Canada: Late Night Fight: Protecting Bar Patrons

Last Updated: September 13 2018
Article by Brian Sunohara

In Turcotte v. Lewis, 2018 ONCA 359, the plaintiff was assaulted after going to a bar in Muskoka and taking a bus back to Barrie, Ontario.

On a summary judgment motion, the court dismissed the lawsuit as against the bar, a security guard, the bus driver, and the bus company. However, the Ontario Court of Appeal overturned the decision and remitted the case to trial.


A bar in the Muskoka region held "resort nights" in which it arranged for a bus service to pick up guests, bring them to the bar, and return them at the end of the evening.

On the night in question, the bus departed the bar between 1:30 and 2:00 a.m. and headed for a plaza in Barrie. A dispute arose on the bus. The defendant, Aaron Lewis, pushed the plaintiff. A security guard, who was hired by the bar, separated them. There was jeering and shouting on the bus.

The security guard learned that someone at the back of the bus had "called ahead for backup". Concerned that the situation might escalate and that violence might occur when the bus got back to Barrie, the security guard called the police in Barrie asking that a cruiser meet the bus on arrival. The bus driver slowed the bus in the hope of giving the police time to arrive at the plaza.

When the bus got to the plaza, the police had yet to arrive. The security guard noticed that the cousin of Aaron Lewis was there. The security guard knew that the cousin had a tendency to get involved in physical altercations.

The security guard and the bus driver permitted the plaintiff to get off the bus first to give him a head start. The security guard told the plaintiff to leave the area. However, the plaintiff did not immediately leave.

The plaintiff was surrounded by a group of people, including Aaron Lewis and his cousin. He was punched and fell to the ground, striking his head on the pavement. He suffered a traumatic head injury.

Summary Judgment Motion

The bar, the security guard, the bus driver, and the bus company ("the defendants") brought a summary judgment motion. The motion was granted.

The motion judge stated that the defendants fulfilled their duty to take reasonable steps to ensure that the plaintiff was safe while he was at the bar and while being transported to the plaza in Barrie.

Further, the motion judge rejected the allegations that the defendants failed to take measures in response to the escalating tension on the bus, such as diverting from the route and going to a police station or to another secure location.

The motion judge concluded that the defendants could not have known that the plaintiff would stop in the parking lot, instead of following the suggestion to move along. Moreover, the defendants did not have authority to detain a passenger on the bus.

Lastly, the motion judge rejected the plaintiff's argument that he was unaware of the risk.

Appeal Decision

The Court of Appeal allowed the plaintiff's appeal, determining that a trial is necessary.

The Court of Appeal stated that the motion judge did not properly define the standard of care. The standard of care had to account for the circumstances as they unfolded during the bus ride and when the bus arrived at the plaza.

The motion judge did not articulate her conclusions on the likelihood of foreseeable harm, the gravity of that harm, or the reasonableness of measures that could have been taken to prevent it.

The Court of Appeal indicated that the motion judge absolved the defendants of liability because the plaintiff was as aware of the risk as the defendants were. This improperly put the responsibility of avoiding the risk entirely on the plaintiff, without considering the defendants' duty to him.

The fact that the plaintiff ignored the advice to leave the area immediately would not necessarily relieve the defendants of liability if the defendants put the plaintiff in a dangerous position. However, it could be relevant to the issue of contributory negligence on the plaintiff.

Overall, the Court of Appeal held that the motion judge significantly understated the standard of care. The bar catered to a large number of youthful customers. The bar provided transportation through the services of a bus company so that customers could drink without driving. The bar also provided security to address the foreseeable risk of violence between customers.

The Court of Appeal stated that the defendants were aware of a clear and substantial risk of violence when the bus arrived in Barrie. Harm was reasonably foreseeable.

There were means available to protect the plaintiff, such as by telling him to not get off the bus until the police arrived, or by accompanying him to a place of safety, or by delaying the arrival of the bus until the police arrived.


According to the Court of Appeal, on a summary judgment motion in a negligence action, a motion judge should conduct a robust analysis of the standard of care. This analysis needs to take into account the context of the incident.

Even when a plaintiff has an opportunity to prevent an incident from occurring, a defendant still has a responsibility to address foreseeable risks.

There is a duty to not place another person in a position where it is foreseeable that the person could suffer injury. This can encompass many situations, such as ejecting an intoxicated customer from a bar or permitting an intoxicated person to engage in a recreational activity.

When faced with a challenging situation, it is often best to put yourself in the shoes of the other person and come up with a common sense solution.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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