Bonello v. Gores Landing Marina (1986) Limited

Bonello v. Gores Landing Marina (1986) Limited

The appeal is dismissed because the third party participants did not owe a prima facie duty of care to the plaintiff: the Childs exceptions for imposing a positive duty to act were not met (no creation or control of risk, no special supervisory relationship, no commercial/public function), and foreseeability did not reach the level required to make the injury a natural and probable result of the participants' conduct; accordingly summary dismissal of the Third Party Claim was justified and costs were awarded.

Citation
2019 ONCA 127
Parties
Plaintiff: Timothy Bonello; Plaintiff: Ted Bonello; Plaintiff: Anne Cutajar Wagner; Plaintiff: Andrew Bonello; Plaintiff: Mark Bonello; Defendant (appellant): Gores Landing Marina (1986) Limited; Defendant (appellant): Joseph Davies Sr.; Defendant (appellant): Murray E. Carslake; Defendant (appellant): Joseph Davies Jr. (Joey Davies); Third Party (respondent): Chris Kane; Third Party (respondent): Chris Ryan; Third Party (respondent): Anthony Cook; Third Party (respondent): Gabe Mansueto; Third Party (respondent): Gerald Chestnut; Third Party (respondent): Jeff Jaglel; Third Party (respondent): Frank Buttigieg; Third Party (respondent): Dan Rule; Third Party (respondent): Mike Buttigieg
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
20 February 2019
Procedural Posture
Civil / Appeal
Outcome
Appeal dismissed
Legal Topics
Summary Judgment, Third Party Claim, Duty of Care, Foreseeability, Proximity, Issue Estoppel, Costs
Source Language
English
Occupiers' Liability Negligence Tort Civil Procedure Vicarious Liability Summary Judgment Third Party Claim Duty of Care +4 more

Case Brief

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Parties

Timothy Bonello

Plaintiff

Ted Bonello

Plaintiff

Anne Cutajar Wagner

Plaintiff

Andrew Bonello

Plaintiff

Mark Bonello

Plaintiff

Gores Landing Marina (1986) Limited

Defendant (appellant)

Joseph Davies Sr.

Defendant (appellant)

Murray E. Carslake

Defendant (appellant)

Joseph Davies Jr. (Joey Davies)

Defendant (appellant)

Chris Kane

Third Party (respondent)

Chris Ryan

Third Party (respondent)

Anthony Cook

Third Party (respondent)

Gabe Mansueto

Third Party (respondent)

Gerald Chestnut

Third Party (respondent)

Jeff Jaglel

Third Party (respondent)

Frank Buttigieg

Third Party (respondent)

Dan Rule

Third Party (respondent)

Mike Buttigieg

Third Party (respondent)

Procedural Posture

Civil / Appeal

Legal Issues

  1. 1 Existence of a duty of care owed by third party participants
  2. 2 Foreseeability of the harm from a looped rope in a tug-of-war
  3. 3 Proximity and special relationship requirements for positive duty to act

Ratio Decidendi

The appeal is dismissed because the third party participants did not owe a prima facie duty of care to the plaintiff: the Childs exceptions for imposing a positive duty to act were not met (no creation or control of risk, no special supervisory relationship, no commercial/public function), and foreseeability did not reach the level required to make the injury a natural and probable result of the participants' conduct; accordingly summary dismissal of the Third Party Claim was justified and costs were awarded.

Court Disposition

Appeal dismissed

Orders

  • Third Party Claim dismissed (upheld)
  • Respondent third parties entitled to costs of the appeal