The Plaintiff was injured during a hockey tournament when the Defendant assaulted him with a goalie stick. The Plaintiff sued for damages, claiming negligence against the owner of the arena complex, the tournament organizer and the pub operating in the arena complex for serving alcohol to the Defendant before the incident.
The decision in Cox et al. v. Ball et al., 2025 ONSC 199 highlights the importance of a full trial when there are unresolved factual issues, particularly around foreseeability, the standard of care and the credibility of evidence.
The Facts
On May 8, 2016, the Plaintiff, Ryan Cox (“Cox”) was injured when the Defendant, Todd Ball (“Ball”) assaulted him by hitting him in the head with his goalie stick during a game in a three-on-three hockey tournament held at the Fort Erie Leisureplex (“Fort Erie”).
Al Stoddard (“Stoddard”) had been running this hockey tournament since 2005. Each game has two experienced referees as well as additional personnel who monitor the game. The May 8, 2016 game was described as chippy and aggressive. A player on Ball’s team was ejected from the game, and while Stoddard considered stopping the game after the ejection, he allowed the game to continue. Within a few minutes of the continuation, the assault occurred. As a result of the incident, Ball was convicted of assault causing bodily harm.
Madison’s Pub operated out of the Fort Erie where the tournament was held. There was evidence that Ball had started drinking early in the day. There was also evidence of an incident at Madison’s Pub before the game, where Ball in some way removed a man who was bothering his then girlfriend. As such, the amount of alcohol that Ball was served at Madison’s Pub was also at issue.
The Plaintiffs claimed damages for personal injuries against Ball. They also asserted that the Fort Erie and Stoddard, were liable in negligence under the Occupiers’ Liability Act, R.S.O. 1990 c. 0.2. Additionally, Cox asserted that Madison’s Pub was liable under the Liquor Licence Act, R.S.O. 1001 c. L.19, because Ball was served alcohol.
The Defendants, excluding Ball (who was noted in default), brought motions for summary judgment on the basis that Ball’s conduct was not reasonably foreseeable, and that even if it was reasonably foreseeable, they did not breach the standard of care required of them. The Defendants further asserted that the Plaintiffs had not led evidence of the standard of care.
The Plaintiffs contended that there were genuine issues requiring a trial on the issue of foreseeability and standard of care.
The Standard of Care
Ultimately, the motion was dismissed, and the court found that the issues of foreseeability and standard of care required a full trial, as the evidence presented was insufficient for a summary judgment.
The court discussed the legal principles related to foreseeability, the standard of care and liability for intentional torts. It highlighted the need for a trial to assess the Defendants’ knowledge and actions, particularly regarding Ball’s intoxication and Stoddard’s decision not to stop the game.
The court held that there was no question that Madison’s Pub owed a duty to third parties to protect them from alcohol-related injuries caused by intoxicated patrons. Rather, the issue was related to the appropriate standard of care in the circumstances, which depended, in some part, on the level of intoxication of Ball.
The issue related to Stoddard was the same and depended on the information that informed Stoddard’s decision not to call the game, and whether that decision was reasonable.
In light of the above, one of the main hurdles impacting summary judgment was the fact that not all evidence the parties intended to call was available. For example, there was no cross-examination on two affidavits (of Ball and his then girlfriend) due to scheduling difficulties. There were also two further witnesses who initially spoke with representatives of the Plaintiffs, providing relied upon evidence, who would not swear or affirm their affidavits.
The Plaintiffs also sought to tender expert evidence about the effects of alcohol on aggression, which was challenged by the Defendants, making this an evidentiary issue to be determined by a trial judge.
There were also disputes regarding the level of Ball’s intoxication and prior interactions. Specifically, at least one witness changed his story from “Ball didn’t seem intoxicated, but I heard he had been drinking since 10:00 am” at the time of speaking to police to “I could tell the other team’s goalie was visibly drunk” in his affidavit. On this basis, the court also felt that credibility issues were present amongst the witnesses.
Considering all the above and given the state of the evidence before the court, it was determined that this was not a case where justice could be done by way of summary judgment. The court suggested, however, that this was a case where bifurcation might be beneficial to address liability separately.
Takeaway
This decision serves as an important reminder that summary judgment is not appropriate when critical evidence is missing or disputed, such as when affidavits have not been cross-examined, witnesses have changed their testimony, or expert evidence is needed to clarify complex issues like the effects of intoxication.
It also serves as a reminder that bifurcating issues of liability from damages might be a useful strategy in complex cases involving multiple parties.
See Cox et al. v. Ball et al., 2025 ONSC 199 (CanLII), https://canlii.ca/t/k8p49
