



COURT OF APPEAL FOR ONTARIO

CITATION: McDowell v. St. Lawrence Parks Commission, 2015
    ONCA 755

DATE: 20151109

DOCKET: C59778

Feldman, Lauwers and Benotto JJ.A.

BETWEEN

Alice McDowell, Ronald McDowell, Johnathon
    Norman

McDowell, Michael Allen McDowell and
    Caroline

Marguerite McDowell

Plaintiffs

and

St. Lawrence Parks Commission

Defendant (Appellant)

and

Ontario Principals' Council
and
Jessup
    Food & Heritage Ltd.

Third Party (
Respondent
)

Jaan E. Lilles, for the appellant

Pasquale Santini, for the respondent

Heard: October 27, 2015

On appeal from the judgment of Justice Joseph M. W.
    Donohue of the Superior Court of Justice, dated November 26, 2014.

ENDORSEMENT

[1]

The appellant was the defendant in a personal injury action. The
    respondent was the third party. The main claim settled. This is an appeal from
    the finding by the trial judge that the appellant did not prove its claim for
    indemnity or negligence against the third party.

[2]

The appellant operates Fort Henry. The third party runs a food services
    facility, the Garrison Restaurant, at Fort Henry. The plaintiff attended an
    off-hours banquet held at the Garrison Restaurant. After dinner, she left the
    banquet and went to the washroom. When she left the washroom, she did not
    return to the banquet but turned toward the moat adjacent to the washroom and
    fell into it, injuring herself.

[3]

The appellant had a service agreement with the third party that, in
    part, set out the third partys obligations at Fort Henry. The third partys
    primary obligations related to operation of the Garrison Restaurant, both
    during Fort Henrys regular operating hours and for off-hours banquets and
    special events. Article 4.12(d) of the agreement required the third party to
    promote a safe working environment and assure that health and safety needs of
    staff and customers are met following relative guidelines, policies &
    procedures at all times.

[4]

The appellants agreement with the third party included an indemnity
    provision, which provided as follows:

The Concessionaire hereby agrees to indemnify and hold harmless
    the Indemnified Parties from and against any and all liability, loss, costs,
    damages and expenses (including legal, expert and consultant fees), causes of
    action, actions, claims, demands, lawsuits or other proceedings, (collectively,
    Claims), by whomever made, sustained, incurred, brought or prosecuted,
    including for third party bodily injury (including death), personal injury and
    property damage, in any way based upon, occasioned by or attributable to
    anything done or omitted to be done by the Concessionaire, its subcontractors
    or their respective directors, officers, agents, employees, partners,
    affiliates, volunteers or independent contractors
in the course of performance of the
    Concessionaires obligations under, or otherwise in connection with, the
    Contract
.
The Concessionaire further agrees to indemnify and
    hold harmless the Indemnified Parties for any incidental, indirect, special or
    consequential damages, or any loss of use, revenue or profit, by any person,
    entity or organisation, including, without limitation, the Commission, claimed
    or resulting from such Claims. The obligations contained in this paragraph
    shall survive the termination or expiry of the Contract. [Emphasis added.]

[5]

The appellants theory of the case was that the third party breached the
    indemnity provision by failing to escort the plaintiff to the bus at the end of
    the banquet or that it was negligent in failing to do so.

[6]

The trial judge found that regardless of whether the respondent had a
    duty to escort patrons to the bus following a private banquet when the Fort was
    closed to the public, the appellant had not proved that the plaintiffs mishap
    happened at the same time as the departure of other guests from the restaurant
    rooms. He further found as follows: I cannot find that the allegation of the
    third partys failure to get the patrons safely to the bus is in any way
    connected to what happened to the plaintiff. I am not satisfied that departures
    to the bus happened simultaneously with the plaintiffs mishap.

[7]

We see no error in his finding or in his analysis. The only indication
    of the timing of when the plaintiff went to the washroom was the respondents
    pleading that she went after dinner. As the trial judge pointed out during
    closing submissions, there was no actual evidence in the record of a witness
    who last saw her at the party or at the washroom. The only witness at trial who
    saw the plaintiff that night was the third partys former restaurant manager,
    who only saw the plaintiff after she had already fallen when he found her in
    the moat. The trial judge was entitled to find that that did not satisfy the
    appellants onus of proof.

[8]

Nor, based on the record, do we accept the submission that the trial
    judge cut off any cross-examination on the issue.

[9]

Finally, on the issue of whether the trial judge erred in his
    discretionary decision that allowed the third party to withdraw its jury notice
    or struck that jury notice, we are not satisfied that there is evidence upon
    which a jury properly instructed and acting reasonably could come to a
    different conclusion than that reached by the trial judge:
Kempf v. Nguyen
,
    2015 ONCA 114, 124 O.R. (3d) 241, at para. 73. As such, we need not address in
    full the issues raised regarding the striking (or withdrawal) of the jury
    notice.

[10]

The
    appeal is dismissed with costs in the agreed amount of $15,000 inclusive of
    disbursements and HST.

K. Feldman J.A.

P. Lauwers J.A.

M.L. Benotto J.A.


