Meady et al. v. Greyhound Canada Transportation Corp. et al., (2015) 329 O.A.C. 173 (CA)

• Judge: Strathy, C.J.O., Feldman and Pardu, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: October 27, 2014
• Jurisdiction: Ontario
• Citations: (2015), 329 O.A.C. 173 (CA);2015 ONCA 6

Meady v. Greyhound (2015), 329 O.A.C. 173 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. JA.019

Pam Meady, Evelyn Shepherd, Carrie Anne Tapak, Dennis Cromarty, Thayne Gilliat, Faye Evans , Sheldon Christensen, a Minor by his Litigation Guardian, Cathy Ducharme, Anthony Clowes, Tanya Clowes , and Briannah Elizabeth Clowes, Shauna Pauline Clowes, Minors by their Litigation Guardian, Tanya Clowes, Brian Gordon Adams, Michael David Finn, Jennifer Esterreicher, Johnathan Theriault , an infant under the age of eighteen years by his Litigation Guardian, Lyne Theriault, and Lyne Theriault (plaintiffs/ appellants ) v. Greyhound Canada Transportation Corp., Constable Corey Parrish, Constable Martin Singleton, Her Majesty the Queen in Right of Ontario, Albert Arnold Dolph and Shaun Davis (defendants/respondents)

(C55125; 2015 ONCA 6)

Indexed As: Meady et al. v. Greyhound Canada Transportation Corp. et al.

Ontario Court of Appeal

Strathy, C.J.O., Feldman and Pardu, JJ.A.

January 8, 2015.

Summary:

Davis, while on board a Greyhound bus, ignored the driver's requests that he return to his seat. He lunged at the driver and grabbed the steering wheel. The bus went off the road. A number of passengers sued Greyhound and the bus driver, two OPP officers who had contact with Davis before he boarded the bus, and their employer. They also sued Davis, who did not defend.

The Ontario Superior Court, in a decision reported at [2012] O.T.C. Uned. 657, dismissed the action. The plaintiffs appealed. They argued that the trial judge: (1) erred by excluding the evidence of two experts: a specialist in police training, and an expert in bus safety; and (2) failed to adequately articulate the standard of care applicable to the defendants.

The Ontario Court of Appeal dismissed the appeal.

Carriers - Topic 3068

Liability to passengers - Standard of care - Of driver of bus - Davis, while on board a Greyhound bus, ignored the driver's requests that he return to his seat - He grabbed the steering wheel - The bus went off the road - Passengers sued the bus driver, among others - The trial judge dismissed the action - The Ontario Court of Appeal rejected the submission that the trial judge failed to articulate the content of the applicable standard of care - "Having found the standard of care applicable to [the driver] was that of a reasonable bus driver in like circumstances, he said he was required to ask 'whether the bus driver used all due, proper and reasonable care and skill in the circumstances' ... . He then proceeded to examine each element of the standard of care put forward by the appellants ... . He concluded that [the driver's] conduct met the standard of care in each respect." - See paragraphs 64 to 66.

Carriers - Topic 3102

Liability to passengers - Negligence - Rate of speed - [See second Evidence - Topic 7003.2 ].

Evidence - Topic 7003.2

Opinion evidence - Expert evidence - General - When expert evidence required - Davis, while on board a Greyhound bus, ignored the driver's requests that he return to his seat - He grabbed the steering wheel - The bus went off the road - A number of passengers sued - The defendants included two police officers who had contact with Davis before he boarded the bus - The trial judge, in dismissing the action, concluded that he did not require expert evidence to determine the standard of care of a competent police officer or to determine whether the officers properly exercised their use-of-force or investigative detention powers - On appeal, the plaintiffs claimed that the police training expert would have established that competent police officers, having observed that Davis was delusional, would have used crisis management techniques to deter him from boarding the bus - The Ontario Court of Appeal held that the trial judge properly exercised his gatekeeper role by excluding unnecessary evidence - It was open to the trial judge to conclude that expert evidence was unnecessary for him to decide the issues, and his findings were well-supported by the record - See paragraphs 44 to 54.

Evidence - Topic 7003.2

Opinion evidence - Expert evidence - General - When expert evidence required - Davis, while on board a Greyhound bus, ignored the driver's requests that he return to his seat - He grabbed the steering wheel - The bus went off the road - Passengers sued - The defendants included Greyhound and the bus driver - The allegations of negligence related to the driver's response to Davis leaving his seat, and the operation of the bus thereafter - The trial judge, in dismissing the action, excluded the evidence of an expert in bus safety - The plaintiffs asserted that the expert would have established that a prudent bus driver, knowing Davis' agitated condition, would have reduced his speed - The Ontario Court of Appeal held that the trial judge reasonably concluded that expert evidence was unnecessary to resolve the allegations - "These and similar issues are frequently decided in motor vehicle negligence cases without the assistance of expert evidence. ... [T]here was ample evidence of Greyhound's practices and procedures and [the driver] was cross-examined at length concerning his compliance" - The trial judge was not persuaded that the speed of the bus was unreasonable - It was therefore unnecessary to consider whether the accident could have been avoided or the injuries reduced at a lower speed - The trial judge found there was nothing that the driver knew or ought to have known that would have caused him to change the way he was driving - That conclusion was available to him on the evidence - See paragraphs 55 to 63.

Evidence - Topic 7061

Opinion evidence - Expert evidence - Particular matters - Professional standards of care - [See both Evidence - Topic 7003.2 ].

Police - Topic 5021

Actions against police - Negligence - General - [See Torts - Topic 48 ].

Torts - Topic 36

Negligence - Standard of care - Carriers - Bus drivers - [See Carriers - Topic 3068 ].

Torts - Topic 48

Negligence - Standard of care - Particular persons and relationships - Police officers - Davis, while on board a Greyhound bus, ignored the driver's requests that he return to his seat - He grabbed the steering wheel - The bus went off the road - Passengers sued - The defendants included two OPP officers who had contact with Davis before he boarded the bus - The trial judge dismissed the action - The Ontario Court of Appeal rejected the submission that the trial judge failed to articulate the content of the applicable standard of care - "[T]he trial judge concluded that the standard of care applicable to the OPP respondents was that of 'the reasonable officer in like circumstances' and the officer 'must live up to the accepted standards of professional conduct to the extent that it is reasonable to do so in the circumstances' ... . He noted that an error in judgment would amount to negligence only 'if the error would not have been made by a reasonably competent professional with the same skill as the officer in question who acted with ordinary care.'" - See paragraphs 67 to 69.

Cases Noticed:

Burbank v. R.T.B. et al. (2007), 239 B.C.A.C. 252; 396 W.A.C. 252; 279 D.L.R.(4th) 373; 2007 BCCA 215, leave to appeal refused (2007), 383 N.R. 380 (S.C.C.), refd to. [para. 23].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 31].

R. v. Abbey (W.N.) (2009), 254 O.A.C. 9; 97 O.R.(3d) 330; 2009 ONCA 624, leave to appeal refused (2010), 409 N.R. 397 (S.C.C.), refd to. [para. 31].

Krawchuk v. Scherbak et al. (2011), 279 O.A.C. 109; 106 O.R.(3d) 598; 2011 ONCA 352, leave to appeal refused (2011), 430 N.R. 396 (S.C.C.), refd to. [para. 34].

Zink v. Adrian (2005), 208 B.C.A.C. 191; 344 W.A.C. 191; 37 B.C.L.R.(4th) 389; 2005 BCCA 93, refd to. [para. 35].

Masterpiece Inc. v. Alavida Lifestyles Inc., [2011] 2 S.C.R. 387; 416 N.R. 307; 2011 SCC 27, refd to. [para. 38].

Johnson et al. v. Milton (Town) et al. (2008), 239 O.A.C. 122; 91 O.R.(3d) 190; 2008 ONCA 440, refd to. [para. 39].

R. v. D.S.F. (1999), 118 O.A.C. 272; 43 O.R.(3d) 609 (C.A.), refd to. [para. 41].

R. v. D.D., [2000] 2 S.C.R. 275; 259 N.R. 156; 136 O.A.C. 201; 2000 SCC 43, refd to. [para. 42].

Day v. Toronto Transportation Commission, [1940] S.C.R. 433, refd to. [para. 65].

Rances v. Scaplen et al. (2008), 462 A.R. 1; 2008 ABQB 708, refd to. [para. 65].

Hill et al. v. Hamilton-Wentworth Regional Police Services Board et al., [2007] 3 S.C.R. 129; 368 N.R. 1; 230 O.A.C. 260; 2007 SCC 41, refd to. [para. 67].

Authors and Works Noticed:

Bryant, Alan W., Lederman, Sidney N., and Fuerst, Michelle K., The Law of Evidence in Canada (3rd Ed. 2009), pp. 799 to 800 [para. 41].

Dufraimont, Lisa, New Challenges for the Gatekeeper: The Evolving Law on Expert Evidence in Criminal Cases (2012), 58 C.L.Q. 531, generally [para. 37].

Ontario, Report of the Inquiry into Pediatric Forensic Pathology in Ontario, Role of the Court (2008), vol. 3, c. 18, generally [para. 37].

Counsel:

Paul J. Pape, David S. Steinberg and Christopher Hacio, for the appellants;

Owen Smith and Amanda McBride, for the respondents, Greyhound Canada Transportation Corp. and Albert Arnold Dolph;

Roger Horst and Rafal Szymanski, for the respondents, Constables Corey Parrish and Martin Singleton.

This appeal was heard on October 27, 2014, before Strathy, C.J.O., Feldman and Pardu, JJ.A., of the Ontario Court of Appeal. In reasons written by Strathy, C.J.O., the Court delivered the following judgment, released on January 8, 2015.