COURT FILE NO.: 42621/03

DATE: 2013/01/21

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

DANNIELLE SHUKSTER

Gordon Good, for the Plaintiff

Plaintiff

• and -

BRADLEY YOUNG, NANCY YOUNG, HAY MUTUAL INSURANCE COMPANY, CO-OPERATORS GENERAL INSURANCE COMPANY, and CUMIS GENERAL INSURANCE COMPANY and LIQUOR CONTROL BOARD OF ONTARIO, STORE #622

Jennifer Chapman, for the Defendant, Bradley Young

Brian Smith, for the Defendant, Liquor Control Board of Ontario, Store #622

Defendants

HEARD: August 20, 2012

LEACH, J.

[1] Before me is a motion by the defendant Liquor Control Board of Ontario - Store #622, (“the LCBO”), requesting summary judgment dismissing the plaintiff’s claims against it.

[2] In broad terms, the LCBO advances two grounds for the motion, suggesting that both are amenable to determination by summary judgment but that either would warrant an order granting the relief requested. In particular, the LCBO contends that:

i. the plaintiff’s claims are barred by the statutory limitation period pleaded and relied upon by the LCBO in its statement of defence; and

ii. the evidence is insufficient in any event to substantiate the claim the plaintiff has made against the LCBO, such that it has no chance of success.

[3] The motion is opposed by the plaintiff. Counsel retained by the Motor Vehicle Accident Claims Fund to represent the defendant Bradley Young, (the only other remaining defendant to the action), filed evidence for use on the motion but otherwise took no formal position and made no submissions.

[4] The brevity of the description set out above unfortunately does not reflect the nature of the exercise required for a proper determination of the motion. In particular, the two-pronged nature of the LCBO’s argument and the plaintiff’s response requires examination, from two perspectives, of events and evidence generated and compiled over a period of ten years.

BACKGROUND

[5] In the course of my reasons, I will return in more detail to considerations and evidence having particular relevance to each of the suggested grounds for summary judgment.

[6] However, to put that information in proper context, (particularly insofar as the limitation issue is concerned), an outline of this matter’s extended and somewhat complicated history is required. Therefore, by way of background and overall chronology:

a) This litigation stems from a single vehicle accident in the Town of Hensall during the early morning hours of August 29, 2002. The vehicle was being operated by the defendant Bradley Young, (“Young”, who was 16 at the time). It belonged to Young’s mother, and had been taken without her consent. (Young had broken into the home of his parents while they were away, and taken keys to the vehicle.)

b) When the accident occurred, there were two passengers in the vehicle: Alex Youmans, (“Youmans”, who was 18 at the time), and the plaintiff Danielle Shukster, (born March 21, 1985, and 17 at the time). The vehicle collided with a tree. As a result, the plaintiff is alleged to have sustained serious injuries, including a traumatic brain injury that has substantially impaired her memory of events leading to the accident while also making it more difficult for her to provide instructions to counsel.

c) The police responded to the accident. Young was charged under the Criminal Code with taking a motor vehicle without consent, and with dangerous operation of a motor vehicle causing bodily harm. In due course, the criminal proceedings were resolved by Young’s plea of guilty to the latter charge.

d) Although Young was not charged with any alcohol related offences, he had consumed alcohol shortly before the accident.

e) On September 18, 2003, the plaintiff issued her original statement of claim. Named defendants included Young, Young’s mother and three different insurance companies; i.e., the putative insurers of Young’s mother, the plaintiff’s father, and the plaintiff’s mother. (The insurers were alleged to have coverage responsibilities pursuant to the uninsured, underinsured or family protection endorsement provisions of the various policies.) The pleading did not name the LCBO as a defendant. However, it did allege that Young was operating the vehicle when his ability to drive was impaired by alcohol.

f) Following service of the claim, counsel were retained by all defendants, a number of whom initiated crossclaims against Young. However, between September of 2003 and August of 2009, progress of the action was delayed by further coverage and representation issues concerning Young. In particular:

i. The circumstances suggested a distinct possibility that, of the originally named defendants, Young alone might be the only one in respect of whom the plaintiff had a viable claim.

ii. Given Young’s age, circumstances and lack of insurance, the plaintiff’s ability to recover anything for Young’s liability seemed dependent on the Motor Vehicle Accident Claims Act, R.S.O. 1990, c.M.41. This established the Motor Vehicle Accident Claims Fund (“the Fund”) as a “payor of last resort”; i.e., a source of minimum recovery for people injured in automobile accidents when no automobile insurance exists to respond to the claim.

iii. Having regard to its constituent legislation, the Fund nevertheless appoints legal counsel to defend an alleged uninsured defendant only if he or she does not file a defence. In particular, the uninsured defendant must be served with the claim and noted in default before the Fund acquires status and files a defence on his or her behalf.

iv. Notwithstanding his guilty plea in the related criminal proceedings, Young initially responded to service of the plaintiff’s civil claim by filing a statement of defence, (on October 31, 2003). This effectively prevented the Fund’s involvement in the litigation, (as the Fund explained when responding to inquiries from plaintiff counsel in February of 2004).

v. Between February of 2004 and July of 2005, plaintiff counsel made efforts to facilitate involvement of the Fund, (and thus some measure of recovery for the plaintiff), by explaining the situation to Young’s counsel of record. Despite indications of intended co-operation, steps voluntarily taken by Young’s lawyers during this period effectively left the impediment to Fund participation intact. In particular, instead of Young’s defence being formally withdrawn, there initially was a formal change in Young’s solicitors, followed by Young’s delivery of a notice of intention to act in person, (delivered in July of 2005). As his formal defence remained in place, Young could not be noted in default. Responding to further inquiries, the Fund then apparently indicated that it could and would involve itself in the litigation only if Young failed to attend a discovery examination, thereby generating a certificate of non-attendance.

vi. Between August of 2005 and September of 2006, plaintiff counsel tried to contact Young, explain the Fund situation, and obtain his co-operation. (There were also communications with counsel for the other named defendants, advising them of the situation.) However, Young remained unresponsive. Eventually, a discovery examination of Young was scheduled for September 27, 2006, and Young was served with a corresponding notice of examination.

vii. To the surprise of counsel, Young then presented himself for discovery examination on September 27, 2006. Instead of proceeding immediately with Young’s examination, counsel first took the opportunity to explain the Fund situation to Young and request his co-operation; i.e., to secure voluntary withdrawal of his existing defence in order to facilitate the Fund’s involvement. In particular, it seems that counsel for the remaining defendants asked plaintiff counsel to retire before speaking with Young. Young apparently also spoke by telephone with a Fund representative. In the result, Young indicated his desire and intention to seek further independent legal advice, and/or communicate further with the Fund, to sort out his position. In light of that discussion, all concerned agreed to defer Young’s discovery examination for the time being.

viii. Between September of 2006 and January of 2007, however, Young either failed to co-operate or was slow in doing so. In an effort to move matters forward, plaintiff counsel communicated again with Young’s last counsel of record, as well as the Fund.

ix. On or about January 25, 2007, Young finally delivered a notice of withdrawal of defence.

x. Between February and June of 2007, steps then were taken to note Young in default, advise the Fund accordingly, and secure the Fund’s formal participation in the litigation. Fund appointed counsel then delivered a statement of defence for Young on June 7, 2007.

xi. Between June of 2007 and August of 2009, the litigation progressed slowly as Fund counsel was brought up to speed, pleadings were formalized, productions and information were exchanged, and counsel addressed possible resolution of the claims against all defendants other than Young prior to discovery examinations. (There was lingering uncertainty about coverage, complicated by the plaintiff’s receipt of accident benefits from Mrs. Young’s insurer.) Plaintiff counsel and Fund counsel also discussed the possibility of settlement. Following co-ordination between the numerous lawyers involved, discovery examinations eventually were scheduled for September 9, 2009.

g) On August 26, 2009, plaintiff counsel confirmed receipt of instructions to formally discontinue the claims against all defendants other than Young. (A consent order formally dismissing the claims without costs eventually was processed on December 7, 2009. In the meantime, it was agreed that the examinations scheduled for September of 2009 would proceed without the participation of defendants other than Young.)

h) On September 9, 2009, the plaintiff attended for her examination, and was questioned by Fund counsel representing Young.

i) On the same day, (September 9, 2009), Young attended for his examination, and was questioned by the plaintiff’s lawyer. During the course of that examination, Young indicated that the alcohol he consumed before the accident had been purchased the afternoon before from the LCBO store in Hensall using “a fake ID” supplied to him by Youmans. (As noted below, the evidence before me indicates this was the first actual disclosure of such information to the plaintiff or her counsel since the accident in August of 2002.)

j) On September 29, 2010, the plaintiff formally moved for an order permitting amendment of her pleading to add the LCBO as a defendant. The order was obtained on October 16, 2010. The precise content of the plaintiff’s allegations against the LCBO is set out below. Generally, however, the plaintiff alleges that the LCBO was negligent in permitting the sale of alcohol to a minor, (Young).

k) On December 8, 2010, the LCBO delivered a statement of defence, which included an express allegation that the plaintiff’s claim against it was statute-barred for failure to commence an action within the applicable limitation period. The LCBO’s pleading also included a denial of negligence. In particular, the LCBO specifically denied that it knowingly sold alcohol to a minor, and asserted that it took all reasonable care in the circumstances, (including inspection of the identification presented by Young), to ensure that Young was of legal age to purchase alcohol. In that regard, the LCBO specifically relied on various provisions of the Liquor Licence Act, R.S.O. 1990, c.L.19, (discussed in more detail below).

l) On January 25, 2011, an LCBO representative, Pamela Robertson (“Robertson”), the lone employee working at the Hensall LCBO store when Young is said to have purchased alcohol there, attended for a discovery examination by the plaintiff’s lawyer. On the same day, the plaintiff underwent a further oral discovery examination, this time by the LCBO’s lawyer.

m) The LCBO’s motion for summary judgment initially was returnable on November 29, 2011. After a number of adjournments, the motion came before me for hearing.

SUMMARY JUDGMENT – GENERAL PRINCIPLES

[7] The LCBO moves pursuant to Rule 20.01(3) of the Rules of Civil Procedure, which reads as follows:

20.01 (3) A defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim.

[8] Pursuant to the provisions of Rule 20.02, a responding plaintiff then is obliged to go beyond pleaded allegations to set out, “in affidavit material or other evidence”, specific facts indicating a genuine issue requiring trial.

[9] The provisions of Rule 20.04(2) address disposition of such a summary judgment motion, and indicate that the court shall grant summary judgment “if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence”.

[10] Pursuant to Rule 20.04(2.1), a judge making that determination must “consider the evidence submitted by the parties”, and may exercise any of the following powers, “unless it is in the interest of justice for such powers to be exercised only at trial”:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

[11] These provisions of Rule 20.04(2) and 20.04(2.1), along with the further power conferred by Rule 20.04(2.2) to order and control the presentation of additional oral evidence, reflect and incorporate amendments implemented on January 1, 2010.

[12] Those amendments were the subject of extended consideration by our Court of Appeal in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, [2011] O.J. No. 5431 (C.A.)[1], which addressed many aspects of the “new” Rule 20 in a detailed manner. For present purposes, I believe the observations and guidance contained therein may be summarized as follows:

a) Limitations of summary judgment - Importance of trials:

While acknowledging that the rule amendments were intended to promote summary judgment as a means of resolving litigation more expeditiously and with comparatively less cost, (removing many of the constraints established by earlier jurisprudence), the Court of Appeal emphasized that the purpose of the Rule 20 amendments was “to eliminate unnecessary trials, not to eliminate all trials”[2]. In certain circumstances, a full trial process will still be essential to accomplish that goal; i.e., because of the many qualitative advantages it offers compared to the limitations necessarily inherent in the summary judgment process, (even in its expanded form). In the context of addressing motions for summary judgment, the guiding consideration is whether the more limited summary judgment process is capable of providing an “appropriate means for effecting a fair and just resolution of the dispute before the court”.[3] In some cases, it will be “safe” to determine the matter via the summary judgment process. In others, neither the motion record nor a motion record supplemented via the new summary judgment “tools” will be adequate to displace the need for pursuing a just result through the full trial process. This “pivotal determination” has to be made on a “case-by-case basis”.[4]

b) Types of cases amenable to summary judgment:

Emphasizing that the following categorization was general, non-exhaustive, not mutually exclusive, and not even necessary for proper analysis by a summary judgment motions judge, the Court of Appeal suggested there were three types of cases amenable to summary judgment:

1. Cases where the parties agree it would be appropriate to determine an action by way of a summary judgment motion, (although the court maintains an overriding discretion);

2. Cases where claims or defences are shown to be without merit, (possibly through use of the expanded powers provided by the amended rule); and

3. Cases where the motions judge is satisfied “that the issues can be fairly and justly resolved” by exercising the expanded powers provided by the amended rule.[5]

c) “Interest of justice” considerations, and the new “full appreciation test”:

The expanded powers offered by the amended summary judgment rule, (to weigh evidence, evaluate credibility and draw reasonable inferences), may only be exercised in the “interest of justice”. The Court of Appeal regarded this as “limiting language” that “guides the determination” of when the powers should be exercised, and reflects the aim of the civil justice system to provide a “just result in disputed matters through a fair process”. Having regard to the inherent limitations of the summary judgment process compared to a full trial, the Court of Appeal held that, in deciding whether to exercise the expanded powers offered by the amended summary judgment rule, the motion judge must ask the following question: “Can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of a trial?”[6]

d) Hallmarks of cases where such a “full appreciation” is not possible and summary judgment is inappropriate:

In cases calling for “multiple findings of fact on the basis of conflicting evidence emanating from a number of witnesses and found in a voluminous record”, a summary judgment motion generally cannot serve as an adequate substitute for the trial process. The motion judge “simply cannot achieve the full appreciation of the evidence and issues that is required to make dispositive findings”, the “full appreciation test is not met”, and the “interest of justice” requires a trial.[7]

e) Hallmarks of cases where such a “full appreciation” is possible and summary judgment is appropriate:

Not surprisingly, satisfaction of the “full appreciation” test will be more likely in cases lacking the above complications; e.g., in “document-driven cases with limited testimonial evidence”, “cases with limited contentious factual issues”, and “cases where the record can be supplemented to the requisite degree at the motion judge’s direction by hearing oral evidence on discrete issues”.[8]

f) Evidentiary obligations – Timing of summary judgment motions:

The Court of Appeal emphasized that adoption of the new “full appreciation” test does not alter the now familiar and well-established evidentiary obligations on parties involved in a summary judgment. In particular, each side is still required to “put its best foot forward” with respect to the existence or non-existence of material issues to be tried, and is not entitled to “sit back and rely on the possibility of more favourable facts developing at trial”.[9]

[13] With this guidance in mind, I now turn to successive consideration of the alternate bases on which the LCBO suggests it would be appropriate to grant summary judgment dismissing the plaintiff’s claims against it: alleged expiry of the applicable limitation period, and the alleged inability of the plaintiff to substantiate her claim on the merits in any event.

LIMITATION PERIOD - GENERAL CONSIDERATIONS

[14] The imposition of limitation periods reflects serious concern about practical problems that invariably arise when courts are called upon to adjudicate stale claims with stale testimony, creating the very real risk of bad trials and poor decisions. Memories fade, witnesses die and or move away, and documentation will be destroyed. At some point, evidence becomes too unreliable to form a found basis for adjudication, and a limitation period should prevent the claim from being adjudicated at all.[10]

[15] As our Court of Appeal therefore has emphasized on numerous occasions, limitation periods therefore “are not enacted to be ignored”. Rather, with some allowance for difficulties that might be encountered in discoverability, plaintiffs are “required to act with due diligence in acquiring facts in order to be fully apprised of the material facts upon which a negligence … claim can be based”.[11]

[16] Where limitation period questions arise, it accordingly is important to identify the relevant limitation period (if any), and the time at which it commenced to run, having regard to discoverability and the plaintiff’s obligation to exercise due diligence.

[17] In Ontario, the starting point for such analysis generally now is found in sections 4 and 5 of the Limitations Act, 2002, S.O. 2002, c.24, which for present purposes read in part as follows:

Basic Limitation Period

4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

Discovery

5. (1) A claim is discovered on the earlier of,

a. The day on which the person with the claim first knew,

i. that the injury, loss or damage had occurred,

ii. that the injury, loss or damage was caused by or contributed to by an act or omission,

iii. that the act or omission was that of the person against whom the claim was made, and

iv. that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

b. The day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

Presumption

(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1)(a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.

[18] Numerous cases have considered and applied these provisions in the context of summary judgment motions, (brought after amendment of Rule 20 in January of 2010), requesting dismissal of claims based on alleged expiry of applicable limitation periods. See, for example: White v. Mannen, 2011 ONSC 1058, [2011] O.J. No. 1039 (S.C.J.); Ferrara v. Lorenzetti Wolfe Barristers and Solicitors, 2012 ONSC 151, [2012] O.J. No. 135 (S.C.J.); and Sian v. Kooner, [2012] O.J. No. 807 (S.C.J.).[12]

[19] In my opinion, these decisions and the authorities cited therein, along with the provisions themselves, indicate the following:

• Subsection 5(1)(a) contains a subjective test that focuses on the plaintiff’s actual knowledge of the types of facts enumerated under that provision. Evidence that the plaintiff had actual knowledge of such matters will trigger operation of the limitation period. However, a lack of such evidence and/or a denial of such actual knowledge will not suffice to prevent a finding that operation of the limitation period was triggered, if other provisions of section 5 indicate that such a finding is appropriate.

• In particular, subsection 5(1)(b) contains a second test that is objective, and requires the plaintiff’s knowledge to be assessed in relation to a standard asking when a reasonable person, with the plaintiff’s abilities and in the plaintiff’s circumstances, ought to have had knowledge of the matters enumerated in subsection 5(1)(b). This in turn usually leads to a consideration of the steps such a person would have taken to acquire such knowledge. In effect, the question becomes one of determining when the plaintiff, in the particular circumstances of the case, ought to have learned of such matters. One must ask why the plaintiff and his/her solicitor were unaware of such matters until some later point. The applicable standard is that of a “reasonably prudent person in pursuing the facts”.

• Moreover, subsection 5(2) goes further, and establishes a rebuttable presumption that the plaintiff did know of such matters on the day the underlying act or omission took place. The burden is on the plaintiff to rebut that presumption. In other words, once a defendant has pleaded a limitations defence, the evidentiary burden is on the plaintiff to prove that the claim was issued within the limitation period.

• Pursuant to Rule 20, a party moving for summary judgment retains the overall burden of showing that there is no genuine issue requiring trial. However, where a defendant moves for summary judgment in relation to a statutory limitation period, the evidentiary burden as to the discoverability issue and under Rule 20 effectively shifts to the responding party under section 5(2). In particular, the plaintiff must adduce evidence sufficient to demonstrate that there is a genuine issue, requiring trial, concerning operation of the limitation period pursuant to subsections 5(1) and 5(2). In particular, a plaintiff seeking to defeat operation of the limitation period on such a motion has the onus to rebut the presumption in s.5(2), or at least demonstrate that there is a genuine issue requiring trial as to whether that presumption is rebutted.

• Such determinations are fact driven, and must be decided based on the particular circumstances of each case.

[20] The above provisions and principles focus on the basic limitation period and considerations of discovery that might delay commencement of its operation.

[21] However, one also must bear in mind that the required approach is tempered and modified by numerous other provisions of the Limitation Act, 2002, supra.

[22] These include section 6 of the Limitations Act, supra, which provides that the “limitation period established by section 4 does not run during any time in which the person with the claim … is a minor … and is not represented by a litigation guardian in relation to the claim”.[13]

[23] Moreover, where a claim is based on alleged acts or omissions that took place before January 1, 2004, (when the current legislation came into force), application of the general approach to limitation periods mandated by the current legislation also is tempered by the “transition” provisions found in section 24 of the Limitations Act, 2002, supra. Those provisions read in part as follows:

Definition

24. (1) In this section, “former limitation period” means the limitation period that applied in respect of the claim before January 1, 2004.

Application

(2) This section applies to claim based on acts or omissions that took place before January 1, 2004, and in respect of which no proceeding has been commenced before that date.

Former limitation period expired

(3) If the former limitation period expired before January 1, 2004, no proceeding shall be commenced in respect of the claim.

Former limitation period unexpired

(4) If the former limitation period did not expire before January 1, 2004, and if no limitation period under this Act would apply were the claim based on an act or omission that took place on or after that date, there is no limitation period.

Same

(5) If the former limitation period did not expire before January 1, 2004 and if a limitation period under this Act would apply were the claim based on an act or omission that took place on or after that date, the following rules apply:

1. If the claim was not discovered before January 1, 2004, this Act applies as if the act or omission had taken place on that date.

2. If the claim was discovered before January 1, 2004, the former limitation period applies.

[24] In that regard, our Court of Appeal has held that, for the purposes of s.24(2) of the Limitations Act, 2002, supra, the word “proceeding” cannot sensibly be interpreted without reference to the party against whom an action, (challenged by alleged expiry of a limitation period), has been brought. In other words, it is not enough that a plaintiff has commenced a proceeding against someone in relation to an incident. A “proceeding”, in the sense required for s.24(2), must be in respect of the acts or omissions of the targeted defendant in question. See St. Jean v. Cheung, 2008 ONCA 815, [2008] O.J. No. 4862 (C.A.), at paragraphs 30 and 31.

LIMITATION PERIOD - EVIDENCE

[25] Much of the extensive material filed before me essentially was tendered in relation to the limitation period issue.

[26] In particular, both the plaintiff and the LCBO rely on various aspects of the extended litigation history in support of their respective arguments as to when the plaintiff and her counsel knew or ought to have known that she had a claim against the LCBO.

[27] I have attempted to summarize some of that voluminous record and very detailed evidence in the extended background outlined above.

[28] However, in considering the LCBO’s request for summary judgment based on alleged expiry of the applicable limitation period, I also have particular regard to other evidence relating to the involvement of alcohol and the LCBO in the accident, and efforts that were made or could have been made to investigate and obtain such information. This includes the following:

a) A motor vehicle accident report was prepared by investigating police officers shortly after the accident. Although it was suggested that the report contains no reference to the consumption of alcohol, this is not entirely accurate. While it contains no words or comments indicating alcohol consumption by Young, the template of codes used by the police in preparing such reports makes it clear that such an indication effectively was made. In particular, box 35 of the standard form report, which refers to “Driver/Pedestrian Condition”, has been filled with a “02” notation, which indicates that the driver “had been drinking”. Elsewhere in the standard form report, in the “Yes” and “No” boxes next to the words “breathalyzer” and “blood test”, the “Y” box has been marked.

b) In a statement made to police on the day of the accident, Young admitted that he had consumed alcohol before driving. His statement indicated the amount and type of alcohol he had consumed, (“Royal Reserve”), but not its source or where it had been consumed.

c) On October 1, 2002, Young’s mother provided a statement to her insurer indicating that the alcohol consumed by Young prior to the accident had been obtained from Youmans’ mother.

d) On May 30, 2003, plaintiff counsel was advised that Young had entered a guilty plea in criminal proceedings relating to the accident. Some ten weeks later, (on August 18, 2003, plaintiff counsel wrote to the police, requesting production of the investigating officer’s notes and making a request for further disclosure pursuant to the Freedom of Information Act. Further steps in that regard were taken in September of 2003.

e) From the outset of this litigation, (commenced by statement of claim issued on September 18, 2003), the plaintiff formally has asserted that Young’s consumption of alcohol was a cause of the accident.

f) From October of 2003 to February of 2005, plaintiff counsel followed up with requests seeking further disclosure of documentation and information from the police, (e.g., officer notes and witness statements), disclosure of the Crown brief assembled for the related criminal prosecution of Young, (which necessitated plaintiff counsel obtaining written authorization from Young to the disclosure), and a transcript of the criminal proceedings against Young.

g) On July 28, 2004, plaintiff counsel obtained, (in the course of proceedings seeking accident benefits for the plaintiff), a copy of the aforesaid statement provided by Young’s mother to her insurer on October 1, 2002, indicating that the relevant alcohol had been obtained from Youmans’ mother.

h) On March 1, 2005, plaintiff counsel received disclosure of the Crown brief. The contents, (which included details of Young’s breathalyzer test results and a statement taken from Youmans), disclosed that Young had consumed alcohol and the type of alcohol consumed, but did not identify its source.

i) Fund counsel first attempted to contact Young by way of a letter sent February 5, 2007. Young did not respond, necessitating further letters to Young sent on June 7, 2007, April 21, 2008, and January 2, 2009, asking Young to contact Fund counsel “to discuss details of [the] accident”. Young apparently did not respond in any way until he telephoned Fund counsel on January 8, 2009.

j) Fund counsel currently has no specific recollection of his telephone call with Young on January 8, 2009, but he documented details of his conversation with Young in a contemporaneous memo. According to the memo, Young indicated that the alcohol consumed prior to the accident has been obtained from “Danielle’s mother”; i.e., the mother of the plaintiff. Young also told Fund counsel that, when the alcohol ran out, “the plan was to drive into Crediton to get more alcohol from Alex’s mother”; i.e., the mother of Youmans. Young apparently gave no indication that the alcohol consumed prior to the accident had been purchased from the LCBO.

k) By the time of the discovery examinations on September 9, 2009, the plaintiff and her counsel had not yet been supplied with a sworn affidavit of documents by Young or Fund counsel. However, the plaintiff and her counsel had received disclosure of the Crown brief.

l) During her discovery examination on September 9, 2009, the plaintiff indicated the following:

i. Youmans’ mother lived in Crediton, (a community approximately 20 km from Hensall), and was the manager of a bar in Grand Bend, (a community approximately 30 km from Hensall). She had allowed her son and the plaintiff to live with her before the couple relocated to Hensall shortly before the accident.

ii. Because of the accident and her head injury, the plaintiff has problems with her memory. She has no recollection of the accident. She recalls drinking alcohol in her apartment with Youmans and Young that evening, but cannot remember the source of the alcohol. She has no memory of Young going to a liquor store, or any discussion about Young going to purchase alcohol with a “fake ID”. She did not think that Youmans ever had such a document.

iii. The plaintiff did recall Young showing her, at some unspecified time, a driver’s licence which she believed to be his.

iv. The plaintiff and Youmans had a child together, but separated in 2004 following a domestic dispute that resulted in formal non-association provisions. The plaintiff indicated that everything about her relationship with Youmans was “stressful”. She also said that Youmans had never told her anything about various matters relating to the accident; e.g., how she came to be in the car, or how the car was obtained.

v. Since the accident, the plaintiff has had “nothing to do with” Young, apart from an isolated occasion when he came to retrieve clothing from the plaintiff’s residence. On that occasion, the plaintiff did not speak with Young.

m) In addition to Young’s indication of purchasing alcohol from the LCBO using “fake ID”, his discovery evidence on September 9, 2009, included the following:

i. Youman’s mother had a reputation as a “so-called bootlegger”, from whom alcohol could be obtained.

ii. At the hospital shortly after the accident, Youmans asked Young to mislead the police during the course of their investigation. Young agreed, and admittedly then lied to the police. He decided to tell the truth only during the course of the plaintiff’s subsequent civil litigation.

n) During Young’s examination on September 9, 2009, the documented remarks of plaintiff counsel indicate surprise in response to Young’s indication of having consumed alcohol purchased from the LCBO using false identification. These included comments that the “case just got a whole bunch more complicated”, and an express indication of being “somewhat taken by surprise about this alcohol consumption”, thereby preventing more fulsome examination on that point for the time being and reservation of a right to ask further questions “arising out of further investigation or productions with respect to that particular issue”.

o) Through statements made to plaintiff counsel and affidavit evidence filed in relation to the motion before me, Fund counsel also confirmed first learning of the alleged LCBO alcohol purchase by Young at the time of Young’s oral discovery examination on September 9, 2009. Up until that point, it was the understanding of Fund counsel that the alcohol consumed by Young prior to the accident had been obtained from the plaintiff’s mother.

p) During her second discovery examination, (on January 25, 2011), the plaintiff indicated, (directly or through answers provided by plaintiff counsel), the following:

i. With the passage of time, the plaintiff has recovered no further memories concerning the source of the alcohol consumed prior to the accident.

ii. Young’s indication of having purchased alcohol from the LCBO came to the plaintiff’s attention only after his examination in September of 2009.

iii. At the time of Young’s examination, Fund counsel expressed “shock and amazement” in relation to the indication that the relevant alcohol has been purchased by Young from the LCBO.

iv. Although the plaintiff was seeing Youmans “all the time”, (at the time of her second examination), they never talked about the accident or the events that occurred before the accident. In particular, she and Youmans had never discussed the source of the alcohol consumed prior to the accident.

v. The plaintiff learned only sometime after the accident that Young was under the age of 19 when it occurred.

vi. After Young’s examination, the investigating police officer was interviewed and asked whether he had obtained any information about the source of alcohol consumed before the accident. The officer indicated that he had no record of ever having asked that question; “it wasn’t relevant to his investigation”, and he therefore “didn’t care” what the answer might have been.

q) During the plaintiff’s second discovery examination, plaintiff counsel was asked by LCBO counsel to provide details of the steps taken by the plaintiff and her counsel to determine the source of the relevant alcohol. The question was taken under advisement, and to date has not been formally answered.

r) On November 21, 2011, plaintiff counsel received a report commissioned from a toxicologist, (Dr Michael Ward of Forensic Information Services), providing expert opinion as to the impact Young’s indicated alcohol consumption would have had on Young and his ability to operate a motor vehicle at the time of the accident. According to other evidence filed on the plaintiff’s behalf, she and her counsel were not aware of that impact prior to receipt of Dr Ward’s report.

LIMITATION PERIOD - ANALYSIS

[29] A determination of whether summary judgment should be granted in this particular case, based on expiry of the applicable limitation period, obviously should start with identification of the relevant limitation period.

[30] However, this too unfortunately is not a straightforward exercise, owing to the accident having happened many years ago, the passage of intervening legislation, the plaintiff’s date of birth, and the time at which she correspondingly reached her age of majority.

Identification of Relevant Limitation Period

[31] In the case before me:

a) The injury, loss or damage underlying the plaintiff’s claim occurred at the time of the motor vehicle accident on August 29, 2002, (a date self-evidently before Ontario’s “new” limitation period legislation came into effect on January 1, 2004), and no proceeding in respect of the alleged acts or omissions of the LCBO had been commenced by the plaintiff before January 1, 2004.

b) Pursuant to s.24(2) of the Limitations Act, 2002, supra, the transition provisions of section 24 therefore apply to the plaintiff’s claim against the LCBO.

c) The “former limitation period” that would have applied to such a claim generally was the two year limitation period imposed by section 206 of the Highway Traffic Act, R.S.O. 1990, c.H.8, (the relevant portion of which provided that “no proceeding shall be brought against a person for the recovery of damages occasioned by a motor vehicle after the expiration of two years from the time when the damages were sustained”), and that former limitation period had not expired before January 1, 2004.

d) The matter accordingly is governed by the transition provisions of s.24(5), as the former limitation period applicable to such a claim had not expired before January 1, 2004, and had the relevant act or omission taken place after that date, it would have been subject to the basic limitation period set forth in the Limitations Act, 2002, supra.

[32] Therefore, applying s.24(5) of the Limitations Act, 2002, supra, (“the Act”), to the case at hand:

a) If the plaintiff’s claim against the LCBO was not discovered before January 1, 2004, the Act applies as if the underlying act or omission had taken place on that date; (i.e., making it subject to the two year basic limitation period established by s.4 of the “new” legislation, which runs from the date on which the claim was “discovered”). As the plaintiff already had achieved her age of majority by January 1, 2004, section 6 of the Act would have no relevance or application, as the basic limitation period established by section 4 would not run, on the facts, during any time in which the plaintiff was a minor.

b) If the plaintiff’s claim was “discovered” after the accident but before January 1, 2004, the applicable limitation period is the former limitation period; i.e., the two year limitation period established by Highway Traffic Act, supra. Barring other considerations, that two year limitation period ostensibly would have commenced on August 29, 2002. However, even prior to enactment of the Limitations Act, 2002, supra, running of that limitation period would have been postponed at least until the plaintiff attained her age of majority on March 21, 2003.[14] Moreover, its running also might have been postponed still further, (to a date between the plaintiff’s eighteenth birthday and January 1, 2004), by operation of the common law principle of discoverability confirmed by the Supreme Court of Canada in Peixeiro v. Haberman, supra. However, if this branch of s.24(5) applies at all, (because of the claim’s discovery before January 1, 2004), by definition the claim will have been “discovered” no later than later than December 31, 2003, and the applicable two year limitation period expired no later than December 31, 2005, without the plaintiff having commenced a claim against the LCBO.

[33] No formal steps were taken by the plaintiff to advance a claim against the LCBO until the bringing of her motion to amend her statement of claim on September 29, 2010; i.e., over eight years after the underlying accident on August 29, 2002, and well beyond any of the ostensible two year limitation periods outlined above.

[34] In effect, the plaintiff’s claim against the LCBO therefore will be barred by an applicable limitation period in any event unless it was not “discovered” until sometime after September 29, 2008; i.e., less than two years prior to the taking of formal measures to commence her claim against the LCBO.

Discovery Issue and Positions

[35] Having regard to the legislative provisions and authorities described above, and the particular circumstances of this case, the required overall approach to the resulting “discovery” issue is as follows:

a) The plaintiff’s claim must be considered “discovered” on the day when she “first knew” of the matters set out in sub-paragraph 5(1)(a) of the Act. In this case, there is no question that the plaintiff was aware of her injury, loss and damage on the date of the accident. The primary focus is on when she first knew that this possibly resulted from an act or omission of the LCBO; i.e., the factors outlined in ss.5(1)(a)(ii) and (iii) of the Act. However, there also effectively is a suggestion, pursuant to either s.5(1)(a)(ii) and (iv), that she did not know that Young’s consumption of alcohol allegedly supplied by the LCBO was a cause of the accident, or that a proceeding in that regard would be appropriate, until receipt of the expert toxicologist report on November 21, 2011.

b) The LCBO apparently does not dispute the evidence indicating that the plaintiff and her counsel had no actual knowledge of the LCBO’s alleged conduct and role in the accident prior to Young’s discovery examination on September 9, 2009, although it does question the suggestion that Young and her counsel were not aware of the alleged causative role played by the alcohol, or that a proceeding against the LCBO was appropriate, until receipt of the toxicologist’s report on November 21, 2011. I agree that the latter suggestion is contradicted and belied by the steps actually taken by the plaintiff to commence a formal proceeding against the LCBO on September 29, 2010, well before receipt of the toxicologist’s report. This confirms that knowledge of the alleged conduct and role of the LCBO was sufficient to make the plaintiff aware that a proceeding against the LCBO was appropriate in the circumstances. The true focus therefore is on the plaintiff’s knowledge of the LCBO’s involvement.

c) Pursuant to s.5(1)(b) of the Act, if the plaintiff and her counsel had no actual knowledge of the alleged conduct and role of the LCBO prior to Young’s examination on September 9, 2009, the question then becomes one of determining whether a reasonable person, with the plaintiff’s abilities and in the plaintiff’s circumstances, still ought to have had knowledge of those matters at an earlier date, (and in particular, more than two years prior to September 29, 2010, when formal steps were initiated to commence her claim against the LCBO).

d) Pursuant to s.5(2) of the Act, the plaintiff is presumed to have known all of the matters outlined in s.5(1)(a), including knowledge of the alleged negligent sale of alcohol to Young by the LCBO and its suggested role in causing the accident, on the day of the accident; i.e., on August 29, 2002. The burden lies on the plaintiff to rebut that presumption, (even though the overall burden on a summary judgment motion rests with the LCBO).

[36] In moving for summary judgment on the basis of the limitation period, the LCBO contends that the plaintiff has not rebutted the presumption that she and her counsel knew or ought to have known of the LCBO’s alleged conduct and role in the accident well before any two year period prior to commencement of the plaintiff’s claim against the LCBO.

[37] In particular, the LCBO says the plaintiff has not rebutted the presumption by leading evidence satisfying her positive obligation to demonstrate that she and her counsel were reasonably diligent in identifying all potentially liable parties, including the LCBO.

[38] To the contrary, the LCBO says that, although the readily apparent circumstances of underage drinking and driving warranted a reasonably diligent investigation to determine the source of the alcohol consumed by Young, (identified by the plaintiff herself as having played a causative role in the accident, from the outset of the formal litigation), there is no evidence that the plaintiff or her counsel took appropriate steps in that regard over the extended period between the accident and the two years prior to initiating a formal claim against the LCBO. It relies in particular on:

a) The failure to ask Youmans about the source of the alcohol, notwithstanding the plaintiff’s relationship and contact with Youmans in the period immediately following the accident, and at later times;

b) The failure to ask Young about the source of alcohol prior to his discovery examination on September 9, 2009, (e.g., during the time of Young’s formal self-representation when plaintiff counsel wrote directly to Young requesting his co-operation in securing involvement of the Fund and Young’s authorization for release of the Crown brief, or during the face-to-face meeting with Young that took place on September 27, 2006, prior to his previously scheduled discovery examination being aborted); and

c) Young’s willingness to indicate the source of the alcohol when he was asked about the source of alcohol during the discovery examination in September of 2009, (which the LCBO takes as an indication that Young would have responded in a similar manner if asked directly about such matters at an earlier date).

[39] More generally, the LCBO relies heavily on the absence of any direct affidavit evidence from the plaintiff’s solicitor, in support of the assertion of reasonable due diligence, expressly detailing the steps taken to identify potentially liable parties.

[40] In that regard, the LCBO relies on Pepper v. Zellers Inc., supra, where the Court of Appeal, at paragraph 21, reiterated the proposition that “In most cases one would expect to find, as part of a solicitor’s affidavit, a list of the attempts made by the solicitor to obtain information to substantiate the assertion that the party was reasonably diligent”. [15] In the same paragraph, the Court commented adversely on the fact that, in responding to the discoverability issues raised by the defendant’s motion for summary judgment, “there was no affidavit evidence from the appellants’ lawyer, only one from the lawyer’s law clerk, which provided no particulars of any steps taken to obtain information and did not explain why no steps were taken”. In the result, the Court found in that case that the appellants had offered “no explanation other than to say that no one gave them the information”.[16]

[41] In response, plaintiff counsel acknowledges that the evidence tendered in response to the LCBO’s motion was filed by means of an affidavit from his law clerk, (reflecting limitations inherent in his status as a sole practitioner), but submits that affidavit evidence, and the other material it places before the court, clearly differentiates this case from others wherein a responding party offered no evidence indicating steps taken to exercise due diligence, and “no explanation” for a professed inability to identify a potentially liable party at an earlier date or suggested failure to take certain additional steps in that regard.

[42] The plaintiff submits the evidence now before the court, taken as a whole, shows why her claim against the LCBO could not reasonably be discovered at an earlier date, or at least demonstrates the existence of a “genuine issue requiring trial” in that regard.

“Discovery” Determination – Application of Summary Judgment

[43] As a threshold observation in my summary judgment analysis of the limitation period issue, I believe it should not be decided on the simple basis that there is no affidavit from the plaintiff solicitor himself outlining discovery efforts in an express “steps taken” format.

[44] In that regard, I note the following:

a) Rule 20.02(2) does not specify the precise form of evidence to be tendered by a party responding to a motion for summary judgment, but instead employs a flexible reference to “affidavit material or other evidence”. Not surprisingly, courts therefore have regard not only to affidavit evidence per se, but to the extensive documentation and discovery examination or other transcripts often introduced by affidavit evidence. See, for example, Smith v. Barna Estate, [2012] O.J. No. 510 (S.C.J.), at paragraph 23.

b) While authorities such as Pepper v. Zellers Inc. emphasize the usual importance and effectiveness of a solicitor affidavit in relation to such discoverability matters, they do not elevate the need for such an affidavit to an absolute rule. Moreover, such authorities also usually emphasize, in the particular circumstances considered, the absence of any evidence outlining steps taken or explanation of delay. To that extent, they do not address situations where such evidence arguably has been provided in another manner.

c) Authorities as Pepper v. Zellers Inc. were decided prior to amendment of Rule 20 and confirmation of the court’s new power, if appropriate “in the interest of justice”, to draw “any reasonable inference” from the evidence that has been tendered. In my opinion, this inherently reduces the need for parties to tender responding evidence in any particular express and exhaustive format, (although a party whose evidence fails to “connect the dots” sufficiently runs the risk of necessary inferences not being drawn).

[45] Subject to the limitations emphasized by Combined Air, supra, I therefore think it appropriate to consider the matter having regard to all the evidence tendered before me, drawing whatever reasonable inferences that material suggests regardless of the manner in which it has been presented. Any other approach would elevate form over substance, and derogate from the power conferred by Rule 20.04(2.1).

[46] With the above considerations in mind, is this case amenable to determination by summary judgment as far as the limitation period issue is concerned?

[47] Obviously, it is not a situation where the parties have reached any agreement in that regard.

[48] Nor, in my opinion, is this a case where it would be possible to determine the limitation period without resort to the expanded powers now conferred by Rule 20.04.

[49] Pursuant to Combined Air, supra, the question to be answered on this aspect of the LCBO’s motion therefore is this: “Can the full appreciation of the evidence and issues required to make dispositive findings in relation to the limitation period and discoverability issues be achieved by summary judgment, or can this full appreciation only be achieved by way of trial?”

[50] Having considered the matter and tendered evidence carefully, I think a trial is needed to permit the requisite “full appreciation” of the evidence and issues, at least insofar as the limitation period and discovery are concerned.

[51] In particular, it seems to me that the plaintiff has tendered sufficient evidence to raise serious and significant issues in relation to discoverability. However, many aspects of the evidence remain unclear and problematic, warranting their further exploration and resolution at trial before the limitation period and discovery issues can be resolved conclusively in favour of one side or the other.

[52] Much of the substantial material before me relates primarily to the limitation period issues, and in particular, the manner in which the plaintiff’s investigation and litigation have progressed over the years.

[53] A good deal of this suggests the exercise of reasonable diligence on the part of the plaintiff and her solicitor. For example, the pleadings, correspondence and discovery evidence all support a reasonable inference that the plaintiff and her counsel were taking usual and appropriate steps to investigate the circumstances leading to the accident, and actively target any party who might bear liability for the plaintiff’s loss. Such measures included:

i. targeting and pursuing all insurers possibly charged with providing liability insurance;

ii. timely requests and follow-up inquiries to secure full disclosure from public authorities, (including the police investigation, Crown brief and transcript of the ancillary criminal proceedings);

iii. obtaining timely disclosure from the insurer providing accident benefit coverage; and

iv. taking steps to move the matter forward to discovery examinations, having regard to the additional constraints posed by the plaintiff’s injuries, and the coverage and representation issues associated with Young.

[54] These are not the usual indicia of a plaintiff “sleeping on her rights”.

[55] Nor is this a case where the plaintiff has offered, via her responding evidence, “no explanation” as to why she and her counsel did not learn of the LCBO’s alleged failings and involvement at an earlier date.

[56] To the contrary, the responding evidence tendered by the plaintiff suggests numerous reasons why a reasonable person “with the plaintiff’s abilities and in the plaintiff’s circumstances” understandably may not have learned of the LCBO’s conduct and involvement prior to Young’s discovery examination in September of 2009. In particular:

a) It was not disputed that the plaintiff’s own ability to recall the source of the alcohol was impaired and effectively prevented by her injuries. The only evidence in that regard therefore would have to be provided by Youmans and/or Young, either indirectly through their indications to others, or directly through their response to inquiries from the plaintiff and her counsel.

b) What Youmans and Young had indicated to others either failed to mention the LCBO, (e.g., the statements given by Youmans and Young to the police said nothing in that regard), or pointed to an alcohol source other than the LCBO. In particular, the statement provided by Mrs Young to her own insurer on October 1, 2002, (obtained by plaintiff counsel during the two year period following the accident), indicated that the relevant alcohol had been supplied by Youmans’ mother. A reasonable inference is that Young was the source of his mother’s information in that regard; i.e., that Young was telling people within weeks of the accident that the alcohol had come from a source other than the LCBO. More recent information obtained by plaintiff counsel obviously suggests that earlier information may have been inaccurate. However, authority such as Velasco v. North York Chevrolet Oldsmobile Ltd. (2011), 2011 ONCA 522, 106 O.R. (3d) 332 (C.A.), at paragraph 9, suggests that plaintiff counsel who rely on inaccurate information obtained during the course of investigations should be regarded as having “acted with reasonable diligence in continuing to rely on that information until contrary information came to their attention”.

c) The LCBO argues that Youmans should have been questioned directly about the source of the alcohol long before now, and that doing so would have alerted the plaintiff and her counsel to the LCBO’s alleged involvement. However, the evidence indicates, directly and by reasonable inference I think, that the relationship between the plaintiff and Youmans was extremely volatile and strained following the accident, (to the point of criminal charges being laid and/or non-association provisions being imposed), and that the plaintiff to some extent has preserved contact with her child’s father by a tacit agreement that there will be no discussion between them of the accident or the circumstances leading to the accident. There accordingly is an explanation as to why a reasonable person, in the particular circumstances of the plaintiff, may not have pursued such direct inquiries outside the formal litigation. Moreover, the evidence also suggests good reason to question whether Youmans would have provided truthful and accurate evidence as to the source of the alcohol even had he been asked about that at an earlier date. In that regard, I have in mind Young’s discovery examination evidence indicating that, on the day of the accident, in the immediate wake of his girlfriend’s apparently very serious injuries, Youmans’ primary concern was active concealment of any wrongdoing on his part and a corresponding request that Young assist in deliberate efforts to mislead the police in their investigation. At the very least, this suggests Youmans may not have been forthcoming at any later time about any information revealing his involvement in procuring and supplying false identification, or encouraging its use to facilitate an illegal underage purchase of alcohol from the LCBO.

d) The LCBO similarly argues that Young should have been questioned directly about the source of the alcohol well before his discovery examination on September 9, 2009, and that this too would have alerted the plaintiff and her counsel to the LCBO’s alleged involvement. However, there is a good deal of evidence indicating that Young frequently was not responsive to any inquiries concerning the accident. (Numerous letters and requests from plaintiff counsel and Fund counsel apparently went completely unanswered, over extended periods of time.) There accordingly is reason to doubt whether Young would have responded at all to direct substantive inquiries about the accident, prior to his formal discovery examination. Moreover, even if the plaintiff and her counsel had made earlier direct inquiries about Young’s source of alcohol, there are numerous indications that he may not have been truthful, accurate and forthcoming, at any earlier time, about his alleged underage purchase of alcohol from the LCBO. Young himself indicated as much during his discovery examination; i.e., when confirming his agreement with Youmans to mislead the police, and his decision to change his story only later, in the context of the plaintiff’s civil litigation. However, evidence of his earlier lack of candour and/or misdirection concerning the source of his alcohol is also suggested by his statement to the police, (which makes no mention of where he obtained the alcohol), the statement Young likely made to his mother in the weeks after the accident before she provided a statement to her insurer, (indicating that the alcohol came from Youmans’ mother), and the statements Young apparently made to Fund counsel in January of 2009, (indicating that the alcohol came from the plaintiff’s mother).

e) More generally, the evidence outlines a credible explanation as to why formal discovery of Young was delayed, and authorities such as Madrid v. Ivanhoe Cambridge Inc. (2010), 2010 ONSC 2235, 101 O.R. (3d) 553 (S.C.J.), at paragraphs 14 and 15, (and the cases cited therein), explain why courts generally are inclined to make some allowance for a litigant’s failure to learn information prior to exercising formal rights of discovery:

It is not unusual for possible defendants to emerge as a result of information received during the opposite party’s document production or during the discovery process in an action. In the context of motor vehicle accidents, examinations for discovery are often delayed to permit injuries to ripen and perhaps to resolve so later discovery of additional possible defendants is not so unusual. …

In the absence of an unexpected or unusual trigger, there is little to be gained by imposing judicially a free-standing duty on plaintiffs to write pro forma letters to defendants inquiring about the identity of other possible defendants under the rubric of due diligence in s.5 of the Limitations Act, 2002. It would not be in the interests of justice to encourage an overly muscular development of the concept of pre-discovery due diligence. The burden of responding would immediately shift to defendant and add unproductive costs. The parties should not have to conduct a pre-discovery form of discovery.

[57] However, while the evidence before me is sufficient to raise doubt about whether a reasonable person in the plaintiff’s circumstances ought to have learned of the LCBO’s involvement at an earlier date, I also feel unable, in the current context, to resolve that discovery issue in the plaintiff’s favour.

[58] My concerns in that regard include the following:

a) Despite the considerable material placed before me, there are effective gaps in the chronology during which substantial time appears to lapse before further steps are taken to advance the litigation. The material placed before me suggests indirectly why this may have occurred, but further detailed exploration and testing of such evidence at trial might suggest that the plaintiff and her counsel should have pushed the matter on to formal discovery examinations at a much earlier date.[17]

b) There are at least some indirect indications that the plaintiff and her counsel may not actually have relied, at any material time, on the statement provided by Mrs Young to her insurer on October 1, 2002, (which was disclosed to the plaintiff and her counsel on July 18, 2004), indicating that the alcohol had been obtained from Youmans’ mother. For example, despite the considerable importance attached to the statement and its disclosure during the submissions before me on August 20, 2012, I note that neither the statement nor the timing of its revelation were mentioned in the responding material originally filed by the plaintiff in advance of the motion’s earlier special appointment hearing date on April 27, 2012. Nor did the statement prompt any attempt by the plaintiff to advance a formal claim against Youmans’ mother. As suggested by plaintiff counsel, omission of the statement from the plaintiffs’ original responding material may stem from inadvertence, and the differential approach taken by plaintiff counsel in suing the LCBO and not Youmans’ mother may have reflected a considered distinction between commercial vendors of alcohol on the one hand, and social or parental hosts on the other.[18] However, further exploration and testing of the plaintiff’s evidence at trial might result in a conclusion that the plaintiff actually placed no reliance on Mrs Young’s statement prior to the LCBO’s summary judgment motion.

c) Although there is evidence suggesting why the plaintiff reasonably may not have made direct inquiries to Youmans or Young at an earlier time, and that earlier inquiries would not have indicated the LCBO’s alleged involvement in any event, it seems to me that final determinations in that regard would turn on necessary assessments of credibility that properly should be made only after the court has an opportunity to make direct observations of those concerned; e.g., the plaintiff, Youmans, Young and perhaps Young’s mother.

[59] In short, it seems to me that a full appreciation of the evidence and issues required to make final determinations in relation to the limitation period and discovery issues can only be achieved by way of trial. In the words used by Rule 20 itself, I am not “satisfied that there is no genuine issue for trial” in that regard.

[60] The LCBO’s request for summary judgment on that basis therefore fails.

[61] This makes it necessary to address the second ground relied upon by the LCBO for its motion; i.e., that the claim has no chance of success in any event, because the evidence is insufficient to substantiate the claim the plaintiff has made against the LCBO.

LCBO LIABILITY – GENERAL PRINCIPLES AND CONSIDERATIONS

[62] The plaintiff’s claim against the LCBO is framed exclusively in “negligence”, and is contained in paragraph 24 of the plaintiff’s amended statement of claim:

24. The plaintiff pleads that the injury in question was caused by and contributed to by the negligence of the Defendant, LCBO, the particulars of which are as follows:

(a) the Defendant and/or their agents and employees failed to take reasonable care to ensure that the Defendant Bradley Young was of legal age to purchase alcohol;

(b) the Defendant and/or their agents and employees failed to inspect the ID which Bradley Young produced to confirm that the ID in fact belonged to Bradley Young;

(c) the Defendant and/or their agents and employees caused to exist and permitted the exist (sic) of danger by allowing the minor Defendant, Bradley Young, to purchase alcohol;

(d) the Defendant and/or their agents and employees failed to take any steps to stop the Defendant Bradley Young when it knew or ought to have known that the Defendant Bradley Young was a minor who would be consuming alcohol and might face a situation of danger by doing so; [and]

(e) the Defendant and/or their agents and employees failed to take reasonable precautions for the safety of those persons using the roadway when they sold alcohol to the minor, Bradley Young.

[63] As noted by the editors of Remedies in Tort, (Klar et al.), at c.16.1, s.9, citing authorities including Blair v. G.T.R., 1923 491 (ON CA), [1924] 1 D.L.R. 353 (Ont.C.A.), and Thompson v. Fraser, 1955 92 (SCC), [1955] S.C.R. 419:

The classic definition of negligence is “the omission to do something which a reasonable [person], guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable [person] would not do. What a reasonable [person] would do or not do depends on all the circumstances; what may be negligence in one case may not be in another.

[64] A review of leading texts on tort law confirms that there are differing opinions as to what elements constitute a cause of action in negligence.[19]

[65] However, common to all these definitions of “negligence”, and all variations of the suggested elements of the tort, is a fundamental requirement that a claimant establish a defendant’s breach of the standard of care properly expected in such circumstances.

[66] That requirement really was the focus of argument before me, as far as the second general ground of the LCBO’s motion for summary judgment was concerned.

[67] In particular, for purposes of its summary judgment motion at least, the LCBO did not suggest there was “no genuine issue requiring a trial” concerning other suggested elements of negligence that the plaintiff must make out in order to succeed at trial; (e.g., duty, damage or adequate causal connection).[20]

[68] Rather, the LCBO focused on the plaintiff’s alleged inability to establish, as she must, on the balance of the probabilities, that the LCBO breached any applicable standard of care in the circumstances. If that is the case, the plaintiff’s claim is destined for failure, regardless of whether she is able to substantiate the other elements of the tort, and there is “no genuine issue requiring a trial” as far as her claim against the LCBO is concerned.

[69] Plaintiff counsel focused his response accordingly; i.e., by arguing there is at least a “genuine issue requiring a trial” as far as the LCBO’s alleged misconduct and breach of an appropriate standard of care is concerned.

[70] I accordingly will adopt a similar focus in considering this second suggested basis for the LCBO’s summary judgment motion.

[71] When considering the requisite “standard of care”, the content of the duty owed by a defendant to a plaintiff generally has been delineated, (as in the “classic definition” set forth above), by notions of what a “prudent and reasonable person” would do or not do in the circumstances, guided by “those considerations which ordinarily regulate the conduct of human affairs”.[21]

[72] An extensive summary of the character of the reasonable person is found in Arland v. Taylor, 1955 145 (ON CA), [1955] O.R. 131 (C.A.), where Laidlaw J.A. made the following comments at p.142:

[The reasonable person] is a mythical creature of the law whose conduct is the standard by which the Courts measure the conduct of all other persons and find it to be proper or improper in particularly circumstances as they may exist from time to time. He is not an extraordinary or unusual creature; he is not superhuman; he is not required to display the highest skill of which anyone is capable; he is not a genius who can perform uncommon feats, nor is he possessed of unusual powers of foresight. He is a person of normal intelligence who makes prudence a guide to his conduct. He does nothing that a prudent man would not do and does not omit to do anything a prudent man would do. He acts in accord with general approved practice. His conduct is guided by considerations which ordinarily regulate the conduct of human affairs. His conduct is the standard adopted in the community by persons of ordinary intelligence and prudence.

[73] As noted by the editors of Remedies in Tort, supra, some statutes expressly proscribe a standard of conduct in a given situation and may also express civil liability. More often, however, legislation proscribes certain conduct but is silent as to tort liability, leaving the issue for the courts to decide. Generally, “statutory breach does not constitute negligence per se”, and “compliance with statutory provisions does not replace the defendant’s common law duty of care”. However, in appropriate circumstances, compliance with statutory standards may entirely satisfy the common law standard of care and absolve a defendant of liability in negligence. In particular, “if a statute authorizes certain activities and strictly defines the manner of performance and precautions to be taken, then it is more likely to be found that compliance with the statute constitutes reasonable care and no additional measures are required”.[22]

[74] In this case, both the LCBO and the plaintiff approached the motion accepting that the LCBO had statutory duties imposed and qualified pursuant to the “Responsible Use” provisions of the Liquor Licence Act, supra, which read in part as follows:

RESPONSIBLE USE

Rules, persons under 18

30. (1) No person shall knowingly sell or supply liquor to a person under nineteen years of age.

(2) No person shall sell or supply liquor to a person who appears to be under nineteen years of age. …

Reliance on documentation

(6) A person who sells or supplies liquor to another person … on the basis of documentation of a prescribed type is not in contravention of subsection (2) … if there is no apparent reason to doubt the authenticity of the documentation or that it was issued to the person producing it.

[75] As noted above, plaintiff counsel made reference, in support of his arguments responding to the limitation period concern, to the distinction emphasized by our Supreme Court between those who supply alcohol in the commercial context and private social hosts.[23] This included reference to the Supreme Court’s comments, at paragraph 21 of Childs v. Desormeaux, supra, underscoring the dangers of alcohol over-consumption, or alcohol consumption “by young or otherwise vulnerable persons”, that underlies the regulatory control of alcohol sale and service in commercial settings.

[76] Beyond this passing reference, however, neither counsel for the LCBO nor counsel for the plaintiff otherwise suggested any other particular standard of care considerations applicable to the plaintiff’s claim against the LCBO, apart from the aforesaid provisions of the Liquor Licence Act, supra.

[77] To the contrary, both counsel indicated there was no reported authority suggesting the existence of any applicable common law standard of care on the LCBO higher than that imposed by the above legislative provisions in such circumstances.

[78] Counsel accordingly focused their argument on whether the available evidence was capable of establishing that the LCBO had or had not breached its statutory duties in the particular circumstances of this case.

LCBO LIABILITY - EVIDENCE

[79] Evidence relating to the LCBO’s alleged sale of alcohol to Young, and the circumstances in which this may have occurred, includes the following:

a) Because of her injuries, the plaintiff can remember drinking with Youmans and Young in her apartment prior to the accident, but cannot remember the source of the alcohol. Nor does she remember Young going to the liquor store, or any discussion about Young purchasing alcohol with a “fake ID”. Her memories in that regard have not improved with the passage of time. However, the plaintiff does recall Young showing her, at some unspecified time, a driver’s licence which she believed to be his.

b) At the time of the accident, the plaintiff was 19, Youmans was 18 and the plaintiff was 16. However, although the plaintiff had known Young for at least a number of weeks prior to the accident, she did not know he was 16. She says she learned Young was under 19 at the time only after the accident.

c) During the plaintiff’s second discovery examination on January 25, 2011, plaintiff counsel indicated that, in support of her negligence allegations, the plaintiff was relying on the LCBO’s statutory duty of care and obligation “to not serve alcohol to people that are less than 19 years of age”, as well as its alleged failure to see that “the rules were followed”.

d) The LCBO produced documentation indicating and confirming its numerous standing policies and programs, in force at the time of the accident in 2002, designed to prevent the sale of alcohol to those who are or appear to be under age, and to provide LCBO staff “with the necessary skills and strategies for responsible service and handling difficult situations”. This material included the “Social Responsibility” provisions of the LCBO’s store operations manual and its “Strategies for managing agent alcohol-related troubles” (“SMAART”), the provisions and requirements of which include the following:

i. An express reminder that “LCBO staff must not sell alcohol to those who are or appear to be under age”. This is buttressed by express reproduction of the provisions of the Liquor Licence Act, supra, indicating that “No person shall sell or supply liquor or permit liquor to be sold or supplied to any person who appears to be under 19 years of age…”

ii. The LCBO’s mandated “Check 25” practice, which reads as follows: “Persons who appear to be under the age of 25 must be challenged by LCBO staff to provide acceptable photo identification. If they cannot provide acceptable photo identification LCBO staff must refuse to sell alcohol to them.”

iii. Additional mandated and specified “Challenge” and “Refusal” practices, including directions that:

1. Staff must challenge all persons attempting to purchase alcohol that appear to be under the age of 25;

2. Staff must refuse to sell alcohol products to all persons who appear to be under the age of 25 and cannot produce acceptable forms of identification, (specified elsewhere within the policy);

3. LCBO staff must document any such challenge and refusal by use of a specified form and report; and

4. The importance of training and continued support in relation to the LCBO’s programs and policies is to be emphasized at all staff meetings.

iv. A training requirement and restriction that reads as follows: “All LCBO Staff must receive SMAART training within three months of hire, and must not process customer purchases until they have received SMAART training.”

v. A standing written instruction to staff regarding identification produced by individuals attempting to purchase alcohol, which reads as follows: “Remember, check and evaluate all presented identification – both prescribed and non-prescribed. If the expiry date has passed or if there is any doubt whatsoever about its validity, ask the customer for another form of government-issued photo identification. If one is unavailable, refuse the sale and document the Challenge and Refusal.” [Original emphasis.]

vi. Confirmation that LCBO staff training includes various video and workbook exercises providing staff with more detailed suggestions of things to look for when examining proffered photo identification; e.g., non-expiry and consistency of dates, signs of possible alteration, (such as fading, yellowing, the presence of small holes in lamination, and imperfect alignment of information). These also suggest that staff look for certain specified behaviors, clothing and other indicia often associated with underage individuals attempting to purchase alcohol.

e) The LCBO also disclosed and produced a copy of a “Four Week Schedule” covering the date of the accident and the day before; (i.e., the date on which Young is alleged to have purchased alcohol from the LCBO store in Hensall). This schedule indicates that, on Tuesday, August 28, 2002, during its opening hours of 9am to 6pm, the LCBO store in Hensall was staffed solely by Pam Robertson.

f) According to the testimony given by Young during his discovery examination:

i. He was born on December 6, 1985.

ii. At the time of the alleged alcohol purchase on August 28, 2002, he was 16 years old, and working part time. He had moved out of his parents’ Hensall home two days earlier, and gone to live with Youmans and the plaintiff. Young says he was “not shaving” at the time.

iii. The decision to have Young attempt the purchase of alcohol from the Hensall LCBO was made sometime after 4pm or 4:30pm, when Youmans and Young returned to Hensall from a hitchhiking trip to Grand Bend.

iv. Neither Youmans nor the plaintiff “had ID to buy the alcohol”. Youmans then provided Young with a “fake ID”, and suggested that Young use it to attempt the purchase of alcohol.

v. Young felt the photograph of the person on the false identification looked like him “to some degree”, or “to a certain degree”. It looked more like Young than Youmans, as the person in the photograph “just had the same type of structural identity” as Young. Although there “obviously” still were “some differences”, and Young initially indicated “you could tell it was a fake ID”, he then clarified his answer by saying: “Well, I knew it was a fake ID”. [Emphasis added.] He also noted that “it worked”.

vi. Young then took approximately five minutes to memorize the information on the false identification so that he would be able to answer questions that might be posed to him by staff at the liquor store; (e.g., concerning such matters as his date of birth, his address, or where his glasses might be). At the time of his discovery examination over seven years later, the only thing Young still could remember about information on the “fake ID” was that it was a driver’s licence, indicating an address of “York Street, or York”. Young could not recall the age indicated on the false identification, and could only say it “was over 19, obviously”.

vii. After memorizing the information on the false identification, Young then rode his bicycle to the LCBO store in Hensall. He parked his bicycle “just outside” the store. Although he initially indicated that LCBO staff “would have seen me bike in”, he then added” “But I don’t know if they seen me…” (Sic).

viii. Young was unsure as to the time of his arrival at the LCBO store. It was after he “got back” to Hensall between 4pm and 4:30pm, and before the store’s closure – which he thought occurred at 5pm on a weekday.

ix. Young believes that, when he entered the LCBO store, he was the only customer there. He is sure that there was only one LCBO employee there at the time: a female, “at least 40” years of age.

x. Young says that, after walking into the Hensall LCBO, he selected the type of alcohol he had been told to get, (“Royal Reserve”), and took it to the store counter. At that point, the LCBO employee “asked for ID”, and Young handed her the false identification. After that, according to Young: “She asked me a bunch of questions, like where do you live, what’s your date of birth, just things like that. I don’t remember if she got into eyes or anything like that. I don’t remember. … Like sometimes they ask you if you’re wearing … where’s your glasses or what colour’s your eye colour, or something like that. Like I don’t recall if she did that.” (Explaining how he knew that those checking identification sometimes asked about glasses and eye colour, Young said he had been asked such questions by a man checking identification at the entrance to a London bar approximately 18 months prior to the discovery examination in 2009. Although Young was 23 at the time and using his own legitimate identification documentation, he was denied entry to the bar in question.)

xi. Young says the police took the “fake ID” from him after the accident, and that he “never got it back”.

g) According to the testimony given by Robertson during her oral discovery examination on January 25, 2011:

i. She was 46 years of age in August of 2002.

ii. Prior to working for the LCBO, her experience relating to the service of alcohol was limited to occasional bartending at an army camp in Ipperwash, from approximately 1972 to 1980.

iii. She began working for the LCBO in 1995 when she was 39 years old, and the first LCBO store she worked at was in Hensall. She continued to work there from 1995 through until 2005. She continues to work for the LCBO. Over the years, she has worked at three of its stores.

iv. Robertson indicated that the population of Hensall is “very small”, and that its LCBO store similarly is much smaller than those in other communities; e.g., only one third the size of the LCBO store in Exeter. (According to an internal classification system, the LCBO regards its store in Hensall as a “class D” store, compared to a “class C” store like the one in Exeter.) It does have a parking lot, which is visible from the store’s cash register.

v. In terms of staff, Robertson says the LCBO outlet in Hensall is “basically a one person store”; i.e., there “usually” is only one employee working the store “for the most part of the day”. However, there occasionally might be an “extra person” there; e.g., to cover lunches, or provide added assistance for 3-4 hours on a Saturday. Back in 2002, staffing of the LCBO store in Hensall alternated between a total of three employees, (including Robertson).

vi. Generally, sales at the LCBO’s store in Hensall are “pretty steady” year round, and do not “pick up” a lot in summer, even with cottage traffic. The store’s busiest time of day usually is between 4:30pm and 5:00pm..

vii. The LCBO has “lots of rules with respect to how alcohol is sold”, and takes its obligation in that regard “very seriously”.

viii. Robertson described how she and her fellow employees had received a “lot of training” from the LCBO over the years; training she described as “really important”. This included the following:

a. Like all new LCBO employees, Robertson was sent on an initial one day seminar focused “on asking for I.D.”.

b. Robertson believes the “Check 25” program was included in her initial training, and described it as an obligation on LCBO staff to ask for identification from anyone “who appears to look younger than 25”. There was nothing in the nature of a “quota” or minimum number of such challenges to be administered. Staff were always required to challenge anyone who looked that young for identification.

c. During her time with the LCBO, Robertson also has been given a manual, documents and papers providing instruction on requesting identification. Such material will “come through the LCBO”, (for example, via a store’s internet link), and provide training review instructions to staff. As an example, Robertson said such communications and instructions would say, before a long weekend, “as a group, review the policies on ‘Check 25’, ‘Social Responsibility’ and all that stuff”.

d. Robertson and other employees would “go over” such training documentation at work. They regularly would do so “as a group” through a process Robertson described as “huddles”; e.g., “before long weekends or busy times”. She was clear that such huddles happened during her time at the LCBO store in Hensall.

e. In terms of other follow up training, Robertson initially indicated an inability to remember if she and her fellow employees had gone on other courses. However, later in her examination, she described being sent to “seminars”, (which she distinguished from “huddles”), in “Stratford or wherever”.

f. LCBO training on requesting and examining identification includes suggested areas of focus; e.g., on how people look, act and talk. LCBO staff also are given sample photographs of various people, (older and younger), and asked to practice determination of age. (Robertson confirmed that she probably had such training prior to 2002.) Staff also are provided with a book or “guide” containing colour sample images of different types of identification.

g. Between her hiring by the LCBO in 1995 and 2002, as well as thereafter, Robertson has been told that preventing sales to minors is a “year round responsibility” LCBO employees take “very seriously”.

h. Robertson could not remember use of the term “refresher course”, in relation to identification training, but said the LCBO staff would “always have reviews” in that regard.

ix. Robertson says she personally decides whether somebody is 25, or looks 25 or less, using various methods. These include looking at the person, observing how they act, and listening to what they say; techniques she described as “all in the training” taken by LCBO employees.

x. In Robertson’s experience, a driver’s licence is the form of identification produced in the vast majority of cases where identification is requested.

xi. Pursuant to LCBO policy, Robertson would document, on the LCBO’s standard “Challenge and Refusal Report” form, (prescribed by the store operations manual issued by the LCBO), any occasion on which she requested and examined identification. Further information from Robertson in that regard included the following:

a. The standard “challenge and refusal” form used by LCBO staff in 2002 contained areas in which staff might record the following information: date; time; the basis of the challenge (“age”, “apparently intoxicated” and “others challenged”); indication of whether the challenged person was “served” or “refused”, (although the form suggests that anyone challenged for apparent intoxication was always to be “refused”); transaction number; comments; and employee’s initials.

b. If the challenged person was served rather than refused, (thus resulting in sale of alcohol), the transaction number would be recorded, thereby permitting, (for so long as the transaction record was maintained), an indication of precisely what alcohol was sold.

c. The fact of a challenge or refusal always would be recorded. However, insertion of additional “Comments” was not mandatory but a matter of choice and discretion. Their insertion usually occurred in the case of refusals; e.g., so that staff had a brief description and reminder of the refused customer in respect of whom there had been concerns, or a recorded explanation for the refusal if the customer in question was unhappy, (and thereby possibly intent on pursuing a complaint). However, there often was no perceived reason to insert comments if, after and despite an initial challenge, (e.g., request for identification), the LCBO employee then was satisfied that there really was no basis to refuse service. Sometimes, however, comments would be inserted even if a challenged customer then had been served.

xii. At the time of her examination on January 25, 2011, Robertson had no independent memory of selling a bottle of Royal Reserve on August 28, 2002, or of checking anyone’s identification on that date. However, Robertson confirmed that the store’s “Challenge and Refusal” records for that date include an entry on August 28, 2002, bearing her initials. In particular, the entry indicates that, at 5:45pm on August 28, 2002, (fifteen minutes before the store closed that day), Robertson challenged a customer on the basis of age, (i.e., requested identification), and then served the customer by proceeding with a sale, documented as transaction number 8002. No “comments” were recorded as part of the entry documenting the challenge. However, Robertson indicated that the reason for this would not be related to volume of waiting customers. (In that regard, she repeated that 4:30pm to 5:00pm was the store’s busiest time, and that the store was not that busy at 5:45pm.)

xiii. Consistent with her lack of independent recollection of that day’s events, Robertson confirmed her inability to recall any further details about the particular identification offered in response to the recorded challenge on August 28, 2002, or the particular measures actually taken or not taken to check the identification; (e.g., comparison of the customer to the physical description on the identification, examination of the expiry date on the identification for signs of alteration, request for a comparison signature, comparison of the customer with the photo on the identification, request for the customer to say and spell the customer’s complete name, or the posing of other questions). She simply does not remember what actually was done or not done in relation that particular challenge, request for identification, and examination of identification. She acknowledged having no reason to dispute Young’s assertion that he purchased alcohol after having presented false identification. In any event, however, she says she did not know Young was 16 at the time of the alleged purchase.

xiv. Robertson indicated that her practice in the case of age based challenges, (when she makes an initial determination that the customer appears to be under 25 and is therefore asked for identification), is to take and examine the identification, (e.g., checking the expiration date and for signs of alteration, as well as other information such as the photograph and address). She may also ask for additional identification, pose additional questions, or ask the customer to provide a signature for comparison. If she is comfortable with the proffered identification, she proceeds with the sale. Generally, she says she “can usually tell” if someone is underage because kids get “really nervous” when using false identification, and when challenged. She emphasized that, if she felt a customer did not meet the standards set by her employer, “of course” she would not sell alcohol to that person.

xv. Indication of an out of town address on proffered identification would not necessarily prompt further inquiries or consideration of how a customer came to the store, (although the licence plate of automobiles used by certain customers might be recorded). In particular, she noted that “Hensall is Hensall”, that the LCBO store is located close to the town, and that a lot of people therefore walk up to the store or arrive on bicycles. Customer arrival at the store by such methods therefore does not raise concerns as to age.

xvi. Robertson explained that someone using false identification with a photo of another person might still succeed in purchasing alcohol having regard to general resemblance, the duration of identifications before their expiry, and recognition that looks change over time, particularly in the case of young people.

h) During Ms Robertson’s discovery examination, plaintiff counsel asked for available information from Peggy Park (“Park”), who apparently was also employed by the LCBO and assigned to its store in Hensall in 2002. LCBO counsel read a statement from Park into the record, and the information contained therein includes the following:

i. She has been the full-time manager of the LCBO’s store in Hensall since 1996.

ii. The LCBO store in Hensall is classified by the LCBO as a “D store”, which is the smallest size. It is approximately 600 square feet, and its net sales are approximately $700,000 per year. It employs two casual employees “and two CSRs”. Its hours of business are 9:00am to 6:00pm, Tuesday to Saturday.

iii. Park was unable to confirm the precise nature of training staff received prior to 2002. However, an employee hired at the Hensall Store in April of that year received SMAART training, and Park confirmed that all employees at the Hensall Store have had a “refresher course” twice a year, every year, since Park’s arrival there in 1996.

iv. Park is unsure as to when the “Check 25” program came into being, but “it means you I.D. anyone who looks 25 or under”. She also expects staff to compare the photo on the identification to the individual, and check the “print out work” on the identification to see if it has expired. Staff also may ask for additional information or cards to verify identification. A book kept at the cash register gives examples of identification, including all driver’s licences in Canada and the United States.

v. The challenge and refusal record also is kept at the store’s cash register, and “whenever an employee questions a customer about age consent it is recorded on the sheet”.

vi. The signature on the challenge and refusal record completed on August 28, 2002, is that of Robertson.

vii. Park emphasized that all the Hensall LCBO staff have children and take their responsibilities very seriously.

i) Subsequent investigation by the LCBO, pursuant to undertakings, has confirmed that further information clarifying the product sold as part of transaction 8002 on August 28, 2002, is no longer available. (All of the LCBO’s transaction records are destroyed after seven years.)

j) As indicated above, counsel received a report from Dr Ward, an expert toxicologist, and that report forms part of the record before me. It indicates that Dr Ward reviewed and relied upon information contained in a “Breathalyzer Test Procedure and Record Sheet” apparently prepared by the police on the date of the accident. That document was not included in the material submitted to me but, according to Dr Ward, it indicates that “Bradley Young was 6’ tall and weighed 145 pounds at the time of the accident on August 29, 2002”.

k) Following Young’s discovery examination on September 9, 2009, unsuccessful efforts were made to locate the “fake ID” he had described. In particular:

i. Fund counsel subsequently asked Young to confirm its current whereabouts, and Young again indicated he had surrendered the document to the police at the scene of the accident.

ii. On April 23, 2010, plaintiff counsel wrote to Constable Scott Root, (the investigating officer), noting that the “fake ID” described by Young was not in the Crown brief, and asking the officer if he knew of its whereabouts.

iii. On May 26, 2010, 2010, plaintiff counsel spoke with Constable Root, who indicated that the police apparently had no independent record confirming the existence of any such fake ID. (A review of the officer’s notes, his report and the property log made no mention of any such document.) Constable Root advised that, if a fake ID had been retained initially by the police at the time of the accident, it would have been destroyed by now given the passage of time, Young’s guilty plea, and expiration of the time for any appeal in the criminal proceedings. Constable Root undertook to consult with other officers involved to see whether they had any information in that regard, but then provided no further response.

LCBO LIABILITY - ANALYSIS

[80] In my opinion, there are a number of considerations that immediately distinguish the above “LCBO liability” evidence from that tendered in relation to the limitation period issue.

[81] First, although somewhat dispersed through the various affidavits, transcripts and other material filed by the parties in relation to the motion, in comparative terms it is not that extensive. In organized and concentrated format, it is not only summarized but essentially contained within the evidence description set forth in these reasons. Moreover, direct evidence as to what likely happened at the crucial point in time, (i.e., the alleged sale of alcohol to Young), is even more limited.

[82] Second, there actually is little or no conflict presented by any aspect of the “LCBO liability” evidence, and there accordingly seem to be no issues of credibility to be addressed and resolved in that regard. In particular:

a) Not surprisingly, the plaintiff apparently has no basis for challenging or questioning the LCBO’s evidence as to its documented policies to prevent sale of alcohol to minors, its indicated training of staff in that regard, (including the training received by Ms Robertson), the nature of the LCBO store in Hensall, or its hours of operation and staffing on August 28, 2002.

b) The evidence indicates that only two people were present at the Hensall LCBO store at the time of the relevant sale: Young and Robertson. Young has provided an exhaustive account of everything he can remember about the occasion. Robertson candidly acknowledges that she has no independent memory of the occasion and can speak only to her general practice, supplemented by the Challenge and Refusal Report she completed that day.

c) Young’s evidence in no way conflicts with Robertson’s indicated general practice concerning her request for identification from persons appearing to be 25 or less. Indeed, it seems to me that Young’s evidence at to what happened is entirely consistent with Robertson’s stated general practice.

d) Young’s evidence is also consistent with Robertson’s evidence as to when the Hensall store usually was busy, and the Challenge and Refusal Report that Robertson completed on August 28, 2002. (Young says he attended at the store sometime after his return from Grand Bend between 4pm and 4:30pm, that he was the only customer in the store when he got there, and that he was challenged but served after producing identification. This squares entirely with the indicated attendance of a challenged but served customer at 5:45pm that day, at a time when the store would not have been busy. Young described the timing of his purchase by reference to the store’s closing time, but was unsure as to when that was; to the extent he thought it might have been 5pm on the day in question, he obviously was mistaken.)

[83] Third, although the law of summary judgment still requires parties to “put their best foot forward”, (with the corollary that a judge in my position is entitled to assume that the parties have done so and that no further evidence relating to the issues in question will be forthcoming at trial)[24], it is perhaps worth noting and emphasizing that the assumption is almost certainly bound to be true in this case. In particular: neither Young nor Robertson seems likely to recall anything further at this point, and both the transaction record and the “fake ID” now have been destroyed or discarded.

[84] On the last point, (concerning further evidence being unlikely), plaintiff counsel candidly acknowledged and accepted during the course of argument that evidence of what LCBO staff “did or didn’t do” on the date in question “isn’t going to get better”. Although he suggested that the plaintiff might want to secure and present, for consideration at trial, contemporary photographs of Young taken “around” August 28, 2002, it seemed and seems to me that there are two fundamental problems in that regard:

i. The probative value of any such photographs would be dubious at best, as there would be nothing to indicate the extent to which they reflected Young’s appearance when he presented himself at the time of sale.

ii. In any event, the record before me contains no such photos. Nor does it indicate, (despite the lapse of nine months between service of the LCBO’s motion record and hearing of the motion), any efforts by the plaintiff or her counsel to obtain such photos; e.g., by examination questions or document production requests put to Young or his counsel, or by way of appropriate requests put to third parties such as Young’s parents pursuant to Rule 30.10 or Rule 39.03, or otherwise. For purposes of determining the LCBO’s motion for summary judgment, I therefore am entitled and obliged to assume that no such photos exist. (As emphasized by the Court of Appeal, parties responding to such a motion, such as the plaintiff, are not entitled to “sit back and rely on the possibility of more favourable facts developing at trial.”)

[85] The above comments focus on the evidence relevant to the second ground of the LCBO’s motion for summary judgment.

[86] However, the issue to be decided in that regard, (the plaintiff’s ability to establish breach of the LCBO’s standard of care), is also relatively narrow.

[87] In the circumstances, the second ground of the LCBO’s motion bears the hallmarks of a matter than can and should be “fairly and justly resolved” by summary judgment; i.e., a situation where a trial is not required to permit a “full appreciation of the evidence and issues”.

[88] Indeed, having regard to all the evidence, it seems to me that the plaintiff’s claim against the LCBO clearly falls within the second type of case described by the Court of Appeal in Combined Air, supra; i.e., a case where the claim is without merit, in the sense that it stands no chance of success.

[89] In that regard, it must be remembered that the plaintiff must prove her case against the LCBO, including a breach of the applicable standard of care, on a balance of probabilities; i.e., the civil burden of proof.

[90] But how can the plaintiff hope to do that here, having regard to the evidence?

[91] In the course of argument, plaintiff counsel repeatedly emphasized that, according to Young’s evidence, (not contradicted in this respect), the LCBO did in fact sell alcohol to a minor. However, that consideration alone can and should not suffice to establish a breach of the applicable standard of care. Such an approach effectively would mandate a standard of perfection and, as noted above, the reasonable person is not perfect.

[92] The common law standard of care, which to me seems reflected in the relevant provisions of the Liquor Licence Act, supra, demands prudence rather than perfection: e.g., a person must not knowingly sell or supply liquor to a minor, or to anyone who appears to be under nineteen years of age, and should not be faulted for relying on documentation if there is no apparent reason to doubt the authenticity of the documentation or that it was issued to the person producing it.[25]

[93] In the case before me, there is no evidence whatsoever to suggest that Robertson knowingly sold or supplied alcohol to a minor.

[94] However, apart from the fact that Young actually was less than nineteen, and the reasonable inference that Robertson thought Young looked younger than 25, (thus prompting her challenge and request for identification), there also seems to be little or no evidence by which the plaintiff can establish on a balance of probabilities that Young looked less than 19 when he walked into the LCBO store in Hensall on August 28, 2002.

[95] To the contrary, it seems to me that at least some of the available evidence concerning Young’s appearance supports an inference that he did appear to be 19. For example:

i. According to the information recorded on the Breathalyzer Test Procedure and Record sheet, (completed shortly after the accident and Young’s appearance at the LCBO store), Young was rather tall and large for his age; i.e., standing 6’ tall, and weighing 145 pounds.

ii. The plaintiff was seventeen at the time, and it therefore is reasonable to infer that she accordingly had more than passing familiarity with the appearance of teenagers; i.e., those in her immediate peer group. She had known Young for weeks prior to the accident, and even shared a residence with Young for a short time prior to the accident. Yet she herself did not realize Young was under the age of 19 until sometime after the accident.

iii. At the time, Youmans and Young obviously felt that Young could pass for 19, (or at least that his physical appearance would not negate such a conclusion regardless of identification).

iv. Young’s physical appearance was such that Robertson, a well trained and experienced LCBO employee, who took her job responsibilities seriously, did not think Young looked so clearly under the age of 19 that a refusal of service was warranted, notwithstanding presentation of identification.

v. Young’s simple indication that he was “not shaving” at the time seems either a neutral factor, or one that might suggest the presence of facial hair and therefore someone older.

vi. Young’s arrival by bicycle is a neutral factor. There is no evidence that Robertson actually saw Young’s bicycle. In any case, Robertson’s evidence about the means of transport commonly used by customers in Hensall largely negates the significance of any such considerations.

vii. It seems to me that Young’s account of being denied entry to another establishment, years later, despite presentation of his actual identification, has little probative value without further exploration of the many reasons why entry may have been refused on that occasion. In the litigation before me, the real focus is on Young’s appearance when he walked into the Hensall LCBO store on August 28, 2002.

[96] For present purposes, however, the more fundamental point is the apparent lack of evidence on which the plaintiff might rely to prove, on a balance of probabilities, that Young appeared to be less than 19 at the time.

[97] One then turns to the related issue of reliance on proffered identification documentation.

[98] The evidence before me unquestionably indicates that such documentation was requested by Robertson, presented by Young, and then examined and tested by Robertson.

[99] Whether one relies on a standard of common law prudence appropriate to the circumstances, or the “Reliance on Documentation” provisions of s.30(6) of the Liquor Licence Act, supra, I expressly reject the suggestion made by plaintiff counsel that the conduct of a reasonable person (or LCBO employee) in the circumstances should be assessed solely on the basis of a customer’s physical appearance, without regard to the apparent validity of proffered official identification. It seems to me that such an approach would ignore the obvious reliance society regularly places on such documentation, and make a mockery of the extraordinary efforts undertaken by officials to create and regulate such documents.

[100] In the long term, imposition of liability based solely on physical appearance, without allowance made for reasonable reliance on documentation, also would seriously undermine the ability of those truly over the age of 19, but who look younger than 19, to obtain services despite having valid identification confirming actual age.

[101] In any case, if the plaintiff cannot establish on a balance of probabilities that Robertson knowingly sold alcohol to a minor, or that Young appeared to be under the age of 19, it seems to me that her claim against the LCBO realistically can succeed only if she proves on a balance of probabilities that there was some apparent reason for Robertson to doubt its authenticity or that it had in fact been issued to Young.

[102] But how can the plaintiff satisfy that onus on the facts of this case, as indicated by the available evidence?

[103] In my opinion, the available evidence militates in favour of the opposite conclusion.

[104] Youmans and Young both felt that Young resembled the person depicted in the relevant photograph and, in Young’s words, “it worked”.

[105] It was inspected by an experienced LCBO employee, well trained in relation to the inspection of official identification, who made a regular practice of comparing appearance with photographs, checking expiry dates and looking for signs of alteration, and who unquestionably tested its authenticity in this case by further questioning, in circumstances where she was focused entirely on one customer in a relatively small store. Yet the evidence and result obviously suggests that she saw nothing to warrant any further concern about the identification being authentic, or about its having been issued to Young.

[106] However, for present purposes, the more fundamental point is the apparent lack of evidence on which the plaintiff might rely to prove, on a balance of probabilities, that there was some kind of apparent reason to doubt the identification’s authenticity or that it had in fact been issued to Young.

[107] In particular, a crucial piece of evidence necessary to ground such an argument, the “fake ID” in question, now has vanished with the passage of time.

[108] In that regard, I embrace the common sense approach adopted and emphasized by the Alcohol and Gaming Commission of Ontario in Registrar ACGC of Ontario v. 2142575 Ontario Limited operating as XS, [2009] Ont.AGC, which dealt with a similar situation and issue.

[109] In that case, a nightclub establishment faced temporary suspension of its liquor licence after an inspector attended its premises and asked an intoxicated and youthful looking patron for her identification used to gain entry. Further examination and inquiries strongly suggested that the identification was not valid, and that the patron was a minor. The inspector believed the photo on the identification did not resemble the patron. The establishment therefore was accused of not exercising due diligence in the examination of identification. However, by the time of the hearing, the relevant identification was no longer available. As the Board pointed out in the course of its decision, this effectively negated the Registrar’s ability to prove its case on the balance of probabilities, as required:

In these circumstances, for the Board to determine whether, on a balance of probabilities, the Licencee ought to have concluded that the photograph resembled the female, the Board would need to examine the identification or at least a copy of the identification and compare it to the female or a photograph of the female. In the absence of such evidence, the Board has insufficient evidence to conclude, in these circumstances, that the Licensee failed to properly inspect the female’s identification for the purpose of subsection 41(1).

[Emphasis added.]

[110] Similar comments apply, I think, to this case.

[111] In particular, I do not see how the plaintiff realistically can establish on a balance of probabilities that the identification proffered by Young warranted doubt about its authenticity, or about its having been issued to Young, in the absence of the document.

[112] When all is said and done, the available evidence indicates an LCBO employee who was trained, experienced, and alert to her job responsibilities at the relevant time. She challenged a youthful looking patron for identification, examined that identification, and tested it further by appropriate questions. She documented the incident, (thereby showing further awareness and adherence to her employer’s policies). In my opinion, the available evidence indicates that she was reasonably prudent in the circumstances.

[113] More to the point, there is nothing in the evidence, apart from her imperfection in detecting Young’s ruse, to suggest that Robertson was imprudent, failed to carry out a proper inspection, or otherwise failed in any way to carry out the stringent policies and practices of her employer. Young may have succeeded in passing for 19, but this does not mean that Robertson and her employer were negligent.

[114] The LCBO has satisfied me that the plaintiff’s claim against it has no realistic chance of success, based on the evidence, and that there accordingly is “no genuine requiring a trial” in that regard.

CONCLUSION AND ORDER

[115] For the above reasons, I find, in relation to the alternate grounds suggested by the LCBO in support of its motion and request for relief:

a) there is a genuine issue requiring trial with respect to the LCBO’s limitation period defence, making it inappropriate to grant summary judgment dismissing the plaintiff’s claim on that basis; but

b) there is no genuine issue requiring trial with respect to the plaintiff’s substantive claim against the LCBO, which in my opinion, having regard to the evidence presented on the summary judgment motion, the plaintiff is unable to make out on the balance of probabilities.

[116] The latter ground is sufficient to warrant the relief sought by the LCBO’s motion; i.e., an order for summary judgment dismissing the claims advanced against it by the plaintiff. A judgment therefore shall issue accordingly.

COSTS

[117] Because my decision was reserved, the parties were unable to make any submissions regarding costs of the defendant LCBO’s motion. If the parties are unable to reach an agreement on costs in that regard:

a. the LCBO may serve and file written cost submissions, not to exceed five pages in length, (not including any bill of costs), within two weeks of the release of this decision;

b. the plaintiff then may serve and file responding written cost submissions, also not to exceed five pages in length, within two weeks of service of the LCBO’s written cost submissions; and

c. the LCBO then may serve and file, within one week of receiving any responding cost submissions from the plaintiff, reply cost submissions not exceeding two pages in length.

[118] If no written cost submissions are received within two weeks of the release of this decision, there shall be no costs of the motion.

“Justice I. F. Leach”

Justice I. F. Leach

Released: January 21, 2013

[1] Hereinafter referred to as “Combined Air, supra”.

[2] Combined Air, supra, at paragraphs 4, 38.

[3] Combined Air, supra, at paragraphs 46-49.

[4] Combined Air, supra, at paragraphs 38-39.

[5] Combined Air, supra, at paragraphs 40-44, and 72-75.

[6] Combined Air, supra, at paragraph 50. The Court of Appeal emphasized the “very important distinction” between “full appreciation” in the sense intended here, and achieving familiarity with the total body of evidence in the motion record”. In particular, simply being knowledgeable about the entire content of the motion record, or making a simple assessment as to whether the motion judge is capable “of reading and interpreting all of the evidence that has been put before [him or her]”, is not the same as “fully appreciating the evidence and issues in a way that permits a fair and just adjudication of the dispute”. More is required. Specifically, “a motion judge is required to assess whether the attributes of the trial process are necessary to enable him or her to fully appreciate the evidence and issues posed by the case”. In other words, the motions judge must consider if meeting the “full appreciation” test requires an opportunity to hear and observe witnesses, have the evidence presented by way of a trial narrative, and experience the fact-finding process first hand. See Combined Air, supra, at paragraphs 53-55.

[7] Combined Air, supra, at paragraph 51.

[8] Combined Air, supra, at paragraph 52.

[9] Combined Air, supra, at paragraph 56, citing Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 1996 7979 (ON SC), 28 O.R. (3d) 423 (Gen.Div.), at p.434. As emphasized in Hanson Hardscape Products Inc. v. Elements Stone & Paving Inc., [2012] O.J. No. 2053 (S.C.J.), at paragraph 39, this obligation does not necessarily require the responding party to present all of the evidence that might be relied upon at trial, as such an onus would make a motion for summary judgment no different from a trial, and thereby not avoid the time and expense associated with a trial. In reality, the responding party simply must adduce evidence that is adequate, for purposes of the motion, to demonstrate the existence of a genuine issue requiring trial.

[10] Graeme Mew, The Law of Limitations, (2d ed.), at p.12, citing Laycraft J.A. in Costigan v. Ruzicka, (1986), 1984 ABCA 234, 13 D.LR. (4th) 368 (Alta.C.A.), at 377.

[11] Soper v. Southcott, 1998 5359 (ON CA), [1998] O.J. No. 2799 (C.A.), at paragraphs 13-14, and 21. See also Deaville v. Boegeman (1984), 1984 1925 (ON CA), 48 O.R. (2d) 725, at pp.729-730. For additional statements of the discoverability principle, and the general obligation of plaintiffs not to “sleep on their rights” but exercise due diligence, see M.(K.) v. M.(H.), 1992 31 (SCC), [1992] 3 S.C.R. 6, at p.30; Peixero v. Haberman, 1997 325 (SCC), [1997] 3 S.C.R. 549, at paragraphs 34 and 39; and Pepper v. Zellers Inc. (2006), 2006 42355 (ON CA), 83 O.R. (3d) 648 (C.A.), at para. 16.

[12] Summary judgment decisions interpreting and applying Rule 20 prior to its significant amendment on January 1, 2010, or post-amendment decisions expressly relying on such pre-amendment authorities, prior to the release of the Court of Appeal’s decision in Combined Air, supra, must be approached with caution. For example, in the case before me, plaintiff counsel placed considerable emphasis on decisions such as Aguonie v. Galion Solid Waste Material Inc. (1998), 1998 954 (ON CA), 156 D.L.R. (4th) 222 (C.A.), and Fran v. Slous, [2002] O.J. No. 4784 (S.C.J.), which expressly relied on Aguonie and Dawson v. Rexcraft Storage and Warehouse Inc. (1998), 1998 4831 (ON CA), 111 O.A.C. 201 (C.A.), for the proposition that, “generally speaking, it is not appropriate for a motions judge, hearing a motion for summary judgment where the application of the discoverability rule is central to its resolution, to resolve this issue”. The plaintiff similarly relied upon the Dawson decision itself, and Simpson Performance Products Inc. v. Simpson, [2011] O.J. No. 1711 (S.C.J.), which was decided after amendment of Rule 20 but expressly relied on Dawson, for comments generally indicating a conservative approach to requests for summary judgment dismissing a plaintiff’s claim. However, while such views may once have been justified, they would seem to be inappropriate now having regard to the expanded powers available to a motions judge pursuant to Rule 20 in its amended form; (e.g., to weigh evidence, evaluate credibility of deponents, and draw inferences from the evidence). This was recognized expressly by the Court of Appeal at paragraph 36 of its decision in Combined Air, supra, which reads in part as follows: “The amendments to Rule 20 are meant to introduce significant changes in the manner in which summary judgment motions are to be decided. A plain reading of the amended rule makes it clear that the Aguonie and Dawson restrictions on the analytical tools available to the motion judge are no longer applicable.”

[13] Pursuant to section 1 of the Ontario Age of Majority and Accountability Act, R.S.O. 1990, c.A.7, “every person attains the age of majority and ceases to be a minor on attaining the age of eighteen years”.

[14] Pursuant to s.47 of Ontario’s former Limitations Act, R.S.O. 1990, c.L.15, where a person entitled to bring an action was, at the time, a minor, the period within which the action could be brought was to be “reckoned from the date when such person became of full age”. Although the relevant provision made specific reference to claims addressed by ss.45 and 46 of the former Limitations Act, supra, the Supreme Court of Canada held the rule to be one of general application, applying, in the absence of clear wording to the contrary, to all statutes that import limitation periods. See Papamonopolous v. Toronto (City) Board of Education (1986), 1986 2688 (ON CA), 56 O.R. (2d) 1 (C.A.). The “former limitation period” governing the plaintiff’s claim, set forth by the Highway Traffic Act, supra, accordingly was subject to that similar restriction.

[15] See also Wirring v. Buffalo Group Developments Ltd., [2012] O.J. No.1073 (S.C.J.), at para. 19.

[16] Pepper v. Zellers Inc., supra, at para.20. A similar conclusion was reached by the court in Wirring v. Buffalo Group Developments Ltd., supra, at para. 22, where the court found there was “no evidence at all in the material filed about the inquiries and investigation, if any, that were made to ascertain all potential liable parties”.

[17] Circumstances surrounding the events of September 26, 2006, are particularly unclear. The details of what happened on that date are suggested in later correspondence from counsel, (including counsel representing other defendants who are no longer parties to the action). The material I have lends support to plaintiff counsel’s argument that it would have been inappropriate to proceed with substantive questioning of a self-represented party such as Young who was indicating a desire to consult with independent counsel before proceeding. However, further examination of the evidence and circumstances, at trial, might lend support to the LCBO’s suggestion that plaintiff counsel should have proceeded with some form of questioning on that date.

[18] See, for example, Childs v. Desormeaux, 2006 SCC 18, [2006] 1 S.C.R. 643, at paragraphs 18-21, and s.30(13) of the Liquor Licence Act, R.S.O. 1990, c.L.19, which provides that the prohibitions in section 30 concerning provision of alcohol to minors do not apply to the supply of liquor to minors in a residence or private place “by a parent of the person or a person having lawful custody of the person”.

[19] See, for example, the following: Remedies in Tort, supra, at c.16.1, ss.11-4; Fleming, The Law of Torts, (8th ed.), at p.103; Fridman, The Law of Torts in Canada, (3d.ed.), at p.297; and Linden & Feldthusen, Canadian Tort Law, (9th ed.), at pp.114-115.[19] The latter provides an overview of some of the competing suggestions.

[20] This is not to say that the LCBO conceded such points for purposes of the action. To the contrary, its pleaded defence clearly includes, for example, an express denial of causation. In particular, it contends that Young’s negligence was the sole cause of the accident, and that Young “was not, in fact, intoxicated by alcohol at the time of the accident”.

[21] See paragraph 63, supra.

[22] See Remedies in Tort, supra, at c.16.1, ss.79 and 82-83, and the authorities and examples cited therein.

[23] See paragraph 58(b), supra.

[24] Again, see Combined Air, supra, at paragraph 56.

[25] See s.30(1), 30(2) and 30(6) of the Liquor Licence Act, supra.