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Case Summary: McPhail v. John Doe I

Under the Occupier’s Liability Act (OLA) there is no duty to investigate and identify a patron for the purposes of a claim between the two patrons unless the occupier had done something to induce an expectation that it would conduct an investigation to assist one patron to sue another.  

McPhail v. John Doe I, 2016 ABQB 76, per Master A.R. Robertson Q.C.  

I. FACTS AND ISSUES 
Facts: McPhail was a patron at the annual Calgary Stampede on July 12, 2011. After the end of the grandstand show at approximately 11:00 or 11:30 p.m., several young men ran towards Ms. McPhail; as a result, Ms. McPhail was pushed down and suffered a laceration, fractured tibia and severe injuries to her knee. The collision was accidental.

Two members of the Stampede’s security crew attended the location where Ms. McPhail was hurt after hearing a report of a medical emergency on their communications system. One security member was Finigan. On arrival, the security members were waved off by the medical personnel attending to Ms. McPhail. Having been told their assistance was not required, the security members left and entered a one line report to this effect.

In Finigan’s affidavit he explained that although he now understands that Ms. McPhail says she was knocked over by someone, no such individual was there when he arrived on the scene. At Questioning, Finigan stated that if he had been told that someone knocked Ms. McPhail down, he would have made notes of it and generated a report.

McPhail recalled a “uniformed person” attending soon after the accident. Mr. McPhail detained one of the individuals and spoke to a uniformed person who he believed was a member of the Calgary Police Service (CPS). The uniformed person spoke to the individual. However, the CPS had no report from this incident on July 12, 2011. The CPS’s first information came later when the McPhails contacted them.

McPhail alleged that the Stampede: (a) did not follow sufficient procedures to investigate the incident and identify the individuals who knocked her over; and (b) did not take sufficient steps under the OLA, section 5. It was argued that the Stampede 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.”

The Stampede brought an application for summary dismissal of Ms. McPhail’s claim. 

Issues

1. Does an invitee to a commercial operation have a claim against the occupier for failing to properly investigate a tort, of which the invitee is victim, when the occupier is not otherwise liable?
2. Do the facts of the case overall demonstrate that the Stampede has a defence which is “unassailable” such that the claim should be
summarily dismissed? 

II. HELD: The application for summary dismissal was allowed and McPhail’s action was dismissed as against the Stampede.

Issue 1: Occupier’s Liability

1. The Master rejected Ms. McPhail’s argument and found that the Stampede had proper policies and procedures in place. Furthermore, had Finigan completed an incident report, it would not have identified the culprit and therefore would have made no difference to the outcome.
2. The Master stated he had “…serious doubts that an occupier would ever have any positive duty to an invitee to investigate a tort that occurred between two invitees. There would have to be something to cause that duty to arise.”

a. The Master noted that it is good practice for an organization like the Stampede to investigate any incident for the purposes of preserving the evidence so that it can defend itself from a civil claim or a charge that it or one of its employees had committed an offence and also take steps to reduce the risk of similar incidents in the future.
b. The Stampede’s instruction manual was found to be quite comprehensive regarding things to be done by security personnel and why. The focus of the manual was to keep the peace, avoid incidents, keep good relations with Stampede attendees and avoid attracting liability for assault, defamation and the like. The instructions on taking notes and preparing incident reports are given in that context.
c. Thus, the Master concluded that the purposes of the instruction in the manual satisfied the burden imposed by the OLA to protect the Stampede’s interests generally, and to preserve evidence. There was no indication that an investigation was to be done to assist other parties advancing claims against each other.

3. Ultimately, there was no basis for a claim by one patron because of the failure of the Stampede to identify another patron for the purposes of a claim as between the two patrons. The duty under the OLA is to maintain safe premises; it does not speak to identification of attendees.

a. Any claim for an investigation for the patron’s benefit would arise from the reasonable expectation of the patron that the occupier would, in addition to maintaining safe premises, investigate for the patron’s benefit. There was no basis for such an expectation here.

Issue 2: Summary Dismissal

4. The Master found that summary dismissal was appropriate. The Master found that:

a. Competent host conducts investigations into incidents on its premises to protect itself as well as to try and avoid similar incidents in the future, in particular because of the requirements of section 6 of the OLA.
b. If the host becomes aware of hazards or aberrant behavior by third parties on its premises and ignores it, it may become liable. However, that was not the circumstance in the instant case.
c. “Unless the host does 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 a private investigator.”
d. The occupier does not guarantee the safety of every person who attends an event such as the Stampede. Where an accident is caused by one invitee and another invitee is a victim, the occupier is not liable for the tort of another person unless the occupier has some prior knowledge that it was not meeting the requirements of the OLA to maintain safe premises.

5. Based on the foregoing, there was neither a proper case to send to trial over whether the Stampede’s duties under the OLA were met nor a proper claim against Stampede for not investigating the battery or negligence action of which Ms. McPhail was a victim.

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