An owner of a bar or club has an obligation to make sure it is safe for its patrons to use.  This means, for example, ensuring that enough security guards are present, they are properly trained and that they do not use more force than reasonably necessary.  An owner only has to take reasonable steps to keep patrons reasonably safe from reasonably foreseeable harm or danger.  But, is it reasonably foreseeable that a patron would cause harm to a third party on leaving the premises of a bar?  This was the central issue in the summary judgment motion, Schiavone v. Woods, 2018 ONSC 4789.

In this summary judgment motion, the material facts on the evidence are that the Ceeps-Barneys Limited (“Ceeps”) is a pub/sports bar in London, Ontario.  On October 24, 2009, it had eight bartenders, nine security guards wearing shirts with the words “Security” on them, and one manager.  All security staff had taken a 40 hour course and a one-day training course.

The defendant, Sean Woods, went to the Ceeps with his brother, the defendant, Brenden Woods, after consuming some alcohol.  While at the Ceeps, Sean Woods consumed more alcohol and because of his intoxicated state and improper behavior, was asked to leave and was escorted out by staff of the Ceeps.  A taxi was not offered as Sean Woods was with his girlfriend and Brenden Woods did not appear to be intoxicated.

In the parking lot of the Ceeps, the plaintiff, Kyle Schiavone, was walking/stumbling in an intoxicated manner trying to get into a cab which the driver refused.  Sean Woods then indicated he would take the cab and slapped the plaintiff on the back which the plaintiff took out of context and a fight ensued.  Scott Dunlop (the Ceeps’ supervisor of security) was initially talking to Brenden Woods as he was leaving the bar when the fight broke out.  Scott Dunlop was focused on calming down the plaintiff and after the initial fight was over, Brenden Woods then came over and threw an unexpected punch over the shoulder of Scott Dunlop striking the plaintiff in the face causing him to fall to the ground resulting in significant injuries.

The Honourable Justice Nightingale did a careful review of the principles of a summary judgment motion:

• The onus is on the defendant to establish on a balance of probabilities that there is no genuine issue requiring a trial with respect to the plaintiff’s claims against it.
• The Court is entitled to assume that the parties have provided all of the relevant evidence that will be presented at the trial and that there will be no further evidence.
• The Court must first determine if there is a genuine issue requiring at trial based on the evidence before the court without using the fact-finding powers under Rule 20.04 (2.1).
• There will be no genuine issue requiring a trial if the summary judgment process provides the motion judge the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure.
• If the moving party has discharged its evidentiary burden of proving there is no genuine issue requiring a trial for its resolution, the burden shifts to the responding party to prove that their claims have a real chance of success, i.e. there is a genuine issue requiring a trial.

The plaintiff tendered expert reports from Professor Solomon and Mr. Stephen Summerville (who has extensive experience in matters relating to security including training) to support their allegations that the defendant, Ceeps, is liable for the plaintiff’s injuries. Mr. Summerville’s expert opinion was that the assault was avoidable and could have been prevented by:

• complying with industry standards for licensed commercial premises including the Smart Serve program regarding the service of alcohol;
• using industry standards of bars, nightclubs and taverns to escort ejected patrons to taxis and buses which if done in this case would have prevented the plaintiff’s injuries;
• having adequate security staff present outside the Ceeps to prevent an altercation between Sean Woods and the plaintiff; and
• deploying sufficient security staff/having sufficient security measures in place to prevent third parties including Brenden Woods from getting involved in the altercation and assaulting the plaintiff.

The defendants did not provide any responding expert opinion evidence to rebut the plaintiff’s expert evidence.

Justice Nightingale was not satisfied that the defendant, Ceeps, had established that the plaintiff’s proposed expert evidence should be ruled inadmissible because of their assuming the role as an advocate for the plaintiff.  Justice Nightingale found that this was not a very clear case in which the experts had been proven by the defendant to be unable or unwilling to provide the Court with their objective and nonpartisan evidence.

After a careful analysis, Justice Nightingale concluded that the issue of causation and foreseeability of the plaintiff’s injuries, i.e. was it reasonably or objectively foreseeable that Sean Woods and/or Brenden Woods would cause harm to others on leaving the premises, would be for the Court to decide based on all the evidence before it including what weight it would attach to the expert evidence.

Where or not something is “reasonably foreseeable” is an objective test. The analysis is focused on whether someone in the defendant’s position ought reasonably to have foreseen the harm prior to the incident occurring rather than whether the specific defendant did.  Justice Nightingale concluded it is because of these circumstances that could warrant the imposition of a positive obligation to act by the Ceeps security staff which it did not do that results in the defendant, Ceeps, not being able to establish that there is no genuine issue requiring a trial on the issue of foreseeability.

Furthermore, there were some issues of liability and the credibility and reliability of the parties’ evidence and in particular with respect to the level of intoxication of Brenden Woods, his actions and the presence and actions of Ceeps’ security staff shortly before and at the assault and, therefore, this was not an appropriate case for exercising discretion under Rule 20.04(2.1) including hearing further oral evidence or conducting a mini trial.