pub. He was also involved as a member of the tactical management team. He testified it meets on a weekly basis to go over issues identified relating to crime in the community, such as theft from autos, breakings and entering and various different kinds of crime. 221 The NDI used to be known as the Scottsdale Inn. His dealings with Cheers involved ensuring that there were both foot and car patrols in the area to deal with patrons and to maintain a police presence. He himself had done walk-throughs of Cheers and he did not register any concern regarding the staff’s internal control of its patrons. There were fights in the parking lot and he was in communication with the management of Cheers over issues such as liquor consumption in the parking lot, and intoxicated patrons outside causing disturbances by fighting and through other means. He regarded management generally as very cooperative over issues of concern to the police. He identified one occasion involving a large fight at the All Stars bar at the NDI which caused him to order it closed for the remainder of the night. 222 He referenced a meeting with himself, Scott Moir, one of the owners of the pub, George Holmes, the manager, and Brad Parker, the former Superintendant at DPD. 223 That meeting centered on a complaint by Cheers management that he, Charna, was being too hard on them. Their position was that they were doing their best to control activities in the parking lot of Cheers and would even have staff members doing patrols. Charna said he did not change his attitude about continually bringing issues that arose in the parking lot to management’s attention and pressuring them to maintain control of their patrons. 224 He testified he would from time to time arrange to have a mobile command post set up at or near Cheers to monitor when Cheers was having a special night such as a live band or some other event. 225 In relation to issues about gangsters going to bars, there was a police initiative to check bars in the lower mainland by observing identifications of potential patrons at the front door and doing computer checks for gang associates. He viewed that as providing a deterrent to gang members from attending certain bars. 226 In the fall of 2006 there was an incident involving a Cheers patron who was injured and taken to the hospital by ambulance. The name of the victim was Anselmo. A complaint was made by his father because he was not interviewed by the police notwithstanding the fact that he had Burnett v. Moir A.F. Cullen J. 287

been injured. Charna was delegated to deal with that issue by Cessford of the DPD. He dealt with the issue to the evident satisfaction of the victim’s father and he put a report in which was communicated to municipal council who had received the original complaint. Charna was aware that fights occurred inside Cheers and they were usually handled by the staff, but the police would respond when and if called. He had no reports that the staff was unable to control what went on inside the bar as a general rule. 227 He testified the majority of people involved in such cases would disperse when the police came, but they would intervene when necessary and remove the would-be combatants from the area. He had shut down other bars for the night because of fights that occurred inside. 228 There was a Denny’s Restaurant open 24 hours, located not far from the Cheers pub. There were problems that developed in the Denny’s Res- taurant around the time the Cheers pub closed, as patrons would go to Denny’s and create difficulties. Charna spoke to the management of Denny’s who agreed to close their restaurant between 1:00 a.m. and 3:00 a.m., around the time of the bar closing. 229 There were some noise and damage complaints from a neighbourhood townhouse development. At a meeting held with the police, the police agreed to increase patrols in order to prevent those sorts of problems from occurring from intoxicated patrons of Cheers. 230 Charna was aware of several stabbing incidents at Cheers, but he was not himself involved in the response or the ensuing investigation. In cross-examination he agreed he was not involved in the investigation in the assault of the plaintiff. 231 He agreed that evidence of intoxication or drinking in the Cheers parking lot might provide evidence of a liquor violation inside the Cheers pub. He agreed that the stats between January 1, 1998 and March 1, 2007 obtained from the DPD regarding service calls to Cheers would be accurate. Cheers was open three days a week generally, except on long weekends. He agreed that there were 231 assaults over that time period, some disturbances which involved fighting and also instances of uttering threats. 232 There were two stabbing incidents at Cheers within a little more than a month - one at the end of August 2005 and the other at the end of September 2005. That was an issue for the tactical management team, but he could not say what was done concerning that. He agreed that there was an entry in the tactical minutes of September 28, 2006 of two males 288 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

checked at Cheers said to be armed and dangerous and as well of a fight involving ten or more Indo-Canadians with the use of pepper spray deployed by someone. He couldn’t say whether those incidents were subjected to any follow-up investigation. 233 He used to issue lots of LPCs but had not done so over the last ten years or so. 234 On April 16, 2006 the tactical management committee minutes reported two arrests for causing a disturbance and an aggravated assault. He could not say if there was any follow-up with Cheers arising out of that reported incident. He would have brought those issues to the attention of the Cheers management. 235 He estimated that perhaps 30 of the 600 Cheers patrons constituted a criminal element. He did not agree that the main purpose of the under- cover or foot patrols of officers in plain clothes was to gather information regarding criminal activities. The purpose was to go in to monitor liquor- type infractions, to check identifications to see if any warrants were outstanding or if there were any gang members at the bar. He said it was a way of staying on top of gang members going to liquor establishments. He agreed that the DPD did not always report infractions to the LCLB. 236 He denied that he regarded Cheers as a “fishing hole” to catch bad guys. He did not agree with the suggestion that Cheers was allowed to operate because it gave police a place to conduct intelligence investigations. He testified that the DPD’s focus was in resolving issues before they became a problem. He felt if the number of people behaving crimi- nally was relatively small in comparison with the total number at the bar, shutting down the whole bar is not justified. He was aware that the LCLB could suspend operations of a bar as a result of police complaints and he was aware that council could shut down the bar by revoking per- mits. He himself did not report Cheers to council. 237 He agreed the incident arising out of the complaint to council in 2006 got some follow-up and he wrote a memo dated November 8, 2006. The matter was discussed at a council meeting and staff was asked to consider the possible success of a show cause hearing. 238 Charna could not say if that was the only time a show cause hearing was considered. He was aware that reports could be made to the LCLB by LPC forms. He was asked about the number of incidents relating to Cheers in 2005 and 2006 and said if those incidents had been properly collated and brought to his attention, he would have done something about it. He responded that he thought police were doing what should be Burnett v. Moir A.F. Cullen J. 289

done by foot and car patrols, by attending around closing time, by engaging and interacting with the patrons and staff, by setting up mobile command posts on special event evenings and by sending plain clothes officers to walk through the pub. He acknowledged there was the option of pursuing suspensions through the LCLB. He agreed people should be able to feel safe, but at liquor establishments, things can be unpredictable and no one is forced to go. He agreed that some level of fighting at Cheers was predictable. 239 He testified Denny’s was different from Cheers - there was no security staff and Cheers had more security staff than other establishments. 240 The suspensions he spoke about at other bars were just temporary, he noted that police can only suspend a bar license for up to 24 hours and can advise the LCLB which has the authority to suspend for longer periods.

viii. Chief Constable Jim Cessford 241 Cessford has been chief of DPD since February of 1995 following a 25 year career with the Edmonton Police Service. He has had extensive experience in various areas of policing and has been involved in a wide variety of organizations, programs and initiatives concerned with policing duties. 242 He explained that the establishment of the police department comes from the mayor and council, which is required to create a police service, and a police board provides the governance. Governance includes allo- cating the budget and hiring the chief of police. The police board consists of the mayor and five community representatives. It meets monthly. The DPD consists of four patrol platoons comprised of 76 officers, operational support services comprised of 40 officers, and the criminal investigation branch, comprised of 25 officers. The executive of the DPD consists of 6 officers and the administration consists of 13. There are also 65 civilian staff members. The DPD management team consists of the chief, a deputy chief, the superintendant in charge of operations and the superintendant in charge of administration. 243 There is a regular morning meeting involving the management team - the operations Staff Sergeant and representatives from each department. There are reports on occurrences of the last 24 hours and assignments are created where necessary from the morning meeting. There is also a tactical management team which analyzes information concerning service calls and reports to concentrate resources on. 290 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

244 Cessford first became aware of Cheers in 1995. He went on ride- alongs with his patrol officers and patrolled the various drinking establishments. Cheers was one of them. He was aware that such places can be problematic and he was aware that generally, the service call volume was quite high in relation to drinking establishments concerning liquor act violations, assaults, and assorted general calls. 245 From time to time Cheers would come up in discussions at meetings or less formally. By 2006 his assessment was that Cheers was typical of liquor establishments. In Edmonton, in the inner city, they could be very violent with stabbings, robberies, etc. Delta’s establishments were calmer than those that Cessford experienced in Edmonton. He testified that he did talk to LCLB inspectors and got a sense of how Cheers compared with other establishments. 246 He met with the owner and management of Cheers and talked to police constables and got the sense overall that the management and staff at Cheers were cooperative in most areas. 247 Cessford had some recollection of the agreement Cheers management had entered into with the Municipality of Delta in July 2002. At the time, there was concern about noise and the conduct of patrons. Cheers had security staff and they supported police walk-throughs without any kind of obstruction. He knew Cheers had a policy of baring those who had caused trouble before and they had also installed security cameras and lighting as called for in the agreement. 248 He noted that there had been a hot dog stand in the parking lot which attracted problems because of the intoxicated patrons and fights broke out, but they got rid of it to abate the problem - even though it was a money maker - at the request of the police. 249 He was shown the statistics reflecting service calls to the address which had been compiled over the years. He was not aware of those statistics at the time of the assault upon Mr. Burnett. 250 He did not get any feedback from officers that Cheers was hard to police or expressing concerns about the management or security staff. He felt the department took adequate steps to monitor and police the drinking establishments in the jurisdiction by regular patrols, establishing a high visibility including walk-throughs, establishing a presence at closing time and establishing a command post from time to time to check patrons or to take preventative steps on special event nights. Burnett v. Moir A.F. Cullen J. 291

251 He testified that all calls for service would be responded to and that research shows more police uncover more crime and encounter more incidents when they are regularly on patrol in particular areas. 252 He was aware that LPCs were available to complete if the liquor establishment is not properly managed. He said the DPD did some operations with the LCLB and they had a good relationship and would from time to time come along with police to inspect drinking establishments. He was aware that there were some noise complaints concerning Cheers and he was aware that Cheers had worked with the police to keep their doors closed to abate the noise. He was also aware of the complaint concerning Mr. Anselmo whose son was the subject of an assault, but was not interviewed by the police. He arranged to have Charna review the file and meet with the complainant in October 2006. 253 He also met with the mayor and city council concerning that matter. There was a discussion about that complaint and also about the complaint history, which Cessford had asked be produced, involving 392 complaints or calls in 22 months. The number encompassed the “whole foot print” at the address including the parking lot. Cessford said he thought the numbers were not out of line with other establishments as they did some comparisons and did not believe the numbers were “out of the ordinary”. 254 The mayor and council asked their staff to report on the viability of a show cause hearing in respect of Cheers, arising out of the service calls. The municipality’s legal staff worked with the DPD on the report, but it came out around the time Cheers was being sold to new owners and a determination was made to work with the new ownership and the issue of a show cause hearing was not pursued at that time. 255 Cessford became aware of the assault on the plaintiff very soon after the incident, but had no involvement with the investigation other than seeking ongoing updates. He was not aware of any incidents similar to that happening at Cheers. 256 In cross-examination, he agreed Cheers was an establishment that required police attention. He was a proponent of intelligence-led policing to prevent crime and disorder. He agreed that that is a process where information is gathered and used to identify and deal with crime areas in a preventative way. 257 He was asked about the suspension of a club called Brandi’s in Van- couver, but said he was not familiar with that. 292 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

258 He said information on crime areas in Delta is collected and stored on computers and is subject to analysis. He was not aware of the 2,410 services calls to the NDI between 1998 and 2007, but was informed of the 392 service calls for the past 22 months in December 2006. He said it seemed like a high number, but it involved the whole of the complex, not specifically Cheers. The numbers were broken down and given to council in November 2006. DPD did issue crime reports, but they did not include statistics about crimes against the person, except robbery. The 2008 community report did not produce statistics relating to assaults, although it could have. He agreed there were stats available for the nature and number of service calls to Cheers. He also agreed that there were two stabbings within approximately a month at or outside Cheers in 2005. One of the stabbings occurred outside the bar after it had closed, the other inside the bar. He agreed there were other incidents including fights and assaults and some special events generated calls for medical help because of over-drinking, although he wasn’t personally aware of those incidents. He himself did not engage with Cheers staff over the issue of “FUBAR” nights or cheap drink nights, but he was aware other members of his department had. 259 He was directed to various police reports detailing cases of violent encounters including assaults with weapons or causing injuries and occurrences at or outside of Cheers’ bar throughout 2005 and 2006. He said he had no specific knowledge of those cases. 260 He agreed such incidents were “on occasion” fairly regular. People would go and become involved in drinking and would occasionally get involved in situations which could result in serious bodily injury. He said the department was aware of goings on at Cheers and was “monitoring the situation”. Issues at Cheers were brought up at tactical management meetings from time to time and what was done arising from those issues was to have regular highly visible patrols, meetings with the staff, owner and management of Cheers, working with the LCLB, and bar initiatives, all to establish a good police presence. 261 There were no notes or records of the meeting with the liquor board representatives. Cessford made no directions to patrols to fill out LPCs. He agreed that Cheers was a hot spot in that it had lots of calls for service. 262 He was referred to an LPC issued May 5, 2006 for allowing disorderly/riotous conduct at Cheers. It made reference to 60 - 70 people outside the bar at the rear exit involving some physical altercation. He Burnett v. Moir A.F. Cullen J. 293

was not aware of that particular incident. He was aware officers had the authority to close the establishment for up to 24 hours and the LCLB had a broad range of penalties for enforcement actions. He was aware that Cheers’ business licence could be suspended or revoked by council and that’s what was being contemplated as a result of the Anselmo complaint. 263 He was aware of an initiative in 2009 involving a violence suppres- sion team which would institute bar or restaurant watches to deter known gang members. The initiative would involve identified gang members being asked to leave by police at the behest of management. It would be done through the application of the trespass law. Delta took the program, which initiated in Vancouver, and used it there. Cheers was not, however, a signatory to the initiative, but the team did attend Cheers to seek its participation. Cessford did not recall if information concerning the number of service calls to Cheers ever had been requested before No- vember 2006. 264 Cessford was referred to an internal LCLB memo dated November 27, 1995 referring to a meeting that took place November 22, 1995 between representatives of the DPD and the LCLB. He did not recall the meeting referenced in that memo. He was referred to a later letter dated March 5, 1996 from the regional manager of the LCLB to himself, referring to that meeting, noting that no liquor LPC forms had been received from the DPD for 3 years and requesting an updated report on the issue of increased monitoring of the Delta Scottsdale Inn. Cessford acknowledged that he would have received the letter. 265 He agreed he was probably aware of the drinking and fighting outside of Cheers referred to in the letter. He had no record of a response to the letter and was not aware of the Attorney General’s indication of increased monitoring. He agreed LCLB inspectors “were willing to work closely with the DPD to monitor compliance with all licensed establishments in the Delta Municipality including the Scottsdale Inn Hotel.” 266 The DPD believed that cheap drink nights were a problem at Cheers and it had recommended to them that they not hold such events. There were a number of people from the police force communicating the mes- sage. He is not certain whether the cheap drink nights stopped as a result of police recommendations or not. 267 He agreed Cheers was a problem in a number of ways requiring increased attention from the police. There were issues of over-service; of 294 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

under-age service; the cheap drink nights; the “FUBAR” nights and other special events. 268 Those problems continued through to 2006. He agreed that he had some discussions with the legal counsel for the municipality in Novem- ber and December of 2006 concerning Cheers, arising out of the An- selmo incident and council’s request for an opinion on the viability of a show cause hearing. He was referred to some hand-written notes prepared by a lawyer with the municipality’s legal department. They were dated December 18, 2006, referred to Cheers and the Anselmo letter, and referred to the 392 service calls which included a wide variety of complaints. In the note, there was a reference to murders. Cessford testified however that there were no murders at Cheers. 269 He was aware in December 2006 that previously the Hells Angels had made appearances at Cheers. 270 It was ultimately decided that the show cause would not proceed because of the new ownership. 271 He was referred to a warning letter from Kane Scott to Cheers dated January 13, 2000 relating to an incident that had occurred in October of 1999. The letter read as follows: WARNING LETTER This letter is further to a Licenced [sic] Premise Check issued by Cst. [ ] of the Delta Police Department, concerning disorderly conduct of patrons within your licensed establishment on October 8, 1999. Delta Police attended at your premise about 2:10 a.m., to investigate a complaint of an assault that had just occurred. On arrival they learned that your security personnel had ejected about 10 persons from the premise including two victims of the assault incident. Your security personnel had returned the victims to your premise for their safety after having clarified some details of the incident. The suspects in this incident had left the scene prior to arrival, however, the two victims were transported to Surrey Memorial Hospital for treatment of head and facial injuries. I have discussed this incident with George Holmes and Scott Moir. Although your premises is generally well controlled both in the licenced [sic] areas and the parking lot areas surrounding the hotel incidents of altercations involving several persons and injury to persons cannot be ignored. Burnett v. Moir A.F. Cullen J. 295

Section 36(2)(a) of the Liquor Control and Licensing Act states: A person holding a licence or the person’s employee must not authorize or permit in the licensed establishment (a) gambling, drunkenness or violent, quarrelsome, riotous or disorderly conduct, Licensees and their employees are responsible for ensuring that adequate patron behaviour and order is maintained within the licensed establishment. Furthermore, public safety, health and well-being must not be jeopardized by the service and consumption of alcoholic beverages. The purpose of this letter is to serve as a warning that should this office continue to receive reports of violations, you could be requested to attend an enforcement hearing. A copy of the Licenced [sic] Premise Check forwarded to our offices is attached for your reference and attention. Should you have any questions concerning the contents of this letter, please do not hesitate to contact the undersigned. 272 The warning letter was based on an LPC issued by a DPD member. Cessford agreed that in that case, the issuance of the LPC had a good result. He was also referred to an LPC issued with respect to an assault with a weapon at Cheers which occurred on September 9, 2001. There was communication between the DPD and Kane Scott concerning the incident and ultimately no further action was taken against the establishment as it was determined the situation was properly handled by security staff who restrained and removed the combatants and called the police. He agreed that sometimes the DPD is reactive by sending officers to respond to calls and at other times proactive by sending bulletins re: hot spots to enable citizens to avoid situations. That, he explained, happens mostly in theft from autos in certain areas of Delta. 273 Initiatives like Bar Watch and Restaurant Watch to get rid of “bad guys” and to avoid danger in public places are other examples of proactive policing. 274 As far as the Hells Angels are concerned, he had been informed that they had been at Cheers, but infrequently. He did not recall having a conversation with the lawyer for the Municipality along those lines. The DPD would make sure they were not intimidating or setting up business at Cheers. 296 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

ix. Sergeant Walter Argent 275 Sergeant Argent (“Argent”) has been with the Vancouver Police De- partment (“VPD”) for 31 years. He is the Sergeant for the community police office in district #1, which includes the downtown core. He has patrolled and worked in the downtown entertainment district for many years and is familiar with the Roxy nightclub located on Granville Street in Vancouver. 276 He was referred to a document summarizing calls for service to the Roxy nightclub address between January 1, 2002 and December 31, 2006. The calls totalled 1,316. The Roxy has a seating capacity of 240 and is open 7 nights a week, with the busiest nights being Friday, Satur- day and holiday nights. 60% - 70% of the calls were on those nights. Argent’s office has responsibility for other clubs as well; some of which are worse for the number of service calls. The service calls included complaints of violent assaults. 277 There were many fights inside and outside of the Roxy. The VPD expected the club to handle the inside altercations, unless it was serious enough to call the police in. Ambulances would be called regularly on Friday and Saturday nights to the area of the Roxy and other clubs. If there is a major problem, the police can shut down the bar for up to 24 hours, but he had only done that two times. The police used LPC forms only if something arises in the club, such as over-service, improper service and that sort of thing. LPCs would not be sent to the LCLB in response to fights or violence. The Roxy has 8 - 11 doormen who communicate by radios and headphones. In his experience, it is not possible to eliminate fighting from bars; at best, the authorities can only try and control its nature and extent. The police changed their approach to the entertainment district after 2006. Before then they took a strict enforcement approach and wrote tickets for all infractions, but subsequently changed to what Argent described as a “meet and greet” approach. It was a more flexible, less confrontational approach which he said resulted in a 32% reduction in assaults since that new approach had been adopted. 278 In cross-examination, he said the Roxy is a Bar Watch member. It joined the program and adopts the policy. His view is that bars that don’t join the program don’t want to lose the financial benefits that gang members can bring. He agreed that failing to join might promote gang attendance and he could not think of any good reason not to join. 279 There are over 5,000 liquor establishment seats on Granville Street between Robson Street and Pacific Street. Lots of things occur in the Burnett v. Moir A.F. Cullen J. 297

streets. Some fights in front of the Roxy may not have anything to do with the Roxy. On hockey nights, more people are out in the street. Drugs are also available, which is another source of bad behaviour, but Argent’s view is that the majority of the problems are caused by alcohol. He said that each bar has different clientele; the Roxy is “relatively high end”. 280 The meet and greet policy would replace the arrest of drunken scuf- flers with sending them home in a cab and getting them off the mall. He testified that in his experience, LPC forms are seldom used. He put in only 3 in 2010. He said in 2002 - 2006 more were used, for liquor violations, but not for incidents on the sidewalks and in front of the various establishments. He said suspensions are used very rarely and he is only aware of it being used two times since 1999. 281 He testified that VPD have a liaison officer who works closely with the LCLB. That officer’s sole duty is to report infractions to the LCLB. That liaison came into being in 2000 and that’s how the main source of information from the police department to the LCLB was channelled, not through the medium of the LPC forms. He assumes that the reports are done in writing and it provides the inspectors with the basis to decide if some enforcement hearing is necessary. He said the object is not to put the bar out of business, but suspensions can cost money and send messages. 282 He said police will complain about cheap drink nights because they can cause problems, but police have no power to prevent such promotions. Argent agreed police “could try” to go to the LCLB with complaints arising from cheap drink nights with a view to provoking a warning or a suspension. It would take “a fair amount of planning and enforcement”. 283 He agreed allowing gang members into bars can lead to violence and fights. He was aware on two occasions of reports going to city hall to raise the issue of suspending or cancelling a business licence. That is another means of enforcement. 284 The VPD also issue warnings to the public on its website about “bad areas of crime”. The warnings concerning night clubs involved date rape drugs and Bar Watch warnings. There was only one Bar Watch warning issued that he could recall. He was aware of Brandi’s nightclub. He said there was a concern about gang members being involved in the ownership and at one point, its liquor licence was suspended, although he was not involved in that. Generally, dispatches are run according to the ad- 298 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

dress from which they come and the police try and be accurate. Other clubs will have their own call history, all of which are similar to that of the Roxy. 285 He testified that council pulled the licence of one cafe which had drugs being sold out of it. 286 The VPD website does not have warnings about assaults or fights in the bar area.

x. Police Occurrence Reports Relating to Cheers 2005/06 287 Summaries of all police services calls and those police occurrence reports involving assaults or other forms of violent behaviour relating to 11920 - 70th Avenue in Delta - the NDI complex - for 2005 and 2006 were introduced as exhibits in the defendant’s case. The police reports were subject to the parties’ documents agreement, which reads in part as follows: Police reports of previous incidents will be admissible only as proof of what the police were told about the incident and what they recorded. 288 According to the 2005 summaries, 26 of the service calls related to some form of alleged assault, threatening or obstruction and about 16 to causing a disturbance. According to the 2006 summaries, there were 31 calls related to various alleged forms of assault and a further 35 calls relating to causing a disturbance, many of which involved belligerent behaviour including fighting. 289 In one case on June 24, 2006 a patron was stabbed two times in the back, resulting in a punctured lung. No assailant was identified. Another call on July 3, 2006 about 2:20 a.m. related to a person who suffered a major concussion, who was found at an intersection near Cheers. There was evidence the victim had attended Cheers at about 11:30 p.m. the previous evening. There was no evidence of where the assault on him occurred. 290 Another call involved a woman who was struck in the face by another woman and received a broken nose on August 18, 2006. The assailant was not identified. 291 In 2005, on August 20th, a Cheers patron was stabbed in the stomach after the bar closed. The injuries were not life threatening and no assailant was identified. Burnett v. Moir A.F. Cullen J. 299

292 On August 26, 2005 a person was stabbed 8 times in the parking lot at Cheers. His wounds were not life threatening and he was released from hospital after getting stitched up. He refused to cooperate with the police and no assailant was identified. 293 On September 30, 2005 a patron was stabbed in the stomach while in the bar. The injury was not life threatening. 294 While there were, as noted, other incidents of belligerent behaviour and acts of violence or threatened violence throughout 2005 and 2006, those were the occasions over that two year period when the injuries were relatively or potentially serious.

E. The Position of the Parties - Liability i. The Plaintiff’s Position 295 The plaintiff relies on the Police Act, R.S.B.C. 1996, c. 367, s. 34 as creating a duty on the police to protect the public from those who would commit crimes. The plaintiff submits that this establishes a private law duty of care to the public at large. 296 The plaintiff notes that as part of their public mandate, the DPD regularly post crime bulletins on their website, warning the public about areas of crime. The plaintiff submits that no such bulletin was posted about Cheers, despite the police being aware of problems at Cheers from as early as 1995. 297 The plaintiff submits that the evidence establishes that Cheers had a reputation for violence, that the DPD knew about the propensity for violence at Cheers due to the high number of reported incidents between January 1998 and March 2007 totalling 2,410 service calls. The plaintiff asserts that the police demonstrated an understanding of the problems at Cheers when they set up “mobile command posts” outside of Cheers to deal with potentially violent situations before they escalated. 298 The plaintiff says that the DPD failed to take appropriate preventative action in relation to Cheers and had they discharged their duty adequately, he would not have sustained his injuries. 299 The plaintiff submits that over-serving alcohol is likely the true cause of the altercation in which he sustained his injuries and submits that the failure of the police to come to grips with the problem of over-service and the accompanying violence amounts to condonation of the atmos- phere at Cheers. The plaintiff referred to the evidence of violence or potential violence at Cheers over the years and submits that the police re- 300 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

sponse was inadequate to ensure a safe experience for people such as himself. 300 The plaintiff cited Schacht v. R. (1974), [1976] 1 S.C.R. 53 (S.C.C.) and N. (D.) v. Oak Bay (District), 2005 BCSC 1412 (B.C. S.C.) for the proposition that the police can be held liable for a failure to warn an appropriate association or government agency which would then be in a good position to take preventative action. 301 The plaintiff submits that the obvious preventative step for the DPD to take was reporting Cheers to the municipal council and the LCLB. The plaintiff submits this would have resulted in enforcement proceedings that would have led to either a suspension of Cheers’ liquor licence or closure of the bar. Had such enforcement proceedings taken place, Cheers would either have been closed or operating in a safer manner on the night the plaintiff attended the bar and suffered his injuries. 302 The plaintiff also relies on Schacht, and Jane Doe v. Metropolitan Toronto (Municipality) Commissioners of Police (1998), 160 D.L.R. (4th) 697 (Ont. Gen. Div.) for the proposition that police can be held liable for a failure to warn which includes a duty to warn potential victims. The plaintiff submits that the police could have warned individuals entering the bar about potential dangers during their routine patrols of the area or while uniformed officers checked the identification of patrons entering Cheers. The plaintiff also suggested that police could have put up a sign warning people about the dangers of entering Cheers. 303 The plaintiff also submits that the police have liability grounded in the negligent conduct of their investigation of his assault. 304 The plaintiff relies on Odhavji Estate v. Woodhouse, [2003] 3 S.C.R. 263 (S.C.C.) and Hill v. Hamilton-Wentworth (Regional Municipality) Police Services Board, 2007 SCC 41 (S.C.C.) for the proposition that the police owe a duty of care to members of the public and suspects under investigation to conduct themselves competently. The plaintiff submits that the principles in those cases are also supportive of a duty of care to victims. The plaintiff submits this was recognized in Traversy v. Smith (2007), 52 C.C.L.T. (3d) 109 (Ont. S.C.J.) in which there was a refusal to strike a statement of claim asserting a duty of care between an officer investigating an accident and a victim of that accident. 305 The plaintiff relies on the case of Small v. Stec (2009), 186 C.R.R. (2d) 363 (Ont. S.C.J.) for the proposition that a negligent investigation could result if there is proof that interviewing potential witnesses would have had an impact on the outcome of the case. Burnett v. Moir A.F. Cullen J. 301

306 The plaintiff submits the Delta Defendants were negligent in their investigation of his assault by not proceeding to interview witnesses in a timely manner and submits that had the interviews taken place in a timely manner, the police would have likely made an arrest, secured a conviction and identified the perpetrator to the plaintiff for a civil action. The plaintiff submits that in particular, the police spent insufficient time at the scene conducting an investigation on the night of the altercation. 307 The plaintiff places significant reliance on Odhavji Estate v. Wood- house and Mooney v. British Columbia (Attorney General), 2004 BCCA 402 (B.C. C.A.) as authority that the police can owe a duty of care to victims in the context of conducting criminal investigations. 308 The plaintiff submits that the failures of the Delta Defendants to warn the plaintiff of the dangers at Cheers or to conduct a reasonably competent investigation caused the plaintiff’s injuries. 309 The plaintiff submits the standard of care is dependent on the facts of the case and in the present case, the defendants were required to take reasonable steps to mitigate the danger to the plaintiff in becoming a patron at Cheers pub. The plaintiff submits reasonable steps in the circumstances involve: 1. recognizing the potential for harm to persons who might attend Cheers night club; 2. reporting incidents of violence to the LCLB; 3. reporting incidents of violence to the municipal council; 4. warning management of Cheers to clean up the place or risk losing their liquor licence and/or business permit; 5. warning prospective patrons of dangers within Cheers; and 6. conducting a reasonably thorough investigation. 310 As to causation, the plaintiff relied on Athey v. Leonati, [1996] 3 S.C.R. 458 (S.C.C.) where Major J. stated the test for causation at paras. 13 and 14 as follows: [13] Causation is established where the plaintiff proves to the civil standard on a balance of probabilities that the defendant caused or contributed to the injury: Snell v. Farrell, [1990] 2 S.C.R. 311; McGhee v. National Coal Board, [1972] 3 All E.R. 1008 (H.L.). [14] The general, but not conclusive, test for causation is the “but for” test, which requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant: Horsley v. MacLaren, [1972] S.C.R. 441. 302 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

311 The plaintiff also relies on Hanke v. Resurfice Corp., 2007 SCC 7 (S.C.C.) at para. 21, where Chief Justice McLachlin confirmed the test for causation as follows: First, the basic test for determining causation remains the “but for” test. This applies to multi-cause injuries. The plaintiff bears the burden of showing that “but for” the negligent act or omission of each defendant, the injury would not have occurred ... 312 The plaintiff submits but for the negligence of the police, Cheers would not have existed in the form that it did on December 26, 2006 and Mr. Burnett would, in all probability, not have been assaulted. The plaintiff submitted in the alternative that if the court determines there are gaps in the chain of causation caused by the need to determine the actions of third parties such as the LCLB or municipal council, the court may need to rely on the “material contribution test”. 313 The material contribution test was set out by Chief Justice McLachlin at para. 25 of Resurfice where she held as follows: First, it must be impossible for the plaintiff to prove that the defendant’s negligence caused the plaintiff’s injury using the “but for” test. The impossibility must be due to factors that are outside of the plaintiff’s control; for example, current limits of scientific knowledge. Second, it must be clear that the defendant breached a duty of care owed to the plaintiff, thereby exposing the plaintiff to an unreasonable risk of injury, and the plaintiff must have suffered that form of injury. In other words, the plaintiff’s injury must fall within the ambit of the risk created by the defendant’s breach. In those exceptional cases where these two requirements are satisfied, liability may be imposed, even though the “but for” test is not satisfied, because it would offend basic notions of fairness and justice to deny liability by applying a “but for” approach. 314 The plaintiff noted that at para. 28 of Resurfice, Chief Justice McLachlin described a situation where it would be impossible for the plaintiff to prove that but for the defendant’s negligence, the plaintiff’s injury was caused: A second situation requiring an exception to the “but for” test may be where it is impossible to prove what a particular person in the causal chain would have done had the defendant not committed a negligent act or omission, thus breaking the “but for” chain of causation. 315 The plaintiff submits that in such circumstance, based on the recent case of Clements (Litigation Guardian of) v. Clements, 2010 BCCA 581 (B.C. C.A.), it is appropriate to use the “material contribution test” in Burnett v. Moir A.F. Cullen J. 303

assessing the Delta Defendants’ liability. The plaintiff submits that liability should be found against the Delta Defendants and apportioned 50% to the Delta Defendants, 25% to Cheers and 25% to the assailant himself. 316 The plaintiff submits there should be no contributory negligence found based on the submission that even if Mr. Burnett was intoxicated and under the influence of cocaine and steroids at the time of the altercation, a person in his position would be “a product of his environment” and ought not to be held responsible for any violent behaviour he may have exhibited while intoxicated at Cheers.

ii. The Delta Defendants’ Position 317 The defendants submit that a review of the police incident reports for 2005 and 2006 reveal relatively minor incidents of violence and that the police response to each of the situations was entirely appropriate in the circumstances. The defendants submit the plaintiff’s claim that there is no evidence of any enforcement measures is therefore without foundation. The plaintiff submits that as far as a failure to warn is concerned, that the evidence taken as a whole does not establish that the plaintiff would have been aware of any warning issued by the Delta Defendants, or if he did become aware, would have heeded it, given the circumstances under which he attended Cheers and given the fact that he had on previous occasions attended at bars in which violence occurred. 318 Insofar as negligent investigation is concerned, the defendants submit that the plaintiff has failed to establish a duty of care owed to him by the police, a breach of the applicable standard of care and causation. The defendants submit the police response was reasonable. 319 As to the duty of care in relation to the plaintiff both pre-assault and post-assault, the plaintiff submits that the test to be met is: a. whether the relation between the plaintiff and the defendant discloses sufficient foreseeability and proximity to establish a prima facie duty of care; and b. if so, whether there are any residual policy considerations which ought to negate or limit that duty of care. 320 The Delta Defendants submit that this case is distinguishable from the Jane Doe case and the case of Mooney relied on by the plaintiff, in that in those cases, the victim was either a member of a narrowly defined class of potential victims or a particular victim exposed to danger from a particular identifiable source. In the present case, the defendants submit 304 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

Mr. Burnett cannot be described as falling into a similarly narrow class of potential victims. The defendants say that the harm to the plaintiff is not foreseeable in the present case and in any event, the class to which the plaintiff belongs is too broad to impose a duty of care. 321 As to the standard of care, the defendants say that the applicable standard of care is stated in Hill v. Hamilton-Wentworth as a reasonable police officer in comparable circumstances. 322 The defendants submit that the Court is not to substitute its own judgment for what it might do if put in a position of police at Cheers during the time period in question, but rather to determine whether the steps that were taken by the DPD fall within the range of options of what a reasonable police officer might do in response to such circumstances. 323 The defendants point out that the DPD conducted regular walk- throughs of Cheers, they conducted routine patrols of the area and had an established presence outside Cheers at closing time. The DPD also promptly responded to calls for service when received and accompanied LCLB inspectors on visits to Cheers. The defendants submit that all of these initiatives are consistent with the approach taken by the VPD in policing the Granville entertainment district and meet the appropriate standard of care. 324 With regard to the investigation, the DPD interviewed many witnesses in the days following the altercation. The bar stool thought to be the one used to strike Mr. Burnett was seized and subjected to forensic testing. The surveillance footage was also seized and reviewed thor- oughly. The cab driver who was seen in the video footage passing the bar at the time of the altercation was interviewed. Mr. Burnett himself was also interviewed and shown video footage of the incident, but all these interviews proved fruitless. The defendants say that taken in its totality, the investigation is consistent with a competent police investigation, which is still seen as ongoing. 325 The defendants submit that causation is not made out in the present case. The defendants say that the material contribution test is unavailable under Hanke v. Resurfice Corp. because it is not impossible for the plaintiff to establish causation through the “but for” test. The defendants say that the plaintiff has failed to establish that had the police reported incidents of violence to the LCLB that the board would have exercised its discretion to take action against Cheers. The defendants submit that even if they had, it is unlikely and unproven that the action would have been sufficient to prevent Mr. Burnett’s injuries. The defendants rely on the Burnett v. Moir A.F. Cullen J. 305

fact that the plaintiff admitted in cross-examination that he attends bars he knows to be violent and submit that even if the police had warned people about potential dangers at Cheers, the plaintiff would have likely been at Cheers on the night in question anyway. The defendants point out that Mr. Burnett is not a resident of Delta and would have had no reason to read DPD bulletins. The defendants submit that there is evidence that Mr. Burnett ignored a caution from Cheers staff to stand down from the verbal altercation that preceded his injuries and that implies he would not have heeded any such warning in any event. The defendants submit in the alternative the plaintiff should be found contributorily negligent and in any event their apportionment of any liability should not exceed 10%.

F. Discussion and Conclusion - Liability i. The Law 326 I see the dominant issue in this case as whether the law recognizes a private law duty of care in the police discharge of their public duties in circumstances akin to those in the present case. 327 A number of cases have explored that issue, the most prominent of which is the decision of the Supreme Court in Hill v. Hamilton- Wentworth (Regional Municipality) Police Services Board, 2007 SCC 41 (S.C.C.). It was written by Chief Justice McLachlin and dealt with the issue “whether the law recognizes a duty of care on an investigating police officer to a suspect in the course of an investigation.” 328 The matter was unsettled and the Chief Justice noted the need to “ask whether as a matter of principle, a duty of care should be recognized in this situation.” Although the various other decisions relied on by counsel in the present case focus on the relationship between a police officer and a victim or the family of the victim, the resolution of the issue in Hill, and the analysis which led to it, play an important role in gauging the proper scope of those decisions and the extent to which they assist in resolving this case. 329 In Hill, Chief Justice McLachlin held as follows at para. 20: [20] The test for determining whether a person owes a duty of care involves two questions: (1) Does the relationship between the plaintiff and the defendant disclose sufficient foreseeability and proximity to establish a prima facie duty of care; and (2) If so, are there any residual policy considerations which ought to negate or limit that duty of care? (See Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), as affirmed and explained by this Court in a number 306 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

of cases (Cooper v. Hobart, [2001] 3 S.C.R. 537, 2001 SCC 79, at paras. 25 and 29-39; Edwards v. Law Society of Upper Canada, [2001] 3 S.C.R. 562, 2001 SCC 80, at para. 9; Odhavji Estate v. Woodhouse, [2003] 3 S.C.R. 263, 2003 SCC 69, at paras. 47-50; Childs v. Desormeaux, [2006] 1 S.C.R. 643, 2006 SCC 18, at para. 47.) 330 In connection with the proximity aspect of the relationship at issue, McLachlin C.J.C. held as follows at paras. 22 - 24 of her decision: [22] The first element of such a relationship is foreseeability. In the foundational case of Donoghue v. Stevenson, [1932] A.C. 562 (H.L.), Lord Atkin stated: The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted re- ply.... Who, then, in law is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question. Lord Atkin went on to state that each person “must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour” (p. 580). Thus the first question in determining whether a duty in negligence is owed is whether it was reasonably foreseeable that the actions of the alleged wrongdoer would cause harm to the victim. [23] However, as acknowledged in Donoghue and affirmed by this Court in Cooper, foreseeability alone is not enough to establish the required relationship. To impose a duty of care “there must also be a close and direct relationship of proximity or neighbourhood”: Cooper, at para. 22. The proximity inquiry asks whether the case discloses factors which show that the relationship between the plaintiff and the defendant was sufficiently close to give rise to a legal duty of care. The focus is on the relationship between alleged wrongdoer and victim: is the relationship one where the imposition of legal liability for the wrongdoer’s actions is appropriate? [24] Generally speaking, the proximity analysis involves examining the relationship at issue, considering factors such as expectations, representations, reliance and property or other interests involved: Cooper, at para. 34. Different relationships raise different considerations. “The factors which may satisfy the requirement of proximity are diverse and depend on the circumstances of the case. One Burnett v. Moir A.F. Cullen J. 307

searches in vain for a single unifying characteristic”: Cooper, at para. 35. No single rule, factor or definitive list of factors can be applied in every case. “Proximity may be usefully viewed, not so much as a test in itself, but as a broad concept which is capable of subsuming different categories of cases involving different factors” (Canadian National Railway v. Norsk Pacific Steamship Co., [1992] 1 S.C.R. 1021 at p. 1151, cited in Cooper, at para. 35). 331 Chief Justice McLachlin noted that most cases of negligence proceed on “a type of relationship previously recognized as giving rise to a duty of care” but where “hitherto unconsidered” relationships arise from a claim, “courts must consider whether the claim for sufficient proximity is established.” 332 In the case before her, the Chief Justice posed the question “whether on principles applied in previous cases this relationship is marked by sufficient proximity to make the imposition of legal liability for negligence appropriate.” 333 The court in Hill did not, however, rely heavily on previous cases decided in the context of a relationship between the police and a victim or a police chief and the family of a victim. In connection with such cases, Chief Justice McLachlin wrote as follows: Further, I cannot accept the suggestion that cases dealing with the relationship between the police and victims, or between a police chief and the family of a victim are determinative here, although aspects of the analysis in those cases may be applicable and informa- tive in the case at bar. (See Odhavji and Jane Doe v. Metropolitan Toronto (Municipality) Commissioners of Police (1998), 160 D.L.R. 4th, 697 (Ont. Gen. Div.)). I note that Jane Doe is a lower court decision and that debate continues over the content and scope of the ratio in that case. I do not pur- port to resolve those disputes on this appeal. In fact, and with great respect to the Court of Appeal who relied to some extent on this case, I find the Jane Doe decision of little assistance in the case at bar. 334 I take the Chief Justice’s comments with respect to the Jane Doe decision in particular, to be somewhat cautionary. In that case, the Court found a duty of care to exist between the police force investigating a serial rapist operating in a particular neighbourhood and one of his victims. I will return to that case later in these reasons. 335 In the Hill decision, the court concluded that the relationship between an investigating police officer and a suspect under investigation was sufficiently proximate to engage a duty of care. In the result, the Supreme 308 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

Court of Canada dismissed the plaintiff/appellant’s appeal however, on the basis that the impugned police conduct met the general standard of care and was therefore not negligent. 336 How the Court in Hill approached and analyzed the issue of proximity is of considerable importance to the case at bar. The Chief Justice noted that the “most basic factor to consider” is whether “there is a relationship between the alleged wrongdoer and the victim, usually described by the words ‘close and direct’”. 337 The court noted the relationship need not be “intimate” or involve “physical proximity”, but requires circumstances in which the actions of the defendant “have a close or direct effect on the victim, such that the wrongdoer ought to have had the victim in mind as a person potentially harmed.” 338 The Chief Justice concluded that the presence or absence of a personal relationship “is an important factor to consider in the proximity analysis” although she noted it was “not necessarily determinative”. 339 Chief Justice McLachlin also noted the plaintiff has “the formal onus of establishing the duty of care” and the factors at play in the first stage of the analysis are those which arise “from the relationship between the plaintiff and the defendant, for example, expectations, representations, reliance and the nature of the interest engaged by that relationship: Cooper at para. 30 (emphasis deleted) and 34.” 340 In finding a relationship with sufficient proximity to support a cause of action in Hill, the Supreme Court found it to be “personal” and “close and direct”. Hill was “a particularized suspect”. The relationship was not with “the universe of all potential suspects” nor was the plaintiff “one person in a pool of potential suspects”. The court noted he was thus in a closer relationship than in Cooper and Edwards where “the public officials were not acting in relation to the claimant (as the police did here) but in relation to a third party (i.e. persons being regulated) who at a further remove interacted with the claimants.” 341 The Chief Justice noted the interests engaged by the relationship are additional considerations. She noted that there were no “personal representations” by the defendant or “consequent reliance” by the plaintiff which weighs against proximity, but that nevertheless the plaintiff (as a targeted suspect) “has a critical personal interest in the investigation” or that his “freedom, reputation and how he may spend a good portion of his life [are] at stake”. Burnett v. Moir A.F. Cullen J. 309

342 In the result, the court concluded that “viewed from the broader soci- etal perspective, suspects may reasonably be expected to rely on the police to conduct their investigation in a competent and non-negligent manner” [emphasis added]. 343 In the case of Jane Doe v. Metropolitan Toronto (Municipality) Commissioners of Police, supra, there were three decisions: the first was the decision of Henry J. of the Ontario Supreme Court High Court of Justice ((1989), 58 D.L.R. (4th) 396 (Ont. H.C.)) dismissing an application by the defendant to strike the plaintiff’s pleadings; the second was a decision of the Ontario Supreme Court, Divisional Court, (1990), 72 D.L.R. (4th) 580 (Ont. Div. Ct.)) dismissing an appeal from the ruling of Henry J.; and the third was the decision of MacFarland J. of the Ontario Supreme Court ((1998), 160 D.L.R. (4th) 697 (Ont. Gen. Div.)) granting judgment to the plaintiff. 344 Justice MacFarland neatly summarized the issues raised and resolved with respect to the existence of a duty of care in the circumstances of the case before her in paras. 180 - 183 of her judgment as follows: [180] My task has been rendered less onerous by the very thorough analysis of Henry J. of the issues raised by the pleading in this case reported at (1989), 58 D.L.R. (4th) 396, 48 C.C.L.T. 105 (Ont. H.C.J.), when the matter came before him on a motion to strike out the statement of claim and the succinct reasons of Moldaver J. (as he then was) on behalf of the Divisional Court (1990), 74 O.R. (2d) 225, 72 D.L.R. (4th) 580, when the decision of Henry J. went to that court on appeal. [181] After citing s. 57 of the Police Act, and observing that by virtue thereof the police are charged with the duty of protecting the public from those who would commit or have committed crimes, Moldaver J. (as he then was) goes on at pp. 230-31 as follows: To establish a private law duty of care, foreseeability of risk must coexist with a special relationship of proximity. In the leading case of Anns v. Merton (London Borough), [1978] A.C. 728, [1977] 2 All E.R. 492, 121 Sol. Jo. 377 (H.L.), Lord Wilberforce defined the requirements of this special relationship as follows at pp. 751-52 A.C.: First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, 310 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

carelessness on his part may be likely to cause damage to the latter - in which case a prima facie duty of care arises. This principle has been approved by the Supreme Court of Canada in Kamloops (City) v. Nielsen, [1984] 2 S.C.R. 2, 66 B.C.L.R. 273, 29 C.C.L.T. 97, 8 C.L.R. 1, 10 D.L.R. (4th) 641, 26 M.P.L.R. 81, 54 N.R. 1, [1984] 5 W.W.R. 1. Do the pleadings support a private law duty of care by the defendants in this case? The plaintiff alleges that the defendants knew of the existence of a serial rapist. It was eminently foreseeable that he would strike again and cause harm to yet another victim. The allegations therefore support foreseeability of risk. The plaintiff further alleges that by the time she was raped, the defendants knew or ought to have known that she had become part of a narrow and distinct group of potential victims, sufficient to support a special relationship of proximity. According to the allegations, the defendants knew: (1) that the rapist confined his attacks to the Church- Wellesley area of Toronto; (2) that the victims all resided in second or third floor apartments; (3) that entry in each case was gained through a bal- cony door; and (4) that the victims were all white, single and female. Accepting as I must the facts as pleaded, I agree with Henry J. that they do support the requisite knowledge on the part of the police sufficient to establish a private law duty of care. The harm was foreseeable and a special relationship of proximity existed. Do the pleadings support a breach of the private law duty of care. The law is clear that in certain circumstances, the police have a duty to warn citizens of foreseeable harm. See Schact v. R., [1973] 1 O.R. 221, 30 D.L.R. (3d) 641 (C.A.), affd sub nom. O’Rourke v. Schact, [1976] 1 S.C.R. 53, 55 D.L.R. (3d) 96, 3 N.R. 453, and Beutler v. Beutler; Adams v. Beutler (1983), 26 C.C.L.T. 229 (Ont. H.C.J.). Burnett v. Moir A.F. Cullen J. 311

The obvious purpose of the warning is to protect the citizens. I would add to this by saying that in some circumstances where foreseeable harm and a special relationship of proximity exist, the police might reasonably conclude that a warning ought not to be given. For example, it might be decided that a warning would cause general and unnecessary panic on the part of the public which could lead to greater harm. It would, however, be improper to suggest that a legiti- mate decision not to warn would excuse a failure to protect. The duty to protect would still remain. It would simply have to be accomplished by other means. In this case the plaintiff claims, inter alia, that the duty owed to her by the defendants required (1) that she be warned of the impending danger; or (2) in the absence of such a warning, that she be adequately protected. It is alleged that the police did neither. Instead she claims they made a conscious decision to sac- rifice her in order to apprehend the suspect. They decided to use her as “bait”. They chose not to warn her due to a stereotypical belief that because she was a woman, she and others like her would become hysterical. This would have “scared off” the attacker, making his capture more difficult. [182] The evidence establishes that Det. Sgt. Cameron clearly had linked the four rapes which preceded Ms. Doe’s by the early days of August in 1986 and he and Det. Sgt. Derry knew that the rapist would continue to attack women until he was stopped. They knew the rapist was attacking single white women living alone in second - and third-floor apartments with balconies in the Church/Wellesley area of the City of Toronto. [183] On the evidence I find the plaintiff has established a private law duty of care. 345 She went on to consider whether the police breached the private law duty of care to the plaintiff in paras. 184 - 189 as follows: [184] Detective Sgts. Derry and Cameron determined, in the context of their investigation, that no warning would be given to any women - let alone the specific target group they had identified and among the reasons given for deciding not to warn was their view that women would panic and compromise the investigation. Detective Sgt. Cam- 312 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

eron gave this as a reason to Ms. Doe when he interviewed her following her rape and she asked why women had not been warned. [185] In spite of the knowledge that police had about this sexual rapist and their decision not to warn, they took no steps to protect Ms. Doe or any other women from this known danger. In my view, in the circumstances of this case, the police failed utterly in the duty of care they owed Ms. Doe. [186] The decision not to warn women was a decision made by Sgts. Cameron and Derry in the course of their investigation. It was made on the basis of “shop talk” they had overheard or been a part of, according to them, in relation to the Dawson Davidson Annex Rapist investigation. What is apparent is that neither Sgts. Cameron nor Derry made any real effort to look into that investigation and determine whether in fact it had been the publicity that caused Dawson Davidson to flee. [187] Their decision was based largely on rumour and “shop talk” essentially within the 52 C.I.B. and they said they relied on it alone in making the very serious decision not to warn these women of the risk they faced. This they did in the face of the almost certain knowledge that the rapist would attack again and cause irreparable harm to his victim. In my view their decision in this respect was irresponsible and grossly negligent. [188] There is simply no evidence before this court which could be interpreted as suggesting that no warning should have been given in the circumstances of this case. The only persuasive expert opinion called by the defence, in fact, suggests that a suitable warning could have been and should have been given. While the defence experts were careful in giving their evidence when one looks at the totality of their evidence this conclusion is irresistible. [189] Sergeants Cameron and Derry made a decision not to warn women in the neighbourhood and did not do so. They took no steps to protect the women they knew to be at risk from an almost certain attack in result, they failed to take the reasonable care the law requires and denied the plaintiff the opportunity to take steps to protect herself to eliminate the danger and ensure that she would not be attacked. 346 In a not dissimilar case, Hill v. Chief Constable of West Yorkshire, [1988] 2 W.L.R. 1049 (U.K. H.L.), a young woman was attacked and killed by a man who was eventually charged and convicted of her murder. It was alleged that he had attacked and killed or attempted to kill a number of young women in the same area in similar circumstances in Burnett v. Moir A.F. Cullen J. 313

previous years. The deceased mother launched an action framed in negligence against the police, claiming damages, alleging the police failed in their duty to properly investigate the previous offences and arrest the perpetrator before the deceased was killed. 347 At first instance, on application of the defendants, the plaintiff’s Writ and Statement of Claim was struck as disclosing no cause of action. That ruling was upheld in the Court of Appeal and ultimately by the House of Lords. 348 In the majority judgment in the House of Lords, Lord Keith of Kinkel outlined the public law duty of police officers and its implication for the private law duty of care being asserted at pp. 5 - 6 as follows: By common law police officers owe to the general public a duty to enforce the criminal law: see Reg. v. Commissioner of Police of the Metropolis, Ex parte Blackburn, [1968] 2 Q.B. 118. That duty may be enforced by mandamus, at the instance of one having title to sue. But as that case shows, a chief officer of police has a wide discretion as to the manner in which the duty is discharged. It is for him to decide how available resources should be deployed, whether particular lines of inquiry should or should not be followed and even whether or not certain crimes should be prosecuted. It is only if his decision upon such matters is such as no reasonable chief officer of police would arrive at that someone with an interest to do so may be in a position to have recourse to judicial review. So the common law, while laying upon chief officers of police an obligation to enforce the law, makes no specific requirements as to the manner in which the obligation is to be discharged. That is not a situation where there can readily be inferred an intention of the common law to create a duty towards individual members of the public. 349 Lord Keith noted at p. 6 the elements of a private law duty of care requires more than simply foreseeability of harm: Some further ingredient is invariably needed to establish the requisite proximity of a relationship between plaintiff and defendant and all the circumstances of the case must be carefully considered and analyzed in order to ascertain whether such an ingredient is present. 350 Lord Keith considered the case of Dorset Yacht Co. v. Home Office, [1970] A.C. 1004 (U.K. H.L.), in which young inmates with records of previous escapes were taken to an island by prison officers in the vicinity of some moored yachts. Some of the inmates escaped from the island by taking a yacht and in the course of their manoeuvres damaged another yacht. 314 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

351 The owner brought suit against the prison officials. In that case, a private law duty and care was found to exist with the requisite relationship of proximity. 352 In his judgment, Lord Keith characterized the relationship thus at p. 7: To give rise to a duty on the part of the custodian owed to a member of the public to take reasonable care to prevent a Borstal trainee from escaping from his custody before completion of the trainee’s sen- tence there should be some relationship between the custodian and the person to whom the duty is owed which exposes that person to a particular risk of damage in consequence of that escape which is different in its incidence from the general risk of damage from criminal acts of others which he shares with all members of the public. 353 Lord Keith noted that “Ms. Hill was one of a vast number of the female general public who might be at risk from (the killer’s) activities but was at no special distinctive risk in relation to them ...”. He concluded as follows: The conclusion must be that although there existed reasonable foreseeability of likely harm to such as Ms. Hill if Sutcliffe were not identified and apprehended, there is absent from the case any such ingredient or characteristic as led to the liability of the home office in the Dorset Yacht case. Nor is there present any additional characteristic such as might make up the deficiency. The circumstances of the case are therefore not capable of establishing a duty of care owed towards Ms. Hill by the Westyorkshire police. 354 In Traversy v. Smith, supra, the Court was dealing with an application for leave to appeal the dismissal of a motion to strike out the plaintiff’s statement of claim as disclosing no reasonable cause of action against Her Majesty the Queen in Right of Ontario and Constable P.J. Toms. The claims against HMTQ (Ont) and Toms alleged negligent investigation into a serious motor vehicle accident which the plaintiff/respondent was involved in. The claim was based on “ongoing mental distress, anger, depression and anxiety” as well as “prejudice to the plaintiff’s ability to determine the events of the accident ...” and damages arising from the plaintiff’s inability to prove negligence against the principal defendants as a result of the negligent investigation. 355 The chambers judge noted that the tort of negligent investigation by police had been recognized in Ontario in Beckstead v. Ottawa (City) (1997), 37 O.R. (3d) 62 (Ont. C.A.) and Hill v. Hamilton-Wentworth Burnett v. Moir A.F. Cullen J. 315

(Regional Municipality) Police Services Board (2005), 76 O.R. (3d) 481 (Ont. C.A.). 356 The chambers judge in Traversy concluded the plaintiff before her had an interest in P.J. Tom’s alleged negligent investigation and that the defendants were unable to demonstrate that it was certain the plaintiffs would fail in establishing liability. 357 The divisional court judge agreed. Mr. Justice Power ruled, after considering the Supreme Court of Canada’s decision in Hill v. Wentworth that leave to appeal should not be granted. He concluded as follows at para. 33: For the foregoing reasons I am satisfied that the moving parties have failed to meet the tests for leave to appeal set out in Rule 62.02(4)(a) and (b). Indeed, in my opinion, Ratushny J.’s decision is a correct decision. In my opinion, the existing jurisprudence does not, as argued, stand for the proposition that there is no private law duty of care giving rise to an action in negligence between a police officer investigating a motor vehicle accident and one of the persons (or to that person’s family) whose injuries in the accident were caused by others and who is claiming damages as a result of the underlying accident. (See para. 15(a) and (b) of these reasons). In addition, without a court having an opportunity to examine the entire circumstances of the relevant circumstances, it cannot be stated categorically that the relationship is not a proximate one. (See para. 15(d) of these reasons). 358 In another case relied on by counsel for the defendants, Donald J.A., in dissent, addressed the issue of whether an investigating officer owes a duty of care to a potential victim. In Mooney v. British Columbia (Attorney General), 2004 BCCA 402 (B.C. C.A.) at issue was whether the trial judge erred in dismissing the plaintiff’s claim finding no causation between the negligent investigation and the ultimate harm suffered by the victims. In coming to his conclusion, the trial judge found a duty of care and a breach of the standard of care in circumstances where the police failed to investigate threatening behaviour of the plaintiff Bonnie Mooney’s former spouse, Ronald Kruska. Seven weeks after the failed investigation, Kruska came to Bonnie Mooney’s house and seriously injured her daughter, the plaintiff Michelle Mooney, shot and killed a friend of Ms. Mooney’s and caused significant psychological trauma to the plaintiff Kristy Mooney who was present at the time, but not physically injured. 316 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

359 The trial judge dismissed the action, finding no causal connection between the failure to investigate and the subsequent harm to the various plaintiffs. 360 The trial decision was upheld by Hall and Smith JJ.A. on the issue of causation. 361 In his dissent, Donald J.A. would have found causation and was thus obliged to deal with the respondent’s argument that there was no duty of care in respect of the victims of the crime which the negligent investigation failed to deter. 362 In connection with that argument by the respondents, Donald J.A. held as follows at para. 44: These arguments are supported by English authority, most notably Hill v. Chief Constable of West Yorkshire, [1988] 2 All E.R. 238 (H.L.). The trial judge did not find that case helpful, nor do I. The public policy considerations were said there to apply where a claim is from a member of a large indeterminate class of persons to whom a general duty of protection is owed. The House of Lords did not ex- clude private law responsibility for claims arising within a proximity of relationship between the police and the claimant: Home Office v. Dorset Yacht Co. Ltd., [1970] A.C. 1004, 2 All E.R. 294. 363 Justice Donald then quoted passages from Lord Keith’s judgment in Hill v. Chief Constable of West Yorkshire and made the following obser- vations in distinguishing it from the case before him at paras. 46 and 47: [46] The facts in the instant case are quite different from Hill, supra. Bonnie Mooney sought police assistance and had a direct engage- ment with an officer when she presented her complaint. She had a pressing need for protection as a potential victim of Kruska’s violence and the police should have recognized that. She cannot be said to fall into a large indeterminate class; to the contrary she was a person, in Lord Keith’s words at 243 of Hill, supra, with a “special distinctive risk”. [47] In any event, Canadian courts are not so protective of the police. A private duty of care was found in two cases where the victims were part of a class rather than individuals specifically at risk. 364 The two cases cited by Justice Donald were Schacht v. R. which dealt with a police failure to replace a sign warning of an open culvert under construction on a highway after an accident, and the Jane Doe decision. 365 In finding a relationship of proximity between the police and Ms. Mooney, Donald J.A. also relied on policies laid down by the Ministry of Burnett v. Moir A.F. Cullen J. 317

the Attorney General, adopted by the R.C.M.P. in relation to domestic violence, which he observed “relate not only to the special proximity between police and complainants, but also gave content to the duty of care and set the standard of care.” 366 Justice Donald then turned to consider the case of Odhavji Estate v. Woodhouse, which had been decided after the appeal before him was argued. He summarized the circumstances of that case in para. 52 as follows: [52] Since the hearing of the appeal, the Supreme Court of Canada issued its reasons in Odhavji Estate v. Woodhouse, 2003 SCC 69. It concerns an action framed in tort alleging misfeasance in public office and negligence against police authorities and others. Marvish Odhavji was shot and killed by officers of the Metropolitan Toronto Police Service after a robbery. The Special Investigations Unit was called in to investigate the conduct of the officers. The officers refused to cooperate and thereby compromised the investigation. Mem- bers of the family of the shooting victim sued to recover damages for psychological harm resulting from the unsatisfactory investigation. They alleged that the failure of the Chief of Police and the Police Services Board to command the officers’ cooperation was misfeasance and negligence. 367 In the result, in that case, the Court held the claims against the police officers and the Chief of Police could stand. 368 Justice Donald concluded in the circumstances before the court in Mooney that the trial judge was correct in imposing a duty of care on the police, holding at para. 57: [57] In summary on the question of the duty of care, having made herself known to the police as a person in fear of a violent abuser, Bonnie Mooney established a special relationship of proximity with the police thereby creating a private duty of care. The duty on the police was to act on the complaint promptly. I am in substantial agreement with the trial judge’s ruling on this issue. 369 As noted, the majority decisions rendered by Hall and Smith JJ.A. dealt with the appeal without reference to the correctness of the trial judge’s determination that there was a duty of care in the circumstances of that case. 370 In a 2009 decision, Project 360 Investments Ltd. v. Toronto Police Services Board, 2009 CanLI 36380 [2009 CarswellOnt 3418 (Ont. S.C.J.)] MacDonnell J. dealt with an application to strike pleadings asserting a claim in negligence against police officers. 318 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

371 MacDonnell J. described the application before him thus in para. 1: The defendants move under Rule 21.01(1) of the Rules of Civil Pro- cedure for an Order striking paragraphs 35 and portions of paragraph 36 of the Statement of Claim. They submit that those paragraphs assert a claim in negligence that cannot possibly succeed because it is premised on a general private law duty of care, owed to individual members of the public by the police, that does not exist. While the defendants do not dispute that particular circumstances may create a relationship that is sufficiently proximate to give rise to a private law duty of care, they submit that with respect to the claim asserted in the impugned paragraphs no such circumstances have been pleaded. 372 MacDonnell J. gave effect to the motion concluding: In the absence of circumstances giving rise to a special relationship of proximity, the relationship between the police and individual members of the public does not give rise to a private law duty of care. 373 He went on to find “the plaintiff has not pleaded facts that establish a special relationship of proximity.” He granted leave to amend “if the plaintiff’s are so advised”. 374 The factual context before Justice MacDonnell is different from the case at bar. The plaintiffs were the owners of a nightclub in which a patron was shot by a man named McCalla after midnight on October 6, 2002 after he entered the club the previous evening. The plaintiff/owners of the club allege that as a result of the shooting, they suffered economic damages. 375 The impugned pleadings asserted that the police learned on October 5th that McCalla intended to go to the nightclub armed with a firearm. It was not pleaded that the police were aware of any connection, past, present or prospective between McCalla and the nightclub. 376 The defendant police conceded that once they had knowledge of Mc- Calla’s intention to go to the nightclub, there was sufficient proximity in their relationship to the plaintiff to give rise to a private law duty of care, and thus they sought only to strike the portion of the claim that alleged negligent investigation resulting in a failure to arrest McCalla, which would have prevented the shooting and failure to warn the patrons or staff of the nightclub “of the information that had been complied on Mc- Calla”. The pleadings also alleged a failure to identify McCalla as a suspect, a failure to investigate him adequately or at all, and a failure to take Burnett v. Moir A.F. Cullen J. 319

steps to permit the plaintiffs and their staff to identify and locate McCalla. 377 The premise of the application to strike was that those allegations asserted the police owed the plaintiffs a duty of care “regardless of whether they had any knowledge of a link between McCalla and the plaintiffs.” The defendants submitted it is plain and obvious no such duty of care was owed and the police failure to arrest McCalla was in breach of no such duty. 378 In the course of his reasons for striking the impugned paragraphs, Justice MacDonnell relied on the proposition which he derived from various decisions that “the general relationship between the police and individual members of the public has not been recognized as one in which a private duty of care arises.” He acknowledged, however, relying on the Jane Doe case, that “particular circumstances may create a situation in which such a duty is owed”. He noted in those cases where a duty of care was found, the courts were required to distinguish the plaintiffs from other members of the public. 379 He noted that in a series of decisions “in several contexts over the course of the past eight years” different courts have held that “pursuant to the applicable statutory framework, the duty of the defendants was owed to the public as a whole and not to individual members of the public, and accordingly ... proximity had not been established.” He cited Cooper v. Hobart, [2001] 3 S.C.R. 537 (S.C.C.); Edwards v. Law Society of Upper Canada, [2001] 3 S.C.R. 562 (S.C.C.); Eliopoulos v. Ontario (Minister of Health & Long Term Care) (2006), 82 O.R. (3d) 321 (Ont. C.A.); Attis v. Canada (Minister of Health), 2008 ONCA 660 (Ont. C.A.); Williams v. Canada (Attorney General), 2009 ONCA 378 (Ont. C.A.) and Abarquez v. Ontario, 2009 ONCA 374 (Ont. C.A.). 380 MacDonnell J. concluded from his review of the statutory provisions respecting police in Ontario “it is manifest ... the duties of police officers ... is to the public as a whole and not just specific individuals”. 381 He held at para. 19 as follows: To paraphrase language used by the Supreme Court of Canada in Edwards v. Law Society of Upper Canada, supra, and borrowed by the Court of Appeal in Williams, supra, in fulfilling their duties the police are required to act in the general public interest and to balance “a myriad of competing interests the nature of which are inconsistent with the imposition of a private law duty of care.” 320 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

382 On that basis, while acknowledging that a pleading raising a special relationship of proximity between the police and the plaintiff could stand, MacDonnell J. found in the absence of such a pleading no basis to uphold the pleading asserting a private law duty of care. He concluded as follows at para. 28: As I suggested earlier, the focus of the Chief Justice in Hill v. Hamilton-Wentworth (Regional Municipality) Police Services Board, and of Henry J., Moldaver J., and MacFarland J. in Jane Doe, on the specific aspects of the plaintiffs’ situation vis a vis the police that distinguished them from other members of the public would not have been necessary if there were a general private law duty of care owed by the police to individual members of the public. Accordingly, in order for the plaintiffs to maintain an action in negligence against the police for their failure to arrest McCalla prior to October 5, 2002, they must plead facts on the basis of which it could be found that a special relationship of proximity existed prior to October 5, 2002. The Statement of Claim contains no facts of that nature. The plaintiffs have not pleaded that prior to October 5, 2002, the police had any knowledge that McCalla had any link whatsoever to the plaintiffs or their nightclub, that he had ever been there, or that he ever intended to go there. Further, the plaintiffs have not pleaded that the police had any relationship with them prior to October 5. Based on the facts pleaded in the Statement of Claim, prior to October 5 the plaintiffs were in the same position vis a vis the police as every other member of the public. 383 The most recent decision dealing with allegations of a duty of care arising from police conduct is Wellington v. Ontario, 2011 ONCA 274 (Ont. C.A.). The issue as posed by the Court in that case was “do victims of crime committed by police officers have the right to sue the special investigation unit (“SIU”) for negligent investigation?” 384 The circumstances giving rise to the issue in that case involved two police officers shooting and killing a 15 year old boy in the context of the pursuit of a van he was driving. The SIU was the body charged with the responsibility of investigating the shooting. The deceased’s mother and sister and his estate brought an action against the SIU alleging a negligent investigation. The defendants applied to strike the action as disclosing no cause of action. The application was dismissed by the Chambers judge who held: It was not plain and obvious that the action could not succeed and a full evidentiary record was required. Burnett v. Moir A.F. Cullen J. 321

385 The dismissal was appealed to the divisional court and upheld with a dissent. On further appeal to the Ontario Court of Appeal, the appeal was allowed and the action was dismissed. 386 In its analysis, the Court of Appeal, speaking through Sharpe J.A. considered whether the duty asserted by the plaintiffs was novel or had already been recognized by law as a precondition for determining whether the facts alleged gave rise to a private law duty of care. 387 The Court noted if the duty has already been recognized by law, then a duty of care is established and it is unnecessary to engage in further analysis. The Court also noted that if it had been held that no duty of care arises on the facts pleaded “a full Cooper/Anns analysis is not required.” 388 The Court considered Hill v. Hamilton-Wentworth, Beckstead v. Ot- tawa (City), supra, and Norris v. Gatien (2001), 56 O.R. (3d) 441 (Ont. C.A.) and Jane Doe v. Metropolitan Toronto (Municipality) Commis- sioners of Police and concluded the state of the law was as follows: While the police owe a duty of care to a particular suspect under investigation (see Hill and Beckstead) and to warn a narrow and distinct group of potential victims of a specific threat (see Jane Doe), there is now a long list of decisions rejecting the proposition that the police owe victims of crime and their families a private law duty of care in relation to the investigation of alleged crimes. 389 Justice Sharpe found the situation of a suspect, subject to a police investigation, distinguishable as he or she “faces the risk of the stigma of being charged and convicted as well as potential loss of liberty and Char- ter rights.” He noted: “the interest of victims and their families in a proper investigation are simply not comparable.” 390 In the course of his analysis on whether the duty of care alleged had already been recognized by the law, Sharpe J.A. referred to Norris v. Gatien, supra, in paras. 17 - 19 of his reasons as follows: [17] The appellants submit that the duty of care alleged by the respondents has already been excluded by a decision of this court. In Norris v. Gatien (2001), 56 O.R. (3d) 441 (C.A.), leave to appeal to SCC dismissed, [2002] S.C.C.A. No. 54, a cyclist was struck and killed by a motor vehicle driven by an OPP officer. The cyclist’s family sued the officer, the OPP and Mr. Gatien, the municipal police officer who had investigated the fatal accident. Against Gatien, the plaintiffs alleged that he negligently investigated the death, leading to the failure of the criminal prosecution against the OPP officer for impaired driving causing death and driving “over 80”. As in this case, the plaintiffs alleged that their emotional distress had been ex- 322 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

acerbated by Gatien’s failure to conduct a proper investigation. Ga- tien successfully moved under Rule 21 to strike the claim as disclosing no cause of action. [18] This court dismissed the appeal and upheld the order striking out the claim against Gatien. Writing for the court, Austin J.A. applied the test set out in Kamloops (City) v. Nielsen, [1984] 2 S.C.R. 2, which corresponds closely to the current Cooper-Anns test. Austin J.A. concluded, at paras. 17 - 19, that the relationship between the parties did not give rise to a Prima facie duty of care: This is so because the plaintiffs had no legal interest in the investigation or prosecution of [the OPP officer]; that investigation and prosecution were matters of public law and public interest. Nor had the plaintiffs any legal interest in the disciplinary proceedings taken against [the OPP officer]. Had [the OPP officer] been convicted on either or both charges, the plaintiffs, or some of them, may have derived some personal satisfaction from that conviction. That satisfaction, however, would have been a purely personal matter; it would have no reality in law. Nor did the failure to reach that verdict have any consequence for the appellants sounding in damages. [19] White Norris preceded the Supreme Court’s holding in Hill v. Hamilton-Wentworth Regional Police Services Board, [2007] 3 S.C.R. 129, that the police owe a duty of care to targeted suspects (discussed below), that duty had already been recognized by this court in Beckstead v. Ottawa (City) Chief of Police (1997), 37 O.R. (3d) 62 (C.A.). In Norris, at paras. 19-20, Austin J.A. held that neither Beckstead, nor Jane Doe v. Metropolitan Toronto (Municipality) Commissioners of Police, (1990) 74 O.R. (2d) 225 (Div. Ct.), supported the family’s claim. In Beckstead, the careless investigation resulted directly in the plaintiff being charged with fraud. In Jane Doe, the police negligence contributed to the plaintiff being sexually assaulted by a known suspect. The alleged negligence in both Beckstead and Jane Doe had a direct, profound and damaging legal impact on the plaintiffs. In Norris, the family’s claim for added grief or mental distress did not implicate rights or interests of a like nature. 391 He also dealt with the Odhavji case, distinguishing it from the case before him and finding, in Justice Iacabucci’s reasons in that case, support for the proposition that individuals are not entitled to damages for an Burnett v. Moir A.F. Cullen J. 323 alleged failure to conduct a thorough investigation. He reasoned as follows in paras. 25 - 28 of his judgment: [25] It is my view that Odhavji is distinguishable from the case at bar and that, indeed, passages in Odhavji support the position of the appellants. [26] Unlike the present case, in Odhavji the victim’s family did not sue the SIU officers or anyone else for negligent investigation of the shooting. The claim against the police officers was for misfeasance in public office, a tort that requires an element of deliberate unlawful conduct as well as awareness that the conduct is unlawful and likely to harm the plaintiff. In finding that the claim for misfeasance in public office should proceed, Iacobucci J., writing for the court, made clear that he was not deciding that the family could sue for negligent investigation, at para. 40: In the defendant officers’ submission, the essence of the plaintiffs’ claim is that they were deprived of a thorough, competent and credible investigation. And owing to the fact that no individual has a private right to a thorough, competent and credible criminal investigation, the plaintiffs have suffered no compensable damages. If this were an accurate assessment of the plaintiffs’ claim, I would agree. Individual citizens might desire a thorough investigation, or even that the investigation result in a certain outcome, but they are not entitled to compensation in the absence of a thorough investigation or if the desired outcome fails to materialize. This, however, is not an accurate assessment of the plaintiffs’ submission. [27] The negligence claim pleaded against the Chief of Police was directly tied to the misfeasance in public office claim asserted against the individual police officers under his supervision. The “essence” of the claim was that the Chief “breached a duty to take reasonable care to ensure that the defendant officers complied with their legal obligation to cooperate with the SIU investigation”, at para. 52. That claim was considered under the Cooper-Anns test. The court held, at para. 54, that while the plaintiffs might well have difficulty in establishing that their distress and anger rose “to the level of compensable psychiatric harm”, it was not “plain and obvious” that the claim would fail and hence the pleading should not be struck out. Iacobucci J. repeat- edly linked the negligence claim against the Chief to the alleged 324 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

“misconduct” or “improper conduct” of the officers, for example, at paras. 57-58: It is only reasonable that members of the public vulnera- ble to the consequences of police misconduct would expect that a chief of police would take reasonable care to prevent, or at least to discourage, members of the force from injuring members of the public through improper conduct in the exercise of police functions. ... The fact that the Chief already is under a duty to ensure compliance with an SIU investigation adds substantial weight to the position that it is neither unjust nor unfair to conclude that the Chief owed to the plaintiffs a duty of care to ensure that the defendant officers did, in fact, cooperate with the SIU investigation. [28] When the judgment is read as a whole, I cannot accept the submission that by allowing the action in negligence to proceed against the Chief, Iacobucci J. intended to reverse the proposition asserted a few paragraphs earlier that individual citizens are not entitled to damages where there is a failure to conduct a thorough investigation. 392 Justice Sharpe concluded that the duty of care at issue before him had not previously been recognized, but went on to consider whether there was anything in the statutory mandate of the SIU that gives rise to a duty of care. 393 He concluded that “to impose a private law duty of care would, in my view, introduce an element seriously at odds with the fundamental role of the SIU to investigate allegations of criminal misconduct in the public interest.” (para. 45). He concluded the SIU’s “duties are not focussed on the detection or protection of victim’s interests but instead relate to protecting the public at large.” (paras. 49). 394 Sharpe J.A. saw in the circumstance before him, similarity to: [a] well established line of cases standing for the general proposition that public authorities charged with making decisions in the general public interests, ought to be free to make those decisions without being subjected to a private law duty of care to specific members of the general public. 395 He concluded the respondents failed to establish a prima facie duty of care under the first branch of the Cooper-Anns test and thus, it was unnecessary to consider whether the duty should be negated for policy reasons. Burnett v. Moir A.F. Cullen J. 325

ii. Application of the Law to the Facts 396 In my view, the law which has arisen from attempts to establish a private law duty of care from a public official’s discharge of public duties does not favour the plaintiff’s case.

(1) Pre-Assault 397 The essence of the plaintiff’s case against the Delta Defendants for the pre-assault period is that they knew or ought to have known that Cheers was an environment that fostered a certain level of disturbance and violence on an ongoing basis and that their failure to warn of dangers to potential patrons, to take definitive steps to solve the problem, or to abate the risk it represented to an acceptable level, constitutes negligence. Inherent in the plaintiff’s position is the precept that the Delta Defendants owe a private law duty of care to individual members of the public who might become patrons at Cheers pub. 398 The plaintiff likens his position to that of the plaintiffs in Schacht, or Jane Doe, alleging, as with those plaintiffs, both foreseeability and a sufficiently proximate relationship to establish a private law duty of care. 399 As I see it, however, although the plaintiff’s argument has some attraction, it fails to account for the necessary elements of proximity identified by Chief Justice McLachlin in Hill v. Hamilton Wentworth and ex- emplified in the other decisions dealing with the question of whether and when a private law duty of care can arise from the discharge of a public duty or function. 400 The dominant characteristic of proximity necessary to a private law duty of care is a relationship between the alleged wrongdoer and the victim, that is “close and direct” in the sense that “the wrongdoer ought to have the victim in mind as a person potentially harmed”. (Hill v. Hamil- ton Wentworth at para. 29). In that context, “while not necessarily determinative, the presence or absence of a personal relationship is an important factor”. (Hill v. Hamilton Wentworth para. 30). In the present case, it could not be said that the relationship between the plaintiff and the Delta Defendants before the assault was close or direct. The plaintiff had never attended Cheers before, he was not known to the Delta Defendants as a person more likely than anyone else to become a patron of Cheers or to be caught up in an assault. He was not a member of a group more likely to be targeted by an assault at Cheers or elsewhere. There is no personal relationship between the plaintiff and the Delta Defendants. 326 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

401 Insofar as the other factors identified by Chief Justice McLachlin in- dicative of a close and direct relationship are concerned, including “any expectations, representations and reliance” arising from the relationship are concerned, there was little or no evidence that the plaintiff had any particular expectation of the Delta Defendants vis-a-vis the Cheers pub. It was clear from his evidence that he had been in other drinking premises where fights had broken out both inside and out. Indeed he testified that he had been at the Roxy nightclub both before and after the assault, and based on the evidence of police service calls to that establishment and the evidence of Argent of the VPD, it appears there is little to distinguish the Roxy (and other adjacent Granville Street nightclubs) from Cheers in terms of the number or nature of police service calls and corre- sponding activities. 402 In addition, there was no evidence of any specific representations from or reliance on the Delta Defendants beyond the implicit representation that because Cheers was licensed to operate meant that it met certain regulatory standards. There is little or no evidence, however, that the plaintiff relied on the fact of licensing as warranting a particular standard of behaviour at the bar. Given his previous experiences in various bars and nightclubs, it appears unlikely that the relationship, such as it was, between the plaintiff and the Delta Defendants, entailed any substantive reliance by the plaintiff based on the fact that Cheers was licensed to operate. 403 His relationship to the Delta Defendants was no closer or direct (and arguably more removed and less direct) than the relationships in Cooper and Edwards where “public officials were not acting in relation to the claimant ... but in relation to a third party ... who, at a further remove, interacted with the claimants.” 404 In the present case, the Delta Defendants were similarly removed from the plaintiff. They dealt with representatives of the LCLB as well as Cheers staff and management in an enforcement capacity, but had no direct dealings or relationship with the plaintiff or the person who assaulted him. 405 The cases in which police failure to act, or negligent actions in connection with a potential victim have engaged a duty of care, in Mooney, Jane Doe and Schacht, either involve specific ascertainable threats to specific ascertainable victims or specific ascertainable threats to a particular class of victim. In Mooney, the police duty was engaged by a complaint made by the potential victim, of threats from her former spouse. In Burnett v. Moir A.F. Cullen J. 327

Schacht, the specific threat or risk of harm was an open culvert under construction on a highway and the identifiable group were users of the highway - a group in relation to whom the elements of representation, reliance and expectation would undeniably be at play in relation to those charged with the responsibility of patrolling the highway. As noted by Sharpe J.A. in Wellington v. Ontario, in connection with the Jane Doe case, the victims were part of a “narrow and distinct group” facing “a specific threat”. There are thus clear distinctions to be drawn between the present case involving the plaintiff’s membership in a large indeterminate pool of potential victims and a non-specific threat, which the evidence reveals, was not unique to the Cheers pub. 406 Another aspect of the evidence that weighs against finding proximity based on the factors of expectation, representations and reliance, relates to the plaintiff’s consumption of alcohol and cocaine in combination with his steroid use. The evidence is that combination of drugs is a potent mix, likely to make the user more prone to responding belligerently to real or perceived provocations. 407 While that evidence may be primarily relevant to an issue of contributory negligence, it also has some bearing on proximity. In particular, it belies any inference that might otherwise be open that the plaintiff attended Cheers pub with any particular expectation of, or reliance on there being an environment shaped by police presence, enforcement or regulation. 408 In other words, whether the plaintiff’s consumption of drugs and alcohol actually contributed to the circumstances giving rise to the harm is not at issue in assessing proximity. The point is simply that it is objectively improbable that a person who consumes a mix of drugs with the potential to cause aggression (in the case of steroids and cocaine) and to decrease inhibitions (in the case of alcohol) in the context of attending a particular nightclub has expectations of or reliance on there being police enforcement of the Liquor Act or licensing regulations. 409 That illustrates the difficulty in finding a close and direct relationship between a police or other regulatory agency and a pool of people as large, indeterminate, and idiosyncratic as the potential patrons of any particular bar. 410 It also illustrates the difficulty in finding a close causal relationship in such circumstances as it relates to the failure to warn and the subsequent harm caused. It is objectively improbable that the plaintiff would have encountered a warning had one been issued, in respect of the Cheers pub, 328 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

given his lack of connection to Delta and unfamiliarity with the Delta Defendants’ website or any local news sources. Equally, it is objectively improbable that he would have heeded any such warning had he encountered it, given the evidence of his attendance at other bars or nightclubs with similar environments to Cheers, and his consumption of drugs that would tend to affect his judgment. 411 The presence or absence of a close causal connection between the negligence alleged and the harm caused is a factor in determining proximity. In Odhavji Estate v. Woodhouse, supra, Iacobucci J. held as follows in the context of a proximity analysis at para. 57: Although a close causal connection is not a condition precedent of liability, it strengthens the nexus between the parties. 412 Where, as here, the causal connection, insofar as the failure to warn is concerned, is remote and speculative rather than close, it cannot be said that the nexus between the parties is strong or compelling. 413 For those reasons, while finding some limited evidence of a connection between the Delta Defendants and prospective Cheers patrons arising from the police corporate knowledge that a person entering Cheers was likely to be exposed to an environment involving some violent or turbulent circumstances, I am not satisfied the evidence reaches the level of establishing a close and direct relationship featuring the indicia of proximity identified by Chief Justice McLachlin in Hill v. Hamilton- Wentworth, supra, or manifested in other decisions such as Jane Doe, Mooney, or Schacht. 414 I thus conclude the relationship at issue does not sustain sufficient proximity to found a duty of care. The plaintiff was but one of a large indeterminate pool of potential patrons of Cheers, rather than an identifiable potential victim of a specific threat.

(2) Post-Assault 415 The foundation for the asserted liability of the Delta Defendants in negligence post assault, consists of a number of contentions. The first is that Uppal failed to call for assistance from EHS in a timely way. The second is that DPD lost or destroyed critical videotape evidence. The third is that the Delta Defendants negligently conducted their investigation into the plaintiff’s assault, thus failing to identify the perpetrator. 416 Insofar as the first contention is concerned, assuming the existence of a duty of care between Uppal and the plaintiff when Uppal arrived on the scene to find him seriously injured, there is no evidence of what is al- Burnett v. Moir A.F. Cullen J. 329

leged. The evidence is that EHS had already been called to the scene and were on the way, and it was EHS who notified the police of the circumstances. There is further evidence that Uppal did in fact request that EHS get to the scene as soon as possible. In the result, there was an interval of slightly less than 13 minutes between the assault and the arrival of EHS. There is no evidence that even if there had been a negligent failure by the defendants to summons an ambulance as soon as possible, that it had any effect or impact on the plaintiff’s injuries. There is thus no basis for a finding of a breach of any standard of care against Uppal on the basis that he failed to call for assistance from EHS or that if he did, it was not in any way causative of the plaintiff’s injuries. 417 An aspect of the plaintiff’s assertion of a negligent investigation is the loss or destruction of the critical video evidence. Leaving aside the question of whether there is a duty of care which arises between the Delta Defendants and the plaintiff in the circumstances, the evidence falls short of establishing the loss or destruction of any video surveillance evidence. At best, the evidence establishes that a compact disk “burnt” from the video surveillance on a hard drive was inadvertently destroyed, but only after it was downloaded onto the DPD’s hard drive. In addition, the evidence establishes that the video surveillance captured on Cheers pub’s computer hard drive from the evening in question was “mirrored” by DPD and was available for the investigation and, in turn, for the plaintiff’s action. Accordingly, there is no basis for a finding of negligence with respect to that allegation. 418 The main thrust of the plaintiff’s allegation relates to the fact that the police efforts did not yield sufficient evidence of an assailant to even consider charges, which the plaintiff attributes to the lack of a thorough or competent investigation. 419 The plaintiff relies particularly on Odhavji Estate, Mooney and Traversy in support of a contention that once he became the victim of a crime, a private law duty of care is imposed on the police charged with the responsibility of investigating the crime. 420 The case which is factually most similar to the case at bar is Traversy. It is important to note, however, that neither in the original application to strike the pleadings, nor in the application for leave to appeal in that case, was there an affirmative finding that there was such a duty of care. 330 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

The net effect of Traversy is summed up by Power J. in para. 33 of his judgment that: Without a court having an opportunity to examine the entire circumstances of the relevant circumstances, it cannot be stated categorically that the relationship was not a proximate one. 421 Moreover, the currency of that holding, it seems to me, is called into question by the decision of the Ontario Court of Appeal in Wellington v. Ontario which held: [t]o impose a private law duty of care would in my view introduce an element seriously at odds with the fundamental role of the SIU to investigate allegations of criminal misconduct in the public interest. (para. 45); And: In my view, this is not a case where a trial is required to resolve the duty of care issue. A duty of care has been excluded by prior decisions of this court, the British Columbia Court of Appeal and numerous trial courts. (para. 52) 422 Insofar as Mooney is concerned, it dealt not with the failure of the police to properly investigate the crime which caused the plaintiff’s injuries; rather it dealt with an investigative failure which arguably caused those injuries. It was a case like Jane Doe of a failure to deal with a specific threat to a specific individual or “a narrow and distinct group of potential victims” (Wellington para. 20). 423 Insofar as Odhavji Estate is concerned, it too is distinguishable from the case at bar. As Sharpe J.A. noted in Wellington, the claim in Odhavji was “for misfeasance in public office, a tort that requires an element of deliberate unlawful conduct as well as awareness that the conduct is unlawful and likely to harm the plaintiff”. Justice Sharpe placed significant reliance on the statement of Iacobucci J. who agreed with the proposition that “no individual has the right to a thorough, competent and credible investigation”, but noted the claim before the court in Odhavji was on a different footing. 424 Although the plaintiff has argued in the case at bar that Wellington is distinguishable because it was the family of a victim, rather than the victim, who was the plaintiff, it is significant that the suit was brought in part by the victim’s estate. In stating the issue, Sharpe J.A. identified the issue as “do victims of crime committed by police officers have the right to sue the SIU for negligent investigation?”. Burnett v. Moir A.F. Cullen J. 331

425 The concept that there is a lack of proximity in the relationship between investigating police officers and the victims of the crime which is under investigation, which emerges from Wellington and the obiter of Iacobucci J. in Odhavji arises from the precept that the primary relationship in a criminal investigation is between the authority of the police and the individual under investigation. 426 It is clear from Hill v. Hamilton-Wentworth it is that relationship and the function which it embraces which is close and direct and engages the indicia of proximity. While that does not necessarily preclude other relationships of proximity from developing, those other relationships must be subject to the need to protect the primary relationship and function. 427 In the present case, it is not pleaded, and nor is there evidence that the failure of the police investigation caused or contributed to any of the injuries suffered by the plaintiff. The evidence presented is compendiously summarized in a report dated June 9, 2009 by Dr. Derek Smith, a psychi- atrist retained by the plaintiff to conduct an independent medical examination: Prior to the assault, the plaintiff was free of medical and psychiatric illness. It is therefore my opinion that all of the current problems are a direct result of the assault and subsequent brain injury of December 26, 2006. 428 The relationship at issue is thus not direct. It is not the impact of the asserted negligence on the plaintiff that is relied on as engaging liability but the impact on his opportunity or ability to seek damages from a third party. That was one of the heads of damage alleged in Wellington v. On- tario, supra, that the allegedly negligent investigation “lessened (the plaintiff’s) opportunity to recover damages in a civil suit.” In rejecting that relationship as proximate, Sharpe J.A. noted, in referring to the Cooper-Anns test: Policy reasons are relevant at both stages of the test. At the first stage, the policy reasons must arise from the nature of the relationship between the parties rather than any external concerns. 429 It was in that context that the court in Wellington ruled at para. 45: In my view, the SIU does not and should not conduct criminal investigations to advance the private interests of any individual citizen. I agree with the submission ... that there is an inherent tension between the public interest in an impartial and competent investigation and a private individual’s interest in a desired outcome of that same investigation which includes seeking to ground a civil action against the 332 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

alleged perpetrator. To introduce a private law duty of care would in my view introduce an element seriously at odds with the fundamental role of the SIU to investigate allegations of criminal misconduct in the public interest. 430 The Wellington case, while not binding on me, is persuasive authority. Although it is concerned with the statutory mandate of the SIU in Ontario, there is in my view no basis to distinguish Wellington from the case at bar for that reason. The relevant provision of the Police Act, R.S.B.C. 1996, c. 367 is s. 34 which reads as follows: Duties and functions of chief constable and municipal police 34 (1) The chief constable of a municipal police department has, under the direction of the municipal police board, general supervision and command over the municipal police department and must perform the other functions and duties assigned to the chief constable under the regulations or under any Act. (2) The municipal police department, under the chief constable’s direction, must perform the duties and functions respecting the preservation of peace, the prevention of crime and offences against the law and the administration of justice assigned to it or generally to peace officers by the chief constable, under the regulations or under any Act. 431 In my view, the direction in the Police Act that the police “must perform the duties and functions respecting the preservation of peace, the prevention of crime and offences against the law and the administration of justice” emphasize the very public nature of the duty created, akin to that confronting the SIU. 432 The point made by Wellington v. Ontario, supra, and the cases which it relies on, is that a public duty by its nature excludes the indicia of a proximate relationship with individual or private interests, absent exceptional circumstances. In Hill v. Hamilton-Wentworth, supra, those exceptional circumstances were described as “critical personal interests” of a suspect whose “freedom ... reputation and how he may spend a good portion of his life” were put directly at stake by the investigator into the underlying “offences against the law and administration of justice.” 433 In relation to the plaintiff, however, the direct impact on his personal interest came from the underlying offence, not from the investigation into it. Burnett v. Moir A.F. Cullen J. 333

434 The importance and scope of that distinction is emphasized in Hill v. Hamilton-Wentworth, supra, where the Chief Justice noted at para. 36 as follows: [36] The personal interest of the suspect in the conduct of the investigation is enhanced by a public interest. Recognizing an action for negligent police investigation may assist in responding to failures of the justice system such as wrongful convictions or institutional ra- cism. The unfortunate reality is that negligent policing has now been recognized as a significant contributing factor to wrongful convictions in Canada. While the vast majority of police officers perform their duties carefully and reasonably, the record shows that wrongful convictions traceable to faulty police investigations occur. Even one wrongful conviction is too many, and Canada has had more than one. Police conduct that is not malicious, not deliberate, but merely fails to comply with standards of reasonableness can be a significant cause of wrongful convictions. (See the Honourable Peter Cory, The In- quiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation (2001), at p. 10 (“Cory Report”); the Right Honourable Antonio Lamer, The Lamer Commission of Inquiry into the Proceedings Pertaining to Ronald Dalton, Gregory Parsons and Randy Druken; Report and Annexes (2006), at p. 71; Federal/Provincial/Territorial Heads of Prosecutions Committee Working Group, Report on the Prevention of Miscar- riages of Justice (2004); the Honourable Fred Kaufman, The Com- mission on Proceedings Involving Guy Paul Morin: Report (1998), at pp. 25, 26, 30, 31, 34-36, 1095-96, 1098-99, 1101 and 1124). 435 It is clear from the judgment in Hill v. Hamilton-Wentworth that the relationship forged by the investigative function between a police officer and a suspect is both close and direct, implicates “critical” personal interests and engages a significant public interest in avoiding wrongful convictions. 436 By contrast, the relationship between an investigator and a victim, at least where the substantive harm has already been caused by a third party, is removed and indirect. Moreover, the asserted foundation for finding proximity - the negligent failure to facilitate a civil action against the perpetrator of the substantial harm - runs directly counter to the public interest in ensuring that public officials do not perform their duties and functions to serve private interests. 437 In this case, it is alleged that not enough was done in the immediate aftermath of the offence to identify witnesses and obtain information which may assist in determining who the assailant was. That assertion is 334 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

somewhat speculative, as is the inference that a more comprehensive initial investigation would lead to a successful action or result in the recovery of damages. 438 The evidence does establish that over time, all potential witnesses were interviewed, all surveillance tapes were seized and reviewed, certain forensic tests were performed on the alleged weapon used, and information from the public was solicited through the Crime Stoppers program. The causal connection between the alleged negligence and harm to the plaintiff is tenuous. It assumes the presence of a forthright, willing and impartial witness who was overlooked. It also assumes that interviewing Jeremy Wocknitz or other Cheers staffers earlier, or acquiring the surveillance tapes earlier would have changed the course and result of the investigation. 439 Jeremy Wocknitz was the only witness who purported to be able to identify the assailant. The fact that at the time of the assault, despite knowing the police were investigating, he declined to come forward to provide any information casts doubt on his initial willingness to cooperate and the reliability of his identification two years later. That he appeared to confuse the assailant with Greg Allan as the one who was knocked down further compromises his reliability. That he subsequently recanted his evidence concerning “Ricky Guy” being the assailant and testified that he did not see what he originally represented to have seen, undermines him and marks his evidence as unreliable. 440 The other witnesses who were interviewed gave largely conflicting accounts of what occurred, and Greg Allan, who was likely in the best position to provide information as to what occurred was uncooperative and contradictory in his accounts of the events. 441 As earlier noted, in Odhavji Estate v. Woodhouse, supra, Justice Iacobucci held that a close causal connection was one of the factors relevant to the inquiry into proximity. 442 In my view, the lack of a close causal connection is thus an additional factor weighing against finding proximity in the present case. 443 As I see it, while there may be particular cases where the evidence justifies finding a proximate relationship between a police investigator and the victim of an offence being investigated, the circumstances would need to overcome both the inherently indirect nature of the relationship, and the critically important precept that criminal investigations do not serve private interests. Burnett v. Moir A.F. Cullen J. 335

444 I conclude this is not such a case. While the import of the assault upon the plaintiff has been profound and devastating, as is clear from Wellington, supra, it is not the severity of the underlying harm that determines the issue of proximity. 445 This is not a case such as Mooney or Jane Doe where it is alleged the investigative negligence led to or failed to prevent the harm to the plaintiff. Nor is it a case such as Odhavji Estate where it is alleged there was a deliberate and unlawful attempt to thwart an investigation into the wrongdoing which led to the harm alleged. 446 In this case, the nexus between the alleged negligence and the harm is weak. Policy reasons intrinsic to the relationship between an investigator and a victim, unlike those between an investigator and a suspect, dictate against finding it to be close and direct in the sense contemplated by the proximity analysis. 447 For those reasons, both general to the relationship between an investigating officer and a victim, and specific to the circumstances to the case at bar, I conclude the evidence falls short of establishing the requisite proximity to found a duty of care in the relationship between the plaintiff and the Delta Defendants post assault. 448 I am thus I am unable to conclude that the plaintiff has met the burden of establishing liability against the Delta Defendants in this case and accordingly I dismiss the plaintiff’s action with costs to the defendants. Action dismissed. 336 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

[Indexed as: Dagenais v. Canada (Attorney General)] Arthur Levi Dagenais (Plaintiff) and Her Majesty the Queen in Right of Canada as represented by the Attorney General of Canada, Sargeant Joseph McGeough, Constable Shawn Tuffs, Constable Kenneth Palen, Government of Saskatchewan (The Minister of Justice) and James Taylor (Defendants) Saskatchewan Court of Queen’s Bench Docket: Battleford Q.B.G. 119/09 2011 SKQB 314 A.R. Rothery J. Judgment: August 30, 2011 Civil practice and procedure –––– Pleadings — Amendment — Grounds for amendment — To raise new cause of action or defence — Miscellane- ous –––– Plaintiff’s son murdered two police officers who were attempting to arrest son, then fled — Plaintiff was advised not to attend, inter alia, upon scene of killings or to interfere with search for son — In search for son, plaintiff attended near scene of killings and was arrested and charged with obstruction of police officers — Officer M stated to another officer that M would “take hit” for arrest of plaintiff — Plaintiff was acquitted, trial judge holding that area where plaintiff was not to attend was not adequately described to plaintiff and that accordingly obstruction had not been established beyond reasonable doubt — Plaintiff then brought action for damages for, inter alia, false arrest and malicious prosecution — Plaintiff brought application to amend pleadings to allege tortious conspiracy on basis of M’s statement concerning taking “hit” for arrest, and defendants Crown and police officers brought application to strike out conspiracy-related pleadings as disclosing no known cause of action — Defendants’ application dismissed; plaintiff’s application granted — “[P]laintiff may not know all the particulars of a conspiracy without the benefit of discoveries”, and action was not properly struck out because plaintiff was not aware of all material facts in present case — Plaintiff’s proposed pleadings set out all elements of tortious conspiracy and thus disclosed cause of action — Amendment was accordingly properly permitted in circumstances. Civil practice and procedure –––– Disposition without trial — Stay or dismissal of action — Grounds — Action frivolous, vexatious or abuse of process — Jurisdiction and discretion of court –––– Plaintiff’s son murdered two police officers who were attempting to arrest son, then fled — Plaintiff was advised not to attend, inter alia, upon scene of killings or to interfere with search for son — In search for son, plaintiff attended near scene of killings and was Dagenais v. Canada (Attorney General) 337 arrested and charged with obstruction of police officers — Plaintiff was acquitted, trial judge holding that area where plaintiff was not to attend was not adequately described to plaintiff and that, accordingly, obstruction had not been established beyond reasonable doubt — Plaintiff then brought action for damages for, inter alia, false arrest, malicious prosecution and tortious conspiracy — De- fendants Crown and police officers brought application to dismiss action as being frivolous, vexatious or abuse of process — Defendants’ application dismissed; plaintiff’s application granted — Ultimate issue was whether police defendants had “subjective and objective component . . . to establish a lawful arrest and detention” — Plaintiff’s allegation of malicious prosecution required proof of actual malice on part of police defendants, but at pleadings stage malice may be asserted without evidence supported desired inferences as “[d]isclosure and discoveries are required to particularize this allegation” — As discrepancy was likely present, it was unlikely that reasoned analysis of plaintiff’s arrest could be conducted on affidavit evidence — “This plaintiff’s claim may be improbable”, having regard to plaintiff’s apparent interference in bona fide police investigation of killings of police officers, but “court’s discretion to strike a claim on the basis of being frivolous, vexatious or an abuse of the court’s process ought to be exercised sparingly” — “Disclosure and discoveries will clarify the respective parties’ positions to allow their respective counsel to determine the strengths and merits of the claim and defence”, and in event that plaintiff’s claim proves not to be meritorious that lack of merit could sound in costs — In totality of circumstances, action was not properly dismissed, inter alia, as abuse of process at present stage of proceedings. Torts –––– Conspiracy — Practice and procedure — Pleadings –––– Amend- ment — Plaintiff’s son murdered two police officers who were attempting to arrest son, then fled — Plaintiff was advised not to attend, inter alia, upon scene of killings or to interfere with search for son — In search for son, plaintiff attended near scene of killings and was arrested and charged with obstruction of police officers — Officer M stated to another officer that M would “take hit” for arrest of plaintiff — Plaintiff was acquitted, trial judge holding that area where plaintiff was not to attend was not adequately described to plaintiff and that accordingly obstruction had not been established beyond reasonable doubt — Plaintiff then brought action for damages for, inter alia, false arrest and malicious prosecution — Plaintiff brought application to amend pleadings to allege tortious conspiracy on basis of M’s statement concerning taking “hit” for arrest, and defendants Crown and police officers brought application to strike out conspiracy- related pleadings as disclosing no known cause of action — Defendants’ application dismissed; plaintiff’s application granted — “[P]laintiff may not know all the particulars of a conspiracy without the benefit of discoveries”, and action was not properly struck out because plaintiff was not aware of all material facts in present case — Plaintiff’s proposed pleadings set out all elements of tortious 338 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d) conspiracy and thus disclosed cause of action — Amendment was accordingly properly permitted in circumstances. Cases considered by A.R. Rothery J.: Bank of Montreal v. Schmidt (1989), 75 Sask. R. 157, 1989 CarswellSask 498, [1989] S.J. No. 299 (Sask. C.A.) — considered Canada Cement LaFarge Ltd. v. British Columbia Lightweight Aggregate Ltd. (1983), [1983] 1 S.C.R. 452, 145 D.L.R. (3d) 385, 47 N.R. 191, [1983] 6 W.W.R. 385, 21 B.L.R. 254, 24 C.C.L.T. 111, 72 C.P.R. (2d) 1, 1983 Car- swellBC 734, 1983 CarswellBC 812, [1983] S.C.J. No. 33 (S.C.C.) — considered D. (A.L.) v. D. (E.E.) (2007), 2007 CarswellSask 786, 2007 SKCA 117, 304 Sask. R. 146, 413 W.A.C. 146, [2007] S.J. No. 575 (Sask. C.A.) — considered Hill v. Hamilton-Wentworth (Regional Municipality) Police Services Board (2007), 2007 SCC 41, 2007 CarswellOnt 6265, 2007 CarswellOnt 6266, 87 O.R. (3d) 397 (note), 40 M.P.L.R. (4th) 1, 64 Admin. L.R. (4th) 163, 50 C.C.L.T. (3d) 1, 368 N.R. 1, 285 D.L.R. (4th) 620, [2007] 3 S.C.R. 129, [2007] R.R.A. 817, 50 C.R. (6th) 279, 230 O.A.C. 253, [2007] S.C.J. No. 41 (S.C.C.) — referred to Nelles v. Ontario (1989), 69 O.R. (2d) 448 (note), [1989] 2 S.C.R. 170, 60 D.L.R. (4th) 609, 98 N.R. 321, 35 O.A.C. 161, 41 Admin. L.R. 1, 49 C.C.L.T. 217, 37 C.P.C. (2d) 1, 71 C.R. (3d) 358, 42 C.R.R. 1, 1989 Cars- wellOnt 963, 1989 CarswellOnt 415, EYB 1989-67463, [1989] S.C.J. No. 86 (S.C.C.) — referred to Pich´e v. Big “C” First Nation (1994), 121 Sask. R. 20, 1994 CarswellSask 150, [1994] S.J. No. 192 (Sask. Q.B.) — considered Sagon v. Royal Bank (1992), 105 Sask. R. 133, 32 W.A.C. 133, 1992 Carswell- Sask 439, [1992] S.J. No. 197 (Sask. C.A.) — followed Tamarak Energy Inc. v. IPSCO Inc. (1999), 1999 CarswellSask 681, (sub nom. Tamarak Energy Inc. v. Ipsco Inc.) 185 Sask. R. 161, 1999 SKQB 125, [1999] S.J. No. 668 (Sask. Q.B.) — considered Trudgian v. Bosche (2005), 2005 CarswellSask 88, 2005 SKCA 13, [2005] 5 W.W.R. 199, (sub nom. Trudgian v. Bosch) 249 D.L.R. (4th) 674, 257 Sask. R. 234, 342 W.A.C. 234 (Sask. C.A.) — followed Statutes considered: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 Generally — referred to s. 7 — referred to s. 9 — referred to Criminal Code, R.S.C. 1985, c. C-46 s. 129 — considered Dagenais v. Canada (Attorney General) A.R. Rothery J. 339

s. 129(a) — considered s. 272(1)(c) — referred to s. 515 — referred to Rules considered: Queen’s Bench Rules, Sask. Q.B. Rules R. 165 — referred to R. 173(a) — considered R. 173(c) — considered R. 173(e) — considered

APPLICATION by defendants Crown and police officers for order dismissing action for damages for, inter alia, false imprisonment as being frivolous, vexatious or abuse of process; APPLICATION by plaintiff for leave to amend statement of claim, inter alia, to allege tortious conspiracy.

T.W. Klassen, J.R. Burton, for Plaintiff B.W. Gibson, for Defendants

A.R. Rothery J.:

1 The defendants have applied to strike the plaintiff’s claim pursuant to Rule 173(a), (c) and (e) of The Queen’s Bench Rules. In response, the plaintiff has applied to amend his claim. For the reasons stated herein, the defendants’ application is dismissed and the plaintiff’s application is granted. Some background is necessary to put these applications in perspective. 2 Counsel for the plaintiff issued a statement of claim against the defendants on April 15, 2009, then withdrew as counsel on November 5, 2010. The defendants served their motion to strike the claim with a return date of March 10, 2011. Counsel for the plaintiff were again retained, and the plaintiff’s motion to amend the claim pursuant to Rule 165 was set with a return date of May 19, 2011. Both applications were further adjourned to June 16, 2011. 3 In the meantime, on June 3, 2011, the plaintiff filed a notice of discontinuance against the Government of Saskatchewan and the prosecutor, James Taylor. Thus, the application to strike the claim by those two defendants was withdrawn. 4 The plaintiff’s claim issued April 15, 2009, alleges the torts of wrongful arrest and false imprisonment, negligent investigation, malicious prosecution, conspiracy, and breach of his rights under the Canadian 340 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

Charter of Rights and Freedoms against the three R.C.M.P. officers, Jo- seph McGeough (“McGeough”), Shawn Tuffs (“Tuffs”), and Kenneth Palen (“Palen”) and against their employer, Her Majesty the Queen in right of Canada (“Canada”). The plaintiff’s allegations stem from charges laid against him for obstruction of a peace officer in the execution of his duties which were dismissed at trial. The provincial court judge found that the Crown failed to prove an essential element of that offence, because the R.C.M.P. had failed to sufficiently define the perim- eter of the area where the plaintiff was not to attend. 5 The plaintiff is the father of Curtis Dagenais, who was eventually convicted of first degree murder of two R.C.M.P. officers. On July 7, 2006, Curtis Dagenais shot officers Robin Cameron, Marc Bourdages and Michelle Knopp while they were attempting to arrest him. Both officers Cameron and Bourdages died from the gunshot wounds. Curtis Dagenais fled and it took an extensive manhunt over a period of eleven days to locate him. 6 On July 8, 2006, the R.C.M.P. arrested the plaintiff and swore an In- formation, charging that the plaintiff “did obstruct Cst. Sean Tuffs a peace officer in the Province of Saskatchewan engaged in the execution of his duty to wit: by entering into a restricted crime scene area when told not to, contrary to Section 129(a) of the Criminal Code.” The plaintiff was taken before a Justice of the Peace that same evening and was remanded until the plaintiff’s show cause hearing on July 12, 2006. 7 Counsel for the plaintiff seeks to amend the claim so that it discloses a reasonable cause of action in accordance with Rule 173(a). Counsel for the defendants concedes that the draft amended claim sets out a cause of action on its face on all torts alleged except for the allegation of conspiracy against the defendants. Counsel for the defendants argues that the claim that the plaintiff seeks to amend fails to articulate all the essential elements of the civil tort of conspiracy, and fails to state the particulars of the conspiracy. 8 In determining whether the claim discloses a reasonable cause of action to ensure it not be struck out in accordance with Rule 173(a), only the pleadings and any documents referred to may be reviewed by the court. See: Sagon v. Royal Bank (1992), 105 Sask. R. 133, [1992] S.J. No. 197 (Sask. C.A.) at para. 16. 9 The tort of conspiracy has been defined in the following manner by the Supreme Court of Canada in Canada Cement LaFarge Ltd. v. British Dagenais v. Canada (Attorney General) A.R. Rothery J. 341

Columbia Lightweight Aggregate Ltd., [1983] 1 S.C.R. 452 (S.C.C.) at p. 471 & 472: Although the law concerning the scope of the tort of conspiracy is far from clear, I am of the opinion that whereas the law of tort does not permit an action against an individual defendant who has caused injury to the plaintiff, the law of torts does recognize a claim against them in combination as the tort of conspiracy if: (1) whether the means used by the defendants are lawful or unlawful, the predominant purpose of the defendants’ conduct is to cause injury to the plaintiff; or, (2) where the conduct of the defendants is unlawful, the conduct is directed towards the plaintiff (alone or together with others), and the defendants should know in the circumstances that injury to the plaintiff is likely to and does result. In situation (2) it is not necessary that the predominant purpose of the defendants’ conduct be to cause injury to the plaintiff but, in the pre- vailing circumstances, it must be a constructive intent derived from the fact that the defendants should have known that injury to the plaintiff would ensue. In both situations, however, there must be actual damage suffered by the plaintiff. 10 Allbright J. reviewed the requisite elements of alleging civil conspiracy in the case of Tamarak Energy Inc. v. IPSCO Inc., 1999 SKQB 125, 185 Sask. R. 161 (Sask. Q.B.), and cited with approval, previous decisions of our court at para. 34: 34 In Pich´e v. Big C First Nation et al. (1994), 121 Sask. R. 20 (Q.B.) Gerein J. held that Rule 149 of the Queen’s Bench Rules should apply to an allegation of conspiracy. At p. 23 he observes as follows: [7] When examining a particular pleading the court is not to look at it in the abstract, but as it describes the relationship between the parties. It is within that context that the pleading must be viewed and its merit determined. The singular purpose of pleadings is to communicate and such communication should not be based on speculation or amount to a fishing expedition. Rather it should concisely, but accurately, describe the impugned conduct so the op- posing party knows what must be met. A pleading which fails to do this will in certain instances constitute a failure to disclose a reasonable cause of action. 342 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

[8] In respect to the allegation of conspiracy it is noted that Queen’s Bench Rule 149 provides: 149. In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default or undue influence, full particulars shall be stated. In Canmar Grain Inc. v. Radloff et al. (1987), 62 Sask. R. 147 (Q.B.), it was held that the quoted rule applies to a pleading alleging a conspiracy. In that same case, at p. 150, Mr. Justice Wright quoted with approval the following passage from Bullen & Leake and Jacob’s Precedents of Pleadings (12th Ed.) at p. 341: Pleading. The Statement of Claim should describe who the several parties are and their relationship with each other. It should allege the agreement between the defendants to conspire, and state precisely what was the purpose or what were the objects of the alleged conspiracy, and it must then proceed to set forth, with clarity and precision, the overt acts which are alleged to have been done by each of the alleged conspirators in pursuance and in furtherance of the conspiracy; and lastly, it must allege the injury and damage occasioned to the plaintiff thereby. It is worthy of note that the learned authors use permissive language at the outset when speaking of certain information being set forth, but then change to mandatory language when speaking of the overt acts and the injury occasioned. [9] If a pleading of conspiracy is to be sustained it must set forth the conduct of the defendant which advanced the conspiracy. There is an actionable wrong only when the conspirators act in pursuance of the agreement and thereby cause harm to some person. Therefore, absent any overt acts there can be no claim. 11 In accordance with Rule 165, the plaintiff seeks leave to amend the claim alleging civil conspiracy in the following manner: Conspiracy to Injure 22. That the Defendants McGeough, Palen and Tuffs, or one two or more of them, conspired with the other to injure the Plaintiff and collectively and individually intentionally caused harm to the Plaintiff. The Plaintiff says that by reason of the matters referred herein, the Dagenais v. Canada (Attorney General) A.R. Rothery J. 343

aforesaid Defendants, or one two or more of them, maliciously with intent, prosecuted willfully and/or in bad faith conspired to cause injury to the Plaintiff in circumstances that the said Defendants knew that injury to Dagenais was likely to, and did, result. 22A. Without limiting the generality of the foregoing, the Defend- ants McGeough, Palen and Tuffs acting individually with another and/or collectively entered into an agreement, constituting a conspiracy, the predominate purpose of which was to cause injury to Dagenais. 22B. The essentials of this agreement involved the said Defend- ants, or two or more of them, taking concerted actions, by any lawful or unlawful means, to facilitate and ensure: (i) that Dagenais was removed from the community at all cost; (ii) that Dagenais was incarceration (sic) at the earliest opportunity and for as long as possible; (iii) that Dagenais was singled out from other members of the public and targeted to receive differential treatment from other members of the public for the specific purpose of causing Dagenais injury. (iv) that the charge was authorized, laid and continued, despite such charge being groundless and entirely without merit which the Defendants knew or ought to have known. (v) that the criminal proceedings were made protracted and costly; wherein the said Defendants knew, or ought to have known that there was no reasonable prospect of succeeding at trial. (vi) that Dagenais’ credibility and reputation were sabotaged and/or undermined. 22C. In furtherance of the aforesaid agreement to cause Dagenais injury, and by the efforts and conduct of two or more of the said Defendants, the following results occurred, which the Defendants intended or ought ot have known would occur: (i) That Dagenais was wrongfully arrested at the earliest opportunity by Defendant Tuffs and/or Defendant McGeough; (ii) That Dagenais was falsely detained and imprisoned at the earliest opportunity by Defendants McGeough, Tuffs and/or Palin (sic); 344 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

(iii) That upon the basis of a sworn information of Defen- dant Palin (sic), which Defendant Palin (sic) knew or ought to have known was false or misleading, Dagenais was remanded in custody pending his show cause hearing on or around July 12, 2006; (iv) That Dagenais did incur considerable legal fees and substantial financial hardship in defending the proceedings; (vi) That Dagenais’ personal and business reputation and credibility suffered in consequence, causing him loss of livelihood, damage and injury; (vii) That further injury was caused to Dagenais by the said Defendants’ intentional breaches of his sections 7 and 9 constitutional rights as guaranteed under the Cana- dian Charter of Rights and Freedoms, and set out further below. 21D. (Sic) The aforesaid conspiracy to injure Dagenais involved secret dealings between the Defendants, or two or more of them. The full nature of those dealings is known to Defend- ants McGeough, Palen and/or Tuffs, and not to the Plaintiff at this time. 21E. (Sic) But for the concerted efforts and actions of Defendants McGeough, Tuffs and Palen, Dagenais would never have been charged with the offence in issue and/or the criminal charges against Dagenais would have been dismissed, stayed or otherwise terminated at an early stage of the proceedings, rather than proceeding to trial. 22F. As a result of the aforesaid conspiracy, and the actions of the Defendants pursuant thereto, Dagenais has suffered loss and damage as set out further below. 12 Counsel for the defendants submits that no material facts are pleaded, other than the allegation that the defendant McGeough said to the defendant Tuffs, “I’ll take the hit for this one”, or words to similar effect, after the plaintiff was arrested. However, as recognized by our court in cases such as Pich´e v. Big “C” First Nation (1994), 121 Sask. R. 20, [1994] S.J. No. 192 (Sask. Q.B.), at para. 10, the plaintiff may not know all the particulars of a conspiracy without the benefit of discoveries. That is the situation here. The allegation of conspiracy ought not be struck because the plaintiff does not know all the material facts. Otherwise, the proposed amendment to the claim articulates all the essential elements of a claim Dagenais v. Canada (Attorney General) A.R. Rothery J. 345

of conspiracy and ought not be struck on the basis of disclosing no reasonable cause of action as required by Rule 173(a). 13 Counsel for the defendants argues that, nonetheless, the entire claim ought to be struck out, without further leave to amend, on the grounds that it is scandalous, frivolous, or vexatious as provided by Rule 173(c) and that it is an abuse of the process of the court as provided by Rule 173(e). As a starting point, counsel for the defendants refers to the obiter dicta in the case of D. (A.L.) v. D. (E.E.), 2007 SKCA 117, [2007] S.J. No. 575 (Sask. C.A.), which involves the same plaintiff when he sued the police officers who laid charges against him on the complaint filed by his wife, Elsie Dagenais, alleging sexual assault contrary to s. 272(1)(c) of the Criminal Code. The Saskatchewan Court of Appeal concluded that Dagenais’ claim for malicious prosecution could not be struck pursuant to Rule 173(a) on the basis that it did not disclose a reasonable cause of action. However, the Court of Appeal made reference to Rule 173(c) and 173(e) in such circumstances. Counsel submits that it bears repeating here. At para. 11 of that decision, Cameron J.A. stated: 11 In leaving the case we should like to comment briefly on the policy concerns raised by counsel for the police officers in the course of argument, namely the policy concerns associated with civil actions against the police whenever charges are laid and later stayed or dismissed. The policy concerns are accounted for, on balance, in the substantive law of negligence, malicious prosecution, and so on as it applies to the conduct of police officers in the discharge of their duties. They are also accounted for in the procedural law governing the institution and prosecution of lawsuits, including the whole of the provisions of Rule 173. Beyond the form of protection against abuse of process offered by Rule 173(a) lie others, including protection against scandalous, frivolous, or vexatious proceedings, and proceedings which are otherwise an abuse of process, as in Rule 173(c) and 173(e). Indeed, these latter forms of protection are available on a more broadly conceived basis than is the form of protection afforded by Rule 173(a), which is decidedly limited in its scope and application. This, and the evolving approach to the application of Rule 173(c) and (e), seems on occasion to be overlooked when applying to strike out a statement of claim as amounting to an abuse of process. 14 Counsel for the defendants submits that this case is one where Rule 173(c) and 173(e) ought to be utilized because the plaintiff’s claim is nothing more than an abuse of the court’s process. 346 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

15 As a starting point in making that determination, the guidance of the Saskatchewan Court of Appeal in Sagon, supra, ought to be set forth. At para. 18 - 19, Sherstobitoff J.A. stated: Striking out an entire claim on the ground that it is frivolous, vexatious or an abuse of process of the court is based on an entirely different footing. Instead of considering merely the adequacy of the pleadings to support a reasonable cause of action, it may involve an assessment of the merits of the claim, and the motives of the plaintiff in bringing it. Evidence other than the pleadings is admissible. Suc- cess on such an application will normally result in dismissal of the action, with the result that the rule of res judicata will likely apply to any subsequent efforts to bring new actions based on the same facts. Odgers on Pleadings and Practice, 20th ed. says at pp. 153-154: “If, in all the circumstances of the case, it is obvious that the claim or defence is devoid of all merit or cannot possibly succeed, an order may be made. But it is a jurisdiction which ought to be very sparingly exercised, and only in very exceptional cases. Its exercise would not be justified merely because the story told in the pleadings is highly improbable, and one which it is difficult to believe could be proved.” [footnotes omitted] Finally, a separate mention should be made of the power of the court to prevent abuse of its process, a power which is inherent as well as conferred under Rule 173. Bullen & Leake defines the power as follows at pp. 148-149: “The term ‘abuse of the process of the court’ is a term of great significance. It connotes that the process of the court must be carried out properly, honestly and in good faith; and it means that the court will not allow its function as a court of law to be misused but will in a proper case, prevent its machinery from being used as a means of vexa- tion or oppression in the process of litigation. It follows that where an abuse of process has taken place, the inter- vention of the court by the stay or even dismissal of proceedings, ‘although it should not be lightly done, yet it may often be required by the very essence of justice to be done.’ “The term ‘abuse of process’ is often used interchangea- bly with the terms ‘frivolous’ or ‘vexatious’ either separately or more usually in conjunction.” [footnotes omitted] Dagenais v. Canada (Attorney General) A.R. Rothery J. 347

16 Affidavits have been filed in the Rule 173(c) and 173(e) applications by all three defendant police officers, the Crown prosecutor and by the plaintiff. In summary, McGeough’s affidavit states that on July 7, 2006, R.C.M.P. officers Robin Cameron, Marc Bourdages and Michelle Knopp were shot and wounded in the line of duty while attempting to arrest the plaintiff’s son, Curtis Dagenais. Officers Cameron and Bourdages died from their injuries. Curtis Dagenais fled the scene and could not be located. The R.C.M.P. started a search for Curtis Dagenais. At about 5:30 a.m. the following morning, McGeough states that he had a discussion with the plaintiff concerning his missing son. McGeough states that the plaintiff told him that it was the police’s fault that the incident occurred and that he was going to look for his son, and if his son was hurt, the police “would really have someone to worry about.” McGeough states that he told the plaintiff not to get involved in the search for his son. 17 McGeough states that he formed the opinion that the plaintiff was likely to be uncooperative with the police and posed a threat to public safety. He assigned the defendant Tuffs and another officer to follow the plaintiff to ensure that he did not proceed to the area where the search for Curtis Dagenais was being conducted. He told the plaintiff that if he returned to his home, he would be arrested for obstructing a peace officer. 18 The defendant Tuffs’ affidavit states that on the morning of July 8, 2006, he followed the plaintiff out of the Town of Spiritwood, and along a highway towards the Town of Mildred. Tuffs observed the plaintiff turned south off the highway onto a secondary road leading in the direction of the plaintiff’s farm near where the shooting occurred and where the search for Curtis Dagenais was being conducted. On instructions from McGeough, Tuffs pulled the plaintiff’s vehicle over. The plaintiff told Tuffs that he was looking for one of his own bulls out in the pasture and that he was looking for his son. The plaintiff told Tuffs that his son sometimes slept in a shack in a pasture and pointed in a southeasterly direction. Tuffs states that at about 7:50 a.m. when the plaintiff advised him that he had been out looking for his son, Tuffs arrested him for obstructing a peace officer. 19 McGeough’s affidavit states that the plaintiff had been told not to search for his son and not to return to his own farm or he would be arrested. Thus, he instructed Tuffs to arrest the plaintiff. The road the plaintiff was on led to a containment area where the police were conducting their search. This included a basement site with just a subfloor where the emergency response team were positioning themselves to in- 348 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

vestigate. There was also concern for the plaintiff’s own safety in such circumstances. 20 The defendant Palen’s affidavit states that he prepared the Informa- tion and Warrant to remand the plaintiff on a charge of obstruction, contrary to s. 129 of the Criminal Code, after consulting with McGeough and Tuffs. He attended at the Shellbrook detachment and swore the In- formation before a Justice of the Peace at about 9:15 p.m., stating that he had reasonable and probable grounds to believe that the plaintiff ob- structed the defendant Tuffs, by entering a restricted crime scene when told not to, contrary to s. 129(a) of the Criminal Code. The Justice of the Peace then remanded the plaintiff in custody for the next court date. 21 Transcripts of the judicial proceedings were filed in this application. The Provincial Court judge continued the plaintiff’s remand on July 14, 2006. The plaintiff was later released by the Court of Queen’s Bench pursuant to s. 515 of the Criminal Code on August 14, 2006. 22 The charge proceeded to trial on May 17, 2007. The Provincial Court judge found that the R.C.M.P. had failed to sufficiently define the area where the plaintiff was not to attend. Thus, the plaintiff could not be found guilty of the offence of obstructing a peace officer in the execution of his duties on that charge. 23 The plaintiff filed an affidavit in response to the affidavits filed by the three defendants. He states that he understood the R.C.M.P.’s instructions that he not return to his own home, but states that he was not advised that he could not tend to his cattle or attend on his son’s land. He states that when Tuffs detained him on the secondary road, Tuffs told the plaintiff that he was to prevent the plaintiff from proceeding south and that he was not charging the plaintiff with anything, but had been ordered to take the plaintiff back to the Spiritwood detachment. The plaintiff states that he told Tuffs that he wished to check on his cattle on his and his son’s land and to check on a stray bull he had noticed the night prior. The plaintiff states he also told Tuffs that he wanted to check to see if his son had been at a shack built on the land many years ago. 24 The plaintiff further states that he does not recall if Tuffs arrested him or gave the reason for his arrest. Upon being transported to the Spir- itwood detachment, the plaintiff states at para. 45 of his affidavit that, “I recall that Corporal Tuffs was hesitant about my arrest and overheard him ask Staff Sgt. McGeough what he should do with me? I heard Staff Sgt. McGeough say that I should be taken to Shellbrook and booked. I also overheard Staff Sgt. McGeough say that he would take the ‘rap’ or Dagenais v. Canada (Attorney General) A.R. Rothery J. 349

‘hit’ for my arrest, or words to similar effect. I was then handcuffed by Staff Sgt. McGeough.” 25 The plaintiff states that he was detained by the defendant Tuffs at about 8:00 a.m. on July 8, 2006, and brought before the Justice of the Peace by the defendant Palen at about 9:00 p.m. on July 8, 2006. 26 Counsel for the defendants and for the plaintiff agree that the issue to be decided is whether the RC.M.P. had reasonable and probable grounds to arrest the plaintiff. However, counsel for the defendants argues that this issue may be decided within the context of the Rule 173(c) and Rule 173(e) applications. 27 Counsel for the plaintiff submits that the conflicting affidavits of the plaintiff and the defendants surrounding the arrest and the circumstances leading up to it are sufficient for the court to disallow the defendants’ application. Counsel refers to the Saskatchewan Court of Appeal in Bank of Montreal v. Schmidt (1989), 75 Sask. R. 157, [1989] S.J. No. 299 (Sask. C.A.) at para 10, where Sherstobitoff J.A. stated: In this case, given that two of the appellants have sworn that the allegations in their defence and counterclaim are true, and then went on to detail their version of the facts, their pleadings cannot be stricken. The judge was not entitled to weigh conflicting affidavit evidence and to prefer the affidavit on behalf of the bank - and that is the only way she could have found the appellants’ pleadings to be false, frivolous and vexatious. The issues raised and the facts disputed are far too complex in this case to allow it — it would amount to trial on affidavit evidence. There may be cases where pleadings are clearly false and vexatious, notwithstanding verification under oath, but this case is not one of them. Thus the appeal against the order striking the appellants’ pleadings must be allowed. [Emphasis added] 28 Indeed, the plaintiff does not deny that he felt animus toward the R.C.M.P. and did admit that he had been out looking for his son. At the same time, the defendant McGeough does not deny the alleged statement that he would take the “rap” for the plaintiff’s arrest. 29 Granted, the plaintiff has a difficult task with his allegations. For example, the police’s involvement in his detention was a total period of thirteen hours, before the continued detention was a result of the judicial process. (See: Trudgian v. Bosche, 2005 SKCA 13, 257 Sask. R. 234 (Sask. C.A.), at para. 7.) Furthermore, the allegation of negligent investigation requires that the police breached the standard of care imposed on a 350 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

police officer, which is far different from that imposed on a lawyer or a judge. (See: Hill v. Hamilton-Wentworth (Regional Municipality) Police Services Board, [2007] 3 S.C.R. 129 (S.C.C.) at para. 50.) 30 The plaintiff’s allegation of malicious prosecution requires proof of malice on the part of the defendants. (See: Nelles v. Ontario, [1989] 2 S.C.R. 170 (S.C.C.), at para. 42.) The plaintiff pleads malice, but, at present, the plaintiff relies on Rule 148, which allows malice to be pleaded as a fact without setting out the circumstances from which malice is to be inferred. Disclosure and discoveries are required to particularize this allegation. 31 On the other hand, both a subjective and objective component must exist for the police to establish a lawful arrest and detention. As stated in Trudgian, supra, at para. 8: The two-part analysis in Storrey requires, in order to render the arrest and detention lawful, that the arresting officer have a subjective belief that he had reasonable and probable grounds and, secondly, that it be objectively established that the reasonable and probable grounds did in fact exist. Cory J. said: In summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish a prima facie case for conviction before making the arrest. 32 It is unlikely that the analysis of the police’s arrest can be made on affidavit evidence, particularly when some discrepancy is present. 33 This plaintiff’s claim may be improbable. The R.C.M.P. were dealing with a highly volatile situation of a son fleeing from them after shooting three police officers and a father who was interfering with the investigation. However, as quoted with favour in Sagon , supra, the court’s discretion to strike a claim on the basis of being frivolous, vexatious or an abuse of the court’s process ought to be exercised sparingly. “Its exercise would not be justified merely because the story told in the pleadings is highly improbable.” This is such a case. The court has the ability to ensure that its function is not misused. An award of costs is always a useful Dagenais v. Canada (Attorney General) A.R. Rothery J. 351

tool in these kind of cases if a plaintiff pursues an action to trial in the face of unsubstantiated allegations. Disclosure and discoveries will clarify the respective parties’ positions to allow their respective counsel to determine the strengths and merits of the claim and defence. 34 The defendants’ application to strike the claim on the basis of Rule 173(c) and 173(e) is hereby dismissed. The plaintiff’s application to amend his statement of claim in the form of the draft provided on June 16, 2011, is hereby granted. 35 Because the plaintiff’s claim originally issued was so deficient that it required the defendants to make the application under Rule 173(a) in the first place, there will be no order as to costs. 36 Any further applications are to be directed to my attention in the first instance. Defendants’ application dismissed; plaintiff’s application granted. 352 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

[Indexed as: Moore v. Piccioni] Timothy Sean Moore (Plaintiff) and Geraldine Piccioni (Defendant) British Columbia Supreme Court Docket: Vancouver S108304 2011 BCSC 664 Ross J. Heard: April 20, 2011 Judgment: May 24, 2011 Civil practice and procedure –––– Limitation of actions — Actions in tort — Specific actions — Defamation –––– Son’s mother allegedly told son’s grandmother that son had stolen some of grandmother’s chattels — Grandmother removed son from her will in December 2003 and had no further dealings with him — Grandmother died in September 2010 — Son commenced action against mother in December 2010 for damages for defamation — Mother brought application for summary judgment dismissing action as statute-barred — Application granted — Pursuant to s. 3(2) of Limitation Act, claims for defamation were subject to two-year limitation period from time alleged defamatory statements were made — Authorities indicated postponement provisions in Act did not apply to claims for defamation — It followed that son’s claims for defamation were statute-barred and had to be dismissed. Estates and trusts –––– Estates — Will challenges — Undue influence — Practice and procedure — General principles –––– Son’s mother allegedly told son’s grandmother that son had stolen some of grandmother’s chattels — Grandmother removed son from her will and had no further dealings with him — After grandmother died, son commenced action against mother for damages for undue influence — Mother brought application for order striking out statement of claim as disclosing no reasonable cause of action — Application granted — There was no separate cause of action for undue influence — Probate court was appropriate forum for trying those issues. Cases considered by Ross J.: Lord v. McGregor (1999), 1999 CarswellBC 319, (sub nom. Lord v. Matsqui Institution (Warden)) 119 B.C.A.C. 105, (sub nom. Lord v. Matsqui Institution (Warden)) 194 W.A.C. 105, 1999 BCCA 102 (B.C. C.A.) — considered Sime v. Jupp (2009), 2009 CarswellBC 2224, 2009 BCSC 1154, 76 C.C.E.L. (3d) 231 (B.C. S.C.) — considered Moore v. Piccioni Ross J. 353

Statutes considered: Limitation Act, R.S.B.C. 1996, c. 266 Generally — referred to s. 3(2) — considered s. 3(2)(c) — considered s. 6 — considered Rules considered: Supreme Court Civil Rules, B.C. Reg. 168/2009 R. 9-5 — pursuant to R. 9-6(4) — pursuant to

APPLICATION by mother for order striking out part of statement of claim as disclosing no reasonable cause of action and for summary judgment dismissing remainder of action as statute-barred.

Timothy Sean Moore, Plaintiff, for himself Michael R. Mark, for Defendant

Ross J.:

1 The plaintiff, Timothy Moore, has commenced an action against his mother, the defendant, Geraldine Piccioni. The action alleges that Ms. Piccioni made defamatory statements concerning Mr. Moore to his grandmother, Winifred Blakemore, with the result that he lost the love and support of his grandmother and lost an inheritance in her will. He also alleges Ms. Piccioni exerted undue influence upon Ms. Blakemore. Finally, he claims an interest in certain land registered in his mother’s name. 2 Ms. Piccioni applies pursuant to Rule 9-5 for an order dismissing the action on the basis that it discloses no reasonable claim and it is scandalous, frivolous and vexatious. Alternatively, she seeks an order pursuant to Rule 9(6)(4) dismissing the plaintiff’s claim on the basis that there is no genuine issue for trial. Finally, she asserts the plaintiff’s claims of defamation or other tort are statute-barred. 3 The pleadings with respect to the alleged defamation are as follows: On September 23, 2010, I conducted a Wills Notice Search at the BC Vital Statistics Agency and found that a Wills Notice #2003-220482 had been filed respecting the Last Will and Testament and / or Codi- cil of Winifred Mary Blakemore dated December 15th, 2003. 354 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

That in the previous Will of Winifred Mary Blakemore, in effect up until December 15th, 2003, I, Timothy Sean Moore, am named as a beneficiary. That on or about December 15th, 2003, Geraldine Piccioni defamed and slandered me, Timothy Sean Moore, by making the serious accusation to my grandmother, Winifred Mary Blakemore, that I had stolen my grandmother’s chattels from her apartment, and furthermore, that this accusation was known by Geraldine Piccioni to be false. ... That the slanderous statements of the Defendant, Geraldine Piccioni, made on or about December 15th, 2003, caused me, Timothy Scan Moore, mental anguish, emotional distress, loss of inheritance, and the loss of the love and support of my grandmother, Winifred Mary Blakemore, for the remainder of her life and until her death on Sep- tember 11, 2010, and upon her death in the absence of any knowledge of her funeral services until after the fact. 4 The defendant submits that the claim for defamation is statute barred because of the expiry of the limitation period. Claims in defamation are subject to a two year limitation period as set out in s. 3(2) of the Limita- tion Act, R.S.B.C. 1996. c. 266 which provides: s. 3(2) After the expiration of 2 years after the date on which the right to do so arose a person may not bring any of the following actions: ... (c) for defamation. 5 The right to bring the action arose when the defamatory statements were made. The action was commenced in December 2010, well beyond the two year limitation period. 6 Mr. Moore submits that the postponement provisions of the Limita- tion Act apply and that he was not informed until September 17, 2010 that he was not a beneficiary of the will of Ms. Blakemore. He submits that it was only then that he was aware of the damage he had suffered. 7 Section 6 of the Limitation Act provides for certain circumstances in which the limitation period is extended. It provides: 6 (1) The running of time with respect to the limitation period set by this Act for an action (a) based on fraud or fraudulent breach of trust to which a trustee was a party or privy, or Moore v. Piccioni Ross J. 355

(b) to recover from a trustee trust property, or the pro- ceeds from it, in the possession of the trustee or previously received by the trustee and converted to the trustee’s own use, is postponed and does not begin to run against a beneficiary until that beneficiary becomes fully aware of the fraud, fraudulent breach of trust, conversion or other act of the trustee on which the action is based. (2) For the purposes of subsection (1), the burden of proving that time has begun to run so as to bar an action rests on the trustee. (3) The running of time with respect to the limitation periods set by this Act for any of the following actions is postponed as provided in subsection (4): (a) for personal injury; (b) for damage to property; (c) for professional negligence; (d) based on fraud or deceit; (e) in which material facts relating to the cause of action have been wilfully concealed; (f) for relief from the consequences of a mistake; (g) brought under the Family Compensation Act; (h) for breach of trust not within subsection (1). (4) Time does not begin to run against a plaintiff or claimant with respect to an action referred to in subsection (3) until the identity of the defendant or respondent is known to the plaintiff or claimant and those facts within the plaintiff’s or claimant’s means of knowledge are such that a reasonable person, knowing those facts and having taken the appropriate advice a reasonable person would seek on those facts, would regard those facts as showing that (a) an action on the cause of action would, apart from the effect of the expiration of a limitation period, have a reasonable prospect of success, and (b) the person whose means of knowledge is in question ought, in the person’s own interests and taking the person’s circumstances into account, to be able to bring an action. 356 CANADIAN CASES ON THE LAW OF TORTS 87 C.C.L.T. (3d)

(5) For the purpose of subsection (4), (a) ”appropriate advice”, in relation to facts, means the advice of competent persons, qualified in their respective fields, to advise on the medical, legal and other aspects of the facts, as the case may require, (b) ”facts” include (i) the existence of a duty owed to the plaintiff or claimant by the defendant or respondent, and (ii) that a breach of a duty caused injury, damage or loss to the plaintiff or claimant, (c) if a person claims through a predecessor in right, title or interest, the knowledge or means of knowledge of the predecessor before the right, title or interest passed is that of the first mentioned person, and (d) if a question arises about the knowledge or means of knowledge of a deceased person, the court may have regard to the conduct and statements of the deceased person. (6) The burden of proving that the running of time has been postponed under subsections (3) and (4) is on the person claiming the benefit of the postponement. (7) Subsections (3) and (4) do not operate to the detriment of a purchaser in good faith for value. (8) The limitation period set by this Act with respect to an action relating to a future interest in trust property does not begin to run against a beneficiary until the interest becomes a present interest. 8 Knowledge that a breach caused injury, damage or loss is one of the relevant facts for purposes of extending the limitation period. However, it is well settled that the postponement provisions do not apply to claims brought in defamation, see Sime v. Jupp, 2009 BCSC 1154 (B.C. S.C.); and Lord v. McGregor, 1999 BCCA 102 (B.C. C.A.). It follows that the claims in defamation are statute barred in this case and must be dismissed. 9 The allegation with respect to undue influence is as follows: That on or about December 15th, 2003, Geraldine Piccioni, exerted undue influence upon Winifred Mary Blakemore and slandered me, Timothy Sean Moore, causing my grandmother to add a codicil to her Will removing me as her beneficiary in the amount of approxi- Moore v. Piccioni Ross J. 357

mately $100,000, or one third of her estate, even though she lacked the capacity to make said codicil. 10 Ms. Piccioni submits that outside of a probate action, the plaintiff cannot maintain an independent action based upon undue influence of a testator and allege damages that flow from such a claim. It is submitted that there is no cause of action of undue influence. Mr. Moore has filed a caveat with the probate registry asserting that the most recent will of Ms. Blakemore is invalid as it was made under conditions of undue influence. An action has been commenced seeking to have the will pronounced in solemn form and the caveat filed by Mr. Moore cancelled. 11 I agree with Ms. Piccioni’s submission that there is no cause of action for undue influence. The claim brought in this proceeding is dismissed for failure to allege a cause of action. The probate action is the appropriate action in which to try those issues. 12 The final claim asserted in the action is the assertion of an interest in land. No material facts are pleaded that would give rise to an issue in land. In oral submissions Mr. Moore clarified the claim he sought to advance. He states that his grandmother, Ms. Blakemore, had loaned money to his mother, Ms. Piccioni, to permit her to purchase land. Ms. Piccioni had not repaid the debt, thereby diminishing the estate. I agree with the submission of counsel for Ms. Piccioni that the present pleading is deficient in that no material facts capable of giving rise to an interest in land are pleaded. 13 It is appropriate to consider how a pleading might be amended and if any deficiencies can be rectified through amendment. Here the claim that Mr. Moore wishes to bring is not a claim that he can advance. It is a claim that could be advanced by the estate through its representative, not by Mr. Moore. Moreover, nothing in the description Mr. Moore provided of the claim in debt would give rise to an interest in land in any event. 14 In the result, all of the claims alleged in the notice of civil claim are fundamentally flawed. The application for summary judgment dismissing the claim is granted with costs to the defendant. Application granted.