



COURT OF APPEAL FOR ONTARIO

CITATION: Jonas v. Elliott, 2021 ONCA 124

DATE: 20210225

DOCKET: C68049

Doherty, Pepall and Thorburn JJ.A.

BETWEEN

Richard Edmond Jonas and Anne
    Catherine Jonas

Plaintiffs (Appellants)

and

Matthew Elliott,
The City of
    Stratford
and
Carrie Goudy

Defendants (
Respondents
)

James J. Mays and John G. Langlois, for
    the appellants

Robert Smith, for the respondents

Heard: February 19, 2021 by videoconference

On appeal from the order of Justice Michael
    D. McArthur of the Superior Court of Justice, dated January 17, 2020, with
    reasons at 2020 ONSC 354.

REASONS FOR DECISION


[1]

This is an appeal of an order granting partial summary judgment,
    dismissing the action against Carrie Goudy, the host of a party, and the City of
    Stratford which rented the facility used to host the party and granted
    permission to serve alcohol. While attending the party, Matthew Elliott
    assaulted Richard Jonas, who suffered injuries.

[2]

The appellants, Richard and Anne Jonas, claim the motion judge erred in (a)
    finding no duty of care on the part of the host and/or the City, and (b)
    bifurcating the proceeding which, they assert, will result in a risk of
    duplication with their surviving claim against Mr. Elliott.

[3]

Following the hearing, the appeal was dismissed with reasons to follow.
    These are those reasons.

[4]

The
Occupiers Liability Act
R.S.O. 1990, c. O.2 provides that
a person or organization with physical
    possession and/or responsibility for and control over a property is supposed to
    take steps to ensure that all persons on the property are reasonably safe while
    on the premises. This
duty was correctly articulated by the motion
    judge.

[5]

He also correctly noted that in order to establish a duty of care, there
    must be a relationship of proximity and foreseeable harm.

[6]

The motion judge held that, in this case, there was a relationship of
    proximity. However, he held the altercation was not reasonably foreseeable
    because:

a)

Experienced and trained staff were hired to
    serve alcohol and a friend provided security at the door;

b)

Both Messrs. Jonas and Elliott had consumed
    alcohol before attending the party but neither exhibited prior signs of
    aggressive behaviour or conduct that would suggest they had consumed alcohol
    before they arrived;

c)

Ms. Goudy was unaware of their prior alcohol
    consumption;

d)

The incident was both sudden and brief;

e)

There was only one other minor incident that
    evening involving an intoxicated patron who was appropriately removed from the
    party, placed in a taxi and taken home; and,

f)

The fact that Mr. Jonas was let into the party
    by Ms. Goudy, was not the cause of the incident.

[7]

These findings of facts about the activity at the party are sufficient
    to demonstrate that the harm was not reasonably foreseeable, and these findings
    are owed deference. In any event there is no evidence that the altercation was
    caused or contributed to by intoxication.

[8]

The appellants suggest there was evidence that conflicts with the motion
    judges finding that the entrance was properly supervised and the event was a modest
    gathering. The appellants claim that although those providing alcohol were
    properly certified, the person at the entrance to the party was a friend. They say
    that some witnesses thought there were over two-hundred people at the gathering,
    inconsistent with this being a modest gathering.

[9]

We see no merit to these submissions as, even if this evidence had been
    accepted by the motion judge, it is not material to whether the altercation was
    reasonably foreseeable.

[10]

The
    motion judge accepted that the appellants did not demonstrate that there was an
    act or failure to act on the part of the occupier that caused Mr. Jonas' injury.
    The assault by Mr. Elliott on Mr. Jonas was entirely unexpected and could not
    have been reasonably foreseen by the respondents. As such, he concluded that
    there is no genuine issue requiring a trial.

[11]

We
    see no error in his finding that the harm was not reasonably foreseeable or his
    conclusion that Mr. Jonas claim and Mr. Elliotts crossclaim against Ms. Goudy
    and the City should be dismissed.

[12]

Moreover,
    he correctly granted partial summary judgment. The claims against the
    respondents could readily be bifurcated from the remaining claim against Mr. Elliott
    in an expeditious and cost-effective manner. Given the nature of the remaining
    claim for damages for assault and battery against Mr. Elliott, any risk of
    inconsistent findings was immaterial.

[13]

For
    these reasons, the appeal is dismissed.

[14]

Costs
    to the respondents in the amount of $10,000, inclusive of disbursements and
    HST.

Doherty
    J.A.

S.E.
    Pepall J.A.

J.A.
    Thorburn J.A.


