Mr. Wigmore

The defendants Tholos Restaurant Inc. and Kaytoo Restaurant and Bar Limited brought a motion for summary judgment to dismiss a negligence action brought by the plaintiff, Matthew Linton, who suffered a severe brain injury after falling down steps at a chalet following a bachelor party.

The plaintiff alleged commercial host liability, arguing the defendants overserved him alcohol, leading to his intoxication.

The court denied the motion, finding genuine issues requiring a trial, particularly regarding the amount of alcohol consumed, when and where it was consumed, and whether the commercial hosts knew or ought to have known of the plaintiff's intoxication.

The court emphasized the conflict between expert toxicologist evidence (suggesting obvious intoxication) and lay witness statements (denying visible impairment), and the risk of inconsistent findings if the motion were granted while the action against other defendants proceeded to trial.

The appellant was convicted of impaired driving causing death and dangerous driving causing death after his vehicle went off the road, killing his passenger.

On appeal, he argued the trial judge erred in admitting the Crown accident reconstructionist's opinion on speed and impairment, and in failing to properly instruct the jury regarding 'bolus drinking'.

The Court of Appeal dismissed the appeal, finding the expert was properly qualified to give the impugned opinions and the jury was entitled to infer from the evidence and common sense that the appellant had not engaged in bolus drinking.