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Occupier's Liability: A Board Meeting Gone Wrong

Case Comment: Omotayo v Da Costa et al.

David Elmaleh
David Elmaleh
Partner

Gabriela Caracas
Gabriela Caracas,
Associate

April 2018

by David Elmaleh and Gabriela Caracas

This article was reprinted in the July 2018 issue of Condo Business Magazine

Anyone who has ever been to a board meeting (or a partners, shareholders, town hall, or any similar type of meeting) can attest to the tension that often arises. The law is clear that occupiers have a duty to maintain their premises reasonably safe for those who enter it. But what about when an individual commits assault while at one of these meetings? Should the occupier or organizer of the Board meeting be liable for failing to ensure the safety and security of those lawfully on the premises?

In Omotayo,1 the defendant occupier, Metro Toronto Condominium Corporation 1292 (MTCC), was successful in dismissing the plaintiff's claim and the assailant's crossclaim when a member in attendance at a condominium board meeting struck another meeting attendee with a chair.

Justice Nishikawa found that the duty the condominium corporation owed to the plaintiff did not include preventing an assault that occurred during their condominium Board meeting.

Facts

The plaintiff, Jacqueline Omotayo, was a resident and former Chair of the condominium corporation. The defendant, Jose Da Costa, was also a resident and former President of the condominium corporation. An emergency Board meeting was held on October 4, 2011 to discuss the future organization of the Board as Ms. Omotayo had recently been removed from her position as Chair and Mr. Da Costa advised that he no longer wished to occupy his role as President. The emergency meeting took place at the defendant MTCC's premises.

At the emergency meeting, the plaintiff and Mr. Da Costa entered into a heated argument, which lead Mr. Da Costa to “lose it” and strike the plaintiff on the head with a chair. Mr. Da Costa was charged by the police and received a conditional discharge for assault with a weapon.

The plaintiff commenced a civil action against Mr. Da Costa for his use of force as well as MTCC for failing to ensure her safety and failing to employ security measures at Board meetings. MTCC brought a motion for summary judgment to dismiss the plaintiff's claim against them which was only opposed by Mr. Da Costa given his crossclaim against MTTC for contribution and indemnity.

Summary Judgment Motion

MTCC took the position that its duty under the law is confined to the physical condition of the premises and foreseeable risks, not the unforeseeable conduct of individuals in attendance. Meanwhile, Mr. Da Costa argued that MTCC's duty extends to having rules of conduct for meetings, policies relating to abusive language, threats and intimidating behavior, and a duty to hire and supervise competent professionals to oversee its business (including, if appropriate, security personnel). Mr. Da Costa further argued that the assault was foreseeable given the quarrelsome nature of MTCC's Board meetings and a prior unrelated incident involving the plaintiff and another member of MTCC wherein the police was called.

MTCC's duty of care owed to the plaintiff did not extent to preventing potential assaults.

In reaching her decision, Justice Nishikawa looked to Coleiro v Premier Fitness Clubs2 where summary judgment was granted in favour of the defendant fitness club when an assault took place involving two club members. Similar to the decision in Coleiro, Justice Nishikawa found that the assault was not reasonably foreseeable and was too remote. MTCC's duty of care owed to the plaintiff did not extent to preventing potential assaults.

Despite Mr. Da Costa's evidence that the plaintiff had conducted herself aggressively and unprofessionally at former Board meetings, it was insufficient to persuade the judge that MTCC breached its duty of care. This decision was supported by the fact that there were no prior threats of violence, or actual physical violence during prior meetings and no one ever raised concern about their physical safety.

Ultimately, the Court found that to expand MTCC's duty of care in the circumstances would be excessive as “it is reasonable to expect individuals who participate on the boards of condominium corporations to adhere to a standard of conduct that includes, at a minimum, refraining from assaulting another participant”.3

What Can Employers, Insurers, Condominium Boards, Organizations and Occupiers Learn from this Case?

...smacking someone over the head with a chair at a typical board meeting was out of the ordinary.

While this specific condominium corporation avoided liability in the instant case, the Court correctly focused on the foreseeability of the assault. Certainly, someone smacking someone over the head with a chair at a typical board meeting was out of the ordinary. However, the Court left the door open for occupiers to be found liable in instances where harm is in fact reasonably foreseeable.

What about town hall meetings where contentious election issues are debated? Or annual general meetings where swaths of unit owners or tenants are going to be told they will be evicted or forced to expend significant resources for any number of reasons? What about politicians that hold constituency meetings following salacious accusations that impacted the pocket books of local residents?

The Court in this case was clear that the result was dependent on the specific circumstances of the case at bar.

Employers, organizations, insurers and boards alike should review this decision as a cautionary tale and review their policies and procedures along with the circumstances of a particular meeting or event to consider whether security is warranted in the circumstances.

Meeting adjourned.


1 Omotayo v Da Costa, 2018 CanLII 27201.
2 2010 ONSC 4350.
3 2018 CanLII 27201 at para 30.


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