SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 174/14
DATE: 2015-11-04

RE: Kevin Blanchard

Plaintiff

AND:

Robert Gregory Parrott, The International Association of Lions Clubs in Canada, The International Association of Lions Clubs, Kinmount & District Lions Club, Kinmount Lions Club Inc., David Anderson and John Doe Assailant, Thomas Lang, Tim Harrison, Kim Harrison, James J. Jones, Carole Lynne Jones and Wayne Styles

Defendants

AND:

Tim Turcotte, Lorraine Turcotte, Matthew Burgess, Susan Burgess, Glen Weiler And Julie Weiler

Third Parties

BEFORE: J.C. Corkery J.

COUNSEL:
Natasha M. Palacio, Counsel for the Third Parties, Glen Weiler and Julie Weiler

Peter Galway, Counsel for the Defendant, Thomas Lang

Brendan Haynes, Counsel for the Third Parties, Matthew Burgess and Susan Burgess

Ronald P. Bohm, Counsel for the Plaintiff

Christian Caffarena, Counsel for Defendants, James J. Jones and Carole Lynne Jones

Kate Meyers, Counsel for the Defendants, Kim Harrison and Tim Harrison

Robert Traves/David Elman, Counsel for the Defendant, Kinmount Lions Club and David Anderson

Lara Fitzgerald-Husek, Counsel for the Third Party, Kinmount Independent Grocers

David Tompkins, Counsel for the Third Party Tim Turcotte and Lorraine Turcotte

HEARD: September 21, 2015

ENDORSEMENT

[1] The plaintiff commenced this action seeking damages for personal injuries he sustained in an assault by the defendant, Robert Gregory Parrott. The assault occurred after a not-for-profit social event. It is alleged that the other defendants and third parties were organizers of and/or volunteer workers at this event.

[2] The third parties Glen Weiler, Julie Weiler, Matthew Burgess and Susan Burgess bring motions for summary judgment dismissing the defendant Thomas Lang’s third party action and all cross claims against them on the ground that there is no evidence in support of a claim for liability for the injuries suffered by the plaintiff. The defendant Thomas Lang opposes this motion and seeks an order dismissing the motion, with costs. None of the other parties to this action participated in this motion.

[3] The matter is set to proceed to trial commencing November 16, 2015.

[4] The action arises out of an incident that took place in the village of Kinmount, Ontario, in the late hours after a local street dance held on July 15, 2006. The dance was part of an annual summer festival called Moonlight Mania and featured live music, a barbeque, and a bar serving alcohol with a liquor licence in the name of the local Lion’s Club. The dance took place in a parking lot owned by Mr. Lang’s company, Kinmount Independant Grocers Limited. It was organized by the Kinmount Business Association and Kinmount Minor Sports Association, unincorporated associations, to raise money to support local minor sports in the community.

[5] The plaintiff alleges that the defendant Robert Gregory Parrott, a friend who attended the dance with him, was served alcohol to the point of apparent intoxication and then assaulted him after the dance. Parrott was subsequently charged and convicted of assault, and served time in jail. The plaintiff alleges that the defendants are responsible for the personal injuries he suffered as a result of this assault.

[6] Mr. Lang claims that although he founded and was the de facto leader of the Kinmount Minor Sports Association, he played a limited role with respect to the service of alcohol at the dance. He alleges that the third parties in this motion, the Weilers and the Burgesses, were involved in the serving of alcohol.

[7] Whether some or all of these third parties served alcohol, or were responsible for serving alcohol, and to what extent remains very much in dispute. Also in dispute is whether the defendant Parrot was served alcohol and, if so, by whom.

[8] In determining whether it is appropriate to grant summary judgment, the Supreme Court of Canada requires that consideration be given to whether summary judgment is the most timely, affordable and proportionate means of dealing with the parties’ issues. If granting a motion for summary judgment still leaves other substantive issues to be addressed at trial, the motion judge must be cautious to avoid the possibility of duplicated efforts and conflicting results. As stated by Madame Justice Karakatsanis in Hryniak v. Mauldin 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 60:

The “interest of justice” inquiry goes further, and also considers the consequences of the motion in the context of the litigation as a whole. For example, if some of the claims against some of the parties will proceed to trial in any event, it may not be in the interest of justice to use the new fact-finding powers to grant summary judgment against a single defendant. Such partial summary judgment may run the risk of duplicative proceedings or inconsistent findings of fact and therefore the use of the powers may not be in the interest of justice.

[9] Granting a motion for summary judgment without having regard to the “litigation as a whole” was considered by the Court of Appeal for Ontario in Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450. Mr. Justice Lauwers warns:

[37] In the complex situation in this case, it is therefore entirely possible that the trial judge who hears the trial of the issue on the validity of the promissory notes will develop a fuller appreciation of the relationships and the transactional context than the motions judge. That could force a trial decision on the promissory notes that would be implicitly inconsistent with the motions judge’s finding that the Third Release is fully valid and effective, even though the parties would be bound by that finding. The process, in this context, risks inconsistent findings and substantive injustice.

[10] In the present case, granting summary judgment requires the consideration and determination of issues that would still remain at issue at trial. The consequent risk of inconsistent findings and of substantive injustice preclude my granting summary judgment.

[11] Furthermore, this is a case that potentially raises a novel question of law concerning the duty of care in situations of volunteer organized events at which alcohol is served. This is an issue that has not been considered by the courts and it would be inappropriate to determine it on a motion for summary judgment.

[12] The motions are dismissed. I am not seized of the matter as it is already scheduled to proceed to trial shortly before another judge.

[13] If the parties are unable to agree upon costs, brief written submissions may be filed by counsel for Mr. Lang within 14 days and for the moving parties within 21 days.

J.C. Corkery J.

Date: November 4, 2015