



COURT OF APPEAL FOR ONTARIO

CITATION: Turcotte v. Lewis, 2018 ONCA 359

DATE: 20180413

DOCKET: C63637

Strathy C.J.O., Juriansz and Huscroft JJ.A.

BETWEEN

Ryan Turcotte,
Rick Turcotte and Kerry Turcotte

Plaintiffs (Appellants)



and

Aaron Lewis, Courtney Lewis,
First Student
    Canada
,

1853780 Ontario Inc. o/a Kee to Bala
,

Ryan Zaroski
,
David Ribble
,
John Doe 1 and John Doe 2

Defendants (Respondents)



Anita W.H. Wong and Scott Hawryliw, for the appellants

Roger H. Chown and Marie Hynes, for the respondents,
    First Student Canada and David Ribble

Andrew A. Evangelista and Justine Ajandi, for the
    respondents, Ryan Zaroski and 1853780 Ontario Inc. o/a Kee to Bala

Heard: December 8, 2017

On appeal from the judgment of Justice Susan E. Healey of
    the Superior Court of Justice dated March 20, 2017, with reasons reported at 2017
    ONSC 1773.

Strathy C.J.O.:

[1]

Ryan
    Turcotte (Turcotte) and his parents appeal the dismissal of their action
    against the respondents on two motions for summary judgment.

[2]

On
    June 25, 2012, Turcotte attended resort night at the Kee to Bala bar (the
    Kee), operated by the respondent 1853780 Ontario Inc. He returned to Barrie
    early the next morning on a bus chartered by the Kee from the respondent First
    Student Canada (First Student) and driven by the respondent David Ribble
    (Ribble). The respondent, Ryan Zaroski (Zaroski), was hired by the Kee as a
    security guard at the bar and on the bus.

[3]

The
    defendants, Aaron Lewis and Courtney Lewis, are cousins. Aaron Lewis was a
    passenger on the bus. At some point before the bus arrived in Barrie, Aaron
    Lewis contacted Courtney to ask him to meet the bus at its drop-off point.

[4]

Almost
    immediately after he stepped off the bus, Turcotte was allegedly assaulted by
    Aaron Lewis, Courtney Lewis and other unknown assailants. He sustained a
    serious head injury. He sued Aaron Lewis, Courtney Lewis and the respondents.
    He claimed that the assault was foreseeable and that the respondents had failed
    to take reasonable care to prevent it.

[5]

The
    respondents, First Student and Ribble, brought a motion for summary judgment.
[1]
The Kee and Zaroski brought a second motion for summary judgment. The motions
    were heard together.

[6]

There
    were two issues on the motions. First, whether the case was suitable for
    disposition by summary judgment. The motions judge held it was. Second, whether
    the moving parties, the respondents on this appeal, had met the applicable
    standards of care. The motions judge held they had. She granted their motions,
    dismissing the action.

[7]

For
    the reasons that follow, I find that the motions judge failed to fully
    articulate and apply the standard of care, effectively treating Turcottes
    contributory negligence as a bar to his claim. In my view, the summary judgment
    should be set aside and the matter should be remitted to the Superior Court of
    Justice for trial.

A.

The Facts
[2]

[8]

On
    Mondays during the summer, the Kee held resort nights, attracting resort and
    tourism staff in the Muskoka region. The ten dollar cover charge included a bus
    service, which picked up guests from various locations in the region, brought
    them to the bar, and returned them at the end of the evening. The buses
    typically arrived at the Kee at 11:00 p.m. and departed at around 1:30 a.m.

[9]

The
    Kee had a capacity of 1,215 customers. It had a robust security system on
    resort nights, no doubt necessary to deal with the predictable effects of the combination
    of youth and alcohol. In addition to 15 provincially licenced security guards,
    there were paid duty police officers on the premises, as well as on-duty police
    officers stationed outside. Police sometimes parked a prisoner transport van
    outside the bar. Measures were taken to prohibit intoxicated patrons from
    boarding the buses at the pick-up point and to prevent alcohol from being
    brought on board. The busing program, and the security measures, had been
    developed by the Kee and the police to discourage drinking and driving and to
    provide a safe environment for the Kees customers.

[10]

The Kee had a security
    protocol for the buses. In the event of an altercation, the security guard, who
    travelled with the bus in both directions, was to separate those involved and
    to telephone police if there was a concern that violence could flare up on
    arrival. Security guards were entitled to remove patrons from the bus if they
    considered it necessary to do so.

[11]

On the night in
    question, the bus left the Kee between 1:30 and 2:00 a.m. It was driven by
    Ribble and bound for its original pick-up point, Duckworth Plaza, in Barrie.
    The trip to Barrie took about an hour. The bus had approximately 48 passengers
    on board, including Turcotte and Aaron Lewis, both of whom had been at the Kee.
    Zaroski was the security guard on board. In accordance with the Kees security
    protocol, he sat at the front of the bus, facing backwards, to keep an eye on
    the passengers.

[12]

Shortly after the bus
    left the Kee, a dispute arose after Zaroski ejected a female passenger for
    smoking on board. Zaroski saw Aaron Lewis push Turcotte. He went to the back of
    the bus and separated them. Turcotte moved to the front of the bus, away from Aaron
    Lewis. Zaroski testified that although he assumed that both Turcotte and Aaron
    Lewis had been drinking, he did not see signs of intoxication.

[13]

The separation of Turcotte
    and Aaron Lewis ended physical aggression on the bus, but there was continued
    jeering and shouting coming from the back of the bus directed towards the
    front, where Turcotte was seated. Zaroskis evidence was that the noise and
    tension levels increased about halfway to Barrie. Some of the aggressive
    language was coming from Aaron Lewis.

[14]

Zaroski testified that
    the noise level increased once again when the bus was about ten minutes outside
    Barrie. He learned that someone at the back of the bus had called ahead for
    backup. Concerned that the situation might escalate and that violence might
    occur between Turcotte and Aaron Lewis when they got to Duckworth Plaza,
    Zaroski called police in Barrie, asking that a cruiser meet the bus on arrival.
    Ribble slowed the bus in the hope of allowing police time to arrive at the plaza.

[15]

Various individuals
    were present in the plaza when the bus arrived. Some were there to pick up
    passengers, but others had received calls or text messages from passengers,
    asking them to come, presumably as backup. Two of Turcottes friends were
    asked to come, but there was no evidence of who had asked them to do so.
    Courtney Lewis received two calls from his cousin, Aaron Lewis, asking him to
    come.

[16]

Zaroski noticed Courtney
    Lewis in the plaza as the bus arrived. He did not know that Courtney Lewis was
    Aarons cousin. However, he recognized Courtney from his work doing security at
    bars in the Barrie area. He knew from these experiences that Courtney had a
    tendency to get involved in physical altercations.

[17]

Police had not yet
    arrived at Duckworth Plaza when the bus got there. Zaroski was still on the
    phone with them. Concerned for Turcottes safety, Ribble and Zaroski let him
    off first, to give him a head start, telling him not to stick around the plaza.

[18]

Turcotte was one of
    the first to get off the bus, through the front door, followed by others
    through the front and rear doors. But he did not leave the plaza immediately.
    He walked some 8 to 20 feet away and stopped. Within a minute, he was
    surrounded by a group that included Aaron and Courtney Lewis. He was punched
    and fell to the ground, striking his head on the pavement. He suffered a
    traumatic head injury, resulting in permanent deficits, including problems with
    his cognitive functions and memory. Police arrived at the plaza about two
    minutes later.

[19]

Aaron and Courtney
    Lewis were convicted of aggravated assault and were sentenced to terms of
    imprisonment of two years less a day. Their appeals to this court were allowed:
    see
R. v. Lewis
, 2018 ONCA 351.

B.

The summary judgment motions

[20]

There was an extensive
    evidentiary record adduced on the summary judgment motions. It included:

·

affidavits of Turcotte, Ribble, Zaroski and a representative of
    the Kee;

·

transcripts from the examinations for discovery; and

·

transcripts of Turcotte, Ribble and Zaroski at the criminal trial.

[21]

The motions judge had
    presided at the criminal trial of Aaron and Courtney Lewis. The parties
    consented to her presiding on the summary judgment motions.

[22]

No expert evidence was
    filed at the summary judgment motions concerning the standard of care
    applicable to the respondents.

[23]

The motions judge
    found that the case met the test for summary judgment in
Hryniak v. Mauldin
,
    2014 SCC 7, [2014] 1 S.C.R. 87. In her view, all the relevant evidence was
    before the court, the vast majority of facts were not in dispute and, although
    there were some inconsistencies in prior statements given by Ribble and Zaroski,
    there were no conflicts in their evidence that were material to the issue of
    negligence.

[24]

Taking the evidence of
    Ribble and Zaroski at its most favourable to the appellants (as the respondents
    proposed the judge could), the motions judge accepted, at para. 71, for the
    purpose of the motions that both Zaroski and Ribble knew that: tensions were
    escalating as the bus approached Barrie; someone had called for backup; one
    protagonist was Aaron Lewis; and the likely target of his anger was Turcotte.
    She found that any inconsistencies in their evidence was immaterial in the face
    of these admissions.

[25]

She found as well, at
    para. 71, that:

Ribble was aware of the fact that a call had been placed to the
    police by Zaroski, and both were concerned about the escalation of tension on
    the bus and the possibility that there might be an altercation in the Plaza
    involving Turcotte. Both knew that the police were not there when the bus
    arrived, and both suggested to Turcotte that he get off of the bus and not
    remain in the Plaza. In the view of this court, the standard of care is
    informed by these essential facts.

[26]

The motions judge
    identified, at para. 74, what she described as the only disputed fact that impacted
    on the applicable standard of care, namely, Turcottes level of awareness of
    the danger that he was in, to the extent that that could have been foreseen.
    Turcotte had made conflicting statements  first in his statement to police,
    when he had difficulties in recollection due to his brain injury; then at the
    criminal trial, where he claimed to recollect many key details  that had been
    previously forgotten by him due to his brain injury. However, the motions
    judge concluded, at para. 74:

An assessment of the reliability of Turcottes evidence is
    something that can be accomplished without him taking the witness stand once
    again. Accordingly, although his state of knowledge and awareness is a triable
    issue, it is not necessary to have a trial in order to determine what that was.
    The evidence necessary to make such a determination is before the court, as
    will be explained below.

[27]

The motions judge held
    that the case was ideal for summary judgment as such an approach would provide
    a fair and just adjudication in which the necessary fact-finding could be done
    and the law applied based on the record before the court in a cost-effective
    and efficient manner.

[28]

The motions judge
    rejected the appellants submissions that expert evidence was required to
    determine the standard of care. She found, at para. 76, that the standard of
    care applicable to Ribble and Zaroski was that of an ordinary, reasonable and
    prudent bus driver and security guard, in the circumstances of the case.

[29]

She rejected the
    allegations that the respondents failed to keep either the Kee or the bus
    reasonably safe, or that there was negligence in relation to any acts or
    omissions at the Kee or on the bus trip. There was no evidence that any of the
    parties involved in the altercation were intoxicated, or that they had been
    over-served at the Kee. The respondents fulfilled their duty to take reasonable
    steps to ensure that Turcotte was safe while he was at the Kee and while being
    transported to Duckworth Plaza.

[30]

She also rejected
    allegations that the respondents failed to take measures in response to the
    escalating tension on the bus, such as diverting from the route and going to a
    police station or other secure location. Zaroski had followed the protocol by
    separating the antagonists, monitoring the situation and calling police to request
    that a cruiser meet the bus at the plaza. Ribble was responsible for driving
    the bus and not for security.

[31]

Nor were the respondents
    responsible for failing to call out to the assailants to break up the
    confrontation after Turcotte left the bus. Events happened quickly and verbal
    commands were not likely to have been effective in the circumstances.

[32]

The motions judge held
    that the sole issue for trial was whether the respondents should have prevented
    Turcotte from leaving the bus when they knew or ought to have known that a
    situation of danger was imminent. She concluded that they could not have known
    that Turcotte would stop in the parking lot instead of following their
    suggestion that he move along. Nor did they have authority to detain a
    passenger on the bus. While the potential for a physical altercation was
    foreseeable, to suggest that they should have known that one was imminent or
    inevitable would require impossible clairvoyance.

[33]

She found, at para.
    93, that:

The only basis upon which an argument could be made for either
    Ribble or Zaroski having fallen below the expected standard is if the
    circumstances were such that Turcotte was unaware that he was in danger once
    the bus had arrived at the parking lot. In those circumstances, Ribble and/or
    Zaroskis failure to advise him of their concern that a physical altercation
    might take place in the Plaza may be said to create an unreasonable risk of
    harm to Turcotte.

[34]

But the motions judge
    rejected Turcottes evidence that he was unaware of the risk, finding that his
    recollection of the events of the evening was not reliable and was in conflict
    with the evidence of Zaroski, whom she found to be a careful and credible
    witness. Zaroski testified that Turcotte was involved in the yelling and
    profanity on the bus; had been moved to the front of the bus after being pushed
    by Aaron Lewis; had been sitting at the front of the bus beside Zaroski; and
    was sitting beside him when Zaroski was informed that someone at the back of
    the bus had called for backup. When the bus arrived at the plaza, Zaroski
    told Turcotte that he should not hang around and make off to wherever he was
    going. Instead Turcotte got off the bus and stood about 20 feet away.

[35]

The motions judge held
    that Ribble and Zaroski acted reasonably in letting Turcotte off the bus and
    giving him a head start, and could not be faulted if Turcotte ignored their
    advice and remained in the plaza. She concluded, at paras. 96 and 97:

All of this leads the court to the conclusion that Turcotte was
    as aware of the circumstances that existed that night as Ribble and Zaroski
    were. He was aware of the potential for a physical altercation, and yet still
    got off the bus and remained in the parking area. There is no reason to hold
    either of these defendants to a higher standard. Even if a physical altercation
    involving Turcotte was foreseeable to Ribble or Zaroski, they had no absolute
    duty to ensure that Turcotte avoided harm or that no harm came to him once he
    got off the bus. Ribble and Zaroski both acted reasonably in letting Turcotte
    off the bus first, effectively giving him a head start, and Zaroski acted
    reasonably in suggesting that he continue on his way immediately. When they did
    so, they had every reason to believe that Aaron Lewis would be exiting out the
    front, as he did, and it was reasonable that they not have Lewis pass in front
    of Turcotte as he was exiting. It was not until Turcotte exited the bus that
    the alarm sounded to alert either to the possibility that Lewis might exit
    through the back, and in any event, this did not occur. These defendants are
    not responsible for the fact that Turcotte chose to ignore the advice given to
    him that he leave immediately. These defendants could no more have foreseen that
    Courtney Lewis, and perhaps others, would strike Turcotte than he himself could
    have foreseen.

As the evidence shows that at no time did the conduct of any of
    these defendants fall below the standard of care required of them in all of the
    circumstances, I must dismiss the action against them in its entirety.

C.

Issues

[36]

There are two issues
    on this appeal:

1.

Did the motions judge err in concluding that this was an appropriate
    case for summary judgment?

2.

Did the motions judge err in her assessment of the standard of care?

D.

The parties submissions

[37]

The appellants make
    two principal submissions. First, they submit that the summary judgment motions
    were premature and inappropriate. Premature because expert reports had not been
    filed and a police report was not yet available. Inappropriate because a paper
    record was unsuitable for the resolution of credibility issues, including the
    credibility of Turcottes assertion that he was not aware of the danger he
    faced in getting off the bus.

[38]

Second, they submit
    that the motions judges duty of care analysis was flawed because it limited
    the scope of the duty to events on the bus, rather than in the parking lot, and
    failed to impose a duty on the respondents to take measures to avoid putting Turcotte
    in a situation of danger, given their knowledge of the risk.

[39]

The respondents submit
    that this was an appropriate case for summary judgment, for the reasons given
    by the motions judge. The appellants did not seek an adjournment to file expert
    or other evidence. The approach taken by the motions judge was reasonable and
    practical, particularly in light of the respondents submission that any
    conflicts in the evidence could be resolved in the manner most favourable to
    the appellants.

[40]

The respondents
    further submit that the motions judges findings related to the standard of
    care are entitled to deference. The motions judge applied the but for test of
    causation and found that any failure of the respondents to inform Turcotte of
    the risk was not causative, because he himself was aware of the risk.

E.

Analysis

(1)

Summary Judgment

[41]

The appellants did not
    tender expert evidence on the standard of care, nor did they seek an
    adjournment of the motions to obtain either expert evidence or a police report.
    They did not seek to cross-examine affiants and were content to use discovery
    transcripts supplemented by some evidence from the criminal trial. Nor did the
    appellants ask the motions judge to use the fact-finding powers available to
    her under r. 20.04(2.1) of the
Rules of Civil Procedure
, R.R.O. 1990,
    Reg. 194. They agreed to the motions judge presiding on the motions, even
    though she had conducted the criminal trial.

[42]

The motions judges
    conclusion that the case was suitable for summary judgment is entitled to
    deference:
Hryniak
, at para. 81. I would not give effect to the
    appellants submissions on this issue.

(2)

Standard of Care

[43]

It is useful to begin
    the analysis with first principles. A plaintiff suing in negligence must
    establish that: (1) the defendant owed him or her a duty of care; (2) the
    defendants conduct breached the applicable standard of care; (3) the plaintiff
    sustained compensable damage; and (4) the damage was caused, in fact and in law,
    by the defendants breach. See
Deloitte & Touche v. Livent Inc.

(Receiver
    of)
, 2017 SCC 63, 416 D.L.R. (4th) 32, at para. 77;
Mustapha v.
    Culligan of Canada Ltd.
, 2008 SCC 27, [2008] 2 S.C.R. 114, at para. 3;
Hill
    v. Hamilton-Wentworth Regional Police Services Board
, 2007 SCC 41, [2007]
    3 S.C.R. 129, at para. 96;
Ediger v. Johnston
, 2013 SCC 18, [2013] 2
    S.C.R. 98, at para. 24.

[44]

In this case, it is
    acknowledged that the respondents owed Turcotte a duty of care. It is also
    clear that Turcotte sustained compensable damages. The real issues to be
    resolved are the standard of care and causation.

[45]

The standard of care defines
    the content of the duty of care and depends on the context:
Crocker v.
    Sundance Northwest Resorts Ltd.
, [1988] 1 S.C.R. 1186, at p. 1198. In
Ryan
    v. Victoria (City)
, [1999] 1 S.C.R. 201, a case considered by the motions
    judge, Major J. described, at pp. 221-222, the factors to be considered in the
    articulation of the standard of care:

Conduct is negligent if it creates an objectively unreasonable
    risk of harm. To avoid liability, a person must exercise the standard of care
    that would be expected of an ordinary, reasonable and prudent person in the
    same circumstances. The measure of what is reasonable depends on the facts of
    each case, including the likelihood of a known or foreseeable harm, the gravity
    of that harm, and the burden or cost which would be incurred to prevent the
    injury. In addition, one may look to external indicators of reasonable conduct,
    such as custom, industry practice, and statutory or regulatory standards.

[46]

The causation analysis
    asks whether, applying the but for test, there is a causal connection between
    the breach of the standard of care and the compensable damage suffered. The
    test asks whether the damage would not have occurred but for the defendants
    negligence:
Hill
, at para. 93.

[47]

The respondents
    conceded they owed a duty of care to Turcotte. As noted above, the motions
    judge found that the standard of care was that of an ordinary, reasonable and
    prudent bus driver and security guard, in the circumstances of the case. But
    she did not refine the standard of care beyond that general statement. Nor did
    she define what the standard of care required in the circumstances as they
    unfolded during the bus ride or when the bus arrived at the plaza. Nor did she articulate
    her conclusions on the likelihood of foreseeable harm, the gravity of that harm
    or the reasonableness of measures that could be taken to prevent it. These
    factors inform the standard of reasonable care.

[48]

Instead, the motions
    judge defined the respondents standard of care by reference to
Turcottes
level of awareness of the danger that he was
    in. She absolved the respondents of responsibility because Turcotte was as
    aware of the risk as they were. As she put it, at para. 96, [t]here is no
    reason to hold either of these defendants to a higher standard.

[49]

Respectfully, this truncated
    the standard of care analysis. It put the responsibility of avoiding the risk
    entirely on Turcotte, without considering the content of the respondents duty
    to him, given their knowledge and appreciation of the risk and their ability to
    avoid the risk.

[50]

The motions judge also
    found that Ribble and Zaroski were not responsible for the fact that Turcotte
    ignored their advice to leave immediately. While that may go to the issue of
    whether Turcotte was contributorily negligent  an issue the motions judge did
    not address  it would not necessarily relieve them from liability if their
    breach of the standard of care put him in a dangerous position. Nor would it
    necessarily relieve them from liability if Turcotte had remained in the plaza
    for reasons they could have foreseen  for example, because he had to wait for
    a ride home.

[51]

A finding that the
    respondents breached the standard of care would not hold them to a higher
    standard than Turcotte. It would hold them to a different standard: the
    standard of care applicable to those who are charged with the transportation
    and security of patrons of the bar  patrons who have paid a fee for the
    purpose.

[52]

Cases such as
Jordan
    House Ltd. v. Menow
, [1974] S.C.R. 239, and
Murphy v. Little Memphis
    Cabaret Inc.
, [1996] O.J. No. 4600 (Gen. Div.), while not on all fours,
    are instructive. In both cases, an inebriated customer was injured after being
    ejected from a bar. Menow was hit by a car. Murphy was attacked by four other patrons
    who had also been ejected from the bar. In both cases, the bar was held liable.
    In
Murphy
, the trial judge found, at para. 16, that the tavern owner
    had an obligation to exercise reasonable care in expelling [the plaintiff] from
    the tavern in view of the fact that imminent danger which originated within the
    tavern awaited him outside the door.

[53]

The judge found that,
    as in
Jordan House
, an inordinate burden would not be placed on the
    tavern keeper in requiring him to take preventative measures, for example, by
    keeping the plaintiff inside the tavern until the hostile foursome had departed,
    or by calling a taxi or calling police.

[54]

Jordan House
was
    applied by the Supreme Court of Canada in
Crocker
. In that seminal
    case, it was held that a ski resort had a positive duty to prevent a visibly
    intoxicated patron from participating in a dangerous tubing competition. Wilson
    J., who delivered the judgment of the court, summarized the application of
Jordan
    House
, at pp. 1196-97:

The general approach taken in
Jordan House
has been
    applied in a number of cases. Car owners who have permitted or instructed
    impaired persons to drive their cars have been found liable (see:
Hempler
    v. Todd
(1970), 14 D.L.R. (3d) 637 (Man. Q.B.), and
Ontario

Hospital
    Services Commission v. Borsoski
(1973), 54 D.L.R. (3d) 339 (Ont. H. Ct.))
    as has the owner of a motorcycle who allowed a young unlicensed driver to use
    it (see:
Stermer v. Lawson
(1977), 79 D.L.R. (3d) 366 (B.C.S.C.)).
The common thread running through these cases is that one is
    under a duty not to place another person in a position where it is foreseeable
    that that person could suffer injury
. The plaintiffs inability to
    handle the situation in which he or she has been placed  either through youth,
    intoxication or other incapacity  is an element in determining how foreseeable
    the injury is. The issue in the present appeal is whether the relationship
    between Sundance and Crocker gave rise to this kind of duty. [Emphasis added.]

[55]

Wilson J. agreed, at p.
    1197, with Dubin J.A. in this court that the duty in that case was to take all
    reasonable measures to prevent the plaintiff from continuing to participate in
    the very dangerous activity which was under its full control and supervision
    and promoted by it for commercial gain when it became apparent that the
    plaintiff was drunk and injured. The plaintiff had not voluntarily assumed the
    risk, but his voluntary intoxication could be and was taken into account in
    fixing him with 25 percent contributory negligence.

[56]

These cases are, of
    course, distinguishable on their facts, including the fact that, in both
Jordan
    House
and
Crocker
, the plaintiffs extreme intoxication made them
    vulnerable and enhanced the risk and the standard of care. The cases have,
    however, the common thread referred to by Wilson J., of imposing a duty not
    to place another person in a position where it is foreseeable that that person
    could suffer injury.

[57]

In my view, the motions
    judge significantly understated the standard of care. The Kee operated a bar,
    which catered to a large number of youthful patrons. It provided
    transportation, through the services of First Student, so that its patrons
    could drink without driving. The Kee provided security, at the bar and on the
    bus, to address the foreseeable risk of violence between patrons. The
    individual respondents, Ribble and Zaroski, were part of the transportation and
    security system and were trained in their respective responsibilities to deal
    with foreseeable risks, including the risks posed by unruly or violent
    passengers.

[58]

There were conflicts
    and inconsistencies in the evidence of the individual respondents concerning
    the events on the bus. These conflicts and inconsistencies were not resolved by
    the motions judge because of her decision to take the evidence most favourable to
    the appellants. But on any version of the evidence the individual respondents
    were aware of a clear and substantial risk of violence when the bus arrived in
    Barrie. The events on the bus, the escalating tensions and shouting and the
    call for back up made a violent confrontation reasonably foreseeable. The
    individual respondents knew that Turcotte was a likely target of violence and
    that the risk came from someone on the bus (Aaron Lewis) and from those waiting
    in the plaza (the back up). The risk of violence was sufficiently high to
    warrant calling police to meet the bus on its arrival at the plaza in Barrie.

[59]

The motions judge
    found that while the potential for a physical altercation was foreseeable, the
    individual respondents could not have known that it was imminent or
    inevitable. This misstated the standard of care. The test is whether harm was
    reasonably foreseeable. In this case, it clearly was.

[60]

The motions judges
    abbreviated assessment of the standard of care led her to understate the means
    available to the respondents to avoid putting Turcotte in the midst of a
    dangerous environment or to take measures to protect him when he did get off
    the bus. For example, by telling him not to get off the bus until police
    arrived. Or by Zaroski accompanying him to a place of safety. Nor was there any
    satisfactory evidence of why, if the police were only two minutes away, some
    measures could not be taken to delay either the arrival of the bus or Turcottes
    exit.

[61]

While some of these
    issues go to security, others go to the duties of First Student and Ribble, as
    carriers, to guard against reasonably foreseeable dangers to passengers from
    external causes: see
Domanski v. Hamilton
, [1959] O.R. 262 (C.A.), at
    pp. 270-271.

[62]

I acknowledge the motions
    judges conclusion that the respondents could not have known that Turcotte
    would remain in the parking lot. That may well go to the issue of whether
    Turcotte was contributorily negligent, but it would not relieve the respondents
    from responsibility if their actions put him in danger that could reasonably
    have been avoided.

[63]

The motions judges
    conclusions with respect to the standard of care meant that she did not proceed
    to a causation analysis. I disagree with the respondents submission that the motions
    judges comments at paras. 96-97, referred to above, were directed to
    causation. In my view, she was clearly addressing foreseeability and the
    standard of care. Had the standard of care analysis been approached and applied
    properly, a causation analysis might well have determined that Turcotte would
    not have been injured but for the respondents negligence, notwithstanding
    his own contributory negligence.

F.

Disposition

[64]

For these reasons, I
    would allow the appeal and remit the matter to the Superior Court for determination
    in accordance with r. 20.05.

[65]

While the motions
    judge said that she accepted the evidence most favourable to the appellants,
    she never precisely articulated what evidence that was. Nor did she resolve
    inconsistencies in the evidence. We do not know the factual underpinnings of
    her analysis. For these reasons, a trial is necessary. The judge trying the
    matter shall be entitled to give pre-trial directions pursuant to rr. 20.05(1)
    and (2) to ensure the just, expeditious and efficient determination of the
    proceeding on its merits.

[66]

Costs to the
    appellants in the amount of $7,500, inclusive of disbursements and all
    applicable taxes.

Released: GS  APR 13  2018

George R. Strathy
    C.J.O.

I agree. R.G.
    Juriansz J.A.

I agree. Grant
    Huscroft J.A.





[1]
Aaron Lewis and Courtney Lewis had been noted in default. The two other
    perpetrators of the assault have not been identified.



[2]
Much of this summary comes from the motions judges thorough findings of fact,
    which are not in dispute.


