The early hours of New Year’s Day are often marked by a combination of celebration and logistical challenges as thousands of people attempt to find their way home from parties. For Jesse Primosig, the transition into 2016 resulted in a life altering tragedy on Highway 26 just north of Barrie, Ontario. After attending a large party in Springwater that had been shut down early, Mr. Primosig was walking along the highway when he was struck by a motor vehicle. The resulting legal battle has spanned a decade, culminating in a recent decision by Justice S.E. Fraser of the Ontario Superior Court of Justice that clarifies the responsibilities of the provincial government and the police when they are aware of public safety risks1.
The incident occurred on January 1, 2016, after Mr. Primosig joined approximately 150 other revelers at a local gathering. When the party ended abruptly, many attendees were left without transportation. With no public transit available in the area, a significant number of party goers began walking home along Highway 26, also known as Bayfield Street. During this walk, Mr. Primosig and another individual were struck by a car in a live lane of traffic. Mr. Primosig survived the collision but sustained catastrophic injuries, including a traumatic brain injury, multiple bone fractures, lost teeth, and extensive soft tissue damage. Due to the severity of his head injury, he has no memory of the party or the accident itself.
Initially, the legal focus was directed toward the driver and the owner of the vehicle that struck him. Mr. Primosig commenced his first legal action in April 2017 against Timothy and Debra Proctor. However, as the litigation progressed, new information came to light regarding the role of the Ontario Provincial Police (OPP) on the night of the accident. Through a specialized legal procedure known as a Wagg motion, which allows for the production of police records in civil cases, Mr. Primosig’s legal team discovered that the police had a much larger presence and awareness of the situation than was previously known.
The evidence revealed that the Ontario Provincial Police had received multiple calls regarding the party before the accident occurred. Officers were already en route to the location an hour before Mr. Primosig was hit. Furthermore, an officer had observed approximately 26 inebriated young people walking toward the highway and was aware that between 100 and 200 people were being cleared out of the party without any way to get home. Despite calls for assistance to manage the crowd and the safety risk, another member of the police service reportedly issued a call to ignore the request for help. These facts led Mr. Primosig to discontinue his initial action and start new proceedings that included the Crown, representing the Ontario Provincial Police.
The provincial government, acting as His Majesty the King in Right of Ontario, moved for summary judgment to have the case dismissed before it could reach a full trial. The Crown raised several technical and substantive defenses, arguing that the lawsuits were filed too late and that the police did not owe a specific duty of care to Mr. Primosig. Central to the Crown’s argument was the Proceedings Against the Crown Act, which was the law in effect at the time the actions were commenced. This legislation requires a plaintiff to provide the government with a specific notice of a claim at least 60 days before filing a lawsuit. If the claim involves the management or control of property, such as a highway, that notice period is shortened to just 10 days after the claim arises.
The Crown argued that because the allegations involved how the police managed the flow of people on Highway 26, the strict 10 day notice period should apply. Since Mr. Primosig did not provide notice within 10 days of the 2016 accident, the Crown contended the entire case was a nullity. However, Justice Fraser disagreed with this characterization. The court found that the essence of the claim was not about the physical condition or control of the highway as property, but rather about the specific decisions and omissions made by the individual police officers who were responding to the situation. Because the claim focused on the conduct of government servants rather than property occupation, the court ruled that the 60 day notice requirement was the correct standard.
While Justice Fraser found that Mr. Primosig’s second legal action was technically a nullity due to a failure to meet the 60 day notice window before filing, the court focused its primary attention on a third action that had been filed after proper notice was eventually given. The Crown argued that this third action was statute barred because it was filed more than two years after the accident occurred. Under the Limitations Act, most legal claims in Ontario must be started within two years of the date they are discovered. The Crown maintained that Mr. Primosig should have known to sue the police shortly after the accident, especially since an officer had left a business card with him while he was in the hospital.
Mr. Primosig’s legal team countered this by arguing the principle of discoverability. They asserted that because of his brain injury and the fact that the police only provided redacted records initially, it was impossible for him to know the police had been negligent until the full, unredacted records were produced through the Wagg motion in late 2017. Justice Fraser accepted this argument, noting that the business card left by the officer suggested the police were merely investigating the accident, not that their prior actions might have contributed to it. The court found that a reasonable person in Mr. Primosig’s circumstances, dealing with amnesia and a slow exchange of information from the authorities, could not have discovered the claim against the police any sooner than he did.
Beyond the procedural hurdles, the Crown also argued that the police simply do not owe a private law duty of care to members of the public to prevent them from entering dangerous situations or becoming victims of accidents. They argued that the duty of the police is to the public at large, not to specific individuals walking on a highway. To succeed in a negligence claim against a public body, a plaintiff must show that the harm was foreseeable and that there was a relationship of proximity between the parties that was close and direct.
Justice Fraser determined that the unique facts of this case created a genuine issue that requires a full trial to resolve. The court pointed to the evidence that the police knew exactly how many people were leaving the party, knew they were intoxicated, knew the weather conditions were poor, and knew there were no taxis or buses available. The fact that the police were actively making decisions about whether to provide assistance to the pedestrians suggested a relationship that might be close enough to establish a duty of care. The judge concluded that she could not make a final determination on this complex legal issue based solely on the written evidence provided for the summary judgment motion.
The decision also addressed the status of other defendants, including the party hosts and the driver of the car. These parties had filed crossclaims against the Crown, seeking to have the government share the financial responsibility if they were found liable for Mr. Primosig’s injuries. Despite the Crown’s efforts to have these dismissed, the court ruled that the crossclaims remain active. This ensures that if the case proceeds to trial, all parties can have their respective degrees of fault determined in a single proceeding.
The ruling by Justice Fraser effectively clears the path for Mr. Primosig to take his case against the provincial government to trial. It highlights the high burden the government faces when trying to dismiss claims involving complex issues of police conduct and the timing of information discovery. The court ordered that the remaining legal actions be heard together to ensure judicial efficiency and a consistent outcome. As the case moves forward, the parties have been directed to establish a timetable for the remaining steps to bring the matter before a trial judge.
This decision serves as a significant development in Ontario law regarding how limitation periods are applied to individuals with traumatic brain injuries and how the notice requirements for suing the government are interpreted. By focusing on the actions and decisions of the officers rather than the physical status of the highway, the court has allowed for a broader examination of police responsibility in managing foreseeable public safety risks during large scale events. The parties will now proceed to exchange further evidence as they prepare for a trial that will ultimately determine whether the Ontario Provincial Police breached the standard of care expected of them on that New Year’s Eve nearly a decade ago.
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