CITATION: Dickerson v. 1610396 Ontario Inc. (Carey's Pub & Grill), 2010 ONCA 894
DATE: 20101223
DOCKET: C50345
COURT OF APPEAL FOR ONTARIO
Goudge, Cronk and Armstrong JJ.A.
BETWEEN
Phillip Daniel Dickerson
Plaintiff (Appellant)
and
1610396 Ontario Inc. c.o.b. as Carey’s Pub & Grill, David William Radcliffe, Mike Habash, Dwayne Hurley
Defendants (Respondents)
James D. Virtue, Christopher S. Collins and Rasha M. El-Tawil, for the appellant
Joseph M. Dillon Q.C. and Talaal F. Bond, for the respondents
Heard: September 8, 2010
On appeal from the judgment of Justice T. D. Little of the Superior Court of Justice, sitting with a jury, dated March 24, 2009.
Goudge J.A.:
INTRODUCTION
[1] In the late evening of April 18, 2005, David Dickerson was drinking at Carey’s Pub & Grill, a college pub in London Ontario. Shortly after midnight, David Radcliffe, who had been drinking elsewhere that evening, arrived at the pub. He continued drinking there until the 2 a.m. closing time when both he and Mr. Dickerson left. Shortly thereafter, Mr. Radcliffe, unprovoked, punched Mr. Dickerson in the head with enough force to cause significant brain injury and permanent disability.
[2] Mr. Dickerson sued Mr. Radcliffe. He also sued the owners and an employee of the pub (collectively Carey’s), relying on the civil liability of persons selling liquor created by s. 39 of the Liquor Licence Act, R.S.O. 1990, c. L.19 (the “Act”).
[3] At trial, the jury found Mr. Radcliffe 100% responsible for Mr. Dickerson’s injuries, while his claim against Carey’s was dismissed. He now appeals against Carey’s.
[4] The trial judge instructed the jury to answer the following question: did Carey’s serve beer to Mr. Radcliffe when his condition was such that to drink the beer would intoxicate him, or increase his level of intoxication, so that he would be a danger of causing injury to another person? They answered no.
[5] Mr. Dickerson’s primary argument is that in putting this question to the jury, the trial judge misdirected them as to the legal requirements for liability under s. 39. He also argues that the jury’s answer is unsupported by the evidence.
[6] For the reasons that follow, I do not agree with either argument, and I would therefore dismiss the appeal.
THE FACTS
[7] Mr. Radcliffe testified that he had a barbeque that evening at his home, where he consumed two or three bottles of beer. At about 11:45 p.m., he and two friends left and went to a school pub where they split a pitcher of beer. Shortly after midnight, they moved on to Carey’s, where they shared two more pitchers of beer before closing time.
[8] Carey’s evidence was that Mr. Radcliffe and his friends were well behaved while there, and that its employees did not see any patrons that night who were sufficiently intoxicated to be refused service or to be removed from the bar. Mr. Radcliffe, on the other hand, testified that his speech and balance were impaired and that he thought a bartender would have known that he was intoxicated.
[9] At closing time, Mr. Dickerson and his friends left the pub, as did the Radcliffe group. In the parking lot there was an exchange of words and a minor scuffle between the two groups. Carey’s noticed this and two of its people came outside, broke up the altercation, and told the groups to go their separate ways. Carey’s evidence was that both groups appeared to calm down and speak rationally. However, shortly thereafter the groups crossed paths again at a nearby location. A fight ensued, and Mr. Radcliffe assaulted Mr. Dickerson, leaving him with a disabling brain injury.
THE CHARGE
[10] The first two questions put to the jury by the trial judge concern Mr. Radcliffe’s liability. He instructed them that there was no doubt about Mr. Radcliffe’s responsibility for Mr. Dickerson’s injuries. Rather, the critical question was the liability of Carey’s.
[11] Turning to this, the trial judge instructed the jury about the liability of a commercial establishment both under the common law of negligence and under s. 39 of the Act. No argument is raised in this court about his instruction on the common law. The appellant’s complaint is about the instruction that was given concerning s. 39.
[12] The relevant parts of s. 39 read as follows:
Civil Liability
The following rules apply if a person or an agent or employee of a person sells liquor to or for a person whose condition is such that the consumption of liquor would apparently intoxicate the person or increase the person’s intoxication so that he or she would be in danger of causing injury to himself or herself or injury or damage to another person or the property of another person:
If the person to or for whom the liquor is sold commits suicide or meets death by accident while so intoxicated, an action under Part V of the Family Law Act lies against the person who or whose employee or agent sold the liquor.
If the person to or for whom the liquor is sold causes injury or damage to another person or the property of another person while so intoxicated, the other person is entitled to recover an amount as compensation for the injury or damage from the person who or whose employee or agent sold the liquor.
[13] In the course of his charge to the jury on this issue, the trial judge both repeated the precise language of the section and adapted it to the facts of this case. He also instructed the jury, on the one hand, that over-service alone did not render Carey’s liable, but on the other hand, that visible signs of impairment were not necessary for liability. He summarized the standard of care required by both s. 39 and the common law in the following language:
In this case Carey’s a commercial host that makes money from the sale of alcohol to its patrons may be found liable under both common law and statute law if it served a patron while intoxicated or over served a patron while intoxicated or over served that patron, either of those two, to a point of intoxication where it was reasonably foreseeable that the patron’s condition was such that he might harm himself or someone else.
[14] This instruction was captured in the third question put to the jury:
- Did Carey’s Pub and Grill sell beer to David Radcliffe when his condition was such that to drink the beer would intoxicate him or increase his level of intoxication so that he would be a danger of causing injury to another person? Yes, or no.
[15] The trial judge told the jury that if they answered “no” to this question it was “all over”. However he instructed them that if they answered “yes”, there were two further questions, questions 4 and 5, that they must consider:
Did Daniel Dickerson fall into a category of other persons it was foreseeable David Radcliffe was in danger of injuring? Yes or no.
If the answer to that is “yes”, you then say, Did Carey’s Pub and Grill take reasonable, affirmative action to prevent foreseeable injury to Daniel Dickerson?
[16] The jury returned with a “no” answer to question 3, and, as they had been instructed, did not go on to answer questions 4 and 5.
THE APPELLANT’S POSITION
[17] The appellant’s principal argument concerns s. 39 of the Act and the standard of care it requires. He says that the trial judge erred in instructing the jury that reasonable foreseeability applied to both the standard of care required by s. 39 and to the claim based on the common law of negligence. He argues that s. 39 simply requires over-service of the patron to the point of intoxication (or continued service after that point) followed by injury caused by that patron. He cites three cases to support this proposition. He says that the words of the section “… so that he … would be in danger of causing injury … to another person” are merely descriptive of the harm that could follow over-service. Finally, the appellant argues that the error is compounded by the further questions put to the jury, namely questions 4 and 5. He says that these questions contributed to the jury being misled in addressing question 3.
[18] The appellant’s second argument is that, in any event, the evidence was inconsistent with the jury’s answer to question 3, and for this reason as well, a new trial is required.
ANALYSIS
The Section 39 Issue
[19] The appellant argues that the trial judge misdirected the jury in explaining the standard of care required by s. 39 of the Act and that this misdirection is reflected in the question put to them on this issue namely, question 3.
[20] To obtain the new trial he seeks, the appellant must show that this instruction misstated the law on a critical issue: see Pereira v. Hamilton Township Farmers’ Mutual Fire Insurance Co. (2006), 2006 12284 (ON CA), 267 D.L.R. (4th) 690 (Ont. C.A.), at para. 76. There can be no doubt about the importance of this issue in this trial. The question is whether the trial judge misstated the relevant law for the jury.
[21] The appellant says that the trial judge erred by telling the jury that the commercial establishment does not breach the requirements of s. 39 merely by over serving a patron to the point of intoxication (as the appellant contends), but rather must be over served to the point where it is reasonably foreseeable that the patron’s condition is such that he might harm another person.
[22] I do not agree with this submission for the following reasons.
[23] Section 39 in its present form has been in the Act since 1990. It was first introduced into the legislation in very similar form in 1946, to replace a differently worded provision first enacted in 1889. The 1889 legislation had simply rendered a seller of liquor liable to anyone injured by someone intoxicated by the liquor furnished by the seller. The appellant maintains that s. 39 does not require any foreseeability of harm, However the cases he cites for that proposition were all decided under the 1889 legislation, which said nothing about the degree of over-service required to create the risk necessary to trigger the liability of the commercial establishment.
[24] Section 39 is different in this regard. In its current form, s. 39 imposes a statutory liability in certain circumstances on a commercial establishment for the harm caused by its business of selling liquor. This reflects the general policy of the Act to regulate the production, sale and use of liquor in the interest of safety and the general welfare of the public: see R. v. Royal Canadian Legion, 1971 372 (ON CA), [1971] 3 O.R. 552, at 556 (C.A.). It imposes special responsibilities on those who would profit from the supply and sale of alcohol in order to reduce the risk associated with that trade.: see Childs v. Desmoreaux, 2006 SCC 18, [2006] 1 S.C.R. 643, at para. 20.
[25] Despite the existence of this statutory liability for over sixty years, it has received surprisingly little attention in the jurisprudence compared to the common law of negligence applicable to commercial establishments.
[26] Section 39 has two parts. First, the first paragraph defines the standard of care required of a seller of liquor. Its meaning is the focus of the appellant’s argument in this appeal.
[27] The second part is Rules 1 and 2, which describe the circumstances in which consequences will follow when the standard of care is breached. Rule 2 asks simply whether the patron who was served in breach of the seller’s standard of care caused injury to another person while so intoxicated. If so, compensation follows.
[28] To repeat, the standard of care set out in s. 39 is as follows:
The following rules apply if a person or an agent or employee of a person sells liquor to or for a person whose condition is such that the consumption of liquor would apparently intoxicate the person or increase the person’s intoxication so that he or she would be in danger of causing injury to himself or herself or injury or damage to another person or the property of another person.
[29] I cannot agree with the appellant that this language sets out a standard that is breached by simply over serving a patron to the point of intoxication. That would render the words “…so that he or she would be in danger of causing injury to himself or herself or injury or damage to another person or the property of another person” devoid of legal meaning. I do not agree that the legislature intended these words to be without legal effect but merely descriptive of the kind of harm that may follow from over-service. Legislatures are not in the habit of writing legislation that is purely descriptive but without legal meaning.
[30] More importantly, the plain and ordinary meaning of these words does carry legal significance. These words describe the level of over-service that attracts liability because of the risk it creates. In the factual context of this case, the over-service must produce the patron’s intoxication or increase it sufficiently that the patron would be in danger of injuring another person. It requires a risk assessment by the commercial establishment. That assessment is aptly captured in the language of the common law: if the patron is over served to the point of intoxication or beyond, such that it is reasonably foreseeable that the patron may injure another, the commercial establishment breaches the statutory standard of care required by s. 39.
[31] Not only is this the plain and ordinary meaning of the language in s. 39, it faithfully serves the policy of the Act, which is to place significant responsibilities on the commercial seller of liquor to act in the protection of the public. It calibrates the degree of over-service needed to trigger the statutory liability of the commercial establishment, thereby defining the responsibility placed on that establishment by the legislature to protect the public while pursuing its own commercial interest in the sale of liquor.
[32] Given this statutory liability imposed on Carey’s by s. 39, I can see no error in the question (question 3) that the trial judge put to the jury on this issue, nor in the charge he gave to the jury explaining it. He correctly told them that the mere fact of over-service does not attract liability. He then instructed the jury by reading the language of s. 39 to them, adapting it to the facts of this case, and telling them that Carey’s breached its standard of care if it served a patron to or beyond the point of intoxication where it was reasonably foreseeable that the patron’s condition was such that he might harm himself or someone else. These instructions properly charge the jury with the task required of them by s. 39 of the Act.
[33] The trial judge then properly reflected this instruction in question 3. In every relevant respect, that question is in the precise language of s. 39 with one omission that is innocuous. The wisdom of tracking the language of s. 39 when it is required to put this statutory liability to the jury was underlined by this court in Picka Estate v. Porter, [1980] O.J. 252 (C.A.), at para. 7. Where both the statutory liability of the commercial establishment and its common law liability in negligence are being put to the jury, it may be, as here, that the same question, using the language of s. 39, will suffice, given the facts of the particular case.
[34] The one omission is that question 3 does not include the word “apparently”. This is harmless because, in his instruction leading up to this question, the trial judge included the word several times in explaining the question to the jury. In addition, this court has been clear that s. 39 does not require visible signs of intoxication. That is not the contribution of “apparently” to s. 39: see MacIntyre v. Grigg (2006), 2006 37326 (ON CA), 83 O.R. (3d) 161 (C.A.). The question is whether, in all the circumstances, the service produces a level of intoxication sufficient that the patron would foreseeably be in danger of injuring another person. That is what the jury was asked to decide.
[35] While it is not necessary to decide in this case, there are two respects in which the statutory liability analysis required by s. 39 may differ from that required by the common law of negligence, although in practice circumstances where either would arise are difficult to imagine.
[36] First, section s. 39 requires only that the risk of injury be reasonably foreseeable, not that in a general way, the type or kind of injury actually suffered be reasonably foreseeable. Second, s. 39 requires only that there be a reasonably foreseeable risk of injury to another person, not that the person injured be within the category of persons foreseeably at risk. These issues do not arise in this case, as the jury evidently concluded that there was no foreseeable risk of injury at all.
[37] The appellant’s final argument on the s. 39 issue seeks to draw some help from questions 4 and 5. The appellant says that these questions would have misled the jury about the task required of it by question 3. The simple answer is that these questions could not have affected the jury’s approach to question 3 because they were clearly told not to consider those two questions unless they answered question 3 affirmatively. They followed that instruction and answered question 3 without considering questions 4 and 5.
[38] While consideration of any reasonable precautions taken to reduce or eliminate the risk posed by the patron taken by the commercial establishment in a particular case are probably better considered as part of the statutory liability assessment rather than as a separate question, no harm was done in this case because the jury found no statutory liability without the need to consider any affirmative action by Carey’s.
[39] In summary therefore, I can see no error in the question of statutory liability put to the jury or the charge explaining it. Their negative answer to the question was not the product of erroneous legal instruction, since there was none.
The Insufficient Evidence Issue
[40] The appellant’s second argument is that, in any event, the evidence does not sustain the jury’s negative answer to question 3.
[41] This argument must be rejected. There was ample evidence to support the jury’s conclusion that Carey’s did not over serve Mr. Radcliffe to the point where he would be in danger of causing injury to himself or another person. The verdict is not plainly unreasonable and unjust and I would not interfere with it.
[42] In conclusion, despite Mr. Virtue’s able argument, the appeal must be dismissed.
[43] Costs to the respondents if demanded, fixed at $20,000, inclusive of disbursements and applicable taxes.
RELEASED: DEC 23 2010 (“S.T.G.”)
“S. T. Goudge J.A.”
“I agree. E. A. Cronk J.A.”
“I agree. Armstrong J.A.”