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.


COURT OF APPEAL FOR ONTARIO

CITATION: Wallbridge v. Brunning, 2018 ONCA 363

DATE: 20180413

DOCKET: C63203

Juriansz, Lauwers & Miller JJ.A.

BETWEEN

James Wallbridge, Almeda Wallbridge and
    Wallbridge, Wallbridge

Plaintiffs (Appellants)

and

Fay Brunning and Williams-Litigation Lawyers

Defendants (Respondents)

Geoffrey D.E. Adair (Q.C), for the appellants

Michael R. Kestenberg, for the respondents

Heard: February 27, 2018

On appeal from the judgment of Justice Annalisa S.
    Rasaiah of the Superior Court of Justice, dated December 20, 2016 with reasons
    reported at 2016 ONSC 7964.

Juriansz J.A.:

A.

INTRODUCTION

[1]

Wallbridge, Wallbridge is a partnership of lawyers with offices in
    Timmins, Sudbury, North Bay and New Liskeard, Ontario. Williams Litigation
    Lawyers is a partnership of lawyers located in Ottawa, Ontario. Fay Brunning is
    a lawyer duly licensed to practice law in the Province of Ontario and she practices
    in association with Williams.

[2]

Brunnings practice is separate from that of Williams, but she shares
    the same office address, telephone number, fax number and front desk
    receptionist. She pays Williams a monthly rental fee for the space and
    facilities she uses in Williams office. Williams authorized Brunning to use
    its letterhead described below, without supervision.

[3]

Williams letterhead references Brunning as Practicing in Association,
    not in Partnership. In particular, Brunnings name is listed with other
    lawyers names in the header of the letterhead with an asterisk beside her
    name. She is the only lawyer listed in the header of the letterhead with an
    asterisk. The footer of the letterhead lists Brunnings name again and all of
    her contact information. Similarly, Brunnings email signature indicates that
    she is Practicing in Association with Williams. Williams website includes a
    photo of Brunning, along with photos of the Williams lawyers under the titles
    Our Lawyers and Meet Our Team. The other lawyers are identified as Counsel,
    Partner or Associate. Brunning is identified as Lawyer, Practicing in
    Association.

[4]

One area of Brunnings practice includes the representation of former
    Indian Residential School students claiming compensation for historical
    mistreatment at various residential schools (IRS Claims or IRS Claim).

B.

BACKGROUND

[5]

On or about May 20, 2016 Wallbridge issued a statement of claim alleging
    that Brunning made a series of defamatory comments, misrepresentations and
    allegations about or directed at Wallbridge related to their representation of
    former Indian Residential School students. Wallbridge named Williams as a
    defendant claiming that Williams was vicariously liable for the defamatory
    comments, misrepresentations and allegations of Brunning.

[6]

Williams had no knowledge of the allegedly
    defamatory correspondence written and sent by Brunning in respect of the IRS
    Claims.

[7]

Williams brought a motion for
    summary judgment seeking dismissal of the action as against it. Its
motion
    record contained its motion, the affidavit of Mr. Kelly Hart, a Partner with
    Williams, and the statements of claim and defence
.

[8]

In resisting the motion,
    Wallbridge
filed no affidavits, but did
    file a letter from
Williams counsel that provided Mr. Harts answers to
    written interrogatories made by Wallbridges counsel as cross-examination on
    Mr. Harts affidavit.
Brunning did not
    participate in the motion.

C.

MOTION JUDGES DECISION

[9]

On motion for summary judgment Williams raised two issues. First, Williams
    argued that Wallbridge had not filed the correspondence alleged to be
    defamatory, and so had failed to put its best foot forward. The content of the allegedly
    defamatory correspondence was merely set out in the statement of claim. Second,
    Williams argued that since the evidence established Brunning was never an
    employee, agent or partner of Williams and was never held out to be the same,
    there was no basis upon which it could be found vicariously liable. Therefore, there
    was no genuine issue for trial.

[10]

Wallbridge
    responded arguing that there was a genuine issue requiring a trial, being
    whether Brunning should be treated as either a partner or employee of Williams
    such that Williams was vicariously liable for the actions of Brunning in respect
    of the defamatory correspondence.

[11]

The
    motion judge granted summary judgment on the second issue, deciding that
    Williams could not be vicariously liable for Brunnings allegedly defamatory
    correspondence. She found it unnecessary to deal with the first issue.

[12]

The
    motion judge reasoned that
Brunning was not a partner or
    employee of Williams and was not acting as its agent; that
Williams took
    steps to identify its relationship with Brunning, on its letterhead and in its
    email template, so as to make the status of their relationship clear to
    recipients;
that Brunnings relationship with Williams was a space
    and cost-sharing agreement only; that
there was no evidence Williams
    specifically authorized the use of its letterhead and email template to publish
    defamatory statements; that Williams did not know about the correspondence
    until after the fact; that functionally, Williams did not control the conduct
    of Brunning and was not in command of Brunning; that Williams did not practice
    in the area of IRS Claims, and at no time did Williams participate in or act in
    respect of Brunnings IRS Claim files.

[13]

On
    these facts, the motion judge found that vicarious liability should not attach
    to Williams for any defamation by Brunning. Given her decision on the issue of
    vicarious liability, she did not address the issue of Wallbridges failure to
    adduce any evidence of the defamation.

D.

ISSUES ON APPEAL

[14]

The
    same two issues are raised on appeal.

[15]

Williams
    submits the appeal should be dismissed at first instance, on the basis that Wallbridge
    led no evidence establishing defamation on the motion. It further submits the
    motion judge correctly decided the issue of liability on summary judgment.

[16]

Wallbridge
    submits that the motion judge erred in granting summary judgment. For the
    reasons that follow, I agree.

E.

ANALYSIS

(1)

Issue 1: Wallbridges failure to file evidence of the defamation

[17]

While
    conceding that it brought its summary judgment motion solely on the basis that
    it could not be found to be vicariously liable for Brunnings allegedly defamatory
    correspondence, Williams submitted before the motion judge and in this court
    that Wallbridge had failed to file evidence establishing defamation.

[18]

The
    motion judge noted that there was no denial in Williams evidence that Brunning
    sent the correspondence, and also that the court knew from having heard another
    motion in the proceeding that Brunning claimed defences for having written the
    correspondence. The motion judge was entitled to take judicial notice of what
    was in the court file, namely, that Brunning conceded writing the
    correspondence alleged to be defamatory. She also noted that counsel for
    Wallbridge offered to file a one-paragraph affidavit attaching the allegedly
    defamatory correspondence, but did not rule on that offer, saying she did not
    need to decide the issue of the filing of further material.

[19]

Had
    the motion judge dealt with this argument, it would have been properly
    rejected. Williams defended the action as against it on the basis that it was
    not liable for any of Brunnings acts or omissions. Williams statement of
    defence did not deny or otherwise address the paragraphs of the statement of
    claim that set out Brunnings allegedly defamatory correspondence. Consistent
    with this, Williams brought its summary judgment motion solely on the basis
    that it could not be found to be vicariously liable for that correspondence.

[20]

Williams
    argument that Wallbridge failed to put its best foot forward has no merit. That
    the correspondence was allegedly defamatory was not a live material issue in
    the action between Wallbridge and Williams. The only live material issue in the
    action between them, as defined by the pleadings, was whether Williams could be
    found liable for that correspondence, and that is the issue to which Wallbridge
    responded.

[21]

While
    this is sufficient to dispose of this issue, I add that I did not find
    persuasive Williams argument that even though its summary judgment motion was
    brought on the narrow and specific ground of vicarious liability, Wallbridge
    was required to put its best foot forward and file evidence establishing defamation.
    This would mean, for example, that if a defendant brings a summary judgment
    motion on the narrow and specific ground that the plaintiff missed the
    limitation period, the plaintiff would be required to file evidence proving its
    entire case on the merits.  The proposition, if correct, would cause much
    inefficiency.

[22]

The
    authorities Williams relied on for this proposition were not helpful. For
    example, in
Mahoney v. Sokoloff
, 2015 ONCA 390, the defendants brought
    a general summary judgment motion that was granted. On appeal, this court, at
    para. 3, explained [t]he appellants complain that, in their summary judgment
    materials, the respondents failed to challenge specifically the appellants FLA-based
    claims for damages. In these circumstances, they say, they were not obliged to
    lead evidence of these damages on the summary judgment motion. This court
    rejected that argument. Accordingly, the appeal was dismissed. In
Mahoney
,
    the appellants argued they did not have to respond to an argument unless it was
    specifically raised in the summary judgment motion materials. Conversely, in
    this case, Wallbridge responded to the only argument specifically raised.

[23]

The better authority is
Transamerica Life Insurance Co. of
    Canada v. Canada Life Assurance Co
.
(1996)
,
28 O.R. (3d) 423
    (Gen. Div.)
.
The summary judgment motion
    in
Transamerica
was similar to the one in this case. Canada Life
    Assurance Co. brought a summary judgment motion on the ground that it could not
    be found to be liable for the wrongs of Canada Life Mortgage Services Ltd., its
    wholly owned subsidiary. It was on that issue that Sharpe J. found that
    Transamerica had failed to put its best foot forward. He said, at para. 24:
[i]n my view, Transamerica has failed to present
    evidence to indicate that there is a triable issue
on this point
and
    Canada Life has met the onus of showing that it should be granted summary
    judgment
on this issue
. [Emphasis added.]

[24]

Given that Williams summary
    judgment motion was brought solely on the ground of vicarious liability,
    Wallbridge was only obliged to respond to that issue.

(2)

Issue 2: Williams possible liability for Brunnings alleged defamation

[25]

I
    would allow the appeal on this issue. The motion judge recognized that the
    question whether Williams was liable for Brunnings alleged defamation was without
    precedent and involved the application of policy rationales. The evidence
    included several factors that could support a finding that Williams should be found
    liable for the allegedly defamatory correspondence. The motion judge attached
    little weight to or disregarded these factors.

[26]

The
    question was a novel one. The implications of lawyers practicing in
    association are potentially far-reaching, certainly much wider than the
    litigants and dispute in this case. It was not in the interests of justice to
    decide the question on summary judgment motion given the importance and novelty
    of the question and the existence of much evidence supporting the appellants
    position. The question would be better determined on a full evidentiary record,
    where the factual and legal issues and the consequences of imposing liability
    on the respondent can be carefully considered.

[27]

The
    motion judge did not attach weight to the fact that the publication of most of the
    allegedly defamatory correspondence was on the letterhead of the Williams firm.
    This could reasonably be seen as Williams placing its reputation behind the
    alleged defamation.

[28]

Brunnings
    use of Williams letterhead to send the allegedly defamatory correspondence was
    fully authorized. Williams granted to Brunning a complete and uncontrolled
    licence to communicate using its letterhead. In doing so, Williams created the
    opportunity, and took the risk, Brunning could use its letterhead to publish
    defamatory material, as it is alleged she did in this case.

[29]

The
    motion judge regarded Brunning as independent from Williams such that Williams
    could not control her conduct except by reviewing all her correspondence before
    it was sent. That may be so, but Williams could have avoided being implicated
    in Brunnings conduct by refusing to allow Brunning to use its letterhead,
    leaving Brunning to use an individual letterhead showing her as a sole
    practitioner at the same address. Williams allowed its name and reputation to
    be used in conveying the alleged defamation.

[30]

While
    the motion judge found Williams never held Brunning out as a Partner or
    Associate of the firm, she never considered the import of the fact Williams
    held Brunning out as associated with it. Williams holding Brunning out as associated
    with it was methodical and purposeful. Mr. Hart states in para. 3 of his
    affidavit
Brunning began practicing in association with Williams
on or
    about January 2, 2016. In para. 4, Mr. Hart states
Brunning
    had an existing law practice and had no employment relationship with Williams
before
    she began practicing in association with Williams
. In para. 7, he
    states that Williams began using the [Williams] letterhead shortly after
Brunning
    began practicing in association with Williams
. In para. 9, he confirms
    that Williams website at all material times, indicated that
Brunning
    practices in association with the firm
. [Emphasis added.]

[31]

Williams
    pleading is to the same effect. Para. 5 of Williams statement of defence
    pleads that Brunning had an existing law practice when she began
practicing
    in association with Williams
. Similarly, para. 8 pleads that [a]t all
    material times, Williams letterhead clearly indicated that
Brunning was
    practicing in association with Williams.
Para. 10 denies any vicarious
    liability but affirms that Brunning at all material times
was practicing in
    association with Williams
. [Emphasis added.]

[32]

The
    header of the sample letter written on Williams letterhead and attached to Mr.
    Harts affidavit lists Brunning, with an asterisk, together with the other
    Williams lawyers. The footer of the Williams letterhead has, from left to
    right, the address and website of the Williams firm, Brunnings name with the
    identification Lawyer and her email address at the domain @williamslitigation.ca
    and finally an asterisk that states Practicing in Association, not in
    Partnership. Each of the following seven pages of the sample letter has the
    header WILLIAMS Litigation Lawyers. There is no asterisk on the headers of
    the following pages.

[33]

Exhibit
    C to Mr. Harts affidavit is a printout from Williams website. It includes
    Brunnings photo along with photos of the Williams lawyers under the titles
    Our Lawyers and Meet Our Team. The other lawyers are identified as Counsel,
    Partner or Associate. Brunning is identified as Lawyer, Practicing in
    Association.

[34]

Exhibit
    B to Mr. Harts affidavit is a sample email sent by Brunning. Below her name is
    the identification Barrister and Solicitor and the note Practicing in
    Association with Williams Litigation Lawyers. Williams logo is displayed
    prominently below.

[35]

No
    evidence from recipients of the allegedly defamatory correspondence is
    necessary to establish that they understood Brunning is associated with
    Williams. The evidence clearly establishes that fact, and Williams claims that
    is the case. The letterhead and website state that Brunning is not a Partner,
    and they distinguish her from the status of Associate. However, the evidence
    could support a finding that Williams holds Brunning out as a lawyer who is one
    of Our Lawyers and a member of Our Team, albeit one who practices in
    association with it.

[36]

Given
    the strength of the evidence that could support a finding that Williams should
    be found liable for Brunnings allegedly defamatory correspondence, and given
    the novelty and importance of the question, the motion judge should have
    refused to grant summary judgment and allowed the matter to proceed to trial.

F.

DISPOSITION

[37]

Accordingly,
    for the reasons given, I would allow the appeal. I would set aside the order of
    the motion judge, dated September 23, 2016, granting summary judgment in favour
    of Williams and dismissing Wallbridges action as against it. The appellant is entitled
    to the costs of the appeal in the agreed upon all-inclusive sum of $12,500 and
    to the costs of the motion in the amount that the trial judge fixed in favour
    of Williams.

Released: RGJ APR 13, 2018

R.G. Juriansz J.A.

I agree. P. Lauwers
    J.A.

I agree. B.W. Miller
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Walsh Energy Inc. v. Better Business Bureau of
    Ottawa-Hull Incorporated, 2018 ONCA 383

DATE: 20180419

DOCKET: C62936

Hoy A.C.J.O., Huscroft and Paciocco JJ.A.

BETWEEN

Walsh Energy Inc. (c.o.b. as "The Energy
    Centre")
and Waltek Energy Services Inc. (c.o.b. as "Waltek"
    or "Energy Plus and Chateau Heating and Cooling")

Plaintiffs (
Respondent/

Appellant by way of
    cross-appeal
)

and

Better Business Bureau of Ottawa-Hull
    Incorporated/Bureau D'Ethique Commerciale D'Ottawa-Hull Incorporée (c.o.b. as
    "Better Business Bureau serving Eastern and Northern Ontario and the
    Outaouais") and Better Business Bureau of Ottawa-Hull Inc.

Defendants (Appellants/

Respondents by way of cross-appeal)

David Sherriff-Scott and Karen Perron, for the
    appellants

John H. Yach, for the respondent

Heard: September 13, 2017

On appeal from the judgment of the Divisional Court
    (Justice David L. Corbett, Justice Charles T. Hackland and Renee M. Pomerance),
    dated March 11, 2016, with reasons reported at 2016 ONSC 1606, setting aside
    the judgment of Justice Hugh R. McLean of the Superior Court of Justice, dated
    December 12, 2012, with reasons reported at 2012 ONSC 5819.

Huscroft J.A.:

OVERVIEW

[1]

The appellants, the Better Business Bureau of
    Ottawa-Hull Incorporated/Bureau dEthique Commercial dOttawa-Hull Incorporée
    and Better Business Bureau of Ottawa-Hull Inc. (collectively the BBB), are
    part of a network of not-for-profit organizations of fee-paying members whose
    goals include investigating consumer complaints and promoting the reliability
    of businesses. Members are required to respond to consumer complaints made to
    the BBB; non-members may also do so and utilize the BBBs mediation process.
    The BBB also provides ratings about businesses, which are posted on its
    website.

[2]

Barry Walsh controls the respondent company,
    Walsh Energy Inc. (Walsh), as well as Waltek Energy Services Inc. (Waltek).
    Both companies were plaintiffs in these proceedings, but only Walsh is a party
    to this appeal. Both Walsh and Waltek were members of the BBB until they
    resigned in 2007.

[3]

Shortly following their resignation, the BBB
    received a complaint from a Walsh customer, Mr. Fleischman. Walsh did not
    respond to the BBB concerning the complaint pursuant to the BBB protocol, nor
    did it resolve the complaint independently. As a result, the BBB changed Walshs
    website-posted rating from satisfactory to unsatisfactory. The posted rating
    included the information that it was the result of an unresolved consumer
    complaint. The rating appeared on the BBB website for approximately one year,
    until the BBB adopted a new rating system in January, 2009.

[4]

The new rating system was designed by the BBBs
    umbrella organization and the BBB was required to adopt it. The system operated
    using the umbrella organizations proprietary software, which generated letter
    grades based on 17 factors considered by the BBB. The new ratings system generated
    a grade of B for Waltek and D- for Walsh, and these grades were posted on the
    BBB website.

[5]

Waltek and Walsh sued the BBB in defamation,
    claiming that the grades posted on the BBB website caused substantial damages.

[6]

The trial judge found that Walteks B grade was not
    a relatively lower grade than the former neutral rating it had been assigned,
    and if anything suggested that the company had improved. It was not defamatory.
    The trial judge found, further, that Walshs D- grade was not defamatory,
    stating that it was uncertain whether the grade was a diminution or an
    improvement over Walshs prior unsatisfactory rating. He rejected the
    argument that the grades of both companies suggested that they were
    untrustworthy.

[7]

The trial judge went on to conclude that the
    ratings were protected by defences of qualified privilege and fair comment in
    any event, and that there was no evidence of malice. He concluded, further,
    that Waltek and Walsh had failed to prove special damages and that general
    damages of only $15,000 would have been appropriate had they established
    liability. The trial judge awarded the BBB approximately $348,000 in costs on a
    partial indemnity basis.

[8]

Waltek and Walsh appealed to the Divisional
    Court, but Waltek abandoned its appeal prior to the hearing. The Divisional
    Court allowed the Walsh appeal, concluding that the D- grade was defamatory and
    ordering a new trial on the issues of fair comment, malice, and damages. The
    Divisional Court also allowed the abandoned Waltek appeal and ordered a new
    trial on whether it had been defamed.

[9]

The parties sought directions concerning the
    appropriate order and the Divisional Court provided supplementary reasons. The
    court noted the parties agreement to the following points:

·

Walteks claims were abandoned prior to argument
    of the appeal and should not be remitted for retrial;

·

Walshs claim for lost profits was not pursued
    on appeal and should not be remitted for retrial;

·

The Divisional Court had decided that the BBBs impugned
    words were defamatory as against Walsh; and

·

The Divisional Court had decided that the
    defence of qualified privilege was not available.

[10]

The Divisional Court held that issues of fair
    comment, malice, and damages other than lost profits should be remitted for
    determination by a new trial judge, who should have an unrestricted ability to
    make findings of credibility and fact, draw inferences, and determine the
    outstanding issues. The court held, further, that although it had found that the
    impugned words were defamatory, the precise defamatory meaning of the impugned
    words should be determined by the trial judge based on the record at the new
    trial.

[11]

The BBB appeals with leave of this court and
    raises several issues. The BBB submits that the Divisional Court erred by:

(1)

concluding that the impugned publication was
    defamatory;

(2)

concluding that the fair comment defence had not
    been established and ordering a new trial on the issue;

(3)

concluding that the impugned publication was not
    made on an occasion of qualified privilege;

(4)

ordering a new trial on the question of malice;

(5)

acting in a procedurally unfair manner on the
    question of damages; and

(6)

ordering a new trial on the question of damages.

[12]

Walsh cross-appeals. It submits that the record
    before the Divisional Court was sufficient for it to substitute its own
    decision and seeks judgment against the BBB, including awards of general,
    special and punitive damages. In the alternative, in the event that the case is
    referred to a new trial, Walsh seeks a direction requiring the trial judge to
    determine whether the facts underlying the impugned publication were
    sufficiently known to readers such that the defence of fair comment is
    available. In the further alternative, in the event the BBB succeeds on its appeal,
    Walsh seeks a reduction in the costs awarded at trial.

[13]

In my view, the Divisional Court did not err in
    determining that the impugned publication was defamatory. The Divisional Court did
    err, however, in ordering a new trial on the fair comment issue. The record is
    sufficient to permit this court to conclude that the test for fair comment is
    satisfied. With the exception of the issue of the costs at trial raised by Walsh,
    which I address at the end of these reasons, these conclusions are sufficient
    to dispose of the appeal and cross-appeal and there is no need to address the
    other issues raised.

DISCUSSION

(1)

Was the publication defamatory?

[14]

There is no question in this case that the
    impugned words were published by the BBB and were of and about Walsh. The
    question was whether the D- grade was defamatory, in the sense that it would
    tend to lower Walshs reputation in the eyes of a reasonable person:
Grant
    v. Torstar Corp.
, 2009 SCC 61, [2009] 3 S.C.R. 640 at para. 28.

[15]

The trial judge found that it was not. He
    considered that it was uncertain whether the D- grade was a diminution or an
    improvement over Walshs previous rating of unsatisfactory, and inferred that
    Walsh was content with the unsatisfactory rating because it did nothing about
    it. The trial judge found, further, that although the plural word complaints
    appeared on the BBB website, the website correctly stated that there was only
    one unresolved complaint. Moreover, there were disclaimers and explanations on
    the website that made clear that the accuracy of the ratings was not
    guaranteed. The trial judge rejected the inference the D- grade was an innuendo
    that Walsh was untrustworthy and does not respond to customer complaints. However,
    the trial judge did not address the pleading that this was also the plain and
    ordinary meaning of the grade.

[16]

The BBB submits that whether the D- grade was
    defamatory was a question of mixed fact and law and the trial judges decision
    was entitled to deference. Instead, the Divisional Court substituted its view, and
    in doing so adopted the worst possible meaning of the impugned words.

[17]

I do not agree.

[18]

Although the trial judges conclusion was otherwise
    entitled to deference, the Divisional Court properly concluded that the trial
    judge erred in principle by failing to make a finding as to the plain and
    ordinary meaning of the grade. The focus of the trial judges analysis was on
    the context in which the grade was assigned and its connection to the prior
    unsatisfactory rating Walsh had received, as para. 25 of his decision makes
    clear:

It appears that his complaint is really that
    the rating system has changed, not with the rating itself. Specifically, the allegation
    is that the D- was libelous when compared with an unsatisfactory rating.
    The court finds, however, that in considering both the words in and of
    themselves, and in their greater context, it is not satisfied on the balance of
    probabilities that defamation has been made out. Indeed it is uncertain whether
    D- was a diminution or an improvement over unsatisfactory.

[19]

The context in which words are used is relevant
    to determining meaning. So too are any reasonable implications the words may
    bear, the audience to whom they were published, and the manner in which they
    were presented
:
Botiuk v. Toronto Free Press Publications Ltd.
,
    [1995] 3 S.C.R. 3, at para. 62. But it need not be established that an impugned
    statement is worse than prior statements made by a defendant in order for that
    statement to be defamatory. Although context may be important in determining
    whether a statement is defamatory, the plain and ordinary meaning must also be
    considered.

[20]

Given the trial judges error, it fell to the
    Divisional Court to determine whether the D- grade was defamatory. In my view,
    it was open to the Divisional Court on the record that was before it to
    conclude that it was defamatory. As the court explained, at para. 31:

In summary, the rating means, in its plain and
    ordinary meaning, in the context in which it was written, that BBB has
    conducted a fair and impartial assessment of [Walsh] and concluded, on the
    limited information available to BBB, that [Walsh] is not trustworthy, ethical
    or responsive to customer complaints.

I do not accept the BBBs submission
    that the Divisional Court adopted the worst possible meaning. The D- grade must
    be understood in the context of the BBBs stated purpose. The BBB website
    states that its mission is to be the leader in advancing marketplace trust,
    which it accomplishes by, among other things, [d]enouncing substandard
    marketplace behavior. The website goes on to state that it regards trust as a
    function of integrity and performance, and defines integrity as including
    respect, ethics and intent. Performance is described as relating to a business
    track record of delivering results in accordance with BBB standards and/or
    addressing customer concerns in a timely, satisfactory manner. In light of
    this, it was open to the court to find that the plain and ordinary meaning of
    the D- grade the BBB assigned Walsh was defamatory.

(2)

Was the publication
    protected as fair comment?

[21]

The test for fair comment was refined by the
    Supreme Court in
WIC Radio v. Simpson
, 2008 SCC 40, [2008] 2 S.C.R.
    420, at para. 28 and recapitulated in
Grant
at para. 31. A defendant
    claiming fair comment must satisfy the following test:

(a) the comment must be on a matter of public interest;

(b) the comment must be based on fact;

(c) the comment, though it can include inferences of fact, must be
    recognisable as comment;

(d) the comment must satisfy the following objective test: could any
    person honestly express that opinion on the proved facts?; and

(e) even though the comment satisfies the objective test the defence
    can be defeated if the plaintiff proves that the defendant was actuated by
    express malice.

[22]

The trial judge dealt only briefly with the fair
    comment defence, stating the test and concluding it was met. The Divisional
    Court held that the trial judge erred by conflating fair comment with the
    defence of qualified privilege, and in applying the fair comment defence
    without first construing the plain and ordinary meaning of the impugned words. Despite
    its criticism of the trial judge's decision, the Divisional Court acknowledged
    that the trial judge found that the BBB's ratings concerned a "matter of
    public interest"  the integrity and customer service record of small
    businesses  and agreed with his finding.  The court acknowledged,
    further, that that the D- grade was a comment, easily recognizable as an
    opinion as opposed to statement of fact, and was based on facts.

These conclusions
    aligned with those of the trial judge and satisfied the first three prongs of
    the test from
WIC Radio
. However, the court remitted the matter for a
    new trial rather than itself determining whether the test was met on the facts,
    because it found the trial judge failed to analyze the objective honest belief
    branch of the test.

[23]

The BBB submits that the Divisional Court made
    findings that were contradicted by the evidence and erred in its application of
    the fair comment test. In particular, the court erred in failing to
    characterize the BBBs opinion as based on its criteria and the facts in the
    BBB file, and in requiring the impugned statement to satisfy a test of
    objective reasonableness. The BBB submits that the only facts necessary to
    apply the fair comment test were the BBB website and Walshs admission that it
    had refused to respond to a customer complaint. It was not necessary to remit
    the matter for a new trial.

[24]

In its cross-appeal, Walsh submits that the
    Divisional Court erred in its application of the second branch of the fair
    comment test. In particular, Walsh submits that the BBB did not disclose
    Walshs D- grade was the result of a failure to respond to a single complaint,
    and that Walsh had informed the BBB that it would not respond to BBB complaints
    but would deal directly with any customers that contacted it with a complaint.
    In the absence of this information, Walsh says that it was impossible for
    readers to assess the merits of the D- grade it was assigned.

[25]

In my view, it was open to the Divisional Court
    to determine whether the fair comment defence was satisfied on the record before
    it, and the court ought to have done so rather than remit the matter for new
    trial. I address the parties submissions below.

Was the opinion based on fact?

[26]

The second branch of the fair comment test requires
    that the facts underlying an impugned opinion be sufficiently stated or
    otherwise be known to the listeners to allow the listeners to make up their
    own minds about the opinion:
WIC Radio
, at para. 31. The defence of fair
    comment is not available if the factual foundation for an opinion is either unstated
    or unknown, or turns out to be false. That said, if there is a factual
    foundation for an opinion, there is no requirement that the opinion be
    reasonable.

[27]

I see no need to remit the fair comment defence
    for new trial to determine if there was a factual basis for the BBBs opinion. The
    issue is not so complex that it requires a new trial.

[28]

In my view, the factual basis for the BBBs
    opinion was clearly set out in the record. As the Divisional Court noted, under
    the BBBs rating system, [a] single refusal to address a customer complaint
    through BBB mediation would result in a grade of A being reduced to D-. Here,
    Walsh admitted that it had not responded to the individual complaint. Moreover,
    it is undisputed that the BBB website identified the points applicable to
    specific criteria, how scores were converted into letter grades, and
    definitions of the weighted factors. Nothing further was required.

Could any person honestly express that opinion on the
    proved facts?

[29]

Although the trial judge set out the test from
WIC
    Radio
and stated that it was satisfied, the Divisional Court held that the
    trial judge erred in failing to deal with this branch of the test  the objective
    test, which turns on whether any person could honestly express the BBBs opinion
    on the proved facts. Again, however, it was open to the Divisional Court to
    deal with the matter on the basis of the record that was before the court.
    Remitting the matter for a new trial was unnecessary.

[30]

Following
WIC Radio
, an objective test
    replaced the subjective test for this branch of the fair comment analysis. What
    matters at this stage is whether a person could honestly express the opinion,
    given the proved facts  not whether the BBB actually held the opinion. The
    court does not evaluate the objective reasonableness of an opinion in light of
    the facts. It is enough that the opinion could honestly be held and has a
    basis in the facts. A court does not consider whether the facts warranted
    the comment or whether the comment fairly arose out of the facts:
WIC
    Radio
,
at para. 39. As Binnie J. acknowledged in
WIC Radio
,
at para. 50, the objective test is
    not a high threshold for the defendants to meet, but nor is it in the public
    interest to deny the defence to a piece of devils advocacy that the writer may
    have doubts about (but is quite capable of honest belief) which contributes to
    the debate on a matter of public interest.

[31]

The drop to a D- grade simply on the basis of
    one unanswered complaint may be thought harsh, but it is inherent in the fair
    comment defence that, provided the BBBs opinion is based on facts and could
    honestly be held, it is protected whether it is harsh or gentle, reasonable or
    unreasonable. As Binnie J. explained in
WIC Radio
,

a trier of fact
    is not required to assess whether the comment is a reasonable and proportional
    response to the stated or understood facts: see para. 28.

[32]

In my view, the D- grade was an opinion that
    could honestly have been expressed on the proved facts. Put another way, it cannot
    be said that no one

could honestly hold that opinion. This is sufficient
    to satisfy, in the general terms required, the fourth branch of the fair
    comment test. Accordingly, there was no reason to remit the matter for new
    trial. The fair comment defence was established.

(3)     Was fair comment defeated
    by malice?

[33]

The defence of fair comment, like qualified
    privilege, is defeated if the plaintiff establishes the impugned comment was
    made with malice. Malice includes spite or ill-will, but may also be
    established by showing that a comment was made with an indirect motive or
    ulterior purpose, dishonestly, or in knowing or reckless disregard for the
    truth. See
Hill v. Church of Scientology of Toronto
, [1995] 2 S.C.R.
    1130, at para. 145.

[34]

The trial judge found that Walsh failed to meet
    its burden. The BBB website made clear that there was only one unanswered complaint
    against Walsh; there was no plan or hidden agenda to force Wash into the BBBs
    conciliation process or BBB membership; and there was no evidence that the BBB
    dealt with Walsh differently than any other companies. In sum, the trial judge
    concluded that the there was simply no evidence of malice in this case.

[35]

The BBB submits that the Divisional Court ought
    to have deferred to these findings. There was no basis for the Divisional Court
    to remit the question of malice for new trial. I agree.

[36]

Walsh submits that it must be inferred that the
    D- grade was assigned for the dominant purpose of preferring the interests of
    BBB members and encouraging non-members to become paying members of the BBB. It
    notes that the A+ grade is only available to BBB members. A BBB member with an
    A+ grade would be less affected if it failed to respond to a customer complaint
    than a non-member, who would be starting from a maximum grade of A.

[37]

I see no palpable and overriding error in the
    trial judges analysis. The trial judge stated the applicable test, considered
    the arguments that made by the parties, and concluded that Walsh had failed to
    meet the difficult burden of establishing malice. The trial judge was not
    required to draw the inference Walsh submits. The trial judge reached a
    conclusion that was open to him on the record, and the Divisional Court erred
    in concluding otherwise.

(4) Costs awarded at trial

[38]

The trial judge awarded partial indemnity costs to
    the BBB of $348,135.96. That award was set aside by the Divisional Court, which
    left the matter of costs to the trial judge presiding at the new trial the
    court ordered. Given the outcome of this appeal, it is necessary to revisit the
    trial judges costs decision.

[39]

In my view, the trial judges award of costs is so
    excessive as to call for appellate intervention.

[40]

It is well established that the court should set
    aside a costs award on appeal only if the trial judge has made an error in
    principle or if the costs award is plainly wrong:
Hamilton v. Open Window
    Bakery Ltd.
, 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27. As this court
    held in
Boucher v. Public Accountants Council for the Province of Ontario
(2004) 71 O.R. (3d) 291 at para. 37, the overriding principle in assessing
    costs is the reasonableness of the costs award: [t]he failure to refer, in
    assessing costs, to the overriding principle of reasonableness, can produce a
    result that is contrary to the fundamental objective of access to
    justice." The assessment of costs is not purely mathematical exercise, but
    should reflect what is fair and reasonable in all of the circumstances:
Clarington
    (Municipality) v. Blue Circle Canada Inc.
, 2009 ONCA 722 at para. 52.

[41]

The costs awarded by the trial judge are
    considerable in the context of a defamation action, but they are not unfair and
    unreasonable solely on this account. The problem is that they are grossly disproportionate
    to the costs incurred by the appellant in bringing the action. C
ounsel for the BBB billed for over three times as many
    hours in defending the action as the appellants counsel billed in bringing it.
    The partial indemnity costs awarded by the trial judge to the BBB are more than
    three times Walshs costs, calculated on a partial indemnity scale. Walsh could
    not reasonably have expected that it would be faced with costs award of this
    magnitude.

[42]

The trial judge considered that this was a complicated
    matter and lengthy trial, involving expert witnesses and a great deal of
    evidence. He noted, further, that although BBBs offers to settle the action
    before trial did not trigger the costs consequences of r. 49.10 of the
Rules
    of Civil Procedure
,
he considered them under r. 57. But the trial
    judge failed to consider the fairness and reasonableness of the costs awarded, and
    did not provide an adequate justification for the striking disparity in the
    costs incurred by the parties. The result is a costs award that is contrary to
    the
fundamental objective of access to justice.

[43]

In my view, the trial judges costs award is not
    fair and reasonable and must be set aside. In all of the circumstances, I would
    substitute an award of $175,000, inclusive of taxes and disbursements.

CONCLUSION

[44]

I would allow the appeal, set aside the March
    11, 2016 judgment of the Divisional Court, and restore the December 12, 2012 judgment
    of the trial judge dismissing the action. I would dismiss the cross-appeal,
    save in regard to trial costs as set out below.

[45]

The BBB is entitled to its costs in the
    Divisional Court in the agreed amount of $50,000.

[46]

I would grant leave to appeal and allow Walshs
    cross-appeal on the matter of trial costs. I would fix the BBBs trial costs in
    the amount of $175,000, inclusive of taxes and disbursements.

[47]

The BBB is entitled to its costs of the leave
    application and the appeal in this court. In light of Walshs success on its
    costs appeal, I would award the BBB costs in the amount of $50,000, inclusive
    of taxes and disbursements.

Released: April 19, 2018 (G.H.)

Grant Huscroft J.A.

I agree. Alexandra Hoy
    A.C.J.O.

I agree. David M. Paciocco
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Watto v. Immigration Consultants of Canada
    Regulatory Council, 2018 ONCA 376

DATE: 20180418

DOCKET: C64622

MacFarland, LaForme and Epstein JJ.A.

BETWEEN

In the Matter of the an Application Under Section
    253 of the
Canada Not-For-Profit Corporation Act
,
SC 2009, C.
    23

And in the Matter of Rules 14.05(2) and 14.05(3)
    of the
Rules of Civil Procedure

And in the Matter of the Eligibility of Muhammad
    Amir-Afzal Watto to be Nominated for Election as a Director of the Immigrant
    Consultants of Canada Regulatory Council

Muhammad Amir-Afzal Watto

Applicant (Appellant)

and

Immigration Consultants of Canada Regulatory
    Council

Respondent (Respondent)

and

Attorney General of
    Ontario

Intervenor

William J. Macintosh, for the appellant

Natalie M. Leon, for the respondent

Heard and released orally: April 12, 2018

On appeal from the order of Justice James F. Diamond of
    the Superior Court of Justice, dated October 30, 2017, with reasons reported at
    2017 ONSC 6440.

REASONS FOR DECISION

[1]

The appellant is a member of the respondent not-for-profit corporation. In
    2013, the appellant unsuccessfully campaigned to be elected to the Board of Directors
    of the respondent. Statements the appellant made during his campaign have
    spawned a number of legal proceedings between the appellant and respondent. Effective
    May 22, 2014 the respondent amended bylaw 2016-1 (the Bylaw) to provide that
    no member involved in litigation with the Board would be eligible for
    nomination, election or appointment to the Board.

[2]

The appellant has challenged the Bylaw in a number of ways, the most
    recent being this application under s. 253 of the
Canada Not-For-Profit
    Corporations Act
,
S.C. 2009 C. 23, for a declaration that the Bylaw
    is oppressive, unfairly prejudicial, and unfairly disregards his interests as a
    member of the respondent.

[3]

On October 24, 2017, the application judge considered submissions from
    counsel, including for the Attorney General of Ontario, on the applicability of
    the
Limitations Act, 2002
,
S.O. 2002, C. 24 to the appellants
    application. He proposed to bifurcate the proceeding and adjourn the hearing to
    November 2, 2017 to hear argument on the merits, if necessary.

[4]

On October 30, 2017, the application judge delivered detailed reasons
    dismissing the application. He held the
Limitations Act
applied and
    went on to find that the application was brought out of time.

[5]

On appeal, the appellant argues the application judge erred in concluding
    that he did not have the power to postpone the upcoming election for the
    respondents Board of Directors. The appellant claims this order would have
    given him time to adduce further evidence on the application. The appellant has
    not filed transcripts of the proceeding and instead relies on an affidavit he
    swore on January 18, 2018. The affidavit is not evidence that the application
    judge refused to make such an order. Moreover, the application judge notes in
    his reasons that the appellant was content to proceed with his argument on the
    record before the court.

[6]

We see no error or unfairness in the application judges decision to
    proceed with the application and determine the limitations issue on the basis
    of the record before him.

[7]

The appellant also requests permission to argue, for the first time
    before this court, that the Bylaw had retrospective effect. This argument goes
    to the merits of the appellants claim in the application. Our determination of
    the first issue  that the application was properly statute-barred  renders
    any argument on the merits irrelevant.

[8]

We have determined that we are not going to permit this new issue raised
    this morning to be argued before the court. It is not, in our view, in the
    interest of justice to do so. And so the appeal will proceed simply on the
    issues already raised in the materials and of which counsel for the respondent
    has had notice.

[9]

The appeal is therefore dismissed. Costs are awarded to the respondent
    on a partial indemnity basis fixed in the amount of $9,636.45 inclusive of
    disbursements and HST.

J. MacFarland J.A.

H.S. LaForme J.A.

Gloria Epstein J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Weenen v. Biadi, 2018 ONCA 344

DATE: 20180409

DOCKET: M48284 (C61429)

Epstein, Hourigan and Paciocco JJ.A.

BETWEEN

Matthew Weenen

Plaintiff

(Respondent/Responding Party)

and

Graziano Biadi

Defendant

(Appellant/Non-Party)

Sarah Turney and Anastasia Reklitis, for the moving
    party, Fasken Martineau DuMoulin LLP

Yan David Payne, for the responding party, Matthew Weenen

Heard: In writing

ADDENDUM

[1]

Following the release of this courts reasons on the Law Firms motion
    for a charging order or solicitors lien, the Law Firm wrote to the panel
    seeking an opportunity for a reconsideration of the decision. Specifically, it
    wanted to make submissions on the issue of whether it is entitled to a charging
    order or lien. Given that the Law Firm addressed the merits of obtaining a
    charging order in its written submissions and that the test for a charging
    order and solicitors lien is the same, the request for a reconsideration is
    denied.

Gloria Epstein J.A.

C.W. Hourigan J.A.

David M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Weenen v. Biadi, 2018 ONCA 393

DATE: 20180423

DOCKET: M48284 (C61429)

Epstein, Hourigan and Paciocco JJ.A.

BETWEEN

Matthew Weenen

Plaintiff

(Respondent/Responding Party)

and

Graziano Biadi

Defendant

(Appellant/Non-Party)

Sarah Turney and Anastasia Reklitis, for the moving
    party, Fasken Martineau DuMoulin LLP

Yan David Payne, for the responding party, Matthew Weenen

Heard: In writing

COSTS ENDORSEMENT

[1]

On March 21, 2018, we dismissed the motion of Fasken Martineau DuMoulin
    LLP (the Law Firm) for a charging order under s. 34(1) of the
Solicitors
    Act
, R.S.O. 1990, c. S.15, or a lien under the courts inherent
    jurisdiction, charging the damages and costs awarded to the responding party
    client, Matthew Weenen, at the trial of this action and on appeal. On March 29,
    2018, the Law Firm wrote to the panel asking for an opportunity to make
    submissions in favour of a reconsideration of the decision. We denied this
    request in an addendum dated April 9, 2018.

[2]

The issue now is the costs of both the motion and the request for reconsideration.

[3]

We have received and reviewed the parties submissions as to costs.

[4]

Mr. Weenen seeks substantial indemnity costs of $25,214.42. Among other
    arguments advanced, Mr. Weenen says that given the lack of supporting evidence,
    the motion was without merit. Mr. Weenen also submits that the Law Firm continues
    to deliberately attempt to burden him with additional costs.

[5]

The Law Firms position is that no costs should be awarded;
    alternatively, costs should be fixed in the aggregate amount of $2,500. The Law
    Firm advances three arguments to support this position: (i) that the issue of
    the charging order or lien was novel and of public importance; (ii) that the
    jurisdiction issue was directed to be addressed by this court by Brown J.A.;
    and (iii) that the costs sought by Mr. Weenen are unreasonable. The Law Firm
    also seeks an order permitting it to set off any cost award against the legal
    fees owed to it by Mr. Weenen.

[6]

Mr. Weenen
is entitled to his costs. However, we
    do not see any grounds for awarding costs on a substantial indemnity basis.

[7]

The amounts claimed by Mr. Weenen appear high,
    but we note that the Law Firm did not produce its own bill of costs.

[8]

Accordingly, taking the various factors set out in r.
    57.06 into account, we award costs to Mr. Weenen in the amount of $12,000,
    inclusive of interest and HST. We refuse the Law Firms request that these
    costs be set off against legal fees associated with the underlying action,
    given that the amount, if any, that will be owing to the Law Firm after the
    pending assessment is not yet known.

Gloria Epstein J.A.

C.W. Hourigan J.A.

David M. Paciocco J.A.