



COURT OF APPEAL FOR ONTARIO

CITATION: Bonello v. Gores Landing Marina (1986) Limited,
    2019 ONCA 127

DATE: 20190220

DOCKET: C65271

Brown, Paciocco and Zarnett JJ.A.

BETWEEN

Timothy Bonello, Ted
    Bonello, Anne Cutajar Wagner, Andrew Bonello and Mark Bonello

Plaintiffs

and

Gores Landing Marina (1986) Limited, Joseph
    Davies
and Murray E. Carslake and Joseph Davies Jr. also known as Joey
    Davies

Defendants (
Appellants
)

and

Chris Kane, Chris Ryan,
Anthony Cook, Gabe
    Mansueto, Gerald Chestnut, Jeff Jaglel, Frank Buttigieg
, Dan Rule and
Mike
    Buttigieg


Third Parties (
Respondents
)

R. Steven Baldwin
, for the appellants,
    Gores Landing Marina (1986) Limited and Joseph Davies

Nadine Nasr
, for the
    respondent Gerald Chestnut

Nestor Kostyniuk and Jeffrey
    Pasternak,
for the respondents Frank Buttigieg and Mike Buttigieg

Lianne Sharvit
, for the
    respondent Jeff Jaglel

A. C. Gluek,
for the
    respondent Gabe Mansueto

Russell Tilden
, for the
    respondent Anthony Cook

Heard: January 17, 2019

On appeal from the order
    of Justice Peter J. Cavanagh of the Superior Court of Justice, dated April 6,
    2018, with reasons reported at 2018 ONSC 2237.

BROWN
    J.A.:


I.

OVERVIEW

[1]

In August 2007, the plaintiff, Timothy Bonello, was seriously injured
    during a recreational game of tug-of-war at a campground operated by the
    appellant, Gores Landing Marina (1986) Limited, of which the appellant, Joseph
    Davies Sr., is a principal. The rope used during the game contained several
    loops. Mr. Bonello put his left arm through a loop. There were about 20 adult
    males on each side of the rope. When the pull started, the loop tightened on
    Mr. Bonellos arm. The resulting injury was so severe that his left forearm
    ultimately was amputated.

[2]

In 2009, Mr. Bonello commenced an action against Gores Landing and its two
    owners, Mr. Davies Sr. and Murray Carslake. The action was dismissed against
    the latter in 2012. Following examinations for discovery, Mr. Bonello amended
    his claim to add as a defendant Joseph Davies Jr., the son of Mr. Davies Sr.

[3]

In his Amended Statement of Claim, Mr. Bonello advances two types of
    claims against Gores Landing, Joseph Davies, Sr. and his son, Joseph Davies,
    Jr. First, he pleads that the defendants breached their duties under the
Occupiers
    Liability Act
, R.S.O. 1990. c. O.2, to ensure that their premises, and the
    activities carried on there, were reasonably safe. Second, he alleges the
    defendants were negligent. The particulars of the negligence pleaded against
    Mr. Davies Jr. include that: he obtained the rope for the tug-of-war; knew
    loops in the rope posed a hazard to participants; failed to ensure the loop did
    not pose a danger to participants; failed to warn Mr. Bonello not to place his
    hand in a loop; and failed to supervise properly Mr. Bonellos participation in
    the activity.

[4]

Mr. Bonello did not sue any of the other participants in the tug-of-war
    game. However, in 2010 the defendants initiated a Third Party Claim against the
    respondent third parties, all of whom participated in the tug-of-war.

[5]

In 2016, the appellant defendants moved for summary judgment to dismiss
    Mr. Bonellos action. The third parties moved for summary judgment dismissing
    the Third Party Claim; those motions were held in abeyance until the
    disposition of the appellants motion to dismiss the main action. By order
    dated August 25, 2016, Perell J. dismissed the action: 2016 ONSC 5372. This
    court set aside his order on the ground that consideration was not given to Mr.
    Bonellos claim in negligence. As a result, there was a genuine issue requiring
    a trial as to whether the defendants were vicariously liable for any negligence
    on the part of Mr. Davies Jr.: 2017 ONCA 632.

[6]

Another round of summary judgment motions ensued in early 2018. The
    appellants moved again for summary judgment dismissing the action. The motion
    judge dismissed their motion: 2018 ONSC 2211. Based on his interpretation of
    this courts 2017 decision, the motion judge concluded the defendants were
    precluded by operation of the doctrine of issue estoppel from moving a second
    time for summary judgment: at para. 10. Although I have serious reservations
    about that interpretation, it is of no consequence to the issues on this
    appeal. No appeal was taken from that decision

[7]

The third parties motions for summary judgement were heard at the same
    time. The motion judge granted them, dismissing the Third Party Claim: 2018
    ONSC 2237. The appellants appeal.

[8]

The appeal was dismissed following oral argument, with reasons to
    follow. These are those reasons.


II.

FACTS

[9]

Gores Landing operates a campground and marina on Rice Lake where it
    rents cottages, sites for vacation trailers, and boat slips. In 2007, renters
    at the campground held a Jimmy Buffet Day. Several of them organized the
    culminating event  a tug-of-war pitting the cottagers against the trailer
    renters. Those organizers went around the grounds inviting adult males to join
    one of the teams. Ultimately about 20 cottagers squared off against an equal
    number of trailer renters.

[10]

At
    the time, Mr. Davies Jr. was at the site. The tug-of-war organizers asked him
    for a rope. He obtained one from a shed on the property and made it available
    for use in the game.

[11]

The
    rope had several loops in it. Some of the participants in the event tried to
    untie the loops. They succeeded in removing some; a few remained.

[12]

Mr.
    Bonello joined one of the teams. He placed his arm in one of the loops, which
    tightened, resulting in the injury once the teams started pulling the rope.

[13]

The
    key facts about the third parties involvement in the game are not in dispute:

(i)      None
    of the third parties organized the game;

(ii)      None
    of them provided the rope used for the game;

(iii)     Four
    of the participant third parties saw loops in the rope before the game started:
    Gerald Chestnut, Frank Buttigieg, Mike Buttigieg, and Jeff Jaglel;

(iv)     Two
    of them attempted to remove or untie some of the loops: Gerald Chestnut and
    Frank Buttigieg;

(v)     Two
    did not see any loops in the rope or attempt to remove them; they simply picked
    up the rope and pulled when the signal was given: Anthony Cook and Gabe
    Mansueto; and

(vi)     One
    of them warned Mr. Bonello not to put his hands in the loops: Mike Buttigieg.
    Mr. Bonello testified that he did not recall any such warning.

III.

FIRST GROUND OF APPEAL

[14]

As
    their first ground of appeal, the appellants submit that the motion judge
    failed to recognize that in its 2017 reasons this court implicitly accepted
    that Mr. Davies Jr. owed a duty of care to Mr. Bonello. According to the
    appellants, the only issue this court left for trial was whether Mr. Davies Jr.
    had breached the standard of care for that duty. Since the acts or omissions of
    the third parties were similar to those of Mr. Davies Jr., it follows,
    according to the appellants, that the third parties owed a duty of care to Mr.
    Bonello. The motion judge erred in departing from that implied holding of this
    court.

[15]

No
    such holding, implicit or otherwise, is apparent in this courts 2017 decision.
    There, this court held, at paras. 37 to 39, that a genuine issue requiring a
    trial existed as to whether Gores Landing and Mr. Davies Sr. were vicariously
    liable for the actions of Mr. Davies Jr. The determination of that issue will
    require an inquiry into whether any duty of care existed, whether it was
    breached, as well as the nature of the relationship between Mr. Davies Jr. and
    the appellants.

IV.

SECOND GROUND OF APPEAL

[16]

The
    appellants second submission is a variation of their first. They argue that even
    if in its 2017 decision this court did not find that a duty of care existed, it
    did hold that there was a genuine issue requiring a trial as to whether Mr.
    Davies Jr. ought to have foreseen the risk of injury to Mr. Bonello posed by his
    provision of the looped rope for the tug-of-war. The appellants submit that the
    third parties had more involvement than Mr. Davies Jr. in causing the injury
    sustained by Mr. Bonello. Consequently, the motion judge erred in not finding
    that there was a genuine issue requiring a trial regarding the alleged
    negligence of the third parties.

[17]

The
    motion judge did not err. The evidence disclosed differences between the
    conduct of Mr. Davies Jr. and that of the third parties. Unlike the third
    parties, Mr. Davies Jr. assisted his father with tasks at Gores Landing and on
    the day of the event he scoured the grounds until he found a rope belonging
    to Gores Landing, which he provided to those organizing the tug-of-war.
    Moreover, in assessing whether the Third Party Claim gave rise to a genuine
    issue requiring a trial, the motion judge was satisfied that the evidentiary
    record enabled him to reach a fair and just determination on the merits of the
    third parties liability. He thoroughly considered the largely undisputed evidence
    about the acts and omissions of the third parties in light of the allegations
    advanced in the Third Party Claim and the applicable legal principles. In
    short, the motion judge assessed the liability of the third parties in light of
    the evidence relating to the third parties; at the trial of the main action,
    the liability of the defendants will be assessed in light of the entirety of
    the evidence relating to the defendants.

[18]

The
    sequence of adjudicating the main action and Third Party Claim in this proceeding
    departs from the norm for third party claims seeking contribution and
    indemnity. The
Rules of Civil Procedure
require that a third party
    claim be tried at or immediately after the trial of the main action, unless the
    court orders otherwise: r. 29.08(2). That sequence serves two of the policy
    objectives of the third party procedure  binding the third parties to the
    results of the final determination on the merits as between the plaintiff and
    defendant, together with avoiding inconsistent outcomes in factually related
    proceedings:
Barclays Bank v. Tom
(1992)
,
    [1923] 1 K.B. 221 (C.A.), at p. 224, quoted in W.B. Williston & R.J. Rolls,
The Law of Civil Procedure
(Toronto: Butterworth, 1970), at p. 426;
    Holmested & Watson,
Ontario Civil Procedure,
loose-leaf (2018-Rel. 5) ed by
Garry D.
    Watson and Derek McKay (Toronto: Thomson Reuters, 1984), at p. 29-11. Those
    same policy considerations apply to the sequencing of summary judgment motions
    in respect of a main action and a third party claim.

[19]

Here,
    the dismissal of the Third Party Claim has been upheld before the trial of the
    main action, scheduled for later this fall. That said, in the present case the
    plaintiff is represented by a law firm well-experienced in the personal injury
    field. The plaintiff did not name the third parties as defendants in his
    action. Nor has the plaintiff claimed any procedural unfairness from the
    sequence of the dispositions: the plaintiff was represented by counsel before
    the motion judge but did not formally appear on this appeal. In those
    circumstances, no prejudice arises from the sequence of the final dispositions
    of the main action and Third Party Claim.


V.

THIRD GROUND OF APPEAL

Statement of the issue

[20]

There
    is no dispute that the motion judge correctly articulated the principles
    involved in the two-stage duty of care analysis laid out in the
Anns/Cooper
test 
Anns v. Merton London Borough Council
(1977), [1978] A.C. 728
    (U.K.H.L.);
Cooper v. Hobart
, 2001 SCC 79, [2001] 3 S.C.R. 537  which
    were summarized recently by the Supreme Court of Canada in
Deloitte &
    Touche v. Livent Inc. (Receiver of)
, 2017 SCC 63, [2017] 2 S.C.R. 855 and
Rankin
    (Rankins Garage & Sales) v. J.J.
, 2018 SCC 19, [2018] 1 S.C.R. 587.

[21]

As
    well, the appellant agrees that the motion judge properly identified the legal principles
    applicable to an allegation of failure to act, as set out in
Childs v.
    Desormeaux
, 2006 SCC 18, [2006] 1 S.C.R. 643, at paras. 31 to 44.

[22]

However,
    the appellants argue that the motion judge misapplied those principles in the
    circumstances of this case, especially with respect to the proximity and
    foreseeability elements of the first branch of the
Anns/Cooper
test.

[23]

The
    appellants acknowledge that an impromptu and friendly tug-of-war by tenants of
    a community is not a high risk adventure, echoing the motion judges finding
    that a tug-of-war game is not an inherently risky activity: at para. 38.
    However, they argue that a game of tug-of-war becomes hazardous when the
    participants have actual knowledge of the presence of a loop in the rope. They
    contend that the motion judge erred by failing to address the evidence of
    actual knowledge of the risk by the participants.

The principles in the first step of the
Anns/Cooper
test

[24]

Under
    the
Anns/Cooper
test, demonstrating the existence of a
prima facie
duty of care requires establishing two elements: reasonable foreseeability of
    harm and proximity:
Rankins Garage
, at para. 21.

[25]

The
    principle of reasonable foreseeability of harm requires an inquiry into whether
    there was reason for a defendant to have contemplated that his or her conduct
    could result in the harm complained of:
Rankins Garage
, at para. 22. When
    determining whether reasonable foreseeability is established, the proper
    question to ask is whether the plaintiff has offered facts to persuade the
    court that the risk of the type of damage that occurred was
    reasonably foreseeable to the class of plaintiff that was damaged:
Rankins
    Garage
, at para. 24.

[26]

Foreseeability
    alone is not enough to establish a
prima face
duty of care; proximity
    also must be established:
Livent
, at para. 23. The proximity analysis
    ascertains whether the parties are in such a close and direct relationship
    that it would be just and fair having regard to that relationship to impose a
    duty of care in law:
Livent
, at para. 25. Courts must examine all
    relevant factors arising from the relationship between the plaintiff
    and the defendant:
Livent
, at para. 29. Those factors include the
    expectations, representations, reliance, and the property or other interests
    involved as between the parties:
Livent
, at para. 29;
Rankins
    Garage
, at para. 23.

The negligent acts pleaded against the third parties

[27]

Assessing
    the motion judges reasons first requires a clear understanding of the basis
    upon which the appellants seek contribution and indemnity from the third
    parties. Their Third Party Claim pleads allegations of both wrongful acts and
    wrongful omissions.

[28]

As
    to the wrongful acts, the Third Party Claim first pleads that the Third Parties
    were responsible for arranging, convening and causing the game of tug of war. However,
    the motion judge found that there was no evidence that any of the third parties
    was an organizer or supervisor of the game and that none of the third parties
    intentionally attracted and invited persons to an inherent and obvious risk
    that he created or controlled: at para. 38. The appellants have not
    demonstrated that the motion judge made a palpable and overriding error in so
    finding.

[29]

The
    Third Party Claim goes on to plead, as an additional wrongful act, the third
    parties participation in the game: It was [for] the Third Parties, as adult
    men organizing and participating in a tug of war, to ensure that the tug of war
    would be accomplished in a manner that was safe to all participants. But, as
    participants in the tug-of-war, they permitted an open loop in the rope and
    commenced the tug of war with a loop being in the rope. Although this
    allegation is framed in language of a wrongful act, in substance it alleges a
    wrongful omission by the third parties  i.e., having seen loops in the rope
    provided for the event, they failed to remove the loops before starting the
    tug-of-war.

[30]

As
    well, the Third Party Claim expressly pleads wrongful omissions by the third
    parties: they did not prevent Mr. Bonello from putting his left hand arm
    through the loop before commencing the tug of war. Accordingly, the third
    parties failed in their duties owed to each other to ensure that the tug of
    war was accomplished in a safe fashion and [this] resulted in injury to [Mr.
    Bonello].

Analysis

[31]

The
    motion judge considered the allegations made against the third parties from two
    perspectives: as allegations of a failure to act: at paras. 37 to 39; and as
    the commission of overt acts: at paras. 40 to 42.

[32]

Treating
    the allegations as ones of a failure to act, the motion judge considered the decision
    of the Supreme Court of Canada in
Childs
. There, the court stated, at
    paras. 31 and 34, that where the conduct alleged against a defendant is a
    failure to act, foreseeability alone may not establish a duty of care  the
    nature of the relationship must be examined to determine whether there is a
    nexus, special link or proximity between the parties.

[33]

In
Childs
, the court identified three circumstances in which a positive
    duty to act had been imposed: (i) where a defendant intentionally attracts and
    invites others to an inherent and obvious risk that he or she has created or
    controls; (ii) where there exists a paternalistic relationship of supervision
    and control; and (iii) where the defendant either exercises a public function
    or engages in a commercial enterprise that includes implied responsibilities to
    the public at large: at paras. 35-37. The thread running through these
    situations is the defendants material implication in the creation of risk or
    his or her control of a risk to which others have been invited: at para. 38.

[34]

The
    motion judge concluded that the evidence of the third parties involvement in
    the tug-of-war did not fall into any of the three circumstances identified in
Childs
.
    In the course of his analysis, the motion judge specifically took into account
    the evidence that some of the third parties observed loops in the rope and one,
    Mr. Mike Buttigieg, testified that he had warned Mr. Bonello not to put his
    hand through a loop. His finding that the third parties did not invite or
    attract Mr. Bonello to an inherent and obvious risk that they had created or
    controlled was amply supported by the evidence, as were his conclusions that
    none of the participants stood in a special relationship with Mr. Bonello, such
    as a relationship of a paternalistic character, or was engaging in a commercial
    activity with implied responsibilities to the public at large. This situation
    involved the voluntary participation by members of a community of campers and
    cottagers in an outdoor recreational activity, which engaged two teams of
    competent adults: at para. 39.

[35]

Applying
    the principle set out at para. 39 of
Childs
that the law does not
    impose a duty to eliminate risks and accepts that competent persons have the
    right to engage in risky activities, the motion judge concluded:

This is a situation where the autonomy of the participants in
    the game of tug-or-war should not be impinged by the imposition of a duty of
    care on each participant requiring him to take positive actions that would
    minimize or eliminate the possible risks to other participants in the game,
    including Mr. Bonello.

[36]

I
    see no error in his conclusion.

[37]

The
    motion judge then examined the claim against the third parties as one asserting
    the commission of an overt negligent act. He described the alleged overt act of
    the participants as engaging in the tug-of-war without ensuring that the game
    would be accomplished in a manner that was safe to all participants.

[38]

Here,
    the motion judges analysis focused on whether the appellants had demonstrated the
    reasonable foreseeability of the harm suffered by Mr. Bonello. The motion judge
    relied upon the decision in
Garratt v. Orillia Power Distribution Corporation
,
    2008 ONCA 422, 90 O.R. (3d) 161, where this court stated, at para. 48:

Foreseeability of the
possibility
of resultant harm is
    inadequate to establish a duty of care. We do not expect omniscience,
    prescience or clairvoyance, or impose a duty of care on all who fall short of
    any such standard. Foreseeability of the probability of resultant harm involves
    the
likelihood
that such harm will result from the alleged wrongdoer's
    conduct. Said in different words, a duty of care is established only where what
    happened was a natural and probable result of what the alleged wrongdoer did or
    failed to do.

[39]

This
    principle was echoed by the Supreme Court in
Rankins Garage
where the majority stated
, at para. 46:
    The fact that something is
possible
does not mean that it is
    reasonably foreseeable. Obviously, any harm that has occurred was by definition
    possible. Thus, for harm to be reasonably foreseeable, a higher threshold than
    mere possibility must be met.

[40]

Applying
    those principles, the motion judge held, at paras. 41-42:

In my consideration of whether the third parties participation
    in the tug-of-war game directly caused foreseeable injury to Mr. Bonello, I am
    mindful of the statements made by the Court of Appeal in
Garratt
[at
    para. 48]

that foreseeability of the
possibility
of harm
    resulting from commission of an overt act is inadequate to establish a duty of
    care. Many activities that are common, everyday, recreational activities
    involve the possibility of harm or injury.
Mere
    participation in a recreational tug-of-war game would not involve the
likelihood
that harm will result
.
Even if a
    participant observed loops in the rope to be used for a tug-of-war game, and
    even if steps were unsuccessfully taken to try to remove loops, the injury
    suffered by Mr. Bonello is not a natural and probable result of participation
    in a tug-of-war game using a rope with loops. To impose a duty of care on the
    participants would, in my view, require an expectation of prescience or
    clairvoyance on their parts. The Court of Appeal in
Garratt
has held
    that there is no duty of care in such circumstances.

It would not have been
    within the reasonable contemplation of any of the participants in the
    tug-of-war game that the injury suffered by Mr. Bonello would be a natural and
    probable result of carelessness on the part of each participant in relation to
    what he did or did not do
.
[Underlining added; Italics in
    original.]

[41]

That
    conclusion regarding the reasonable foreseeability of harm is fully supported
    by the evidence in respect of the third parties who did not see any loops or
    who saw others trying to remove loops: Anthony Cook, Gabe Mansueto, and Jeff
    Jaglel.

[42]

The
    evidence concerning the three other third parties is different. Gerald Chestnut
    saw loops in the rope, removed one of them, and knew others remained. Frank
    Buttigieg deposed that he saw knots in the rope and was concerned that the knot
    would give in. However, he did not think anyone would put their hand in the
    loop because that would be a foolish thing to do. Michael Buttigieg thought
    putting ones hand through the loop would be a bad idea. He recalled telling
    Mr. Bonello not to do so but, given that he was standing behind Mr. Bonello, he
    did not see Mr. Bonellos hand in the loop.

[43]

This
    evidence could support an inference that these three third parties had some
    foresight of the possibility of injury from the presence of loops in the rope.
    The motion judge found the degree of foresight did not rise to the level of
    establishing reasonable foreseeability of harm.

[44]

Given
    that the issue of the existence of a duty of care involves a question of law,
    deference is not owed to that conclusion of the motion judge. However, I would
    not interfere with it. As mentioned earlier in these reasons, the appellants
    pleading of a wrongful act is, in substance, an allegation of a positive duty
    to act  either to warn Mr. Bonello or to remove the loops. In those
    circumstances, the proximity element plays a significant role in the duty of
    care analysis. And, as I have stated, the motion judge did not err in
    concluding that none of the circumstances identified in
Childs
as giving
    rise to a positive duty to act are present in the circumstances of this case.

VI.

DISPOSITION

[45]

For
    these reasons, I would dismiss the appeal.

[46]

The
    respondent third parties are entitled to their costs of the appeal. Based upon
    the agreement of the parties, each respondent third party is entitled to costs
    of the appeal from the appellants fixed in the amount of $5,000, inclusive of
    disbursements and applicable taxes.

Released: DB Feb 20, 2019

David Brown J.A.
I agree. David M. Paciocco J.A.
I agree. B. Zarnett J.A.


