DATE: 20060302
DOCKET: C38378
COURT OF APPEAL FOR ONTARIO
FELDMAN, CRONK and JURIANSZ JJ.A.
B E T W E E N:
IN THE MATTER OF THE
CONSOLIDATED ACTIONS
GILLES PILON
John B. Gorman, Q.C.
Plaintiff
for the appellant, respondent
(Appellant, Respondent
by way of cross-appeal
by way of cross-appeal)
- and -
GLEN JANVEAUX, CONRAD JANVEAUX, JANVEAUX LOGGING and JANVEAUX AND SONS LOGGING LIMITED
Chris T. Blom
for the respondents, appellants by way of
cross-appeal
Defendants
(Respondents, Appellants
by way of cross-appeal)
B E T W E E N :
GILLES PILON
Plaintiff
(Appellant, Respondent
by way of cross-appeal)
- and -
Heard: April 12, 2005
MATTAWA INNS INC.
Reasons Released:
Defendant
November 1, 2005
(Respondent, Appellant by way of cross-appeal)
On appeal from the judgment of Justice George T. Valin of the Superior Court of Justice, sitting with a jury, dated May 10, 2002, with supplementary reasons dated January 20, 2003 and September 3, 2004.
SUPPLEMENTARY REASONS
FELDMAN J.A.:
[1] Following the release of its reasons for judgment in this matter, the court received further submissions on the issue of the proper apportionment as between the appellant and the respondent, Mattawa Inns Inc., of the responsibility the jury assigned to the appellant for his contributory negligence.
[2] The court is now able to make that apportionment and deal with the outstanding issues of trial costs and postjudgment interest.
Apportionment Between the Appellant and Mattawa Inns Inc.
[3] The trial judge accepted the respondents’ submission that, because the respondents collectively admitted 100% responsibility for the accident, the jury’s only task was to quantify the appellant’s contributory negligence that caused or contributed to his damages. The jury was asked to separately quantify two aspects of the appellant’s negligence: (1) his failure to take reasonable precautions for his own safety by becoming intoxicated and accepting a ride with an intoxicated driver, the respondent Glen Janveaux; and (2) his failure to wear his seatbelt. The jury apportioned 17.5% responsibility to the appellant for failing to take reasonable precautions for his own safety and 18% for failing to wear his seatbelt. In the result, the jury attributed a total of 35.5% of the damages to the contributory negligence of the appellant.
[4] What the jury was not asked was to determine to what extent, if any, the respondent tavern that served the two men, was responsible, not for the accident (for which it admitted liability), but for contributing to the appellant’s damages and effectively to his contributory negligence by over-serving him to the point of intoxication and thereby impairing his judgment with respect to accepting a ride with an intoxicated driver and failing to put on a seatbelt.
[5] This brings into focus the distinction between the duty of care that a commercial host owes to its patrons who become intoxicated and unable to properly look after themselves, and the duty of care that a commercial host owes to third parties (including willing passengers) injured by a patron who becomes inebriated in its establishment. The Supreme Court of Canada first recognized the duty commercial hosts owe to their patrons in its 1974 decision in Menow v. Jordan House Ltd., 1973 16 (SCC), [1974] S.C.R. 239 where the inebriated patron left the bar and while walking home, was hit by a car. It was not until 1995 in Stewart v. Pettie, 1995 147 (SCC), [1995] 1 S.C.R. 131 that the Supreme Court extended the duty owed originally only to patrons, to certain third parties who might reasonably be expected to come into contact with an intoxicated patron and to whom that patron may pose some risk.
[6] In these supplementary reasons, the court is only concerned with apportioning responsibility to the respondent tavern for the first kind of breach, that is, the duty of care it owed to the appellant qua patron – i.e. for over-serving him and diminishing his ability to look out for himself, which effectively contributed to his own negligent behaviour and to the damages he suffered.
[7] In his written submissions, the appellant argues that his contributory negligence should be assessed at a minimal percentage, in part because the respondents did not satisfy their onus of proving that the appellant’s failure to wear a seatbelt contributed to the extent of his injuries, and in part because of the evidence against the tavern. The court cannot give any effect to the first part of this submission. The jury determined by its finding that the appellant’s failure to wear a seatbelt did contribute to the extent of his injuries.
[8] In their written submissions, the respondents provided case law suggesting that the range of degrees of responsibility that have been attributed to taverns that over-served drivers who caused accidents is between 10% and 50%: see Hague v. Billings (1993), 1993 8581 (ON CA), 13 O.R. (3d) 298 (C.A.) (15%); Depres v. Nobleton Lakes, [1994] O.J. No. 1166 (Gen. Div.) (10%); Sambell v. Hudago Enterprises Ltd., [1990] O.J. No. 2494 (Gen. Div.) (20%); Schmidt v. Sharpe, [1983] O.J. No. 418 (H.C.J.) (15%); Holton v. MacKinnon, [2005] B.C.J. No. 57 (S.C.) (15% to each of two taverns); Lum (Guardian ad litem of) v. McLintock, [1997] B.C.J. No. 2607 (S.C.) (30%); Laface v. McWilliams, [2005] B.C.J. No. 470 (S.C.) (50%). Based on these cases the respondents submitted that the appropriate level of the tavern’s responsibility in this case is 15%.
[9] However, the respondents suggest that the court now apply that percentage by apportioning responsibility among the respondents, attributing 49.5% to the Janveaux respondents and 15% to the respondent Mattawa, leaving the appellant with his 35.5% apportionment untouched. Again, the court cannot give effect to this submission. The issue is not apportionment among the respondents, who chose to determine that issue privately and to present a united approach for the purpose of the trial.
[10] The issue that is raised on this appeal is that the jury was not asked to determine the amount, if any, of the appellant’s percentage responsibility for contributory negligence that ought to have been attributed to the respondent tavern for its role in over-serving the appellant and thereby causing or contributing to his lack of judgment in accepting a ride with Glen Janveaux and not wearing a seatbelt. Unlike the cases cited by the respondents, in which the tavern was held liable for over-serving the driver only, in this case, the tavern is liable for its breach of duty for over-serving both the driver and the passenger.[^1] Therefore, the jury should have been asked to apportion responsibility for the appellant’s damages in four parts: (1) to the driver (and owner) of the vehicle; (2) to the injured passenger for his contributory negligence; (3) to the tavern for over-serving the driver; and (4) to the tavern for over-serving the passenger.
[11] The respondent Mattawa over-served two people that evening, the driver, Glen Janveaux, and his passenger, Gilles Pilon. The tavern owners and the waitress who served both men were certified with the Server Intervention Program set up by the Addiction Research Foundation of Ontario to assist tavern personnel to evaluate and monitor patrons’ drinking and to prevent intoxicated people from driving. Although Glen Janveaux was intoxicated, the evidence of the waitress was that he was not showing signs of impairment. Still, she said she offered to call a taxi for both men, but they refused. As between the tavern and the appellant, the tavern personnel had expertise in recognizing signs of impairment and knew how much they had served the men even though the driver did not appear to be impaired, while the appellant was himself intoxicated.
[12] The issue of apportionment turns on the relative appreciation of risk: see Crocker v. Sundance Northwest Resorts Ltd., 1988 45 (SCC), [1988] 1 S.C.R. 1186; Lum (Guardian ad litem of) v. McLintock, supra; Schmidt v. Sharpe, supra. Of course, the appellant must bear significant responsibility for his own actions. However, the tavern ought also to bear some significant responsibility, and logically, it should bear a similar level of responsibility for allowing the passenger to become impaired as for the driver, subject to the additional factor that although the driver did not appear to be impaired, the tavern knew that he was. In this case, however, no one knows how the jury would have apportioned responsibility among the respondents; consequently, the court is not in a position to apply a similar percentage to the tavern for each of its breaches of the duty of care.
[13] In the unique circumstances of this appeal, I am of the view that an appropriate apportionment between the appellant and the respondent tavern of the 35.5% responsibility for his own injuries that the jury attributed to the appellant is 60% to the appellant and 40% to the respondent tavern. This apportionment takes into account the fact that the appellant must ultimately be held accountable for his own actions but it is also attentive to the reality that the appellant’s ability to look out for himself was compromised in part by the tavern over-serving him. Accordingly, while the appellant must bear the majority of the responsibility (i.e. 60%), the tavern is nonetheless assigned a significant percentage (i.e. 40%).
[14] In the end result, this leaves the appellant responsible for 21.3% of the damages awarded and the respondents, collectively, responsible for 78.7%. This percentage includes the 14.2% responsibility (i.e. 40% of 35.5%) now attributed to the tavern for its breach of duty in over-serving the appellant. It also includes an uncertain percentage for the tavern’s breach of duty in over-serving Glen Janveaux, the driver.[^2]
Costs of the Trial
[15] Before the trial, the respondents delivered an offer to settle under Rule 49.10(2) of the Rules of Civil Procedure in the amount of $375,000 plus costs. Because the jury’s verdict for general damages of $375,000 had to be reduced in order to accord with the upper limit (adjusted for inflation) set by the Supreme Court of Canada in ter Neuzen v. Korn, 1995 72 (SCC), [1995] 3 S.C.R. 674, the trial judge concluded that the amount of the final judgment of $291,901.30, including prejudgment interest, was less favourable than the offer.
[16] The trial judge did not err in this conclusion. The definition of the term “judgment” in Rule 1.03(1) provides that a judgment is “a decision that finally disposes of an application or action on its merits”. In this case, the judgment was not the amount awarded by the jury, but the amount finally awarded by the trial judge plus the prejudgment interest. That was the amount contained in the formal judgment that finally disposed of the action (subject to appeal).
[17] The amount of the judgment, recalculated on the basis of the adjusted apportionment of responsibility between the appellant and the respondent tavern with prejudgment interest added, is $356,096.24. That amount is still less favourable than the offer to settle. The result is that unless the court orders otherwise, the appellant must pay the respondents’ costs from the date of the offer. The trial judge declined to exercise his discretion to order otherwise. There is no basis for this court to interfere with that exercise of discretion.
The Victims’ Bill of Rights
[18] The trial judge determined the costs entitlement issue on January 20, 2003, and ordered counsel for the parties to deliver their bills of costs within 30 days. The appellant’s bill was not delivered until after July 21, 2004. On August 30, 2004, the trial judge heard submissions to fix the costs, but also to deal with a new issue raised by the appellant regarding the application of the Victims’ Bill of Rights, 1995, S.O. 1995, c. 6, and the issue of postjudgment interest, which was raised by the respondents because of the appellant’s delay in delivering his bill of costs.
[19] The Victims’ Bill of Rights was enacted by the legislature in 1995, and applies to a victim (“a person who, as a result of the commission of a crime by another, suffers…physical harm… or economic harm…”) of crime (“an offence under the Criminal Code”). Section 4 deals with civil proceedings where a victim of crime seeks redress from the person convicted of the crime. Section 4 provides guidelines that favour the victim for the ordering of security for costs and for the award of damages, costs and pre- and postjudgment interest. On the issue of costs, s. 4(6) provides that costs in favour of the victim should be awarded on a solicitor and client basis “unless the judge considers that to do so would not be in the interests of justice.”
[20] On the basis of this subsection, the appellant asked the trial judge to reconsider the award of costs and to award the appellant his portion of the costs on the higher scale. Although the respondent driver, Glen Janveaux, pled guilty to the Criminal Code offence of impaired driving causing bodily harm, the trial judge was concerned that it was not the intent of the legislature that the Bill apply to willing passengers who are injured when they accept a ride with a drunk driver. Accordingly, he declined to order solicitor and client costs in this case.
[21] Although the issue was not raised by the parties, I question whether the Bill can apply in this case. The Bill did not come into force until 1996, while the accident, the conviction and the commencement of this action all occurred before 1996. The Bill is silent on whether it was intended to apply, in effect, retroactively in such circumstances. Although some aspects of s. 4 can be characterized as procedural, such as those dealing with costs and security for costs (see Somers v. Fournier (2002), 2002 45001 (ON CA), 60 O.R. (3d) 225 (C.A.)), others are substantive, such as those dealing with entitlement to damages, punitive damages and pre- and postjudgment interest (see Somers, supra; Re Northern and Central Gas Corp. Ltd. v. Kidd Creek Mines Ltd. (1988), 1988 4649 (ON CA), 66 O.R. (2d) 11 (C.A.)). It may be that the procedural aspects would apply retroactively, while the substantive ones would not.
[22] However, because of the conclusion I have reached regarding the trial judge’s costs ruling, it is not necessary for me to decide the retroactivity issue. The trial judge did not consider it appropriate to award the higher level of costs in a case where the victim was contributorily negligent and therefore not a wholly innocent victim of a crime. Because the appellant bears some responsibility for his damages, the trial judge was entitled to consider that factor in determining whether it was in the interests of justice to award the appellant the higher level of costs in this case. While I would not endorse the trial judge’s language, i.e. that the higher scale of costs “would shock the conscience of the community and would bring the administration of justice into disrepute,” applying the language of discretion used in s. 4(6) of the Bill, it was not reversible error for the trial judge to conclude that in this case it would not be in the interests of justice to award the higher scale of costs.
Postjudgment Interest
[23] The trial judge accepted the position of the respondents that the appellant should be denied 14 months of postjudgment interest due to his counsel’s delay in delivering his bill of costs. The argument that was accepted was that because the costs awarded to the respondents as a result of the Rule 49 offer to settle were likely to amount to more than the costs owing to the appellant, without knowing the amount fixed for costs the respondents could not calculate the amount ultimately owing to the appellant on the judgment and therefore could not make a meaningful advance payment. Because the delay was entirely the fault of the appellant, the trial judge found that “[i]t would be unjust for the plaintiff to recover postjudgment interest during that period of delay.” Consequently, the appellant was denied postjudgment interest from May 10, 2002, the date of the judgment, until July 10, 2003, 14 months later, on the whole of the judgment and the costs awarded to him, while the respondents were awarded postjudgment interest on their portion of the costs throughout that period.
[24] Section 129(1) of the Courts of Justice Act, R.S.O. 1990, c. C. 43 is the normal rule and provides that postjudgment interest on “[m]oney owing under an order, including costs to be assessed or costs fixed by the court” runs from the date of the order. Section 130(1) gives the court discretion, “where it considers it just to do so,” to adjust postjudgment interest on all or part of the money ordered (including costs) by disallowing postjudgment interest, changing the rate or changing the length of the postjudgment interest period.
[25] Section 130(2), in turn, sets out the factors a court is obliged to consider in deciding to adjust postjudgment interest. Those factors are:
(a) changes in market interest rates;
(b) the circumstances of the case;
(c) the fact that an advance payment was made;
(d) the circumstances of medical disclosure by the plaintiff;
(e) the amount claimed and the amount recovered in the proceeding;
(f) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding; and
(g) any other relevant consideration.
[26] The trial judge’s reason for disallowing postjudgment interest on the judgment and on the appellant’s costs for 14 months is contained in his statement:
In this case, the right of entitlement of the plaintiff to be paid postjudgment interest on the basis that the defendants have had the use of the money is trumped by the fact that the period of delay in question is attributable solely to the plaintiff. I therefore find that this is a proper case in which to exercise my discretion under s. 130(1)(a) of the Courts of Justice Act to disallow postjudgment interest on the judgment for a period of 14 months.
[27] As I have said, the normal rule is that postjudgment interest will run in accordance with s. 129(1) from the date of the order. The legislature gave trial judges the discretion to depart from the normal rule where it would be just to do so or, looked at the other way, where it would be unjust to allow the normal rule to operate. The normal rule reflects the fact that interest is compensatory and that from the time money is owed by one party to another, interest accruing on the money belongs to the creditor party.
[28] The trial judge in this case concluded that it would be unjust for the appellant to receive postjudgment interest during the 14-month period of delay on any of the money owed to him, because it was his counsel’s conduct that prevented the respondents from ascertaining the amount of money properly payable to him. This, in turn, prevented them from making an advance payment on that amount. The trial judge concluded that the compensatory nature of postjudgment interest was “trumped” by the delay.
[29] In my view, with respect, the trial judge erred by misapplying the conduct factor in s. 130(2)(f) and by failing to consider all the factors in s. 130(2) in deciding what was just in the circumstances. Although counsel’s conduct in failing to deliver his client’s bill of costs in a timely manner did cause extra postjudgment interest on the judgment and on the appellant’s costs to accrue and be payable to the appellant, at the same time postjudgment interest on the respondents’ costs was also accruing. Therefore, accruing interest on both sets of costs would be set off. To the extent that the respondents’ costs exceeded the appellant’s costs, the interest accruing in favour of the respondents on the difference would be deducted by the respondents from the amount owing to the appellant for damages and the interest accruing on that amount.
[30] Although the appellant’s counsel’s failure to deliver his client’s bill of costs meant that the respondents did not know the exact amount they owed the appellant, they knew that a significant amount was owing on the judgment and could be paid with impunity in order to stop postjudgment interest from accruing.
[31] Consequently, although counsel’s failure to deliver the bill of costs in a timely way was conduct that could attract some sanction, such as a denial of a portion of costs, the complete denial of postjudgment interest to the appellant on the entire amount of the judgment and costs for 14 months while allowing postjudgment interest to continue to accrue on the respondents’ costs imposed an unwarranted penalty on the appellant and conferred a corresponding benefit on the respondents that were not in accordance with a full and balanced application of the factors set out in s. 130(2), and amounted to an error in law.
[32] Accordingly, I would set aside the trial judge’s ruling on postjudgment interest. In these circumstances, it is again unnecessary to consider the applicability of the Victims’ Bill of Rights on this issue.
Conclusion
[33] I would allow the appeal as follows:
(i) The apportionment as between the appellant and the respondent tavern, Mattawa, of the amount attributed by the jury to the appellant for contributory negligence will be 60% to the appellant and 40% to the respondent tavern; and
(ii) The order denying postjudgment interest to the appellant for 14 months will be set aside.
[34] I would dismiss the appeal on the issue of the level of costs to be awarded to the appellant.
[35] The costs of the appeal have previously been awarded to the appellant, fixed at $50,000.
Signed: “K. Feldman J.A.”
“I agree E.A. Cronk J.A.”
“I agree R.G. Juriansz J.A.
RELEASED: “KNF” March 2, 2006
[^1]: It should be noted that in three of the cases cited by the respondents, namely Sambell v. Hudago Enterprises Ltd., supra, Schmidt v. Sharpe, supra, and Holton v. MacKinnon, supra, the defendant tavern also served alcohol to the plaintiff passenger who was ultimately injured in the accident, and was held to be contributorily negligent; however, in those cases, no amount of responsibility was apportioned to the tavern for any breach of duty to the passenger in this regard.
[^2]: As noted above, the percentage responsibility assigned to the tavern for its role in over-serving Glen Janveaux is uncertain because at trial the jury was not asked to apportion responsibility among the respondents.