McPhail v John Doe I, 2016 ABQB 76

Court of Queen ’ s Bench of Alberta Citation: McPhail v John Doe I, 2016 ABQB 76 Date: 20160204 Docket: 1301 08018 Registry: Calgary Between: Cheryl Ann McPhail and Her Majesty the Queen in Right of Alberta Plaintiffs - and - John Doe I, John Doe II, John Doe III, ABC Corporation and Calgary Exhibition and Stampede Limited Defendants _______________________________________________________ Memorandum of Decision of A. R. Robertson , Q.C., Master in Chambers _______________________________________________________ Introduction [ 1 ] This interesting

summary dismissal application is brought by the Calgary Exhibition and Stampede Limited (the “Stampede”). Ms. McPhail was a patron at the annual Stampede event that is held for 10 days each July, on July 12, 2011. She was pushed down and suffered serious injuries. She does not know who hurt her. She argues that the Stampede should have done more to make its premises safe, and that the Stampede should have identified the person or persons who hurt her.

The Facts [ 2 ] After the end of the grandstand show at approximately 11:00 to 11:30 in the evening, several young men ran up towards Ms. McPhail, and one or two of them ran into her, apparently without looking where they were going. She suffered a laceration and a fracture of the tibia, and severe injuries to her knee.

She saw them coming; she says they were not looking at her, and the assertion is that it was an accidental collision, not an intentional criminal assault. [ 3 ] She was attended to by Stampede medical personnel and she left the site in an ambulance. [ 4 ] The security force employed by the Stampede is organized in 9 zones, and they work in pairs. In addition, there are 16 to 24 Calgary Police Service officers onsite. [ 5 ] Two members of the Stampede’s security crew, on bicycles, attended the location where Ms. McPhail was hurt after hearing a report of the incident on their communications system.

One of them was Ken Finigan. They were not summoned to the incident – rather, they responded on hearing of a medical emergency that had occurred in their zone. [ 6 ] When they arrived, they were “waved off” by the medical personnel who were attending to Ms. McPhail’s injuries. Having been told that their attendance was not required, they left. Their entire “report” consisted of a one line entry to this effect. [ 7 ] In his affidavit, Mr. Finigan explained that although he now understands that Ms.

McPhail says she was knocked over by someone, there was no such individual there when he arrived on the scene. [ 8 ] When asked years later in questioning on his affidavit, Mr. Finigan explained that had he been told that someone had knocked Ms. McPhail down, he would have made notes in his notebook, and then generated a report. However, at the time he did not know that that is what had happened. The medical staff did not tell him. [ 9 ] The evidence from Ms. McPhail is that a “uniformed person” attended soon after the incident. [ 10 ] Ms.

McPhail’s husband had detained one of the individuals who knocked his wife down, and then Mr. McPhail spoke to the uniformed person, who he believed at the time was a member of the Calgary Police Service (the “CPS”). He let the uniformed person speak to the individual. Mr.

McPhail did not get the name of the uniformed person, and it is now apparent that it was probably not a member of the CPS or, if he or she was, that person made no report of the incident. [ 11 ] There is an arrangement between the Stampede and the CPS, which is not in writing, to the effect that the CPS will provide additional security at the Stampede event. The officers are paid for the time on the Stampede grounds by the City of Calgary, not by the Stampede. The Stampede is invoiced by the City for the officers. The Stampede issues “post orders” for those members of the CPS.

These “post orders” point out specific areas on the grounds that the Stampede knows should have their presence. [ 12 ] The CPS has no report from this incident on July 12, 2011. Their first information came later, when the McPhails contacted them. The Nature of the Claim [ 13 ] The facts seem clear that the actual incident did not result directly from any action by the Stampede. It was either a battery or negligence causing injuries to Ms. McPhail committed by one or more of the young people. [ 14 ] The Stampede has been sued because, it is alleged, (

a) it did not follow sufficient procedures to investigate the incident and identify individuals who knocked over Ms. McPhail; and (

b) it did not take sufficient steps under the Occupiers’ Liability Act , RSA 2000 c. O-4

section 5. It is argued that it did not take sufficient care “as in all of the circumstances of the case is reasonable to see that the visitor will be reasonably safe and using the premises for the purposes for which the visitor is invited or permitted by the occupier to be there or as permitted by law to be there.” [ 15 ]

Section 6 of the Occupiers’ Liability Act provides: The common-law duty of care applies in relation to (

a) the condition of the premises, (

b) activities on the premises, and (

c) the conduct of third parties on the premises. Issues [ 16 ] The issues for consideration on this

summary judgment (dismissal) application are these: (

a) Did the Stampede have proper policies and procedures in place, and, if so, did it follow them? (

b) If it did not have proper policies and procedures in place, or if it did not follow its procedures, does that give rise to a claim by

the victim of a tort caused by a third party, when it occurred on the defendant’s lands? That is, does an invitee to a commercial operationhave a claim against the occupier for failing to properly investigate a tort, of which she is the victim, when the occupier (the Stampede)is not otherwise liable? (

c) In the facts of this case, is there a burden on the occupier to provide expert evidence demonstrating that the security force inplace was sufficient on a

summary dismissal application, in the absence of any evidence tendered by the plaintiff to the contrary? (

d) Do the facts of this case overall demonstrate that the Stampede has a defence which is “unassailable” such that the claim shouldbe summarily dismissed? Submissions [17] In written argument, Ms. McPhail argues that the Stampede had a “haphazard system of safety and security policies andprocedures and ineffective supervision and training of emergency response personnel.” It is argued here that the Stampede event shouldhave had more security staff or, at least, that the burden is on the Stampede to demonstrate that it had sufficient security staff, and thatthey were properly trained. In her reply to the application for

summary judgment, Ms. McPhail asserts that the absence of evidence,when the plaintiff says the burden of proof is on the Stampede, is a reason for dismissing the application and sending the case to trial. [18] There are a number of problems with Ms.

McPhail’s assertions. [19] Her evidence is that it was not crowded in the area where she was pushed down. [20] She asserts that alcohol is served on the Stampede grounds, in particular at the grandstand show, Mavericks in the Big FourBuilding (near where the incident occurred), Nashville North, and various beer gardens, and that factor should be taken into account. [21] However, the only evidence of the use of alcohol by anyone involved is that Ms. McPhail used some alcohol that evening.

There is no evidence that she was impaired, and no evidence that whoever pushed her down had used any alcohol at all. [22] The assertion of the “haphazard” policies and procedures is not borne out by the evidence. There was a disagreement as towhether the security officer should have prepared an incident report, but as I conclude later in this decision, whether he completed one ornot would have made no difference. One representative said there were no written policies and procedures, and the security employeewho attended at the incident, Mr. Finigan, also said that there were none.

But the manual was produced, and it seems quite complete. Whether or not he was aware of the manual, his actions were not inconsistent with it, and he acknowledges that if he had known more atthe time than he did, he would have written an incident report. However, in the end it would not have affected the outcome. [23] Ms. McPhail was not a first time visitor to the Stampede event. She has lived in the City of Calgary for many years andfrequently attended the Stampede event before. That is, of course, a double-edged sword.

On the one hand, she voluntarily undertookthe usual risks of attending an event with close to 100,000 people in the course of the day on a 220 acre park where alcohol is served. She would have known that it can be crowded in places from time to time.

On the other hand, having previously attended the Stampede,she arguably had expectations as to the level of security being provided for her, perhaps beyond the expectation that the requirements ofthe Occupiers’ Liability Act would be met. [24] The argument as to her expectations is that the Stampede would have appropriate policies and procedures, and that thosepolicies and procedures would be followed. Police and Security Authority [25] If the facts were as set forth as the plaintiff initially understood them, then a CPS officer was on site before Mr. Finiganarrived.

If a CPS member were on site and investigating the incident as described by Mr. McPhail (whose evidence is presented onlythrough Ms. McPhail) then it would have been appropriate for the Stampede security personnel to defer to the CPS. Under Alberta andCanadian law, a police officer has distinctly greater powers than a security person employed by the Stampede. It would have beenpointless for Mr. Finigan to try to assert some sort of authority over a CPS officer investigating the incident, if that is what hadhappened, and if Mr.

Finigan had known of it. [26] As to the relative authority of a private security person and a police officer, the private security person only has the authorityof a member of the public. The right of detention is extremely limited. For an individual to detain a person, the individual must becaught in the act of committing the offence, unless the individual is assisting a police officer in a pursuit: s. 494, Criminal Code, RSC1985, c..

C-46. [27] But even a police officer cannot demand and receive the identity of an individual if there is no reasonable suspicion of acriminal act, in the absence of statutory compulsion. This has long been clear: R. v. Guthrie, 1982 ABCA 201 , 21 Alta. L.R.(2d), 1 (C.A. 1982) and R. v. Grant, 2009 SCC 32 , [2009] 2 S.C.R 353 at para. 21, citing R. v. Esposito, (ONCA), 24 C.C.C. (3d) 88 (Ont. C.A. 1985) at p. 94 and Dedman v. The Queen, (SCC), [1985] 2 S.C.R. 2 at p. 11. [28] Here, the only evidence of the incident is from Ms.

McPhail and she acknowledges that the individuals who pushed her downwere not looking at her as they ran. There is no evidence that a crime had been committed or any basis for a suspicion that one had. [29] However, Ms. McPhail argues that the entitlement of the individual not to identify himself does not mean that the Stampedesecurity personnel should not have asked him anyway. Her husband had detained at least one of them (perhaps without legal authority,although we do not know how he detained the individual), and apparently he thought that the uniformed person was asking thatquestion.

Had someone asked the individual for his name and contact information, he might have given it. Analysis

[30] Ms. McPhail refers to Mitchell v. Famous Players Inc., [2005], O.J. No. 4453, (S.C.) at para. 15 and 23,but that case involved aggression in a theatre. The Court discussed “the enhanced probability of an altercation breaking out” where thereare large crowds congregating in a small place. The Court dismissed a

summary dismissal application by the occupier, and allowed theclaim to proceed. [31] However, the facts here are that the immediate area was not crowded, there was no aggression, and a “uniformed person”,whoever it was, was on site promptly. There is no assertion that Mr. Finigan and his partner did not respond quickly. By the time theydid, Ms. McPhail was receiving medical care. [32] The evidence is clear that Stampede security personnel receive on-the-job oral training and that they are qualified underprovincial regulations to act as security personnel.

There is some conflict in the evidence as to whether they are given the writtenmanual discussed below. What Evidence Might Be Presented at Trial? [33] Ms. McPhail argues that a trial is necessary to determine in the Stampede discharged its duty under the Occupiers’ LiabilityAct to provide reasonably safe premises for its paying guests. [34] That, of course, begs the question as to how the evidence will be different or more complete at trial. Trials are for thedetermination of facts.

What evidence might be presented at trial that could colour the evidence already before the court? [35] Perhaps there will be testimony from Mr. McPhail, but if he has some evidence to give that would help his wife’s claim, therewas an opportunity to present it before this application. The parties are to put their “best foot forward”: see the detailed discussion ofthe approach set out by Master Schlosser in 1214777 Alberta Ltd. v. 480955 Alberta Ltd., 2014 ABQB 301 beginning at paragraph 17. Accordingly, I presume Mr. McPhail’s evidence would have no impact.

He might have given more details as to how he detained theculprit and why he thought the uniformed person was a CPS officer, but it is not clear how that might change the analysis.

Everyoneaccepts that he thought the uniformed person was a police officer, and it is not suggested that his belief was unreasonable. [36] The Stampede might present an expert on the level of security that is appropriate for almost 100,000 people over the course ofa day on a 220 acre site, when the grandstand show, with many thousands of audience members, are exiting the grandstand (and most ofthem are exiting the Stampede Park) in a short period of time. But the Stampede chose not to provide that evidence.

It is appropriate totake judicial notice that the Saddledome is on the Stampede grounds, and after almost every game played by the Calgary Flames thereare approximately 20,000 people exiting the Saddledome at once, and after every major concert there are up to perhaps 16,000 peopleexiting. Large crowds of people are common on the Stampede grounds. [37] Although the burden under Rule 7.3 for

summary judgment is initially on the applicant, there is no evidence at all that theextent of the security force was insufficient, or that the CPS or anyone else had complained of under-staffing, or that the number ofincidents at the Stampede event would be fewer or less severe if there were more security personnel on site. [38] Litigants generally do not have to prove a negative. Here, the argument is that the Stampede must show that the securitypersonnel were not under-staffed.

In the absence of some evidence to suggest there was understaffing, the plaintiff is asserting that theStampede should engage in shadow-boxing a factual issue that is not properly raised by the evidence. [39] The facts here are that the incident occurred rapidly when some young people started running without looking where theywere going. The Stampede security force could only realistically have prevented the incident if a member of their security forcehappened to be standing next to them when they started running.

There is no security staffing number, short of a very high security-to-patron ratio, that could prevent this kind of accident. And if there were a very high ratio, the Stampede would resemble a prison camp. “Conflicting Evidence” on Incident Report [40] Ms. McPhail asserts that the difference in the evidence as to whether or not an Incident Report should have been preparedmeans there should be a trial. But at trial the evidence would be that when Mr. Finigan and his partner arrived, the culprit had alreadyleft. [41] Perhaps the medical personnel should have provided him with more information about the incident.

Perhaps he should haveprepared a report. But it would not have shown the name of the individual or individuals who knocked down Ms. McPhail. [42] Issues as to an individual’s right not to identify himself are interesting but irrelevant here. Mr. Finigan had no one to ask. Mr.McPhail’s apparent confusion as to the uniformed person and whatever discussion took place apparently preceded Mr. Finigan’sresponse. [43] There is no basis on which it can be concluded that the creation of an Incident Report would have made any difference.

Occupier’s Duty to Investigate [44] I have serious doubts that an occupier would ever have any positive duty to an invitee to investigate a tort that occurredbetween two invitees. There would have to be something to cause that duty to arise.

It is, of course, good practice for an organizationsuch as the Stampede to investigate any incident, both for the purposes of preserving the evidence so that the Stampede can defend itselffrom a civil claim or from a charge that it or one of its employees has committed an offence, and also to take steps to reduce the risk ofsimilar incidents in the future. [45] The Stampede’s security policy manual is quite comprehensive as to things to be done by security personnel and why. [46] The purpose of investigating to improve service is expressly addressed in the manual in a passage headed “Fundamentals of

Accident Investigation”. It says: Obviously, serious injuries and fatalities should be investigated. The Near Miss or Incident should also be investigated to determine cause, to prevent the possibility of a future Near Miss or Incident. Near Miss Accidents usually indicate deficiencies in a system. An investigation can bring out these problems. Thorough investigations will bring out contributory causes of Supervision and Management. [ 47 ] Later on, the manual gives direction on the making of notes.

Under the heading “Security Notebooks” it says: While such a document [contemporaneous notes] is not strictly evidence, it must be made available for inspection of the relevant parts to the opposite party, the court or the jury, and the witness using it may be cross-examined on these parts. [ 48 ] Under the heading “In the Field - Note Taking/Report Writing”, the manual says that the notes made at the time “form the basis for any future action taken in a given case.” [ 49 ] In the conclusion under a part headed “Essentials of Adequate Notes”, the manual says “A good incident report, well written and prepared is a must.

Supervisors have an obligation to ensure they are done correctly and contain all necessary elements.” [ 50 ] Although the manual seems quite detailed and complete (it even discusses the extent of a security person’s legal authority under s. 494 of the Criminal Code ) I have not found anything in it that indicates that one of the purposes of an investigation is to assist one invitee in a lawsuit against another.

Not surprisingly, the focus of the manual is on such things as keeping the peace; avoiding incidents; good relations with Stampede attendees; and avoiding attracting liability for assault, defamation, and the like. The instructions on taking notes and preparing incident reports are given in that context. [ 51 ] The purposes of the instructions in the manual appear to be to satisfy the burden imposed by the Occupiers’ Liability Act , to protect the Stampede’s interests generally, and to preserve evidence.

There is no indication that an investigation is to be done to assist other parties advancing claims against each other. It acknowledges that the notes might be reviewed by “the opposite party”, but when read in context this passage appears to be a reference to a criminal prosecution. Resolution [ 52 ] I address the issues as I have identified them as follows: (

a) Did the Stampede have proper policies and procedures in place, and, if so, did it follow them? [ 53 ] It is clear that the Stampede has what appear to be proper policies and procedures in place. The only material contradiction in the evidence is whether or not Mr. Finigan should have completed an Incident Report. However, on the facts here, it seems clear that had he done so he would not have identified the culprit. Accordingly, the absence of the Incident Report makes no difference to the outcome. (

b) If it did not have proper policies and procedures in place, or if it did not follow its procedures, does that give rise to a claim by the victim of a tort caused by a third party, when it occurred on the defendant’s lands? [ 54 ] I do not see a basis here for a claim by one invitee because of the failure of the Stampede to identify another invitee, for purposes of a claim as between them. Such a claim clearly does not arise from the Occupiers’ Liability Act , which does not speak to identification of attendees.

The duty set out under that Act is to maintain safe premises. [ 55 ] If there were any such claim for investigation for her benefit, it would have to arise from the reasonable expectations of the invitee – i.e. , an expectation that the occupier would, in addition to maintaining safe premises, investigate for her benefit. There appears to be no basis here for such an expectation. [ 56 ] However, even if there is an obligation to conduct an investigation, by the time Mr. Finigan was on the scene, the culprit had left. (

c) In the facts of this case, is there a burden on the occupier to provide expert evidence demonstrating that the security force in place was sufficient on a

summary dismissal application, in the absence of any evidence tendered by the plaintiff to the contrary? [ 57 ] There is no evidence here that suggests that, realistically, any more security personnel on site would have made the premises any safer. Even if an expert were to give evidence that there should have been more security personnel, it would not change the outcome. There is no duty to provide expert evidence that would not be relevant. (

d) Do the facts of this case overall demonstrate that the Stampede has a defence which is “unassailable” such that the claim should be summarily dismissed? [ 58 ] A competent host conducts investigations into incidents on its premises, but it does so to protect itself. A competent host also investigates incidents to try to avoid similar ones in the future, in particular because of the requirements of

section 6 of the Act , quoted above. If it becomes aware of hazards, or aberrant behaviour by third parties on its premises, and it simply ignores them, it may become liable. But that is not the circumstance here. [ 59 ] Unless it did something to induce an expectation that it would do an investigation to assist one invitee sue another, I cannot find an obligation to act as private investigator. [ 60 ] An occupier does not guarantee the safety of every person who attends at an event such as the Stampede event.

When an accident is caused by one of its invitees and another invitee is the victim, in the absence of some prior knowledge by the occupier that it was not meeting the requirements of the Occupiers’ Liability Act to maintain safe premises, the occupier (here, the Stampede) is not liable for the tort of another person.

[ 61 ] It is unfortunate for Ms. McPhail that things played out as they did on July 12, 2011. However, there is no proper case to send to trial over whether the Stampede’s duties under the Occupiers’ Liability Act were met, nor is there any proper claim against the Stampede for not investigating the battery or negligent action of which she was a victim. The relevant evidence is known. Conclusion [ 62 ] The application for

summary dismissal is allowed, and the action is dismissed as against Calgary Exhibition and Stampede Limited. [ 63 ] If counsel cannot agree, they may approach the Court for a ruling on costs. Heard on the 13 th day of January, 2016. Dated at the City of Calgary, Alberta this 4 th day of February, 2016. A. R. Robertson, Q.C. M.C.C.Q.B.A. Appearances: Kimberley A. Bufton and Marin Leci Parlee McLaws LLP for the Applicant (Defendant, Calgary Exhibition and Stampede Limited) David B. Kitchen and Theresa Yurkewich Verjee & Associates for the Respondent (Plaintiff)