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Appellate Litigation

Last week, we discussed a case in which a man brought a claim against a municipality for damages suffered after he was assaulted in a municipal parking garage. Ultimately, the municipality was found not liable in the matter, which we will discuss in greater detail below. In the previous post, we addressed the impact of the municipality’s refusal to mediate the matter or offer a settlement on its ability to collect costs from the plaintiff. Today, we will address the overall finding in the case, as it relates to the legal concept of causation.

Assault Took Place in “Just a Matter of Seconds”

The details of the incident, and the timing involved, are important to the issue of causation. The plaintiff was walking from work around 6 PM to retrieve his car. It was parked in a municipal garage. At 6:05:47 PM he is seen on CCTV walking towards the garage. He is carrying a briefcase and a lunch bag. He disappears. At 6:06:58 PM an unknown man is seen running in the opposite direction who also disappears from view. Then at 6.06:59 PM the previous unknown man, and now with a companion, are seen running away.

In that brief amount of time, the plaintiff was injured enough to incur damages totalling an agreed-upon figure of $100,000.00. The assailants ran away. They were never identified or apprehended.

The Claim in Negligence

The plaintiff sued the municipality that owned and operated the parking garage as well as the security service they retained to patrol the lot and provide security. He based his claim in negligence. He was successful in establishing a duty of care, the standard of care, a breach of said care, and the foreseeability of his damages being the possible result of a breach of such care. He failed, however, to prove a requisite element of the tort of negligence, that being causation. The plaintiff could not establish that the defendants’ breach of care caused his loss.

Establishing Causation in a Negligence Claim

Causation is established where a plaintiff proves on a balance of probabilities that, but for the conduct of the defendant(s), the plaintiff would not have suffered injury or loss.

In this case, the Court determined that causation could not be established to justify a finding of negligence. The attack was so unexpected and sudden, lasting only seconds, that there would not have been enough time for anyone to react, appear and prevent the harm.

Even if everything had aligned perfectly and both the employees of the lot and the security staff had properly executed their duty of care, they could not have prevented the incident as it occurred. As a result, the Court found that the damages and injuries suffered by the plaintiff could not be said to have been caused by the defendants’ breach.

Even if there had been security cameras installed to alert the staff to the assault, the entire event lasted for only around thirty seconds. This would not have been enough time for the staff to respond and prevent or mitigate the damages caused.

Alberta Case Set Reasonable Response Time at Five Minutes

The judge took support from the McAllister v. Calgary (City) decision of the Alberta Court of Appeal (ABCA) (2019). There a plaintiff was assaulted and badly beaten on a public walkway heading to municipal transit. The assault lasted twenty minutes. The plaintiff fell down at the six-minute mark and was beaten by a group for another fourteen minutes. The trial judge set the time limit for staff to notice and respond to the assault at one minute.

The ABCA felt that was too high an expectation or standard. The Appeals Court felt the assault should have been noticed by the five-minute mark with an expectation that staff would respond within another five minutes. Therefore, the City was not responsible for damages suffered during the intial ten minutes.

Given the rationale in the Alberta case, expecting security to respond in the case at hand to an assault lasting for less than one minute would not be reasonable. Therefore, causation could not be established in this matter.

Contact Milosevic & Associates in Toronto for Complex Litigation Matters

At Milosevic & Associates, our team of Toronto corporate commercial lawyers regularly represent clients in insurance litigation matters ranging from straightforward contract and partnership disputes to complex multi-party commercial claims. Over the years, our team of exceptional litigators has seen it all and has successfully fought for our clients’ rights. Our impressive track record speaks for itself.  Call us at 416-916-1387 or contact us online to schedule a consultation.