ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 07-CV-037111
DATE: 2012/06/01
BETWEEN:
KYLE McLEAN
Plaintiff
– and –
MATTHEW EDWARD KNOX, JUDITH KNOX, 1197584 ONTARIO INC., carrying on business as FINNIGAN’S ROADHOUSE, and THE PERSONAL INSURANCE COMPANY
Defendants
– and –
PEMBRIDGE INSURANCE COMPANY
Statutory Third Party
William J. Sammon, for the Plaintiff
Daniel Reisler and Chester Wydrzynski, for the Defendant Finnigan’s Roadhouse
HEARD: May 14, 2012
REASONS FOR decision
r. smith j.
Overview
[ 1 ] The plaintiff asks me to sign a judgment for $174,553 without the $30,000 statutory deduction pursuant to the Insurance Act (the “ Act ”).
[ 2 ] The defendant Finnigan’s Roadhouse (“Finnigan’s”) takes the position that the $30,000 deductible applies to the award of general damages as the amount awarded was less than $100,000. Finnigan’s agrees to pay its one per cent share of responsibility of the deductible as an unprotected defendant and submits that judgment should be signed in the amount of $141,419.
[ 3 ] The plaintiff argues that there was an implied waiver by Finnigan’s of its right to claim the benefit of the deductible under s. 267.7(1) of the Act because it objected to putting a question to the jury which would have apportioned the liability for causing the accident between only two of the defendants, namely Finnigan’s and Knox.
[ 4 ] Finnigan’s was the bar that admitted one per cent liability for over‑serving Matthew Knox (“Knox”), the driver of the vehicle involved in the accident. Kyle McLean (“McLean”) is the plaintiff and was a passenger in the vehicle.
[ 5 ] Finnigan’s initially proposed that the jury questions start with a question about whether there was any contributory negligence by the plaintiff passenger and then a further question to determine the per cent of negligence between Knox, Finnigan’s and McLean. Finnigan’s then proposed a further question to determine the contribution, if any, of Finnigan’s for over‑serving the passenger McLean. Finnigan’s proposed questions are attached as Schedule “A”.
[ 6 ] The plaintiff proposed an initial question apportioning the percentage of negligence between Knox and Finnigan’s for causing the accident (attached as Schedule “B”). The plaintiff then proposed a question to establish the percentage of McLean’s contributory negligence and a further question to determine the percentage of Finnigan’s negligence for over‑serving McLean.
[ 7 ] The ultimate questions given to the jury are attached as Schedule “C”. They were intended to comply with the Court of Appeal’s decision in Pilon v. Janveaux (2006), 2006 6190 (ON CA) , 211 O.A.C. 19, O.J. No. 887 at para. 10 which stated as follows:
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.
[ 8 ] The e-mail exchange between counsel for Finnigan’s and Mclean confirm that counsel for Finnigan’s was aware that the $30,000 deductible from the general damages applied only to the protected defendant and for the need to determine the degrees of negligence between Finnigan’s and Knox.
[ 9 ] The following e-mail exchange occurred between counsel:
Date
Sender
Body of the e-mail
Oct 1/11
Reisler
I have a question that bears on this: Do you agree that the 30K deductible comes off the generals?
Oct 2/11
Sammon
The question of the 30K deductible will only apply if the damages for non pecuniary damages are 100K or less; in that unlikely event the respective degrees of negligence between Finnigan’s and Knox will have to be determined.
Later on Oct 2/11
Reisler
See what happens when you look things up first? You might actually get it right.
[ 10 ] In Sullivan Estate v. Bond , (2001) 2001 8584 (ON CA) , 55 O.R. (3d) 97, O.J. No. 3205, Moldaver J.A. interpreted s. 267.7(1) of the Act and stated as follows:
In other words, s. 267.7(1)(a)(i) of the Act limits the joint and several liability of an unprotected defendant [Finnigan’s] to a plaintiff to the same extent that a protected defendant’s liability is limited by virtue of s. 267.5 of the Act and as such, it modifies the extent to which an unprotected defendant would otherwise be liable under s. 1 of the Negligence Act .
[ 11 ] To summarize, the unprotected defendant is required to pay its percentage of negligence of the $30,000 deductible. Applying the Sullivan Estate reasoning, Finnigan’s would only be responsible to pay one per cent of the $30,000 deductible and would not have to pay the full $30,000 to the plaintiff pursuant to s. 1 of the Negligence Act .
[ 12 ] The plaintiff argues that as a result of Finnigan’s objection to a question to determine the percentage of negligence between only Finnigan’s and Knox for causing the accident, Finnigan’s responsibility for causing the accident cannot be ascertained, and as a result, Finnigan’s has waived its rights under s. 267.7(1) of the Act .
[ 13 ] Finnigan’s denies that it waived any of its rights under s. 267.7(1) of the Act and submits that the questions answered by the jury (attached as Schedule “C”), in particular question #4 apportions the percentage of degrees of negligence between Knox (84 per cent), Finnigan’s (one per cent), and the contributory negligence of McLean (15 per cent). The total adding up to 100 per cent.
[ 14 ] The plaintiff submits that this apportionment of negligence, which includes McLean’s contributory negligence of 15 per cent does not apportion the negligence related to causation of the accident, which can only be allocated between the driver and Finnigan’s because McLean did not contribute to causing the accident.
[ 15 ] While counsel for Finnigan’s was aware of the requirement to allocate negligence between Knox (a protected defendant) and Finnigan’s (a non protected defendant) for purposes of the $30,000 deductible, I do not find that by objecting to the suggested questions of the plaintiff that Finnigan’s has waived its right to rely on s. 267.7(1) of the Act .
[ 16 ] Before it answered question #4, the jury answered a question to determine Finnigan’s degree of negligence for over‑serving the passenger McLean. The jury answered that the plaintiff’s contributory negligence should be reduced by one per cent (question 3(b)) due to Finnigan’s negligence in over‑serving him, but then declined to make any adjustment to McLean’s contributory negligence as it answered question 3(c) as 15 per cent without any reduction.
[ 17 ] I find that when the jury answered question #4 it found that Finnigan’s degree of negligence was only one per cent and the balance of the degrees of negligence was allocated to Knox and McLean at 84 and 15 per cent respectfully. McLean’s portion of contributory negligence was not allocated to him for causing the accident but for assuming part of the risk of injury by becoming a passenger in a vehicle driven by an impaired river.
[ 18 ] When the jury found Finnigan’s degree of negligence to be one per cent, I infer that it found that Finnigan’s share of responsibility for causing or contributing to causing the accident was one per cent. It follows that the jury found that Knox was 99 per cent responsible for causing the accident. Knox’s percentage was reduced by McLean’s contributory negligence to 84%.
Disposition
[ 19 ] The judgment will therefore be signed at an amount as determined following trial, where Finnigan’s is responsible to pay for one per cent of the $30,000 deductible applicable to the general damages in accordance with s. 267.7(1) of the Insurance Act .
R. Smith J.
Released: June 1, 2012
COURT FILE NO.: 07-CV-037111
DATE: 2012/06/01
ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: KYLE McLEAN Plaintiff – and – MATTHEW EDWARD KNOX, JUDITH KNOX, 1197584 ONTARIO INC., carrying on business as FINNIGAN’S ROADHOUSE, and THE PERSONAL INSURANCE COMPANY Defendants – and – PEMBRIDGE INSURANCE COMPANY Statutory Third Party REASONS FOR decision R. Smith J.
Released: June 1, 2012
Schedule “A”
- Was there any negligence on the part of the Plaintiff Kyle McLean that cause or contributed to his injuries and damages?
Answer: Yes _______ No _______
If your answer to Question 1 is “Yes”, state briefly the particulars of such negligence.
If your answer to Question 1 is “No”, go to Question 6.
If your answer to Question 1 is “Yes”, and given the deemed admission of liability by the Defendant Matthew Knox, and the Defendant Finnigan’s admission of 1% liability, state in percentages the degree of negligence you attach to each party:
Answer: Matthew Knox: _______%
Finnigan’s: _______%
Kyle McLean: _______%
100 %
- If your answer to Question 1 is “Yes” and if you find that the Plaintiff Kyle McLean has established that he was served alcohol by the Defendant Finnigan’s past the point of intoxication, state a percentage, if any, being the contribution, if any, of the Defendant Finnigan’s to the negligence of the Plaintiff McLean:
Answer: Finnigan’s: _______%
- Regardless of your answers to Questions 1 to 5 above, at what amount do you assess the Plaintiff’s damages for the following:
(a) Pain, Suffering & Loss of Enjoyment of Life: $ _____________
(b) Past Income Loss from the 4 th June 2005 until today: $ _____________
(c) Future Income Loss: $ _____________
(d) Future Care Costs including Loss of Homemaking and Household services: $ _____________
Foreperson
Schedule “B”
- State if percentages the negligence you attach to each of the following with respect to causing the motor vehicle accident:
Answer: Matthew Knox: _______%
Finnigan’s (at least 1%) _______%
TOTAL 100%
- Was there negligence on the part of Kyle McLean that contributed to his own damages?
Answer: Yes _______ No _______
- If your answer is “Yes” to question 2, what is the percentage to Kyle McLean’s contributory negligence and provide particulars of same?
Answer: _______%
Particulars:
- What, if any, is the percentage of Finnigan’s negligence for over‑serving Kyle McLean?
Answer: _______%
- At what amount do you assess Kyle McLean’s damages for the following:
(a) Pain, Suffering & Loss of Enjoyment of Life: $ _____________
(b) Past Income Loss from the 4 th June 2005 until today: $ _____________
(c) Future Income Loss: $ _____________
(d) Future Care Costs including Loss of Homemaking and Household services: $ _____________
Foreperson
Schedule “C”
Back of page referred to in Question 2