



COURT OF APPEAL
    FOR ONTARIO

CITATION: Da Silva v. Gomes, 2018 ONCA 610

DATE: 20180704

DOCKET: C64476

Epstein, Lauwers and van Rensburg JJ.A.

BETWEEN

Michael
    Da Silva, Daniela Da Silva, Daniel Da Silva and

Michelle Da Silva

Plaintiffs (Appellants)

and

Brandon
    Gomes,
Hamilton Sparta Sports Club
,

The Ontario Soccer Association Incorporated
,
Peter Gesse
,

Jack
    Myslin
and
Hildeberto Leal

Defendants (
Respondents
)

Daniel DUrzo, for the appellants

Kayla Kwinter, for the respondents other than Brandon
    Gomes

Heard: June 29, 2018

On appeal from the judgment of Justice M.J.L. Shaw of the
    Superior Court of Justice, dated September 29, 2017 and reported at 2017 ONSC
    5841.

REASONS FOR DECISION

[1]

In the course of
    a soccer game, Brandon Gomes punched Michael Da Silva. Mr. Gomes was criminally
    convicted for the assault.  Mr. Da Silva was injured.  He and his family, who
    bring their claims under the
Family Law Act
, R. S. O. 1990, c. F.3, sued Mr. Gomes, the Hamilton Sparta
    Sports Club for which Mr. Gomes played, the Ontario Soccer Association
    Incorporated, under whose auspices the game was played, and several other
    associated individuals.

[2]

The motion judge
    granted summary judgment dismissing the action against the respondents other
    than Mr. Gomes. Although he was represented before the motion judge, Mr. Gomes
    did not participate in the appeal

[3]

We dismiss the
    appeal for the following reasons.

The Facts

[4]

Mr. Da Silva and
    his team were playing in a soccer match with Mr. Gomes team. Mr. Da Silva was
    in an altercation with one of Mr. Gomes teammates, when Mr. Gomes ran over and
    punched Mr. Da Silva in the face, injuring him. The motion judge noted, at para.
    10, that, on discovery Mr. Gomes testified that he did not know why he punched
    Mr. Da Silva. It was an impulsive act; he knew he was not to punch other
    players and did it anyways.

The Issues

[5]

The appellants
    make three arguments:

1.    The respondents were negligent in their supervision of
    the game, and breached several standards of care, including the standard for
    coaches, for on-field supervision and for player conduct;

2.    The respondents were liable under the
Occupiers
    Liability Act
R.S.O. 1990, c. 0.2. for failing to ensure that the playing
    field was safe; and

3.    The motion judge erred in finding that these arguments on
    the evidence did not raise genuine issues requiring a trial.

The Analysis

[6]

We address each
    issue.

(1)

Negligence

[7]

The motion judge
    listed the particulars of the negligence claimed by the appellants at para. 64:

·

The [respondents] ought to have known of Gomes violent behaviour
    given the two prior incidents and should have anticipated his conduct and not
    allowed him to play in the game or taken other action to prevent the assault;

·

The [respondents] ought to have known of Gomes' violent behaviour
    and ran on the field to stop him before he attacked Da Silva;

·

The coach was not properly trained;

·

Proper policies and procedures were not in place with respect to
    training of coaches and player safety;

·

Proper policies were not in place to ensure that Gomes' prior
    conduct was reported by [the respondent] Leal which could have led to Gomes'
    suspension prior to this soccer game.

[8]

The appellants
    case rests on proving the claim that Mr. Gomes previous conduct showed a risk that
    he would commit violence against an opposing player, and that accordingly, his
    coach, his team and the Association were negligent in permitting him to play.

[9]

The motion judge
    rejected this claim. She found, at para. 30: Based on the material before the
    court, there is no evidence that Gomes acted in a physically aggressive or
    violent manner during a soccer game prior to September 9, 2010. She noted, at
    para. 73, that Mr. Gomes had twice been disciplined before the game in question,
    not for violence, but for being verbally inappropriate with referees. She found,
    at para 73:

In my view, the two prior incidents were not predictive or
    demonstrative of the type of violent behaviour demonstrated by Gomes when he
    assaulted Da Silva. Gomes' prior two incidents of making inappropriate
    comments to the referees was not the type of behaviour that should have led
    Leal, acting as a reasonable coach, to conclude that there was a risk regarding
    Gomes' behaviour.

[10]

The motion judge
    added, at para. 96:

Gomes admitted that he knew he was not to punch another player
    but did so anyways. There is no evidence that had he been disciplined in some
    fashion following the two prior incidents that he would not have assaulted Da
    Silva on September 9, 2010.

[11]

On the issue of
    the standard of care, the motion judge noted that the appellants had not proven
    their case:

·

The appellants rely upon a code of conduct but did not file such
    a document for the motion. (para. 59)

·

The appellants did not file any other documentation purporting to
    be any written standards governing the respondents. They have not filed any
    written policies or procedures or standards which they allege have been
    breached. (para. 61)

·

The appellants submitted no evidence about written policies or
    procedures from [the respondents] Hamilton Sparta or the OSA regarding the
    training of coaches. (para. 90)

·

The coach was properly qualified (para. 75)

·

The appellants took the position that the court cannot make a
    determination of the standard of care required of a coach without an expert
    opinion, but failed to file such a report for this motion. (para. 55)

·

There was ample time for the appellants to assemble the necessary
    evidence.

[12]

The motion judge
    returned to the core point, at para 78:

Gomes' evidence was that he knew he was not to punch other
    players. His evidence was that he assaulted Da Silva impulsively. Based on
    Gomes' evidence, even if there was a code of conduct and even if he was made
    aware of it, it would not have prevented him from engaging in behaviour that
    was so beyond the realm of what is reasonable. He assaulted Da Silva and was
    convicted of an offence which resulted in a suspension from the league.

[13]

With respect to
    the issue of causation, the motion judge found, at para 94:

Based on the evidence, I am unable to conclude that the lack of
    or improper discipline would have deterred Gomes such that the assault upon Da
    Silva would not have occurred. Gomes' evidence was that he knew he could not
    punch another player but did so anyways. His evidence was that the assault was
    not premeditated and, in fact, was an unprovoked and impulsive act.

[14]

All of these
    finding were open to the motion judge on the evidence, and the appellant has
    not shown that she made any palpable and overriding errors.

[15]

As for the
    applicable law, the motion judge relied on the school board cases, which
    provide useful analogues. The law is clear that supervising authorities are not
    legally responsible for a sudden unexpected event in the midst of an
    acceptable, safe activity:
Patrick v. St. Clair Catholic District School Board
[2013] O.J. No. 6216, at para. 266. 
    See
Lee (Litigation
    Guardian of) v. Toronto District School Board
[2013] O.J. No. 1157 at paras.
    104-05;
Rollins
    (Litigation Guardian of) v. English Language Separate District School Board No.
    39
, [2009] O.J. No.
    6193 at para. 170, and cases cited in it, appeal dismissed 2012 ONCA 104,
    [2012] O.J. No. 646. The motion judge did not err in accepting and applying
    this law.

(2)

The
Occupier's Liability Act


[16]

The appellants
    argue that the respondents were liable under the
Occupier's Liability Act
for failing to ensure that the
    playing field was safe. The motion judge dismissed this argument: there was no
    evidence that there were any site safety issues or that the playing field was
    not safe, and no evidence that the respondents were in breach of any
    obligation owed under the Act (para. 65). This finding was also open to the
    motion judge and she made no palpable and overriding error in reaching it.

(3)

The Appropriateness of Summary
    Judgment

[17]

The motion
    judges self-instruction on the test for summary judgment was correct (paras.
    46-48). She found that the case was not complex and the key facts were not in
    dispute (para. 52). There were no credibility issues to resolve (paras. 53-54).
    Her comments on the absence of critical evidence are noted above. We find no
    error in her consideration and application of the test for summary judgment.

[18]

The appellants
    case foundered on the absence of evidence. The motion judge rightly noted, at
    para. 49: The responding party must "lead trump or risk losing,"
    citing
1061590
    Ontario Limited v. Ontario Jockey Club
[1995] O.J. No. 132, 21 O.R. (3d) 547 (C.A.). In a motion
    for summary judgment, the court can reasonably assume that 
the parties
    have placed before it, in some form, all of the evidence that will be available
    for trial
, as Corbett J. noted
    in
Sweda v. Egg
    Farmers of Ontario
,
2014 ONSC 1200 at para. 27, affirmed
    2014 ONCA 878.
This is trite
    law.

Disposition

[19]

The appeal is dismissed,
    with costs fixed at $7,500 all-inclusive, payable by the appellants to the
    respondents.

Gloria Epstein J.A.

P. Lauwers J.A.

K. van Rensburg J.A.


