Not legal advice, as usual. ( Disclaimer : this sorta s**t doesn't usually happen to us out here in rural lakefront, but I used to live in places where it often did in Hogtown . . . .)

As often noted it’s not so easy for 3rd party crime victims to successfully sue for alleged negligent security conditions after criminal injury by unknown third parties.

That’s unless the crime for example can be established as sufficiently caused by want of due care as an OCCUPIER including by such OPERATOR’S SECURITY CONTRACTOR. It’s a ‘BUT FOR’ connection. A victim plaintiff bears the onus of establishing a NEXUS - ( ‘but for ‘ ) - causally connecting the crime injury or loss to a negligent want of due care or contract breach - such to be on the balance of probabilities more likely than not.

BUT trying to make that connection, may not convince a judge or adjudicator. That's even with counsel & highly credible expert testimony for the plaintiff and amidst some crime-vulnerable scenarios.

ONSC offers an arguably alternative expression here - ? making the leap ? - to further conclude that however short of the duty of care here, anything omitted by this occupier could not have prevented this crime & the resultant injury. This arguably puts a site specific spin on the specifics, a non-identical expression of the 'But For' requirement above

( " . . . [105] I find in the case at bar that even if all the proper steps to fulfill their duty of care had been done by the defendants, this incident could not have been prevented." )

There's an irony. Until themselves sued as an occupier, potential victims may speculate that such legal burden on claimants ARGUABLY WEAKENS THE INCENTIVES ON OWNERS ( & SECURITY ) to apply enough bucks & ongoing labour to keep reasonably safe ANYONE WHO ENTERS.

( That’s a duty of care - apparently even owed to trespassers who are owed a lower duty of care - unless the general DUTY OF CARE - legislated to keep reasonably safe - can be slope-shouldered or lowered or proven sufficiently pre-empted by adequate notice or contract. SEE OLA Ontario’s Occupiers Liability Act RSO 1990 ch O.2 & resultantly into Ontario's Negligence Act RSO 1990 ch N.1 )

Background

ONSC Ontario Superior Court has rejected a claim against the City of Brantford as owner / occupier of a centretown PARKADE as well as against its former security contractor ROMEX.

Almost EIGHT YEARS after the quickie criminal attack on the plaintiff and after five days of Hearings, ONSC has ruled that in February 2012 both parkade owner Brantford and its then-security contractor Romex were indeed negligent in their security operations and procedures.

BUT that judge goes on to rule that the victim of the apparently unprovoked Feb 2012 attack, is out of luck.

That’s despite professional counsel & expert professional testimony supporting the claim, as well as findings of substantial gaps in security & shortfall of credible enough prior risk mitigation reviews.

The negligent shortfall is cited to include failing to prudently conduct a risk / threat review cited as mandated by 2010 legislation but cited ignored here until more than 6 years later.

It may NOT be easy to FACTUALLY ENOUGH CONNECT A CRIME EVENT SPECIFICALLY to chronic presence of under-addressed ‘urban-decay’ conditions. To conditions like vagrancy, homeless overnight squatting, etc. Nor to obstructed sightlines at stairwell entrances nor to such vulnerable stairwells themselves lacking even phony CCTVs nor signage to attempt deterrence of crime.

Interestingly Brantford’s large municipal parkade is testified to have had signage & 24 functional CCTV CAMERAS - albeit un-monitored - but unfortunately none at the visibility-impaired stairwell entrance where the un-identified perpetrators suddenly attacked the entering plaintiff.

Absence of tracking sensors ( "Tour Trax" devices ) within the sight-obstructed stairwells is also cited implying to 'de-activate' the stairwells from verification by onsite security’s regular rounds. BUT FOR those shortfalls, would the attack have occurred ? Maybe NOT an easy question especially where the attackers fled without capture ; what sorta crime was this really ? Was it related to urban-decay issues which the security regime could not eradicate ? . . . Apparently - whatever it was - a crime which ONSC decides ". . .could not have been prevented." - unquote

Anyway the written decision takes a pleasant trip including through S.C.C. Supreme Court of Canada decisions in Rankin ( juvenile carthieves crash 50 Km away https://ontario.cafcor.org/index.php?option=com_fireboard&Itemid=46&func=view&id=18774&catid=9#18774 ) & Clements ( 'what causes ?' ). That's even back to venerable Commonwealth WAGON MOUND decisions ( Harboured vessel’s discharge of fuel happens to get followed by Aussie dock fire & damage to other vessels moored nearby amidst welding sparks; some but not all damage victims come up short after years of merry landmark litigation . . .

Respectfully WORTH A READ and of course - like early rounds of Wagon Mound, Rankin & Clements - may NOT be 'the final word'.

Parkade security is far from a sure thing especially at large downtown sites with "urban-decay" indicators. Toughening victims' legal remedies may be good for condo insurers & security contractors. BUT is it always good for user safety ?

Teglas v. City of Brantford et al, 2020 ONSC 7408 issued Dec 1/20 http://canlii.ca/t/jbwht

Not legal advice

ONSC's decision - ? leap ? - concludes that the Brantford PARKADE quickie assault "could not have been prevented" despite findings of ongoing shortfall of security. Treats that such lacked sufficiently proven 'BUT FOR' causal connection. Yes, genuinely there may not have been "personnelle" identicality to under-deterred 'urban decay' issues.

The 2012 Brantford crime itself had loose ends : For example did the unidentified Brantford attackers lie in wait to try to rob any victim ? Was it instead an unknowingly interrupted drug deal being sheltered by lack of CCTV nor windows etc at the stairwell ?

The Brantford parkade decision looks for appeal court rationale from a 2019 Alberta Court of Appeal decision conversely holding the City of Calgary liable BUT ONLY for the final TEN MINUTES of a TWENTY MINUTE PROLONGED CRIMINAL ASSAULT on its transit way on New Years Day 2007.

Two Calgary City security guards missed the 20 minute assault while trying to monitor 42 screens fed by 337 security cameras.

If there had been more or fewer guards would the Calgary outcome have been magically different ? Or if the Calgary assault had lasted 9 minutes instead of 20 ?

Turning this Alberta rationale back to the Brantford 'urban-decayed' PARKADE victim : what if - instead of fighting back - he had instead been subjected to 20 minutes of torture in the visibility-challenged stairwell’s entrance ? That's of course amidst indicators of crime & 'urban-decay' at the Brantford site.

How is it possible to credibly slice the judicial pie that way ? Sorta rough justice ?

"Well Mr Calgary victim : we put the stopwatch on the CCTV footage. So we have decided to rule that at Minute 8 your first broken arm is a freebie. But at minute 11 your second broken arm & the other injuries could have been responded in time by transit police if the security had not been understaffed . . . "


McAllister v Calgary (City), 2019 ABCA 214 http://canlii.ca/t/j0lcf ( SCC later refused to hear Calgary’s appeal )

Again not legal advice.

One hears themes claiming that civil juries may be less receptive to injured victims than judges or adjudicators.

But at least the skillsets that might happen to get press-ganged onto such jury, may at least sometime be FAR broader than a narrow judicial background.

There may be folks on that jury with FAR wider technical expertise & practical competence BETTER capable of understanding & dispassionately sorting out rival technical testimony - even if they have no legal training.

To its credit of course Ontario's Court of Appeal periodically cites that great deference should be given to credible-looking civil jury findings ! That's when appealed lower court outcomes don't look too whacky either.

Another Occupier Liability claim fails - bizarre injury on a Whitby sportsfield

ONCA Ontario's Court of Appeal & ONSC Ontario Superior Court of Justice recently rejected an occupier liability claim against the Whitby municipal owner of a soccer field ( and other defendants ) .

That's after stray voltage ( from a HELD not visibly detectable damage or deterioration to one of many hollow concrete lighting poles ) shocked the plaintiff 18 year old soccer player. ( One hears elsewhere about Hogtown pooches being electrocuted after lifting their leg at a pole. )

These judges chose - between competing experts - to accept the occupier municipality’s expert's view that the damage was lightning strike – not unusual for a wide open venue .

And that such caused stray voltage to escape without visible indicators like scorching or pole’s access panel being dislodged.

And that hand-held detectors could NOT strongly enough differentiate between other buried wires and dangerous stray voltage. Would buried wires leak allowably enough to cause electrical injury ? Who challenged any of this ?

Anyway IMPORTANTLY for governancers to notice, there had been a paper trail of an electrician regularly doing whatever ESA Electrical Safety Authority ( ? possibly cursory ? ) signoff not long earlier . ( There is of course absolutely no indicator whatever that the inspection here had been anything but totally professional & ultra-competent to whatever ESA accepts. )

Is it better than a civil jury of varied skillsets when civil judges - usually from a very narrow skillset - get to opine between technical issues with which they may never have personally nor remotely interacted ?

That weighing of credibility looks like a real biggy here. And of course causality conclusions like 'could not have been prior detected nor prevented ' arguably get treated as : 'most similar occupiers claim it would be too expensive or time consuming to bother ' . . . )

Injured victims respectfully need to think long & hard before taking on "occupier" folks with deep pockets.

Onley v Whitby et al 2020 ONCA 774 issued Dec 8/20 http://canlii.ca/t/jc207

Onley v Whitby et al 2020 ONSC 20 http://canlii.ca/t/j4f8n