Canada: The Foreseeability Of A Flying Bottle

On September 17, 2018, Justice Coroza of the Ontario Superior Court of Justice released his decision in Bucknol v. 2280882 Ontario Inc1(“Bucknol”), a motion for summary judgement dealing with commercial host liability and outlining the pillars of claims of negligence. Interestingly, Justice Coroza originally heard the motion in January of 2018 and reserved his decision. In June of 2018, counsel for the defendant (moving party) brought to his Honour's attention the May 2018 Supreme Court of Canada decision of Rankin (Rankin's Garage & Sales) v. J.J (“Rankin”) and further written submissions were requested of counsel.

By way of background in Bucknol, the plaintiff was struck by a beer bottle that had been thrown by an unknown assailant at Classic Lounge Nightclub (“Classic”) in May 2012. Shortly after the incident, the plaintiff left the premises to seek medical attention but did so without alerting any of the staff or security at Classic. The plaintiff sustained a significant injury to his eye.

He subsequently brought suit against Classic for its negligence in failing to provide safety on its premises.

In January 2018, Classic sought to have the action dismissed on summary judgement. As noted above, after the motion was argued, and while Justice Coroza was considering his reasons, the Rankin (Rankin's Garage & Sales) v. J.J (“Rankin”)2 decision was released.

In Rankin, two young boys who had been drinking and smoking marijuana stole a car from a garage that was not properly secured. While driving the vehicle on the highway, the car was in an accident and one of the boys suffered a catastrophic brain injury. One of the boy's mothers subsequently sued the garage for negligence. The majority decision of the Supreme Court of Canada held that the defendant garage did not owe the plaintiff a duty of care. This decision was largely based on the premise that although the evidence delineated a history of incidents of theft from the garage, there was simply not enough evidence to demonstrate that bodily harm was reasonably foreseeable from the theft of a vehicle.

Guided by Rankin, Justice Coroza found that there was no genuine issue for trial and granted summary judgement and dismissed the action against Classic.

Justice Coroza's analysis involved five key issues:

  1. Did the plaintiff prove that Classic was negligent?
  2. Did the plaintiff prove a breach of the Occupiers' Liability Act (“OLA”)?3
  3. Was the incident reasonably foreseeable?
  4. Did the plaintiff establish the required elements of spoliation?
  5. Is there a genuine issue for trial?

Issue 1: Has the plaintiff proven negligence on the part of Classic?

...negligent conduct is that which “creates an objectively unreasonable risk of harm”.

Justice Coroza noted that negligent conduct is that which “creates an objectively unreasonable risk of harm”.4 In order for an occupier to avoid liability, it must meet the standard of care “expected of an ordinary, reasonable and prudent person in the same circumstances”.5 The onus, however, is on the plaintiff to prove and lead evidence of an act or failure by the defendant that thereby resulted in injury to the plaintiff.

The plaintiff argued that Classic had failed to lead any firsthand witness evidence and that the necessary evidence would be available at trial, and summary judgement should not be granted.

The court disagreed. Justice Coroza stated that Classic's evidence, taken from the testimony of four staff members, established that Classic had taken reasonable care to make the premises safe by providing adequate security, providing proper training to its security staff, and creating a system to ensure employees followed the proper safety protocols. The test is not whether the security system prevented the incident, but whether Classic took reasonable steps to create a safe environment â€" which Justice Coroza found that it did.

Issue 2: Has the plaintiff proven a breach of the Occupiers' Liability Act?

Justice Coroza found that although there was a positive duty on Classic to ensure the premises were reasonably safe under the OLA, the standard is reasonableness, not perfection.

The plaintiff argued that a lack of security was evidence of a lack of reasonable care. Justice Coroza disagreed, and noted that there was no history of violence or glass objects being thrown at Classic. The plaintiff then argued that Classic failed to provide adequate security. The court disagreed, noting that the incident unfolded too quickly for security to prevent the impact of the bottle. Finally, the plaintiff argued that had the busboys working at Classic cleared the bottle in a timely fashion, he would not have been struck and injured. Justice Coroza rejected this argument on the basis that there was no proof that the bottle had not been cleared, and conversely, there was evidence that there were three regular busboys working.

Issue 3: Was the incident reasonably foreseeable?

Relying on the Supreme Court of Canada's recent decision in Rankin, Justice Coroza stated that in order for foreseeability to be established the following would need to be shown:

  1. There must be a circumstance or evidence to show that Classic should have foreseen the risk of injury;
  2. The plaintiff bears the onus of establishing that Classic should have contemplated the particular risk at hand while constructing its security system; and,
  3. A bottle being thrown must be shown to be a risk that Classic should have considered.

...it was not established that they would have been able to prevent the bottle from being thrown.

Justice Coroza found that “there was nothing to alert Classic to any danger in the evening in question”.6 Classic could not have been alerted to the potential danger of a bottle being thrown as there was no evidence of such happenings in the past. There was also no evidence that Classic allowed a patron to become overly intoxicated, leading to the incident. Finally, the incident occurred very quickly, so even if employees had seen the event, it was not established that they would have been able to prevent the bottle from being thrown.

Issue 4: Has the plaintiff established the required elements of spoliation?

Although Classic had a number of security cameras on site, the footage had been deleted prior to the commencement of the plaintiff's action. According to Classic, it was its practice to delete catalogued footage after a month had passed. Classic asserted that had the plaintiff informed it of his injury the footage would have been preserved. In the circumstances, Justice Coroza found that spoliation had not occurred.

Issue 5: Is there a genuine issue for trial?

In finding that there was no genuine issue for trial, Justice Coroza put particular emphasis on the absence of the element of foreseeability as the fatal aspect of the plaintiff's case.

Conclusion

The case provides reassurance for commercial hosts that while occupiers have a positive duty to take reasonable steps to ensure that a premise is reasonably safe, the standard is reasonableness, not perfection. As Justice Corozo noted “Classic did not have to remove every possible danger from their premises. They took measures that were reasonable in the circumstances to make sure their customers were safe.”7

Footnote

1 2018 ONSC 5455.

2 2018 SCC 19, [2018] SCJ No. 19.

3 R.S.O. 1990, c. O.2.

4 Ryan v Victoria (City), [1999] 1 SCR 201, at para 28.

5 Ibid.

6 Bucknol, at 27.

7 Bucknol, at 132

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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