DATE: 20051101

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 -

MATTAWA INNS INC.

Defendant

(Respondent, Appellant

by way of cross-appeal)

Heard: April 12, 2005

On appeal from the judgment of Justice George T. Valin of the Superior Court of Justice, sitting with a jury, dated May 10, 2002.

FELDMAN J.A.:

INTRODUCTION

[1] The appellant suffered a serious brain injury when he was a passenger in a motor vehicle involved in a single-car accident on September 1, 1993. The appellant and the defendant driver, Glen Janveaux, had been drinking together before the accident at the Mattawa Tavern and both were intoxicated when they left. The appellant sued the driver, the driver’s father who was the owner of the motor vehicle,[^1] and the tavern for negligence.

[2] At the trial, the defendants, who were all represented by the same counsel, admitted 100% liability for causing the accident but not for causing the appellant’s injuries. The jury was asked to determine the percentage of fault attributable to the appellant for not wearing a seatbelt and for assuming the risk of driving with an intoxicated person. However, the jury was not asked to apportion fault among the individual respondents and the appellant and, in particular, was not asked to quantify the tavern’s responsibility for (1) over-serving the appellant and its contribution to his failure to exercise proper judgment in taking care for his own safety, and (2) failing to take appropriate steps to ensure that he got home safely.

[3] As a result of this error, the verdict of the jury cannot stand.

FACTS

[4] The appellant and Glen Janveaux went from playing ball to drinking after the game at the Mattawa Tavern. Glen Janveaux drove his father’s truck from the ball game to the tavern and parked it in the tavern parking lot. Over three hours, the two young men became intoxicated at the bar. The witnesses told conflicting versions of what occurred when the men left the bar. Gilles Pilon is unable to remember what happened as he suffers from amnesia as a result of the accident. The tavern waitress who served the men said that they were offered a taxi but they declined the offer, and the tavern owner said that she saw them leave the tavern and walk down the street. Glen Janveaux did not recall being offered a taxi, and testified that he offered Gilles Pilon a ride home and they proceeded to get into his truck and drive off.

[5] They were almost at the appellant’s home on the outskirts of town when the appellant said he wanted to stay in town for the night. It was on the way back to town that Glen Janveaux drove his truck off the road, causing the accident in which the appellant suffered a serious brain injury. As a result of this accident, Glen Janveaux pled guilty to impaired driving causing bodily harm and was sentenced to jail. He had a breathalyzer reading of 195 milligrams of alcohol in 100 millilitres of blood.

[6] The appellant underwent a lengthy period of hospitalization and rehabilitation. He sought damages in an action in negligence against Glen Janveaux, the driver, and against his father Conrad Janveaux, as the owner of the truck and for failing to supervise his son’s driving. The defendants brought third party claims against the tavern. The appellant later also sued the tavern. Ultimately, the third party claims were dismissed and one counsel represented all respondents at the trial.

[7] At the opening of trial, counsel for the respondents admitted that as a result of the accident, Glen Janveaux was convicted of impaired driving causing bodily harm and was sent to jail. Later, during the course of the trial, respondents’ counsel announced to the jury that the three respondents, the driver, Glen Janveaux, his father and Mattawa Inns Inc., the tavern that served the two men, were admitting 100% responsibility for causing the accident, but not for causing the appellant’s injuries. The respondents’ position was that the appellant’s damages should be reduced because he was contributorily negligent, by (a) failing to wear a seatbelt, and (b) accepting a ride with Glen Janveaux when the appellant knew or ought to have known that Glen Janveaux’s ability to drive was impaired by alcohol.

[8] Following this admission, the appellant’s counsel attempted to pursue the issue of the respondent Mattawa Inns’ liability to the appellant for over-serving him to the point of intoxication and thereby contributing to his lack of judgment in accepting a ride with Glen Janveaux and not wearing his seatbelt, and for allowing him to leave the tavern without taking appropriate steps to ensure his safe passage home. However, respondents’ counsel objected and the trial judge sustained these objections.

[9] For example, when the appellant’s counsel attempted to ask the tavern waitress details regarding her assessment of Mr. Pilon’s level of inebriation when she was serving him that evening, defence counsel objected to the questioning on the basis that 100% liability had already been admitted. The trial judge ruled that the waitress could be asked about whether the tavern staff had offered the appellant a taxi ride home because that evidence related to one of the issues a jury is to consider when assessing the contributory negligence of a passenger who drives with a drunk driver, which is, what alternatives were available to the passenger. However, it does not relate to the liability or level of responsibility of the tavern for over-serving the passenger.

[10] The appellant’s counsel also objected to omissions from the questions that the jury was given to answer for the court in order to make its findings of liability and damages. The jury was asked five questions respecting the appellant’s contributory negligence, two regarding his failure to take reasonable precautions for his own safety other than not wearing a seatbelt, and three regarding his failure to wear a seatbelt. For each of the two types of contributory negligence, the jury was asked to quantify the percentage amount by which the appellant’s damages should be reduced. The sixth question asked the jury to quantify the appellant’s total damages, breaking them down into general damages, past and future loss of income and future care costs.

[11] Counsel for the appellant took the position that the jury should be asked to quantify the percentage responsibility of each of the respondents and of the appellant for the appellant’s damages. With respect to the father, Conrad Janveaux, the appellant’s theory was that his level of responsibility should be assessed by the jury both as the owner of the vehicle, and for his failure to supervise his son when he allowed him to drive the truck. With respect to the tavern, the appellant’s position, contained in his Statement of Claim against the tavern and repeated throughout the trial, was that the tavern was negligent not only for over-serving Glen Janveaux, the driver, but also for over-serving the appellant, thereby impairing his ability to make decisions regarding accepting a ride home with Glen Janveaux. Second, the tavern was negligent for failing to take appropriate steps to ensure that both men got home safely and that neither of them drove.

[12] Counsel for the appellant submitted to the trial judge that if the jury were asked to quantify each respondent’s degree of responsibility for the appellant’s damages, it would be more likely that the jury would apportion a lesser percentage to the appellant. The trial judge accepted the position of the respondents that, 100% liability having been admitted by all the respondents, there was no need for the jury to quantify their respective degrees of responsibility.

[13] The appellant’s counsel moved for a mistrial following the closing address to the jury by counsel for the respondents because counsel effectively suggested that the entire responsibility was the appellant’s for getting drunk and accepting a ride from Glen Janveaux when he was impaired. The respondents’ counsel also personalized his address by using an example of voluntary drunkenness that he framed in the first person. The trial judge ruled that while the example used by counsel was somewhat extreme, he was not convinced that the jury would be misled into believing that that they were being invited to find the appellant 100% responsible for his damages. The trial judge stated that in his charge he would tell the jury that when considering the percentage responsibility of the appellant, his responsibility should be assessed at a lesser amount than that of the respondents.

[14] After four hours of deliberations, the jury had one question, which was whether the percentage reductions from the damages for the appellant’s contributory negligence were deductible from the figure assigned for general damages. The jury was told that the contributory negligence percentages were deductible from all the damages and it was emphasized that they were to assess the damages without regard to the reductions.

[15] Approximately two hours later, the jury returned with its verdict. The jury reduced the appellant’s damages by 50% for taking the ride with Glen Janveaux and it reduced his damages by 54% for not wearing a seatbelt.

[16] The trial judge asked the foreman if the jury understood that it had assigned more than 100% responsibility to the appellant. He answered that it did not and told the court that the jurors were looking at it as two separate issues. The trial judge then recharged the jury on the issue of contributory negligence. After the jury retired to reconsider the percentages, both counsel objected to the trial judge’s procedure. Counsel for the respondents objected that the trial judge had effectively told the jury that it was wrong. Counsel for the appellant’s position was that there could only be one verdict, and in the circumstances, there must be a mistrial.

[17] After approximately 20 minutes of further deliberations, the jury returned with new percentages for the contributory negligence of the appellant: for driving with Glen Janveaux, 17.5%, and for not wearing a seatbelt, 18%. The jury also awarded $375,000 for general damages, $35,327 for past loss of income, $6,000 for future care costs, and nothing for loss of future income.

[18] The following day, April 19, 2002, the appellant’s counsel moved again for a mistrial. On May 10, 2002, the trial judge delivered written reasons denying the motion and endorsed the jury’s verdict on the record, after reducing the amount awarded for general damages to $281,579 in accordance with the upper limit set by the Supreme Court of Canada.

ISSUES

[19] The appellant raises several issues regarding the conduct of this trial, including the legal effect of the respondents’ admission of 100% liability, the restrictions on appellant counsel’s questioning of the tavern witnesses, the failure to ask the jury to apportion liability among all the parties, the propriety of the closing address of respondents’ counsel, the perverse jury verdict and the refusal to declare a mistrial. However, all these can be subsumed within the issue of whether the trial judge erred by declining to give the jury the option of apportioning some responsibility to the tavern for over-serving the appellant and thereby contributing to his failure to look out for his own safety, and for failing to take appropriate steps to ensure that he got home safely.

[20] The appellant also raises issues respecting costs, the jury’s nil award for loss of future income and post-judgment interest. The respondents cross-appeal, asking this court to reduce the award for general damages to $200,000 on the basis that that was the figure suggested to the jury by the appellant’s counsel in his closing address.

ANALYSIS

[21] In my view, the seminal error occurred in this trial from the way that the respondents’ counsel purported to admit 100% liability for the accident on the part of all the respondents without (1) percentage apportionment among all parties, and (2) addressing the issue of the tavern’s liability for over-serving the appellant. The trial judge accepted counsel’s position that besides quantification of the appellant’s damages, the only issue for the jury was assigning and quantifying the appellant’s degree of contributory negligence. The result was that the issue, raised in the statement of claim, of the respondent tavern’s liability to the appellant and its quantification for over-serving him, thereby contributing to his impaired judgment in accepting a ride with Glen Janveaux and failing to use his seatbelt, and for not taking steps to ensure that he got safely home, was never addressed by the trial judge or by the jury.

[22] As all the respondents collectively admitted and accepted 100% responsibility for causing the accident, the tavern’s portion of that liability was for over-serving Glen Janveaux and contributing to his intoxicated condition, as well as for failing to prevent him from driving. Having admitted that responsibility to the driver Glen Janveaux, the tavern effectively admitted similar responsibility to the appellant passenger: for over-serving him and failing to prevent him from driving with Glen Janveaux. In his charge to the jury, the trial judge referred to appellant counsel’s position that:

[T]he plaintiff entered the motor vehicle after consuming alcohol to the extent that he was incapable of making rational decisions. He asked you to consider the fact that the alcohol was served to him by the defendant Mattawa Inns, Inc. As well, the evidence of Lisa Patterson and Dawn Ogletree [representatives from the tavern] was that Glen Janveaux was not showing any obvious signs of intoxication.

[23] The fact that Glen Janveaux did not appear intoxicated was relevant to the jury for its assessment of whether the appellant was negligent by driving with him, and the trial judge correctly identified it as such. However, the fact that the alcohol was served to the appellant by the tavern was only relevant to the tavern’s breach of duty to the appellant by diminishing his ability to make appropriate decisions for his own safety, and its duty to take appropriate steps to ensure that he got home safely. Neither of these latter issues was subsumed under the respondents’ admitted liability for the accident or the quantification of the appellant’s contributory negligence. Their effect would only be to reduce the appellant’s contributory negligence. Unfortunately, the jury was not asked to consider the evidence or the submission for that purpose.

[24] Furthermore, after stating the appellant’s position, the trial judge told the jury:

[I]ntoxication is no excuse for failure to act as a reasonable prudent person would act. A person who is intoxicated or under the influence of intoxicating liquor is held to the same standard of care as a sober person.

This instruction effectively negatived any allocation of responsibility to the tavern for its role in causing the appellant to become intoxicated and to make irresponsible choices regarding his own safety. In his reasons for dismissing the mistrial motion and on costs, the trial judge referred to the issue of whether the appellant was a “willing” passenger who was responsible for his own actions. However, if the passenger was willing in part because he or she was drunk and that drunkenness was caused in part by a commercial host, the commercial host could be found to share responsibility for the passenger’s actions.

[25] The principle of commercial host responsibility to a patron comes from the Supreme Court of Canada decision in Jordan House Ltd. v. Menow (Can.), 38 D.L.R. (3d) 105, [1974] S.C.R. 239, where the court held that a hotel that served a patron to the point of intoxication had a duty to take care to safeguard that patron from the risk of personal injury. The patron was struck by a car while walking on the highway after being ejected from the hotel. In that case, the court approved an equal apportionment of fault among the driver, the injured patron and the hotel.

[26] The duty was described by MacPherson J.A. in Hernandez v. 1206625 Ontario Inc. (2002), 61 O.R. (3d) 584 at 595-6 as follows:

The leading case on Taverner’s negligence is the Supreme Court of Canada decision in Jordan House Ltd. v. Menow (Can.), [1974] S.C.R. 239, 38 D.L.R. (3d) 105. The duty of care arises from the invitor/invitee relationship between a bar and its patrons. The standard of care follows from the inability of the intoxicated patron to take care of himself or herself. …

The essence of an action in Taverner’s negligence, then, is the failure on the part of the tavern to take charge of intoxicated patrons, and take reasonable steps to prevent them from hurting themselves. …

[27] I also agree with the appellant that the Negligence Act, R.S.O. 1990, c. N.1, as amended, requires the court to apportion fault among all the parties. Sections 3 and 6 of the Act provide:

3. In any action for damages that is founded upon the fault or negligence of the defendant if fault or negligence is found on the part of the plaintiff that contributed to the damages, the court shall apportion the damages in proportion to the degree of fault or negligence found against the parties respectively.

4. In any action tried with a jury, the degree of fault or negligence of the respective parties is a question of fact for the jury.

[28] In this case, two aspects of the tavern’s liability should have been identified for the jury: liability for causing or contributing to the accident by its negligent conduct toward the driver, and liability for causing or contributing to the damage by its negligent conduct toward the appellant passenger. The jury should have been asked to apportion the degree of fault for each aspect of the liability of the tavern separately, along with the liability of each of the other respondents for the accident and for the damage and of the appellant for the damage.

[29] The failure to instruct the jury to perform its function fully as required by the Negligence Act is an error of law that requires that this jury verdict be set aside. As a result, it is not necessary to address other issues raised regarding challenged procedural rulings by the trial judge.

RESULT

[30] This case was argued on the basis that the result of a finding of legal error would be an order for a new trial. However, there are concerns about making such an order in this case. The accident occurred in 1993. The trial lasted six weeks before the jury and some extended time beyond the jury verdict for the mistrial motion and issues of costs and post-judgment interest. The costs incurred to date are significant. Appellant counsel’s bill of costs presented for this appeal exceeds $163,000.

[31] In my view, in these circumstances, the interests of justice require that a new trial be avoided if possible. Memories will be stale, and the cost is prohibitive. Instead, this court should perform the apportionment task that the jury ought to have been instructed to and did not perform. Although one of the complaints made by the appellant was that the trial judge did not allow the appellant to fully explore in evidence the details of the tavern’s service of drinks to the appellant, the record in this case includes the tavern’s effective admission that it served the men to the point of intoxication and its additional admission that it contributed to the accident by allowing Glen Janveaux to drive home. On that basis, I am satisfied that this court is in a position to apportion the tavern’s share of the appellant’s contributory negligence.

[32] In Hague v. Billings (1993), 13 O.R. (3d) 298 (C.A.), this court set aside the apportionment of fault fixed by the trial judge. In that case, the trial judge apportioned 50% responsibility to the intoxicated driver who hit the plaintiff and 50% to the tavern that over-served him. Justice Griffiths held that the case was exceptional and justified the interference of the court. He was of the view that the driver bore the most responsibility and fixed 85% liability to the driver and 15% liability to the tavern.

[33] Thus, this court has jurisdiction to apportion fault in an extraordinary case. In my view, for the reasons I described, this is such a case. However, because counsel did not address the issue, I would invite their written submissions on the apportionment issue.

THE CROSS-APPEAL

[34] I would dismiss the cross-appeal. There is no basis to interfere with the jury’s assessment of damages. The trial judge reduced the general damages award to the cap set by the Supreme Court of Canada (ter Nuezen v. Korn, [1995] 3 S.C.R. 674). The trial judge made no error in so doing.

THE OTHER ISSUES

[35] As part of its submission that the jury verdict in this case was unreasonable, the appellant submitted that the jury should have awarded an amount for loss of future income rather than an inflated figure for general damages. I would not give effect to this submission. The issue of loss of future income was contested in the evidence and the jury was entitled to conclude that the appellant’s current career situation was not caused by the accident. The trial judge did not charge the jury on the cap on general damages. The jury viewed the general damages as more serious than the loss of income. In my view, there is no basis to interfere with the jury’s assessment of damages.

[36] The issues of costs of the trial and post-judgment interest are best dealt with after the court receives submissions on the apportionment issue.

COSTS

[37] I would fix the costs of the appeal at $50,000, inclusive of disbursements and G.S.T.

[38] Counsel may make written submissions on the issue of apportionment, no longer than five pages double-spaced, within two weeks of the date of release of these reasons.

RELEASED: November 1, 2005 “KF”

“K. Feldman J.A.”

“I agree E.A. Cronk J.A.”

“I agree R. G. Juriansz J.A.”

[^1]: The record suggested that the Janveaux corporate defendants may have shared ownership of the car.