Posted: May 31, 2018
By: Rastin & Associates

Rastin & Associates is very proud our Associate Lawyer Anita W. H. Wong.  After a long and hard-fought summary judgment battle on behalf of Ryan Turcotte and his family, the family’s request for appeal has been granted by the highest court in the province, the Ontario Court of Appeal, and the family will have a chance to have their matter heard in a civil trial.   

The matter had previously been thrown out by the Ontario Superior Court of Justice motions judge who heard the Defendants’ motions and granted them summary judgment in early 2017.   

The matter was argued before the Court of Appeal in December of 2017, with the Court’s decision released on April 13, 2018.

It all began in June of 2012 when Ryan Turcotte suffered a devastating head injury after being assaulted soon after getting off a bus that had taken him to and from resort night at the Kee to Bala.

While few law firms were willing to take on a civil action for the family, Rastin’s legal team was up for the challenge.   

Here is a brief summary of the facts of the case, as reviewed and summarized by the Court of Appeal:

On Mondays during the summer, the Kee to Bala held "resort nights", attracting resort and tourism staff in the Muskoka region. For a $10 cover charge, guests could be picked up from various locations by bus and brought to the Kee to Bala, and then returned to the same location at the end of the evening. Ryan Turcottte took the resort night bus from a plaza on Duckworth Street, near Georgian College, and after having some drinks at the Kee to Bala, took the return bus ride back to Barrie. 

The bus generally arrived at the Kee at 11:00 p.m, and departed around 1:30 a.m. The bus had a security person from the Kee to Bala and 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.

On the night leading up to the assault, the bus left the Kee between 1:30 and 2:00 a.m. It was driven by Bus Driver, David Ribble. The trip to Barrie took about an hour. The bus had approximately 48 passengers on board, including Ryan Turcotte and Aaron Lewis, both of whom had been at the Kee. Ryan Zaroski was the Kee to Bala security guard on board. In accordance with the Kee's security protocol, he sat at the front of the bus, facing backwards, to keep an eye on the passengers.

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

The separation of Ryan 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 Ryan Turcotte was seated. Mr. Zaroski's evidence was that the noise and tension levels increased about halfway to Barrie. Some of the aggressive language was coming from Aaron Lewis.

Mr. 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 Ryan Turcotte and Aaron Lewis when they got to Duckworth Plaza, Mr. Zaroski called police in Barrie, asking that a cruiser meet the bus on arrival. Mr. Ribble slowed the bus in the hope of allowing police time to arrive at the plaza.

Police had not yet arrived at Duckworth Plaza when the bus got there. Mr. Zaroski was still on the phone with them. Concerned for Ryan Turcotte's safety, Mr. Ribble and Mr. Zaroski let him off first. 

Mr. Turcotte 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.

The Motions Court judge dismissed the Plaintiffs’ case. She found that Mr. Ribble and Mr. Zaroski acted reasonably and that Mr. Turcotte chose to ignore their advice to leave immediately and that Mr. Turcotte was aware of the potential for a fight, and yet still got off the bus and remained in the parking area. Her Honour found that the Defendants could not foresee, any more than Mr. Turcotte, that he would face harm.

There are two main aspects of Rastin & Associates’ argument to the Court of Appeal:

  1. We argued that the summary judgement motion was premature. Expert reports were not filed as of yet and the police report had not become available at the time of judgement.
  2. We argued that the analysis of duty of care was flawed and that the judgement failed to consider the entire scope of events leading up to the assault in the parking lot, as well as a failing to provide a complete analysis on the respective duties of the respondents to take measures to avoid placing Ryan Turcotte in a situation of danger.

The Court of Appeal did not accept the first line of argument. It did however, look more closely with respect to the motions judge’s decision on the Standard of Care and found that the approach was not applied properly. 

When proving Standard of Care, the Plaintiff must establish (1) the defendants had owed the plaintiff a duty of care; (2) the conduct of the defendants breached the applicable standard of care; (3) the plaintiff sustained compensable damage; and (4) the damage was caused by the breach of the defendant’s duty of care.

The Court of Appeal found that the motions judge conducted an abbreviated assessment of the standard of care and that this led her to understate the means available to avoid putting Ryan Turcotte in the midst of a dangerous environment or to take measure to protect him when he got off the bus.   She also did not proceed to do a causation analysis.  

The Court of Appeal granted the Plaintiffs’ appeal and the matter can now proceed to trial.    

Rastin & Associates Trial Lawyers look forward to continuing the fight for justice on behalf on Ryan Turcotte and his family. 



 
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