Ruling distinguishes between statutory and negligence claims of allegedly injured person
In a personal injury case, the Court of Appeal for Ontario has partly allowed an appeal in connection with an application judge’s characterization of the nature of the claims pleaded by a woman allegedly hurt during a concert.
The applicants, which produced and promoted live musical entertainment, leased and occupied the Budweiser Stage in Toronto. In September 2016, they promoted a concert at the stage. In May 2017, a woman attending the concert filed a claim against the applicants and others.
The woman alleged that she was struck and injured when the security personnel of Northwest Protection Services Ltd. carelessly and negligently ejected an inebriated and unruly patron. She argued that the applicants were liable for NorthWest’s actions because they failed to properly train, supervise, and instruct the security personnel in how to deal properly with unruly patrons.
Against the applicants, she also alleged statutory negligence claims under Ontario’s Liquor Licence Act, 1990 and Ontario’s Occupiers’ Liability Act, 1990. She claimed that they served alcohol in excessive amounts. The applicants allegedly failed to provide safe premises, to post warning signs, to properly illuminate the area, to properly maintain and inspect the premises, and to offer alternative passages or entrance or exit ways.
Know more about the Canadian laws on liquor and alcohol in this article.
The insurers involved in this case included Aviva Insurance Company of Canada, Aviva Canada Inc., and Starr Indemnity & Liability Company. NorthWest’s insurance policy with Aviva and the applicants’ insurance policy with Starr included commercial general liability coverage for bodily injury and property damage liability.
The application judge declared Aviva presently responsible for 100 percent of the applicants’ past and future defence costs relating to the personal injury action against the applicants and NorthWest, subject to a costs reallocation following the trial or at the settlement.
Aviva appealed. The question in the appeal revolved around Aviva’s duty to defend and to fund the defence costs relating to the woman’s claims.
In Live Nation Ontario Concerts GP, Inc. v. Aviva Insurance Company of Canada, 2024 ONCA 634, the Ontario Court of Appeal refused to overturn the judge’s order finding Aviva presently liable to fund 100 percent of defence costs, subject to Aviva’s right to seek a reallocation of costs after the trial or at the settlement.
The appeal court made, for the purposes of any future reallocation of defence costs, the following declarations: first, the Aviva policy covered the security negligence claims but did not cover the statutory negligence claims; and second, Aviva was not liable to pay costs solely related to the statutory negligence claims.
The appeal court did allow the appeal with respect to the application judge’s determination that all the pleaded claims amounted to security negligence claims.
The judge mistakenly conflated the factual cause pleaded for the woman’s injuries – that NorthWest personnel struck and hurt her while removing the out-of-control patron – and the statutory negligence claims pleaded against the applicants, the appeal court found.
The woman’s claims alleging that the applicants failed to comply with their statutory obligations were not derivative from the claim that both Northwest and the applicants were liable for negligent security services, the appeal court explained.
The applicants could still be found liable for the statutory negligence claims even if they were found not liable for the security negligence claims, the appeal court said. Some facts supporting the statutory negligence claims preceded and had nothing to do with the unruly patron’s ejection that allegedly caused the woman’s injuries, the appeal court added.
