Tanaka v. London Drugs Limited

2019 BCSC 1182 Tanaka v. London Drugs Limited

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Tanaka v. London Drugs Limited, 2019 BCSC 1182 Date: 20190719 Docket: S055676 Registry: Vancouver Between: Musashi James Tanaka Plaintiff And London Drugs Limited, John Doe #1, Jane Doe #1, and Jane Doe #2 Defendants Corrected Judgment: The judgment was corrected on the front page on July 31, 2019 Before: The Honourable Madam Justice Horsman Reasons for Judgment The plaintiff, appearing in person: M. Tanaka Counsel for the defendants London Drugs Limited and Jane Doe #1: N. Lapper N. Jones (A/S) Counsel for John Doe #1 and Jane Doe #2: No appearance Place and Date of Trial: Vancouver, B.C. June 17-20, 2019 Place and Date of Judgment: Vancouver, B.C. July 19, 2019

INTRODUCTION [1] The defendant London Drugs Limited ("London Drugs") is the operator of a retail drug store chain. On October 23, 2003, the plaintiff was physically assaulted by another customer while standing at the customer service desk of a London Drugs store (the "Assault"). The defendant Jane Doe #1 is Marla Shewchuk, an employee of London Drugs who was on duty at the customer service desk on the day in question. The defendant John Doe #1 is the assailant. He has never been apprehended or identified. The defendant Jane Doe #2 was John Doe #1's companion on the day in question. She has also never been identified. [2] The plaintiff seeks to hold London Drugs civilly liable for the injuries he suffered in the Assault. The claim is pleaded in common law negligence and under the Occupiers Liability Act, R.S.B.C. 1996, c. 337 [OLA]. The plaintiff advances three theories of liability. First, he says that London Drugs staff were negligent in failing to prevent the Assault. Second, he says that London Drugs staff failed to warn him about the risk presented by John Doe #1. Third, he says that London Drugs staff failed to detain John Doe #1 so that he could be identified, thus permitting the plaintiff to bring an action against John Doe #1 for damages. [3] The London Drugs defendants, London Drugs and Ms. Shewchuk, say that a retail store does not owe a duty of care, either at common

law or under the OLA, to prevent a random and sudden assault of a customer by another customer. The duty of London Drugs is to ensure that persons using its premises are reasonably safe, having regard to the type of premises and the activities taking place. London Drugs says that it met this standard by having reasonable policies in place in relation to foreseeable risks in its retail stores, and by complying with those policies at all material times. London Drugs and Ms. Shewchuk seek an order dismissing the action. [4] The issues of liability and damages in this proceeding have been severed by order of the Court. This trial concerns only the issue of liability.

PROCEDURAL HISTORY [5] Given the dated nature of the circumstances underlying the plaintiff's action, I will briefly review the procedural history by way of explaining the time it has taken to get to trial. [6] The plaintiff filed a writ of summons and statement of claim on October 21, 2005. At that time, he was represented by a lawyer. London Drugs filed a statement of defence on May 3, 2006. [7] Following the filing of pleadings, the plaintiff took no substantive steps in the action for a number of years. In 2014, London Drugs brought an application to dismiss the action for want of prosecution. The plaintiff was no longer represented by his original counsel at this time, but duty counsel appeared and represented the plaintiff on the application. Justice Masuhara dismissed London Drugs' application on October 23, 2014, but directed the plaintiff to take a number of steps to move the action forward. [8] At a case planning conference on October 28, 2015, Walker J. directed that the plaintiff had until December 30, 2015 to amend his pleadings, after which time London Drugs was at liberty to apply for appropriate relief. The plaintiff had not amended his pleadings by the time of this trial, and in particular had not identified the John Doe and Jane Doe defendants listed in the style of cause. [9] On December 9, 2016, De-Witt Van Oosten J., as she then was, ordered that the issues

of liability and damages be severed for the purposes of trial. [10] Following the dismissal of the want of prosecution application, the plaintiff has represented himself in the action, with the occasional assistance of pro-bono or duty counsel. The trial was originally set to commence on May 8, 2017. It was adjourned by consent of the parties to allow for the production and review of the Vancouver Police Department ("VPD") file related to the Assault. A second trial was scheduled to commence on October 30, 2017. The plaintiff applied for, and was granted, an adjournment on the first day of trial. [11] The re-scheduled trial on liability proceeded before me during the week of June 14, 2019. To state the obvious, there has been a significant lapse of time between the events giving rise to the action and the trial of the action. The 16-year delay should be borne in mind in considering some of the difficulties the witnesses had in recalling the relevant events.

FACTUAL BACKGROUND Circumstances of the Assault [12] On the afternoon of October 23, 2003, the plaintiff attended the London Drugs store that was then located at 665 West Broadway. His purpose was to exchange a defective ice bag that he had previously purchased from London Drugs. The plaintiff went to the customer service counter on entering the store. [13] Ms. Shewchuk was working as a customer service representative on the day in question. It was Ms. Shewchuk that the plaintiff spoke to about returning the ice bag when he approached the customer service desk. There is some divergence between the evidence of Ms. Shewchuk and the plaintiff regarding the lead-up to the Assault. The divergence is not material to the legal issues that arise for determination in this case. [14] The plaintiff testified that John Doe #1 and Jane Doe #2 came up behind him as the plaintiff was speaking with Ms. Shewchuk. The plaintiff says that Jane Doe #2 interrupted the plaintiff's discussion with Ms. Shewchuk to say that he was taking too long, to which the plaintiff replied that he would not be long and that Jane Doe #2 should wait her turn. John Doe #1 then approached the plaintiff to say in a more demanding and forceful tone that the plaintiff was taking too long. The plaintiff again said that he would not take too long, at which point "out of nowhere", John Doe #1 challenged the plaintiff to a

fight. The plaintiff declined to engage in a fight, at which point John Doe #1 punched the plaintiff in the left eye. [15] The plaintiff says that when he was hit, he remembers everything going black and that he was unconscious for a few minutes. He then remembers being picked up off the floor and assisted by London Drugs staff and put onto some sort of chair or crate. An ambulance eventually arrived and took the plaintiff to Vancouver General Hospital. The plaintiff suffered injuries to his left eye. [16] Although the plaintiff only recalls the first punch thrown by John Doe #1, presumably because he blacked out at that stage, it is common ground that John Doe #1 punched the plaintiff twice. [17] Ms. Shewchuk testified to her recollection of events. She recalls speaking with the plaintiff at the customer service desk of the London Drugs store on the day in question. In the course of their exchange, Ms. Shewchuk says she stepped away from the counter to answer a telephone call. Customer service representatives were responsible for answering, and redirecting, all calls to the Broadway store. Ms. Shewchuk says that while she was on the phone, she heard the plaintiff say "shut up" to the man behind him, and the man responded with a profanity. Ms. Shewchuk immediately paged her supervisor. The man then suddenly punched the plaintiff. [18] Ms. Shewchuk estimates that the time that

elapsed between when the plaintiff said "shut up" and when John Doe #1 punched the plaintiff was approximately 5-10 seconds. Ms. Shewchuk does not recall hearing any other words exchanged between the plaintiff and either John Doe #1 or Jane Doe #2. She does not recall either John Doe #1 or Jane Doe #2 interrupting her conversation with the plaintiff. [19] Ms. Shewchuk does not remember anything else of note occurring prior to the Assault. She says that it all happened very quickly, and that the event was a long time ago. [20] I do not find the discrepancy in the evidence of the plaintiff and Ms. Shewchuk on the extent of the plaintiff's exchanges with John Doe #1 and Jane Doe #2 prior to the Assault to be material to the liability issues. It would be surprising if there were not such discrepancies given that both witnesses were trying to recall an event that occurred almost 16 years ago. The relevant point is that the plaintiff and Ms. Shewchuk are consistent in their recollection that the assault by John Doe #1 was sudden and unexpected. The plaintiff testified that the punch "came out of nowhere". [21] The circumstances surrounding the Assault were captured on the London Drugs CCTV system. Two versions of the video - the original version and an enhanced version prepared by the VPD - were played at trial. The video is not of perfect quality. It captured events in segmented

frames, rather than fluid motion, with a delay of a few seconds between each frame. The plaintiff alleges that London Drugs deliberately edited the video to undermine his claim. For reasons that will be explained later in the judgment, I find there is no merit to the plaintiff's allegations. The issues with the quality of the video are a result of the limits of the then-existing technology rather than deliberate manipulation by London Drugs. [22] In any event, the video sufficiently captures events that it provides corroborating evidence for the testimony of the witnesses. It is of particular assistance to have such corroborating evidence in a case that concerns events that occurred many years ago. The video is generally consistent with the version of the Assault recounted by both the plaintiff and Ms. Shewchuk. The video shows the plaintiff talking to Ms. Shewchuk at the customer service desk, while John Doe #1 and Jane Doe #2 pace behind him. Ms. Shewchuk can also be seen talking on the phone at the moment that John Doe #1 confronts the plaintiff. While the actual punches are not shown, the plaintiff can be seen falling to the ground. After the Assault [23] Jonathan Castaneto was the London Drugs supervisor in charge at the West Broadway store on the afternoon of October 23, 2003. It was Mr. Castaneto that Ms. Shewchuk paged after she heard the verbal exchange between the

plaintiff and John Doe #1. Mr. Castaneto has very little independent recollection of the events of October 23, 2003. However, it is apparent from the video that Mr. Castaneto immediately responded as he can be seen arriving when the plaintiff was still on the floor. [24] A number of other London Drugs employees can also be seen on the video arriving at the scene of the Assault. Ms. Shewchuk testified that her co-worker at the customer service desk paged all managers to area. The police were also called. [25] The video also depicts John Doe #1 being restrained by another customer who is identified in the VPD investigation notes as Michael Faulkner. In the video, Mr. Faulkner can be seen holding John Doe #1's arms behind his back. Mr. Faulkner marched John Doe #1 to the front door of the store and then released him. [26] In his written statement to police on October 23, 2003, Mr. Faulkner said that an unnamed London Drugs employee had told him to take John Doe #1 outside. Mr. Faulkner was not called as a witness at trial. Mr. Castaneto did not recall telling Mr. Faulkner to take John Doe #1 outside. No other London Drugs employee who testified at trial recalls telling Mr. Faulkner to take John Doe #1 outside. The VPD investigation [27] The Assault was investigated by Cst. Eileen Volpatti of the VPD, who was called as a witness at trial. Constable Volpatti testified that she

arrived at the West Broadway store the evening of October 23, 2003 after the plaintiff had been taken to the hospital. John Doe #1 was no longer in the store. Constable Volpatti interviewed London Drugs employees, and seized a copy of the surveillance video. She confirmed in her evidence that London Drugs employees had fully cooperated with the police investigation. [28] Constable Volpatti testified that she spoke to the plaintiff in the hospital on October 23, 2003. The plaintiff later forwarded Cst. Volpatti an undated document entitled "Written Perspective", which recorded his version of events. Constable Volpatti spoke to Mr. Faulkner over the phone, and Mr. Faulkner provided a witness statement to her via email on the evening of October 23, 2003. Neither the plaintiff's statement nor Mr. Faulkner's statement to the police were given under oath. [29] The VPD investigation did not result in the identification of John Doe #1. Constable Volpatti says that the police file is now closed.

ISSUES [30] The overarching issue in this action is whether London Drugs is liable in negligence or under the OLA for the injuries suffered by the plaintiff in the Assault. The plaintiff's arguments raise the following sub-issues: I. Did London Drugs breach its duty to the plaintiff by failing to prevent the Assault? II. Did London Drugs breach its duty to the plaintiff by failing to warn him about the risk posed by John Doe #1? III. Did London Drugs breach its duty to the plaintiff by failing to detain John Doe #1 following the Assault?

ANALYSIS Preliminary issue: the surveillance video [31] Before turning to consider the liability issues in this action, it is necessary to briefly address the plaintiff's complaints, raised on repetitive occasions through the trial, about the quality of the surveillance video that was produced by London Drugs and tendered as an exhibit at trial. The plaintiff believes that the video has been deliberately edited in a manner that undermines his claims. The plaintiff has no evidence to support these concerns beyond the generally poor quality of the video. [32] The plaintiff received a copy of the video from counsel for London Drugs in March 2015, after the plaintiff had begun to represent himself. The plaintiff voiced his concern with the video at a case planning conference on September 12, 2017. The Master presiding at the conference suggested that counsel for London Drugs write to the plaintiff to explain the reasons for the poor quality of the video so that he could understand them. Further to this suggestion, counsel for London Drugs wrote to the plaintiff on October 11, 2017. The letter conveyed the following information: · The surveillance video was listed by London Drugs on its initial list of documents. · In 2006, counsel for London Drugs advised then-counsel for the plaintiff that the video was recorded in VHS format using a multiplexer deck, that special equipment was

required to make a copy of the video, and that London Drugs was attempting to locate a company able to make the copy. · In July 2006, counsel for London Drugs advised plaintiff's counsel that such a company had been located, and London Drugs offered to have a copy made. Plaintiff's counsel did not respond to this offer. · The plaintiff requested the video in February 2015, on becoming self-represented. · London Drugs then arranged with a company to have the VHS video copied to a DVD. Given the outdated technology, the only way this could be done was to record the VHS video as it played on a television. This recording was provided to the plaintiff in DVD format in March 2015. · In March 2017, London Drugs obtained the VPD file. The police file included the VHS surveillance video that was taken from the store on October 23, 2003, however it required the services of a speciality in the VPD's Forensic Video Unit to reproduce the video and transfer it to viewable format. The VPD eventually provided a DVD of the video to counsel for London Drugs, who in turn provided a copy to the plaintiff. [33] In sum, it appears that there was significant effort on the part of both London Drugs and the VPD to ensure that useable copies of the video were available for trial despite the challenges posed by the dated nature of the technology. Both versions of the video were tendered in evidence and

played at trial. The London Drugs version is longer in duration because it starts at an earlier period in time and ends later. In relation to events captured by both videos, that is, the events that occurred at the customer service desk, the videos are substantially identical. No selective editing by London Drugs was apparent to me in viewing the videos. [34] While the plaintiff was adamant that the London Drugs version of the video had been manipulated in some way, he could not identify any significant event that he recalls occurring during the Assault that is not captured by the video. As I have already noted, the video is effectively corroborative of the plaintiff's evidence. [35] In sum, I find there is no merit to the plaintiff's assertion that the surveillance video was deliberately edited by London Drugs. Counsel for London Drugs has provided the plaintiff with detailed written reasons for the poor quality of the video. Those reasons plausible. The plaintiff has tendered no evidence to establish the purported editing. Any quality issues with the video are a simple consequence of the fact that it was recorded on now-outdated technology. Occupier's liability - general principles [36] The following general principles governs each of the three discrete breaches of duty by London Drugs that are alleged by the plaintiff. [37] An occupier's duty of care is set out in s. 3 of

the OLA. In relevant terms, s. 3 provides: (1) An occupier of premises owes a duty to take that care that in all the circumstances of the case is reasonable to see that a person, and the person's property, on the premises, and property on the premises of a person, whether or not that person personally enters on the premises, will be reasonably safe in using the premises. (2) The duty of care referred to in subsection (1) applies in relation to the (a) condition of the premises, (b) activities on the premises, or (c) conduct of third parties on the premises. [38] In Foley v. Imperial Oil Limited, 2011 BCCA 262, our Court of Appeal described the OLA as a "complete code": [29] The Act provides a complete code regarding the duty of an occupier of land. Reference to earlier common law cases is no longer required and may, in fact, result in legal error if the wrong standard of care (one based on the common law categories) is applied, rather than the statutory standard of care. The comprehensive nature of the standard of care of an occupier under the Act was confirmed in Weiss v. Young Men's Christian Association of Greater Vancouver (1979), 11 B.C.L.R. 112 (C.A.), where Mr. Justice Aikins, for the Court, noted at 118: ... In my view, s. 3(1) is comprehensive, in the sense that it fully and clearly imposes a duty on an occupier and defines the standard of care necessary to fulfil that

duty. Thus, in my judgment, it is unnecessary to an understanding of the standard prescribed by the subsection to refer to any of the specially formulated standards of care laid down in the common law cases. Indeed, to do so is more likely to mislead than assist in understanding what the subsection says. [39] Although s. 3(2) of the OLA extends the occupier's duty of care to the "conduct of third parties on the premises", this does not render the occupier vicariously liable for the conduct of third parties. Liability arises only if the plaintiff proves that the occupier is at fault in failing to take the reasonable care required in the circumstances in relation to the conduct of a third party: Bracken v. Strongarm, 2012 BCCA 67 at paras. 20-24 [Bracken]. Furthermore, liability will only arise if the harm suffered by the plaintiff was foreseeable: Rendall v. Ewert (1989), 60 D.L.R. (4th) 513 (B.C.C.A.) at p. 519. [40] The burden of proof in establishing liability under the OLA, as in a common law negligence action, is on the plaintiff on a balance of probabilities. A presumption of negligence does not arise simply because a plaintiff is injured on the occupier's premises: Kayser v. Park Royal Shopping Centre Limited (1995), 16 B.C.L.R. (3d) 330 (C.A.) at para.

13. Issue I: Did London Drugs breach its duty to the plaintiff by failing to prevent the Assault? [41] The plaintiff's first argument is that London Drugs breached its duty under the OLA in failing to prevent the Assault. The plaintiff says that London Drugs ought to have implemented policies to address the risk of customer-on-customer assaults. Alternatively, he says that Ms. Shewchuk should have acted more quickly to identify and address John Doe #1's propensity to violence. [42] London Drugs led evidence of its policies in regard to store safety. This included the testimony of Laurie Lowes, who was the Manager of Health and Safety for London Drugs at the time of the Assault. Mr. Lowes began his employment with London Drugs as a store detective in 1981. He was the Manager of Loss Prevention for London Drugs at the time of his retirement in 2018. [43] Mr. Lowes explained that London Drugs employs Loss Prevention Officers (LPOs), who are primarily tasked with stopping shoplifting in stores. LPOs receive security training from London Drugs, which includes training in self-defence and de-escalation where a suspected shoplifter becomes aggressive. LPOs are the only London Drugs employees authorized to detain and arrest suspected shoplifters. However, London Drugs policies provide that the safety of customers and staff is the "number one concern". LPOs are trained not to attempt an

apprehension of a suspected shoplifter if it would place customers or staff at risk. [44] London Drugs policy generally requires employees to contact management if they experience verbal abuse in workplace, and to contact the police if the situation escalates to physical assault. There are no policies specifically directed to the procedure for responding to customer-on-customer assaults. Such a situation is exceedingly rare. Mr. Lowes testified that in his 38-year career with London Drugs, John Doe #1's assault of the plaintiff is the only incident he is aware of involving a physical altercation between customers. [45] In my view, London Drugs took reasonable steps to ensure the reasonable safety of its stores. London Drugs was not under a duty to guard against the sudden, random, and apparently unprecedented act of violence by John Doe #1. There was no foreseeable risk that London Drugs customers might be the victim of unprovoked physical assaults by other London Drugs customers. To impose a duty on London Drugs to guard against such a contingency would render London Drugs an insurer, which is not the standard imposed by the OLA: Coleiro v. Premier Fitness Clubs, 2010 ONSC 4350; Bracken at para. 20. [46] I find that London Drugs' workplace safety policies were reasonable in the circumstances, and followed in this particular case. The police were called when the situation

between the plaintiff and John Doe #1 escalated to violence. It is difficult to imagine, in any event, what different policies London Drugs could have adopted to prevent the sudden Assault. [47] I further conclude that there was no negligence on the part of Ms. Shewchuk which would give rise to vicarious liability for London Drugs. Ms. Shewchuk acted appropriately, and in accordance with London Drugs policy, in calling her supervisor as soon as she heard the heated verbal exchange between the plaintiff and John Doe #1. There is nothing more that Ms. Shewchuk could reasonably have done to prevent an assault that, on the plaintiff's own evidence, "came out of nowhere". [48] Accordingly, I conclude that London Drugs did not breach any duty it owed as an occupier in failing to prevent the Assault. Issue II: Did London Drugs breach its duty to the plaintiff by failing to warn him about the risk posed by John Doe #1? [49] The plaintiff next argues that London Drugs breached its duty as an occupier by failing to warn him of the known danger presented by John Doe #1. This argument relies on the following passage from Mr. Faulkner's written witness statement to Cst. Volpatti on October 23, 2003: I talked to the assistant manager while waiting for the police and he stated that the white male was believed to have come in earlier to buy some cigarettes and at that time verbally assaulted

the staff. [50] As noted, Mr. Faulkner was not called as a witness at trial. None of the London Drugs employees who testified recalled that John Doe #1 had been in the store prior to the Assault. Accordingly, the plaintiff's case as it relates to the duty to warn relies entirely on double, perhaps triple, hearsay evidence: a police file containing a witness statement reporting a conversation the witness had with an unidentified person who indicated his belief that John Doe #1 may have been in the store earlier. Mr. Faulkner's witness statement is not admissible for the truth of its content unless there is an exception to the hearsay rule that would permit its admission. It is not apparent to me what that exception might be. [51] The criteria of necessity and reliability, which might support the admission of the statement under the principled approach to hearsay evidence, are also not present. There is no evidence that Mr. Faulkner was unable to testify. Furthermore, given that Mr. Faulkner had no personal knowledge of John Doe #1's prior attendance at the store, his witness statement is not reliable evidence of the fact or circumstances of any such prior attendance. [52] In any event, even if any reliance could be placed on Mr. Faulkner's witness statement to establish John Doe #1's presence in the West Broadway store earlier on the day of the Assault, this does not prove

liability on the part of London Drugs for breach of a duty to warn. First, there is no evidence that any of the London Drugs staff who were present in the area of the customer service counter prior to the Assault, including Ms. Shewchuk, had prior knowledge of John Doe #1. Second, a prior verbal altercation does not, on its own, demonstrate that John Doe #1 had a foreseeable propensity for acts of physical violence. [53] In relation to the duty to warn prong of the plaintiff's case, I note the plaintiff's complaint that he was mislead by documents produced by London Drugs in this action into believing that London Drugs employee Hans Hegeleit might be the assistant manager referenced by Mr. Faulkner in his witness statement. London Drugs produced two computer-generated documents that listed employees who were on duty on October 23, 2003, along with their job title at the time the print-out was created. The plaintiff called Mr. Hegeleit as a witness in the apparent expectation that Mr. Hegeleit would confirm that he was the one who spoke to Mr. Faulkner on October 23, 2003. Mr. Hegeleit testified that he was not an assistant store manager in October 2003, that he had no recollection of talking to Mr. Faulkner, and no recollection of the Assault at all. [54] I do not agree with the plaintiff that London Drugs produced inaccurate records. The records were accurate, but the

plaintiff misunderstood the information they contained. The plaintiff has had every opportunity since 2003 to conduct whatever pre-trial preparation he considered necessary, including making inquiries of London Drugs about its document production and conducting an examination for discovery of a London Drugs representative. The plaintiff's expectation that Mr. Hegeleit would be able to provide evidence at trial that he in fact could not provide is not due to any failure on the part of the London Drugs defendants to fulfill their pre-trial discovery obligations. [55] I therefore dismiss the plaintiff's argument based on breach of duty to warn. No admissible evidence was adduced at trial to establish that John Doe #1 had previously been in the West Broadway store on the day of the Assault. Even if Mr. Faulkner's witness statement could be relied upon to prove John Doe #1's earlier attendance at the store, this does not establish that John Doe #1 presented a foreseeable risk of physical harm to the plaintiff. Issue III: Did London Drugs breach its duty to the plaintiff by failing to detain John Doe #1 following the Assault? [56] The plaintiff argues, finally, that London Drugs breached its duty of reasonable care by failing to detain John Doe #1 following the Assault. The plaintiff says that London Drugs owed him a duty to detain John Doe #1 in order to ensure that the plaintiff

would have an identifiable defendant to sue in a civil action. [57] I have already (at paras. 25-26) reviewed the relevant evidence on this point. The plaintiff again relies on the witness statement of Mr. Faulkner to prove that London Drugs staff told Mr. Faulkner to take John Doe #1 outside. No direct evidence was adduced at trial to prove that such a direction was given. For the purpose of the liability analysis, I do not believe that it matters whether Mr. Faulkner removed John Doe #1 from the store on his own motion, or was directed to do so by London Drugs staff. [58] The plaintiff seeks to impose a duty on London Drugs to prevent the plaintiff from suffering pure economic loss in the form of an inability to recover tort damages. Economic loss is recoverable in negligence actions only in exceptional categories of cases. To date, those categories have not included the recovery of a plaintiff's economic loss from an occupier on the basis of an occupier's failure to investigate or detain a third party assailant. [59] Canadian courts have rejected the existence of such a duty of care in analogous circumstances. [60] In Hughson v. John Doe (2006), 278 D.L.R. (4th) 575 (Ont. C.A.), the Ontario Court of Appeal held that a supermarket had no duty to a plaintiff injured in an altercation with another customer to investigate and preserve evidence to assist the plaintiff in a civil

action. The trial judge had held that Ontario's Occupier's Liability Act did not evidence a legislative intent to impose such a duty on an occupier, and declined to leave the issue with the jury. In upholding the trial judge, the Ontario Court of Appeal stated at 576: Lastly, in the circumstances, we essentially agree with the trial judge's reasons for finding no duty to investigate. In this court, the appellant argues that this obligation is a manifestation of the respondent's duty to keep the premises reasonably safe. However in our view the appellant's inability to sue John Doe cannot be said to flow from the condition of the respondent's premises. The duty on the respondent to keep those premises reasonably safe does not stretch to an obligation to investigate the appellant's accident. [61] Similarly in McLeish v. Richard's on Richards Cabaret Ltd., [1992] B.C.J. No. 1000 (S.C.), Hunter J. held that a nightclub owed no duty to ascertain the identity of third parties who had injured the plaintiff on the premises: The plaintiff advances a further claim against Richard's for damages for its failure to exercise a duty of care to ascertain the identity of the two men before ejecting them from the nightclub. The plaintiff bases this claim on the general law of negligence as found in Donoghue v. Stevenson [1932] A.C. 562 (H.L.). The plaintiff concedes this argument to be novel

one. There is no suggestion that the plaintiff suffered any further personal injury or property damage as a result of Richard's having failed to identify these two men. What she suffered was economic loss. That being the case, the principle of law is well established that no duty of care is owed . [62] In my view, the same principles apply in this case to defeat the plaintiff's claim based on an alleged failure by London Drugs staff to detain John Doe #1. [63] There is a further reason why, as a matter of policy, a duty to detain or investigate should not be imposed on London Drugs in these circumstances. The effect of such a duty would be to require London Drugs staff to risk their personal safety by attempting to detain a violent individual for the sole purpose of protecting the plaintiff's economic interests. It is inconceivable that the law might recognize a duty of care that subordinates the defendant's personal safety to the promotion of the plaintiff's economic interests. [64] The duty of London Drugs, under the OLA, is to ensure the reasonable safety of persons using its premises. The OLA does not impose a duty on London Drugs to take affirmative steps to assist the plaintiff in his prosecution of a lawsuit against John Doe #1.

CONCLUSION [65] It goes without saying that John Doe's Assault of the plaintiff is an exceedingly unfortunate event. However, the OLA does not make London Drugs the insurer of every unfortunate event that occurs on London Drugs' premises. The mere fact that the Assault occurred at a London Drugs store is insufficient to establish liability under the OLA. [66] The plaintiff has had sixteen years to identify the defendants John Doe #1 and Jane Doe #2, and had not done so by the time of trial. The plaintiff's inability to identify John Doe #1 and Jane Doe #2 is not a reason to delay the final adjudication of this action. [67] For these reasons, the plaintiff's action is dismissed. [68] Counsel for London Drugs requested a further opportunity to make submissions on costs in the event that the plaintiff's action is dismissed. Accordingly, if the parties cannot agree on an appropriate costs award then they are at liberty to request a further hearing before me on the issue of costs through Supreme Court Scheduling within 30 days of the date of this judgment. "Horsman J."