ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-10-0158-00

DATE: 2015 Sept 16

BETWEEN:

DANIEL JAMES FERRIER, JIM FERRIER, ELIZABETH FERRIER, SHAUNA FERRIER AND JOSEPH FERRIER

Plaintiffs

– and –

JUSTIN JAMES HUBBERT, MOLLY SANGSTER, JAMES SANGSTER and DONALD BALLARD

Defendants

– and –

JOSEPH “JOEY” SANGSTER

Third Party

Roger Oatley/Ryan Murray, for the Plaintiffs, not appearing

R. Steven Baldwin, for the Defendant, James Hubbert

Linda Matthews, for the Defendants, Molly Sangster and James Sangster

William Walker, for the Defendant, Donald Ballard,

Third Party, unrepresented and not appearing

HEARD: April 29, 2015 at Belleville

Belch J.

MOTION FOR SUMMARY JUDGMENT

[1] Daniel James Ferrier is the Plaintiff injured as a passenger in a motor vehicle accident. Jim, Elizabeth, Shauna and Joseph Ferrier, Plaintiffs, are family members who advance claims pursuant to the Family Law Act.

[2] Shauna Ferrier, Plaintiff, is the person whose 24th birthday was being celebrated the day the motor vehicle accident occurred.

[3] Justin James Hubbert, Defendant, was the owner and operator of the van involved in the single vehicle accident in which Daniel Ferrier was a passenger.

[4] Molly Sangster, Defendant, owned property where the birthday celebrations were held; James Sangster is her spouse.

[5] Donald Ballard, Defendant, together with his spouse owned property subject to a right-of-way and in close proximity to where the motor vehicle accident occurred.

[6] Joseph (“Joey”) Sangster, Third Party, is the son of Molly and James Sangster and was at the date of the motor vehicle accident dating Shauna Ferrier.

[7] The Defendants, James Sangster and Molly Sangster (Mr. and Mrs. Sangster) bring this motion for summary judgment for a dismissal of the action and cross-claims brought against them by the Plaintiffs and Co-Defendants.

[8] Justin James Hubbert (Mr. Hubbert) is named a Defendant in an action brought by the Plaintiffs. He asks for the dismissal of this motion for summary judgment on the basis the pertinent facts are in dispute and a reasonably instructed jury could find liability against the Sangsters.

[9] Donald Ballard, (Mr. Ballard) is also named a Defendant in the Plaintiffs’ action. He too submits the summary judgment motion should be dismissed with costs as there are triable issues with respect to claims made against the Defendants, the Sangsters. He submits the relationship between the injured Plaintiff and the Sangsters was of sufficient proximity to give rise to a duty of care on the part of the Defendants Sangsters.

[10] This motion was argued April 29, 2015. The Plaintiffs did not participate nor did the third party, Joey Sangster, appear. The decision was reserved. For the reasons that follow, it is the court’s decision:

a. The Sangsters were not social hosts of this gathering nor did they assign parental responsibility to Joey Sangster and Shauna Ferrier.

b. With respect to the Occupiers’ Liability Act, firstly, the motor vehicle accident did not occur on their property and secondly, as for the right-of-way, more than simply the right to use the land and the right to invite guests onto the land is required to impose the duty of care of an occupier. Accordingly, the summary judgment motion for a dismissal of the action and cross claims brought against them by the Plaintiffs and Co-Defendants is granted with costs to the Sangsters.

FACTS

[11] For a brief outline of what this case is about the court adopts paragraph two of the endorsement of MacLeod-Beliveau, J on a motion seeking leave of the court to amend the statement of defence and cross-claim

[2] This action arises out of a single motor vehicle accident which occurred on or about June 14 or 15th, 2008 on Ruthvens Road, a privately owned laneway, in the Township of Faraday, in the Province of Ontario. The plaintiff, Daniel Ferrier, sustained personal injuries and was a passenger in the vehicle driven by the Defendant, Justin Hubbert. Prior to the accident, the above named individuals, along with other persons including Joey Sangster, were participating in a 24th birthday party for Shauna Ferrier, Daniel Ferrier’s sister, at a cottage property owned by the Defendants Molly Sangster and James Sangster. Joey Sangster, now a third-party in the action, is Molly Sangster and James Sangster’s youngest son, and was at the time the boyfriend of Shawna Ferrier.

THE PLEADINGS

[12] In an Amended Statement of Claim dated June 9, 2010, the Plaintiff, Daniel Ferrier seeks damages in the amount of six million dollars. He claims Mr. and Mrs. Sangster were, at all material times, the owners of the cottage located at or near Paudash Lake with road access over Ruthvens Road. He claims Mr. Hubbert, while at Mr. and Mrs. Sangster’s party, was served and consumed excessive amounts of alcoholic beverages to the point of intoxication and he and Mr. Hubbert left the cottage party in Mr. Hubbert’s motor vehicle with Mr. Hubbert driving on Ruthvens Road. He claims the Defendant, Mr. Ballard, had placed large boulders in the middle of Ruthvens Road, blocking traffic. Suddenly and without warning, Mr. Hubbert turned to avoid the large boulders, losing control of the vehicle which swerved off the east side of the road and plummeted downhill striking a boat on a trailer and a tree.

[13] The amended claim alleges Mr. Hubbert was negligent in the operation of the motor vehicle. Daniel Ferrier alleges Mr. and Mrs. Sangster were negligent in over-serving Mr. Hubbert, that they continued to serve liquor to Mr. Hubbert, they failed to restrain Mr. Hubbert from leaving the party, failed to monitor Mr. Hubbert’s consumption of alcohol and to ensure reasonable precautions would be taken to prevent Mr. Hubbert from becoming intoxicated to the point that he could no longer safely operate a motor vehicle.

[14] The amended claim alleges Mr. Ballard was negligent for placing, or failing to remove, large boulders which obstructed Ruthvens Road in the area in question when he knew or ought to have known this would create a danger for users of the roadway, failed to erect adequate signing at the location of the collision, failed to take reasonable steps to reduce the danger for users of the roadway, and permitted the road to remain in a dangerous condition and failed to maintain an effective system of inspection, maintenance and supervision over the roadway.

[15] In his Statement of Defence and Counterclaim in answer to the amended claim, Mr. Hubbert admits he was the owner and while operating his vehicle that early morning, was suddenly confronted with large boulders which had been earlier placed on the side of the road by the Defendant, Mr. Ballard. His manoeuver to avoid the rocks caused him to lose control of his vehicle which left the travelled portion of the roadway and collided with a boat on a trailer and to continue south of the roadway to strike a tree.

[16] Mr. Hubbert pleads the Defendants, James and Molly Sangster, knew their son Joey was hosting a birthday party where there would be consumption of alcohol, even to excessive amounts and they delegated responsibility for the safety of persons attending the birthday party to their son, Joey Sangster. Further, they knew or ought to have known Joey was not responsible because he had a history of irresponsible behaviour where alcohol was concerned and a regular practice and propensity to operate motor vehicles from the property when he was intoxicated and earlier that evening they had demanded Joey return to the property from a joy ride in another vehicle, but then made no effort to ensure that Joey or others would not again leave the property in a vehicle while under the influence of alcohol. Further, they attempted to obfuscate the facts of the accident, encouraging others not to admit and to deny Daniel had been injured in a motor vehicle accident upon leaving their property for which alcohol was a contributing factor and they had gone to bed in the knowledge that a party which included excessive consumption of alcohol was occurring at their premises. They took no steps to ensure the young adults at the property would be provided with a place to sleep and would not operate a vehicle from the property.

[17] Mr. Ballard, in his Statement of Defence and Cross-Claim, acknowledges his property was subject to a right-of-way, but he and his wife were not occupiers of the road within the meaning of the Occupiers’ Liability Act and specifically denies wholly or partially blocking the road in question with boulders as alleged. He notes there were several small stones located off the right-of-way and travelled road in question situated at the property line between Ballard and his neighbour to the south, Christie, and if the vehicle in which the Plaintiff was a passenger struck those stones, the operator of the vehicle must have already lost control and left the travelled portion of the roadway in order to strike those stones. At no time had he constructed, placed or maintained a barrier or other obstacle on the road in question.

[18] Mr. Ballard pleads if Mr. Ferrier was injured, such injuries were the result of his voluntarily assuming the risk of injury by entering into the vehicle in question following a party where excessive quantities of alcohol were consumed, knowing the vehicle would be operated by an impaired driver. Mr. Ballard relies on the allegations of negligence made by the Plaintiffs in their Statement of Claim against the Defendants other than Ballard and cross-claims against the other Defendants for contribution and indemnity.

BACKGROUND DETAILS PROVIDED BY THE SANGSTERS

[19] From affidavit evidence deposed to by Molly Sangster, James Sangster, and associates at the law firm representing the Sangsters, the facts described earlier are augmented as follows:

a. The Sangsters are married and Joey, 23 years of age on the evening in question, is their son. He had been living for approximately 4 to 6 months with Shauna Ferrier, said to be turning 24 on the date of the accident. Neither lived with Mr. and Mrs. Sangster at the time of the accident.

b. Shauna Ferrier is the sister of Daniel. She invited Daniel and other friends to the Sangster property to celebrate her birthday. Mr. and Mrs. Sangster lived full time at the subject property which consisted of two dwellings: the main cottage and a small cabin located behind the main cottage. Mr. and Mrs. Sangster lived in the main cottage, while the small cabin was used by their children when they visited.

c. Daniel Ferrier was 21 years of age on the date of the accident and Mr. Hubbert was 19 years old. No minors or parties lacking legal capacity were involved in hosting the birthday gathering or involved in the subject accident.

d. Daniel Ferrier confirmed he was invited by his sister. He had never been to the premises before nor had he ever met Mr. and Mrs. Sangster.

e. Neither Mr. nor Mrs. Sangster invited any of the guests to the birthday party. They did not invite any guest who was present at the second cottage on the evening of the accident. While the Sangsters were present at the premises, they had not been invited to the party and did not participate in any of the celebrations.

f. The guests arrived throughout the afternoon of June 14. The celebrations took place outdoors and in the second cottage cabin. The guests were permitted to sleep in the second cottage or on the premises that evening. No one was expected to drive home.

g. A number of guests went waterskiing and tubing with Mr. Sangster’s boat driven by Joey Sangster, but when Joey went skiing, his father, James, drove the boat and then James returned to the main cottage shortly thereafter. He had minimal interaction with the guests throughout the day.

h. Mr. and Mrs. Sangster did not serve, supply or provide any alcohol and in particular did not serve supply or provide any alcohol to Mr. Ferrier or Mr. Hubbert. Mr. Ferrier confirmed each of the attendees brought their own alcohol and he himself brought 15 cans of beer and drank nothing but his own supply of beer on the day in question.

i. Shauna Ferrier and her girlfriend prepared dinner following which a bonfire was lit and the attendees continued to mingle by the second cottage. Mr. and Mrs. Sangster did not participate in these events.

j. None of the guests were visibly intoxicated while in the presence of Mr. and Mrs. Sangster. The Sangsters retired to bed before or shortly after midnight.

k. Mr. and Mrs. Sangster had no involvement with and did not attend the birthday celebration, a fact confirmed by Mr. Hubbert. Mr. Ferrier confirmed his sister hosted the celebration on the premises, not Mr. and Mrs. Sangster.

l. There are two versions as to how the accident occurred. Firstly, Shauna Ferrier in an undated handwritten statement noted at around midnight Joey Sangster took his car for a drive with Mr. Ferrier and Justin Hubbert. Mrs. Sangster allegedly went out to the second cottage from the main cottage and asked Shauna Ferrier where they [the boys] had gone. Upon realizing he had taken the car, Mrs. Sangster allegedly phoned her son and told him to get home. Upon his return to the premises, Mrs. Sangster told her son not to take the car out again. In the second version, Mrs. Sangster in a statement said she had gone to bed around midnight while the guests continued to enjoy the campfire. She had been awoken at approximately 3:30 AM by the sound of Shauna Ferrier screaming. She went to see what was going on and was informed Mr. Ferrier had been involved in a motor vehicle accident. She attended to Mr. Ferrier’s bleeding nose and drove him to hospital.

[20] Justin Hubbert filed an affidavit sworn April 20, 2015. In that affidavit, he deposes as follows:

a. He arrived at the Sangster property midafternoon on Saturday, June 15, 2008, driving his minivan. There was a number of people at the party including Joey Sangster, Daniel Ferrier and himself, and they were consuming alcohol. After dinner, while sitting around a bonfire, the three of them continued drinking alcohol. He was unsure of the time, however, it was likely after midnight and the only people left sitting at the bonfire were these same three boys.

b. The three of them first took a ride in Joey Sangster’s car. Upon returning to the Sangster property, they decided to take another drive and this time, it was in his minivan, with him driving. They did not get far from the Sangster property when the accident happened. He was unfamiliar with the road, it was gravelly and while proceeding up the hill, he thought he could see the head lights of an approaching vehicle. In response, he drove near the right edge of the road and a moment later, he saw rocks on the road and swerved to the left to avoid the rocks. He lost control and could not regain proper control and his van collided with a tree causing injury to Daniel Ferrier.

c. He described his approach to the rock this way: “it appeared to me, because it was dark that the rock just jumped out in front of me.”

[21] Attached to his affidavit were several exhibits. Exhibit B was an eight page statement signed by Shauna Ferrier. In that statement, she wrote that around midnight she and her friend Katie went into the cottage. They could hear the three boys get into a car and drive away with Joey Sangster driving. Molly Sangster came to the cottage and inquired where the boys were. Joey Sangster was called on his cell phone and his mother told him not to be stupid and to get home and they arrived back at the cottage about 10 minutes later. Molly told Joey not to take his car out again. Shauna went to lay down between 1:30 and 2:00 AM and about 20 minutes later, Molly came back up to the cabin and said the boys had left again. “I was angry, but I went back to bed and around 20 minutes later, Joey came into the bedroom and I noticed blood. I started to yell, where was my brother? At that moment, Katie came in crying, that Dan has blood all over him. Molly drove Dan to the hospital.”

[22] Evidently, Shauna later went to the scene of the accident and saw the van still at the tree and what looked like skidmarks coming down the hill and “those stupid rocks at the edge of the road followed by the skidmarks.” Later in her statement, Shauna wrote that she woke Joey up and tried to get out of him what happened, but “he couldn’t remember anything.”

[23] Exhibit C is a statement attributed to Joseph Ferrier. From his statement, it seems he visited the scene of the accident about the time the sun was starting to come up. The last sentence in his statement reads, “I could see the skidmarks on the road… as Justin was coming up over the hill the rocks the neighbour had set up spooked him, he slammed on the brakes, losing control and slamming into the tree. I then called the police and waited for them to arrive.”

[24] Exhibit D is a statement dated September 11, 2008 of Carol Betz. She writes “About noon the next day, everyone went over the details. At that time Molly said, ‘don’t worry, these boys do this sort of thing all the time’ referring to her son and his friends joy riding after spending a night drinking…. I now understood why Molly tried to make sure the stories were straight of what happened. She was trying to cover herself in the same way she had to do before when her son was drinking and driving.”

[25] Exhibit E is a one page statement from Katie Cuffe. She notes at 1:30 to 2:00 AM, Joey Sangster decided to get in his car and take Justin and Dan for a joyride. I was in the cottage sitting on an air mattress with Shauna talking, we did not find out until Joey’s mom came in asking where they had gone because she heard the car start and leave. Molly Sangster tried calling Joey’s cell phone and I tried calling Dan’s cell, but he did not answer, but Joey did and hung up, about 20 minutes later they showed up getting out of Joey’s car and heading toward Justin’s van.

[26] This affidavit from Justin Hubbert, together with the affidavits from the Sangsters and two associates at their law firm, along with an affidavit from Tracy Moore, a title searcher and conveyancer employed by counsel for the Defendant, Ballard, comprised the only affidavit material presented on the motion. In addition, there were excerpts from the transcripts of the examinations for discovery of Daniel Ferrier, Justin Hubbert and Molly Sangster. Finally, counsel referred to the various pleadings.

[27] Included in the factum of the Defendant, Justin Hubbert, is a copy of an agreement, suitably redacted, between counsel for the Plaintiffs and counsel for Mr. and Mrs. Sangster. In that agreement, Mr. and Mrs. Sangster are to pay a sum of money [redacted] to the Plaintiffs, inclusive of all damages, costs, interest and disbursements. It provides that counsel for all parties and the trial judge will be advised of the complete details of this agreement, omitting the monetary terms, and the sealed copy of this agreement including the monetary terms will be filed with the registrar at the opening of the trial, to be opened up in the discretion of the court following the court’s determination of the liability and damages issues at trial. This agreement contemplates a summary judgment motion as it reads, if the Sangsters are successful on their pending summary judgment motion, the Sangsters will not seek any cost of any kind against the Plaintiffs and the Plaintiffs will be able to keep the Sangsters payment.

THE ISSUES

[28] Counsel for Mr. and Mrs. Sangster identify the issues as follows:

a. Is a trial required to determine if Mr. and Mrs. Sangster were social hosts and whether they breached a duty toward the Plaintiffs as social hosts?

b. Is a trial required to determine if Mr. and Mrs. Sangster are liable for delegating safety or hosting responsibilities to their son, Joey Sangster?

c. Is a trial required to determine if Mr. and Mrs. Sangster are liable under the Occupiers’ Liability Act for failing to remove the alleged boulder from the Co-Defendant, Mr. Ballard’s property?

[29] The Defendant, Justin Hubbert, in his pleading, asks for the dismissal of this motion for summary judgment noting the issue to be addressed is that the principal facts are in dispute and a reasonably instructed jury could find liability against the Sangsters. The Occupiers’ Liability Act (hereinafter referred to as Act) alone permits a finding of liability if it is found that the rocks on the roadway caused or contributed to the accident as these rocks were known to be hazards and no steps were taken to correct the situation. The issues of law related to occupiers’ liability including social host liability on the facts presented suggest there are genuine issues for trial. The facts are not so plain or apparent to permit summary judgment. The fact of the settlement agreement between the Sangsters and the Plaintiff indicates a triable issue as the insurer for the Sangsters observed the risk of an adverse result or why enter into a the settlement agreement?

[30] The Defendant, Donald Ballard, describes the issue this way. Both the Plaintiff Ferrier and the Defendant driver Hubbert were guests at the party in question. The relationship between the injured plaintiff and the Defendants Sangster was of sufficient proximity to give rise to a duty of care on the part of the Defendants Sangster. If a jury determines the Defendants Sangster were in fact social hosts, then it is submitted the relationship between the injured plaintiff Ferrier and the Defendants Sangster was of sufficient proximity to give rise to a duty of care. A jury could logically infer from the conduct of Molly Sangster, she was aware the individuals in question should not have been in a motor vehicle due to the consumption of alcohol and as a result, it was reasonably foreseeable the accident that eventually happened would have. The Supreme Court of Canada in Childs and Desormeaux, https://www.canlii.org/en/ca/scc/doc/2006/2006scc18/2006scc18.html, [2006] 1 SCR 643 indicated a positive duty of care may exist on the part of the social post when foreseeability of harm is present and where the relationship between the plaintiff and the defendant is such to show special proximity.

[31] Regarding the right-of-way, the Defendant Ballard alleges Molly Sangster, at discovery, acknowledged she was part of a group of people who were responsible for the maintenance of Ruthvens Road. This is not a new cause of action having been earlier raised in the pleadings and if the jury were to determine there was some failure to maintain the road and that was a contributing cause to the happening of the accident, it would be open for the jury to find liability on the part of the Defendant, Molly Sangster. Accordingly, there is a genuine triable issue as to whether the Defendants, Sangster were in breach of the duty of care owed to the Plaintiff under the provisions of the Occupiers’ Liability Act. Also, there is evidence, from which the jury could logically infer, the Sangsters were social hosts and failed to take reasonable steps to ensure the safety of persons such as the Plaintiff Daniel Ferrier.

THE TEST FOR SUMMARY JUDGMENT

[32] I repeat the outline of the test for summary judgment found in the factum of the Sangsters which neither of the other parties took serious issue with it.

a. Rule 20.04(2) of the Rules of Civil Procedure provides the court shall grant summary judgment if satisfied there is no genuine issue requiring a trial.

b. In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

i. weighing the evidence,
ii. evaluating the credibility of the deponent,
iii. drawing any reasonable inference from the evidence.

c. A judge hearing the summary judgment motion is entitled to assume that a responding party has put its best foot forward and no further or better evidence would be forthcoming at trial.

d. In the leading decision of Hryniak v. Maudin, <https://www.minicounsel.ca/scc/2014/7 the Supreme Court of Canada mandated that judges make summary judgment dispositions where they can reach a fair result. It serves the goals of timeliness, affordability, and proportionality. The court called for a greater use of summary judgment where the procedure allows a judge to find the necessary facts to apply the relevant legal principles.

e. To make this determination, the Supreme Court provided a two-stage analysis where, at each stage, the motion judge asks whether he or she can fairly and justly adjudicate the dispute. At the first stage, the judge determines whether this can be done without the expanded use of the “fact-finding” powers provided by Rule 20.04(2)(a). If however, there appears to be a genuine issue, then the second stage arises and the judge determines whether the dispute can be resolved with the use of the “fact-finding” powers.

IS A TRIAL REQUIRED?

[33] Some of the parties have requested trial by jury. Is such a trial required to determine whether the Sangsters were social hosts and if so, whether they breached a duty as social hosts toward the Plaintiffs?

[34] Counsel for Mr. and Mrs. Sangster submits the answer is no, pointing out in Childs, the Supreme Court of Canada found a social host at a party where alcohol is served is not under a duty of care to members of the public who may be injured by a guest’s actions, unless the host’s conduct implicates him or her in the creation or exacerbation of the risk, and in that case, the hosts were far more engaged with their guest then either Mr. or Mrs. Sangster in the present matter. Further, the intoxicated guest in Childs was known to his hosts to be a heavy drinker and it was found he had likely consumed 12 beers at the party where he and others had brought their own alcohol and the only alcohol served by the hosts was a small amount of champagne.

[35] There was no question in Childs as to who hosted the party. The Supreme Court identified the central legal issue as to whether social hosts who invite guests to an event where alcohol is served owe a legal duty of care to third parties who may be injured by intoxicated guests. Here, Mr. and Mrs. Sangster did not invite any of the guests to the party, were not invited to the party themselves, did not take part in the celebrations, provided no food or alcohol to the guests. Shauna Ferrier hosted her own birthday celebration on the property of Mr. and Mrs. Sangster, as such Ms. Ferrier was the social host.

[36] Even if Mr. and Mrs. Sangster were found to be social hosts, they were not under a legal duty because there was not enough foreseeability for a prima facie duty of care to arise. Mr. and Mrs. Sangster did not serve Mr. Hubbert any alcohol and were not aware of any issues concerning the history of past alcohol consumption on his part. They never saw Mr. Hubbert immediately before he took his van for a drive or asked him if he was okay to drive. Hubbert himself admitted at discovery he did not recall ever having met Mr. and Mrs. Sangster prior to the accident, therefore, the injuries sustained by Mr. Ferrier in this matter was not reasonably foreseeable by Mr. or Mrs. Sangster.

[37] The Supreme Court held where there is no overt act on the part of the defendant, the relationship of the parties must be examined to see if it gives rise to a special link or proximity that may give rise to a duty to act, and only then is a duty of care established. The court listed three scenarios where a special link may be established: where the defendant invites a third-party to assume an inherent risk that he or she controls, as a result of a paternalistic relationship such as a parent and child or student and teacher, and a defendant who exercises of public function or commercial enterprise.

[38] The Sangsters argue none of the three categories that may impose a positive duty to act are applicable in the present case “…short of active implication in the creation or enhancement of the risk, a host is entitled to respect the autonomy of a guest.” There was no positive duty to act and no duty of care can be established.

[39] The Defendant, Ballard saw it differently. The evidence indicates there was consumption of alcohol throughout the day and evening at the property of the Defendants, Sangster who were present. On the issue of social host liability, he submits it is important to note a significant factual difference between this case and Childs. In Childs, the injured plaintiff and the driver of the vehicle in which she was a passenger were persons travelling on a public highway who had had no involvement in the party whatsoever. In this case, both the injured plaintiff, Ferrier and the Defendant driver, Hubbert were both guests at the party in question. The relationship between the injured Plaintiff and the Defendants Sangster was of sufficient proximity to give rise to a duty of care. In addition, he submits the Defendants, Sangster were “occupiers” of the premises where and when the party took place and subject to a duty of care set out in section 3 of the Occupiers’ Liability Act. Whether or not there was a breach by Mr. and Mrs. Sangster of that duty of care is a triable issue that should be determined by the jury in this case after it hears all the evidence. Not only did they own the property, they were present when the party was occurring, and there is also admissible evidence that later in the evening the Defendant, Molly Sangster, was behaving as a social host when she took steps to contact her son Joey by cell phone with a view to having him return to the cottage property out of the concern the safety of he and his passengers. There is evidence to indicate the Defendant Molly Sangster was aware of the consumption of alcohol by her son and others at the party and she had taken steps to get them to return to the cottage property from the initial vehicle trip in the Sangster vehicle. A jury could logically infer from her conduct she was aware the individuals in question should not have been out in a motor vehicle due to their consumption of alcohol and as a result, it was reasonably foreseeable the accident that eventually happened would occur.

[40] He argues there is a special proximity and relies upon the case of Kim v. Thammavong, https://www.canlii.org/en/on/onsc/doc/2007/2007canlii52791/2007canlii52791.html, [2007] O.J. No. 4769 in which Perell J. noted the relationship between the plaintiff and the defendant in that case was closer than the relationship between the parties in Childs because the plaintiff was a guest at the party being held by one of the defendants and not a third-party passenger in a car some distance away. There was “something more” in the circumstances of the party being hosted that led to the injuries sustained by the plaintiff and that was a genuine issue for trial.

[41] The Defendant, Justin Hubbert in addition to the arguments presented by Ballard adds the following: there were no actions taken by Mr. and Mrs. Sangster toward ensuring the safety of the persons at their property. There is evidence to support a conclusion the Sangsters had specific knowledge of the propensity for night time joyrides in vehicles after the consumption of alcohol by their son, Joey Sangster, which was an endangerment to persons. There is evidence Molly Sangster acknowledged her “fault” and went so far as to encourage persons to obscure the fact of the motor vehicle accident and to suggest the Plaintiff’s injuries were caused by falling on a dock.

[42] Further, there was a positive duty of care where the evidence establishes proximity between the Plaintiff and Defendant and here, there was a paternalistic relationship in that young people were invited to use the property in the knowledge of over consumption without taking care to ensure vehicles would not be driven notwithstanding special knowledge of the likelihood of the risk. This Defendant argues Molly and James Sangster delegated their obligations as occupiers to their son, Joey Sangster. It was the connection of Joey Sangster, as the boyfriend of Shauna Ferrier that permitted the use of the property for the birthday party. It was this delegation of the responsibility to an irresponsible person, Joey Sangster that further creates the social host liability. It was Joey Sangster who encouraged the night time joyride fueled by the overconsumption of alcohol and Molly and James Sangster had actual knowledge of the risk and did not prevent the activity by having delegated control of the property to their son, Joey.

[43] Justin Hubbert submits the Occupiers’ Liability Act alone permits a finding of liability if it is found the rocks on the roadway caused or contributed to the accident as these rocks were known to be hazards and no steps were taken to correct the situation. Coupled with the issue of social host liability the facts suggest there are genuine issues for trial. The facts are not so plain or apparent to permit summary judgment. Given the addition of the settlement agreement, there is an indication of triable issues and this Defendant seeks dismissal of the motion for summary judgment.

MR. and MRS. SANGSTER’s REPLY

[44] Mr. Hubbert, a willing participant in drinking and an impaired driver, is now deflecting blame. How could Mr. and Mrs. Sangster be responsible for adults who willingly assumed the risks of drinking and driving. The Sangsters submit they were not social hosts, the accident was not foreseeable, there was no positive duty to act in the circumstances therefore, there was no duty of care that could have possibly been breached. The trial is not necessary to determine whether a duty was breached.

[45] They argue parents are not vicariously liable for the acts of their children by virtue of a family relationship. Parents do not have a duty to supervise children who have reached the age of majority. In this instance, all parties were the age of majority at the time of the accident and in particular, Joey Sangster was 23 years of age. Further, there is no evidence of delegated hosting responsibilities for the birthday gathering to their son and no evidence Joey Sangster had a propensity to drink and drive or to promote drinking and driving. Whether the court finds they had delegated responsibility or that their son had a history of alcohol consumption, there is nothing in the circumstances that required them to take positive action. They were free to respect the autonomy of their adult son and allow him to host the party where alcohol would be served.

[46] With respect to the Occupiers’ Liability Act, Mr. and Mrs. Sangster argue this is a new allegation raised in correspondence dated April 16, 2015 from counsel for Mr. Hubbert which alleges Mr. Hubbert lost control of his vehicle because of the interference of the boulders and they failed to take appropriate steps to have the boulders removed. There are no such allegations contained in the Fresh as Amended Statement of Claim nor the Amended Statement of Defence or the Statement of Defence of Mr. Ballard. The correspondence was the first notice to the Sangsters suggesting it will be alleged they were occupiers of the right-of-way where it passed over the Ballard property. The letter was not a motion to amend pleadings and was delivered two weeks prior to the hearing of the summary judgment motion and almost 5 years after the filing of a Statement of Claim and almost 7 years after the accident.

[47] The passing of a limitation period automatically gives rise to a presumption of prejudice which cannot be compensated for by costs or an adjournment. The issue of the right-of-way constitutes an allegation fundamentally different from the claims as pleaded. The fact this issue was put to Mr. Ballard and Mr. Hubbert at discovery does not relieve the Defendants from seeking to amend their pleadings prior to the summary judgment motion.

[48] Mr. Ballard denied he and his wife were occupiers of the road. There is no suggestion in his pleadings Mr. and Mrs. Sangster were occupiers of the road or that they failed to maintain the road. Mr. Ballard admitted there were several small stones located off the right-of-way and travelled portion of the road in question at the property line between the Ballard’s property and his neighbour, Christie. At his discovery Mr. Ballard was shown a photograph and identified an image he stated was not on the right-of-way, but rather on his property which he personally maintained. He testified he had never before seen the alleged rock indicating he would have moved it unless it was possibly a flowerpot placed there by his wife as a marker so vehicles would not travel onto his property.

[49] During his examination, Mr. Hubbert recalled the accident and the rock and confirmed it did not cause the accident. Mr. Ferrier had no recollection of the accident details. Mr. Hubbert testified he was travelling up a hill on Ruthvens Road and thought he saw lights from another vehicle up ahead coming from the opposite direction. He confirmed this was a mistaken belief. In order to avoid the potential vehicle, he decided to travel close to the right side of the road. He indicated he saw a rock on the right side of the road and swerved left to avoid it. After avoiding the rock, he started to travel down the hill. he saw a right turn coming up and tried to make a right turn, applied his brakes, but lost control of his vehicle, which then hit a tree; he confirmed he did not lose control when he swerved left to avoid the rock; he lost control as he was going down the hill while trying to prepare for the right turn which was up ahead.

[50] Even if Mr. Hubbert was allowed to plead this allegation, Mr. and Mrs. Sangster argue they were not occupiers of the right-of-way, but had access to the right-of-way and contributed to a communal pool for its upkeep. They also argue courts have consistently held that more than simply the right to use the land or the right to invite guests onto the land will be required to impose the duty of care of an occupier. See The Corporation of the County of Halliburton v. Gillespie, https://www.canlii.org/en/on/onca/doc/2013/2013onca40/2013onca40.html.

[51] Further, there is no evidence the Sangsters were in any position to remove the rocks or plants placed by Mr. Ballard on his own property which were adjacent to the right-of-way and the fact they may have been adjacent is not relevant to these proceedings. Mr. and Mrs. Sangster pointed out it was the evidence of Mr. Ballard on discovery that the rocks were not on the travelled portion of the road.

ANALYSIS AND CONCLUSION

[52] Were Mr. and Mrs. Sangster social hosts? They owned the property on which the birthday gathering was held. Is ownership sufficient to make one a social host? If it is found the Sangsters, as property owners, assigned parental responsibilities to their son Joey, does that make them social hosts of this gathering?

[53] The court is satisfied Mr. and Mrs. Sangster are not social hosts.

[54] From the material presented on this motion, there is no issue the Defendant Molly Sangster held, in fee simple, property situated at Paudash Lake. Access to this property was over a right-of-way which she shared along with other owners of property at Paudash Lake. There were two buildings constructed on her property; one a cottage building they occupied; a second cabin which they allowed their children to use; and Joey Sangster was one of their children.

[55] Joey Sangster was not residing at home with his parents at the time of this accident. He was dating Shauna Ferrier, a Plaintiff in this action. It was her brother, Daniel Ferrier who was injured in the accident and he is the primary Plaintiff. Shauna and other members of her family are Plaintiffs in the action by virtue of their claims pursuant to the Family Law Act. All Plaintiffs are adults and were adults at the time of the accident. There is no evidence any of the Plaintiffs were under a legal disability.

[56] Shauna Ferrier was celebrating her 24th birthday. It was decided the birthday celebrations would take place at Paudash Lake. Undoubtedly, her right to hold her birthday celebration at that location was tied to her relationship with Joey Sangster whose parents owned the property. She alone invited the guests. The guests brought their own alcoholic beverages they would consume at the celebrations. Mr. and Mrs. Sangster did not provide or serve alcohol to Shauna Ferrier’s invited guests. There is no evidence the guests were served alcohol by Shauna or Joey either.

[57] While Mr. and Mrs. Sangster were present at their property that day, they were not invited to the birthday celebrations. From their testimony during discovery, Daniel Ferrier and Justin Hubbert were not acquainted with Mr. and Mrs. Sangster. Mr. and Mrs. Sangster, in addition to not serving alcohol, provided no food to the guests either. The only contribution made by Mr. Sangster to the event is he operated the boat and motor used in the water skiing and tubing when it was Joey Sangster’s turn, otherwise, Joey Sangster operated the boat and motor when the guests were towed behind it. The operation of the boat and motor did not lead to any accident or injuries.

[58] Mrs. Sangster’s involvement occurred around midnight or shortly after midnight when she appeared at the cabin to inquire whether the boys, Joey, Daniel, and or Justin had left from the cabin in a motor vehicle. Evidently, she then discovered Joey’s car was missing and phoned him demanding he return with the car and not to remove it from the property. About 20 minutes later, he and the car returned. I am satisfied these actions do not make her a social host.

[59] Her additional involvement took place when she returned to the cabin on a second occasion after the boys had again left the property, this time with Justin Hubbert operating his motor vehicle. This does not make her a social host. When the boys returned after the accident, she helped clean up the blood on Justin Hubbert’s face which was a result of injuries he received in the accident. She later drove him to the hospital. Cleaning the blood from his facial injuries and driving him to the hospital for treatment do not make her a social host, but are consistent with the actions of a caring person.

[60] There is a suggestion she told those present they had better get their stories straight and a further suggestion she had a hand in making up the story Justin’s injuries had been occasioned by his fall on the dock. It was inferred this story was presented to avoid her responsibility as a social host. While I am satisfied “the dock story” was a fabrication, I fail to see how it would help her avoid responsibilities as a social host. Rather, the story would point to an accident occurring on the dock at property she owned and occupied. Such a story might facilitate a claim against her for injuries occurring at her property she occupied, unless warnings had been given the dock was somehow a danger to those using it.

[61] A finding Mr. and Mrs. Sangster were not social hosts leads to a finding they owed no duty of care in the circumstances.

[62] The court is not satisfied Mr. and Mrs. Sangster delegated hosting or safety responsibilities to their son, Joey Sangster. Even if they had, I am satisfied they had no duty to supervise their adult son and were free to respect his autonomy and cannot be held liable for allowing him or his girlfriend to host a party on their property.

[63] In reaching this conclusion, I accept the authorities of Kim v. Thammavong and Karn v. Sturgeon, [2008] O.J. No. 6010. In Kim, a 20 year old daughter living at home gave a party in her parents’ absence. The parents realized alcohol would probably be served; they knew their daughter had consumed alcohol in the past and when they were named Defendants in a civil action on the grounds they were social hosts of the party, Justice Perell concluded “the court is not concerned with an overt act by Mr. and Mrs. Chueng but with their alleged failure to interfere with their adult daughter’s autonomy to host a party where alcohol would be served. Mr. Kim may be taken to have presented his best case against the Cheungs, and it amounts to no more than that they went on vacation and they did not control in their home their adult daughter, who was known to drink alcohol. In my opinion, these circumstances do not rise to establish a relationship that prima facie entails a duty of care.” The Defendant Ballard argues and the court notes Justice Perell did find the relationship between plaintiff and defendant was closer than the relationship between the parties in Childs because the plaintiff was a guest at the party being held by one of the defendants and not a third-party passenger in a car some distance away. He went on to indicate that whether there was something more in the circumstances of the party being hosted that led to the injuries sustained by the plaintiff was a genuine issue for trial.

[64] I am satisfied the hosts at the Paudash Lake party were Joey Sangster and Shauna Ferrier, not Mr. and Mrs. Sangster and the fact the plaintiff, Daniel Ferrier was at the party and not a third party passenger in a car some distance away does not create a sufficient proximity or “something more” which presents as a genuine issue for trial

[65] In Kim, the home owners were not present at the party. While the Sangsters were present on their property they were not at the party either. In Kim, the Plaintiffs alleged the occupier and host of a party owed a duty of care to a person who she knew or ought to have known had a propensity to drink…[the court] held that with respect to the assumption of risk, whatever amount of alcohol the plaintiff may have consumed at the Defendant’s house, he drank voluntarily [and]… he was sufficiently “adult” to make that choice.

[66] Justin Hubbert submits the Sangsters had specific knowledge of the propensity for nighttime joy rides in vehicles after the consumption of alcohol by their son, Joey Sangster which was an endangerment to persons and there is evidence they foresaw the risk of the use of the vehicle on the particular evening. The court’s understanding of the accident is the vehicle involved in the accident was owned and operated by Justin Hubbert, not Joey Sangster. There is no evidence the Sangsters had specific knowledge about Justin Hubbert’s consumption of alcohol or that they foresaw the use of his vehicle that evening. Further, there was no evidence presented on the motion about “propensity for nighttime joy-rides.”

THE OCCUPIERS’ LIABILITY ACT

[67] The Defendant, Justin Hubbert argues Mr. and Mrs. Sangster are liable because they permitted the use of their property for a prolonged party involving consumption of alcohol to an excess and took no action towards ensuring the safety of the persons at the property. This could imply liability could be traced to them as occupiers of the cottage lot and/or the right-of-way to the lot.

[68] Section 3(1) of the Occupiers’ Liability Act provides “an occupier of premises owes a duty to take such care as in all of the circumstances of the case is reasonable to see that persons entering on the premises are reasonably safe while on the premises.”

[69] The motor vehicle accident did not occur on the cottage lot and therefore, does not meet the requirement of “while on the premises.” The focus then turns to the right-of-way known as Ruthvens Road. In passing, it is noted in Childs, there is no mention of liability on the basis of the Act, but rather, Childs deals only with the responsibilities of a social host.

[70] The cottage lot is registered in the name of Molly Olive Sangster and is described as part of that island or point in Paudash Lake opposite Lots 25 and 26, in the Fifth Concession of the Municipality of Highlands East, County of Halliburton together with a right-of-way in common with others entitled thereto, 20 feet in width, extending to the herein described parcel from the said allowance for road between lots 25 and 26, concession five. The transfer to Molly Sangster is registered as Instrument Number H 281359 on August 11, 2009.

[71] Donald and Georgina Ballard also own cottage property in the same development together with the same right-of-way as described in Molly Sangster’s deed, however, it appears the right-of-way in question passes through their property and therefore their property is subject to a right-of-way 20 feet in perpendicular width. Their deed is registered as Instrument Number 120770.

[72] From the transcript of James Sangster’s examination for discovery, he answers the location of the accident was a private lane used by all members of the cottage association; at the time of the accident, the rocks had been present for quite a while, it concerned him that the rocks were present when driving the road because someone could drive over the rocks, and while he had concerns about the presence of the rocks, he did not bring his concerns to the attention of anyone.

[73] At discovery, it was the evidence of Donald Ballard that he did not put the rocks in the location and if a rock was encroaching on the road, he would want it removed. In his Statement of Defence and Cross-Claim, Ballard denies being responsible for road maintenance indicating people by the name of Irwin collected money from other users of the road to arrange for maintenance and that Molly Sangster had acknowledged on discovery she was a part of a group of people who were responsible for the maintenance of it.

[74] In his affidavit, Justin Hubbert deposed he was not familiar with the road and was going uphill when he thought he saw oncoming lights and drove nearer the edge of the road. He saw rocks on the road and swerved to the left to avoid the rocks, lost control of his van and left the road to collide with tree. He submits the accident occurred on the right-of-way belonging to the Sangsters and which was obstructed by rocks and the Act permits a finding of liability if it is found that the rocks on the roadway caused or contributed to the accident as these rocks were known to be hazards and no steps were taken to correct the situation.

[75] Counsel for Mr. and Mrs. Sangster submitted there is no suggestion in Ballard’s pleading Mr. and Mrs. Sangster were occupiers of the road or they failed to maintain the road and further, Ballard pleads there were never any boulders on or near the road in question, but admits there were several small stones located off the right-of-way and travelled portion of the road in question at the property line between the Ballard and Christie property. On discovery, when shown a photograph, he was unable to identify what counsel alleged was a rock and while it was still on his property, it was not on the right-of-way. It might have been a flowerpot placed by his wife next to the right-of-way as a marker so that vehicles would not travel on to his property.

[76] Justin Hubbert was examined for discovery on July 21, 2011. His answers to questions included the following:

a. he was invited to the party by Daniel Ferrier,

b. his van was in good condition,

c. while he wore glasses, he had no problems with his vision including his night vision,

d. when a passenger in Joey Sangster’s vehicle, he did not recall Joey receiving a telephone call and it was his recollection they returned to the cabin property because Joey’s car was low on gas,

e. when operating his van that evening, he had no idea which direction he was travelling on Ruthvens Road. His answer to Question 252 was: “...so I’m going uphill. I see rocks. I swerve left off the rocks…. Now I’m going down the hill and I see that there is a turn coming up and I’m kind of losing control and I’m going off the road, so I turn right, and I couldn’t- I couldn’t get it back going straight” and at Question 256, “I didn’t really see rocks. I saw one rock and I just about hit… Question 265, “So you saw the rock. It was the rock right in front of you? A. no, it was - it was fairly close to the right side of my vehicle, like close enough I thought that I was going to hit it. Question 266, “So close enough that if you continued straight, you would’ve hit that rock? A. That’s what it seemed to me. I’m not a very experienced d