Jacinto v. Ramjattan, 2015 ONSC 833

COURT FILE NO.: CV-09-380441

DATE: 20150204

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

DANNY JACINTO, ANTONIO JACINTO, MARIA JACINTO and SERGIO JACINTO

Plaintiffs

– and –

JASON RAMJATTAN, S.C. CONSTRUCTION LTD., CARIBBEAN HEAT FAMILY RESTAURANT LIMITED and STATE FARM MUTUAL AUTOMOBILE INSURANCE CO.

Defendants

– and –

WAWANESA MUTUAL INSURANCE COMPANY added by an Order pursuant to the provisions of s. 258(14) of the Insurance Act, R.S.O. 1990, c. I.8

Third Party

No one appearing for the Plaintiffs

Emily A. Schatzker for the Defendant Caribbean Heat Family Restaurant Limited

Ryan Truax for the Defendant S.C. Construction Ltd. and Third Party Wawanesa Mutual Insurance Company

HEARD: January 28, 2015

PERELL, J.

REASONS FOR DECISION

A. INTRODUCTION

1As a result of a motor vehicle collision that led to a car chase that led to a second motor vehicle collision, the Plaintiff Danny Jacinto, the driver of one of the vehicles, was injured.

2After the collisions, Mr. Jacinto sued: (1) Jason Ramjattan, the driver of the other vehicle involved in both collisions; (2) S.C. Construction Ltd., the owner of the vehicle driven by Mr. Ramjattan; (3) State Farm Mutual Automobile Insurance Co., his automobile insurer, which was subsequently let out of the action, and (4) Caribbean Heat Family Restaurant (“Caribbean Heat”), which allegedly over-served alcohol to Mr. Ramjattan, and which was sued for commercial host negligence.

3Wawanesa Mutual Insurance Company (“Wawanesa”), S.C. Construction’s automobile insurer, which had denied coverage because Mr. Ramjattan was an unlicensed driver, was added as a statutory third party pursuant to s. 258(14) of the Insurance Act, R.S.O. 1990, c. I.8. Wawanesa delivered a defence for S.C. Construction and Mr. Ramjattan and, relying on the Negligence Act, R.S.O. 1990, c. N.1, it delivered a crossclaim against Caribbean Heat.

4Relying on the fact that Mr. Jacinto has agreed to a dismissal of his action against Caribbean Heat, it brings a motion for a summary judgment dismissing the S.C. Construction’s crossclaim.

5For the reasons that follow, I dismiss Caribbean Heat’s summary judgment motion. This action, with which I am not seized, should proceed to its scheduled trial in January 2016.

B. PROCEDURAL BACKGROUND

6On June 8, 2009, Mr. Jacinto commenced an action against Mr. Ramjattan, S.C. Construction, and his own insurer, State Farm Mutual Automobile Insurance Co., which was subsequently let out of the action.

7On October 7, 2009, Mr. Jacinto amended his Statement of Claim to add Caribbean Heat as a party Defendant. The claim against Caribbean Heat is a commercial host liability claim, which is a viable claim at law. See Stewart v. Pettie, [1995] S.C.R. 131; Haughton v. Burden, [2001] O.J. No. 4704 (S.C.J.).

8The common law tort commercial host claim is supported by the statutory duty imposed by s. 39 of the Liquor Licence Act, R.S.O. 1990, c. L.19, which holds an establishment liable for injuries caused by a patron to a third party who is over-served alcohol:

…if a person or an agent or employee of a person sells liquor to or for a person whose condition is such that the consumption of liquor would apparently intoxicate the person or increase the person’s intoxication so that he or she would be in danger of causing injury to himself or herself or injury or damage to another person or the property of another person.

9On November 18, 2009, Wawanesa, which had denied insurance coverage for S.C. Construction and Mr. Ramjattan, and which was added as a statutory third party pursuant to s. 258(14) of the Insurance Act, delivered a Statement of Defence to Mr. Jacinto’s claims. Relying on the Negligence Act, Wawanesa delivered a crossclaim against Caribbean Heat.

10Section 1 of the Negligence Act states:

1. Where damages have been caused or contributed to by the fault or neglect of two or more persons, the court shall determine the degree in which each of such persons is at fault or negligent, and, where two or more persons are found at fault or negligent, they are jointly and severally liable to the person suffering loss or damage for such fault or negligence, but as between themselves, in the absence of any contract express or implied, each is liable to make contribution and indemnify each other in the degree in which they are respectively found to be at fault or negligent.

11On May 21, 2010, Caribbean Heat delivered a Statement of Defence and, relying on the Negligence Act, it made a crossclaim against Mr. Ramjattan and S.C. Construction.

12On February 2, 2011, S.C. Construction delivered a Statement of Defence. Oddly, it did not make a crossclaim against Caribbean Heat.

13On January 26, 2012, Justice Belobaba ordered Wawanesa to defend and indemnify S.C. Construction in this action. See Wawanesa v. SC Construction Ltd., 2012 ONSC 353.

14On June 26, 2012, Bell Temple, lawyers of record for Wawanesa, delivered a Notice of Change of Lawyer and became Lawyer of Record for S.C. Construction.

15On October 3, 2012, Mr. Ramjattan, who had not defended the action, was noted in default.

16The action proceeded to examinations for discovery, including an examination for discovery of Mr. Ramjattan.

17On July 24, 2013, Mr. Jacinto passed a Trial Record and the action was subsequently set down for trial. A four week trial is scheduled to commence on January 4, 2016.

18On November 17, 2014, relying on the fact that Mr. Jacinto (and the Family Law Act claimants) had agreed to dismiss the action against it, Caribbean Heat brought the motion now before the court for a summary judgment dismissing the crossclaim of S.C. Construction.

C. THE TECHNICAL ARGUMENT FOR A SUMMARY JUDGMENT

19Before turning to the merits of Caribbean Heat’s summary judgment motion, I will address its technical argument that it should be granted a summary judgment.

20Caribbean Heat’s technical argument is that in his Amended Statement of Claim, Mr. Jacinto sued Caribbean Heat for commercial host liability, but Mr. Jacinto has agreed to a dismissal of his action against Caribbean Heat. Mr. Jacinto’s agreement to a dismissal means that Caribbean Heat can only be liable if a co-defendant has a claim for contribution and indemnity pursuant to the Negligence Act, but Caribbean Heat argues that there is no such crossclaim because: (a) the co-defendant Mr. Ramjattan never made a crossclaim and indeed has been noted in default; (b) the co-defendant S.C. Construction, as such, never made a crossclaim; and (c) although Wawanesa did make a crossclaim, it did so as a statutory third party, which is no longer its situation because Justice Belobaba ordered Wawanesa to defend and to indemnify S.C. Construction if it was vicariously liable for Mr. Ramjattan’s negligence.

21The simple way to put Caribbean Heat’s technical argument is that its remaining co-defendants have not asserted crossclaims and, therefore, the crossclaim should be dismissed on a motion for summary judgment.

22This technical argument does not withstand analysis.

23First, notwithstanding that Caribbean Heat argues that no crossclaims exists, in its notice of motion, Caribbean Heat asks for a summary judgment dismissing the crossclaim of the Defendant S.C. Construction. It does not ask for a declaration that the crossclaim does not exist.

24Second, under s. 258(14) of the Insurance Act, upon being made a third party, the insurer may, among other things, deliver any pleadings in respect of the claim of any party claiming against the insured to the same extent as if it were a defendant in the action, which is what Wawanesa did raising the defences and crossclaims of S.C. Construction, including a crossclaim against Caribbean Heat.

25Section 258(14) of the Insurance Act allows the insurer to participate in the main action, and Wawanesa introduced the S.C. Construction crossclaim into the main action.

26The issue of the application of the Negligence Act appears to me to still be a live issue and the resolution of that issue is consistent with Justice Belobaba’s decision that Wawanesa defend and indemnify, if necessary, S.C. Construction. Thus, in my opinion, Caribbean Heat should defend the crossclaim on its merits.

27Third, Caribbean Heat knew that a genuine crossclaim under the Negligence Act was being made against it long before it delivered its own crossclaim against Mr. Ramjattan and S.C. Construction. It is odd that S.C. Construction, which at the time of its pleading was not being defended by Wawanesa, did not deliver a Negligence Act crossclaim, but that was perhaps an oversight, given that Wawanesa had already pleaded a crossclaim.

28Nothing has happened that should preclude a determination on the merits of the crossclaim being made for S.C. Construction against Caribbean Heat. Once again, in my opinion, Caribbean Heat should defend S.C. Construction’s crossclaim on its merits.

29Fourth, with respect, Caribbean Heat’s technical argument is too cute or too rich for the administration of justice’s blood.

30But for the fact that the original lawyers of S.C. Construction did not put in the same crossclaim that Wawenasa’s lawyers had already put into the main action, Caribbean Heat’s technical argument would not exist. It is in the interests of justice and it is the procedurally fair thing to do to decide the crossclaim against Caribbean Heat on its merits, be it by trial or by its summary judgment motion, to which I now turn.

D. FACTUAL BACKGROUND

31On Sunday, May 4, 2008, around 11:20 p.m., Mr. Jacinto was driving a 1997 Acura southbound on Dufferin Street near Lawrence Avenue in Toronto, Ontario. His vehicle was rear-ended by a Ford Econoline van driven by Mr. Ramjattan, who was an unlicensed driver. The van was owned by S.C. Construction, Mr. Ramjattan’s employer, which mistakenly believed that Mr. Ramjattan was licensed to drive a motor vehicle in Ontario.

32Mr. Ramjattan fled the scene of the accident. Mr. Jacinto gave chase. There was a second collision. Mr. Jacinto says that the second collision was caused by Mr. Ramjattan. Mr. Ramjattan blames Mr. Jacinto.

33The police arrived. Mr. Ramjattan was arrested and charged with Dangerous Operation of a Motor Vehicle, two counts of Failure to Stop at Scene of Accident, Impaired Driving Causing Bodily Harm, and Operation of a Motor Vehicle over 80 mg. On September 24, 2009, Mr. Ramjattan pleaded guilty to the driving charges.

34The only evidence as to how Mr. Ramjattan came to be inebriated comes from Mr. Ramjattan who has given four somewhat different accounts of what he was doing before the accidents.

35On October 16, 2008, Mr. Ramjattan gave a statement about the accidents to an investigator for Wawanesa. On June 30, 2010, Mr. Ramjattan gave a statement to Whitehall Investigations, investigating on behalf of Caribbean Heat. On February 25, 2014, Mr. Ramjattan gave a statement to Centric Investigations, investigating on behalf of S.C. Construction. On October 16, 2014, Mr. Ramjattan was examined for discovery about the accidents and his activities before the accident.

36The chart below sets out Mr. Ramjattan’s various accounts of what he was doing before the accidents. As will be seen there are marked inconsistencies between Mr. Ramjattan’s various accounts, for which, so far, there is no corroborating evidence.

37There are also some problems in the timeline of all of Mr. Ramjattan’s versions of the events, which do not reconcile with the police investigation that indicates that the accident happened later at night than Mr. Ramjattan’s various accounts.

38There are, however, some consistencies in Mr. Ramjattan’s various accounts. It is known that Mr. Ramjattan was inebriated, and it is obvious that that intoxication requires having already consumed alcohol.

39Another consistency is that Mr. Ramjattan says that on the evening of the accident, he was at Caribbean Heat, which is a restaurant at the intersection of Keele and Finch. Caribbean Heat is a family restaurant that serves Chinese and Caribbean cuisine. It is licenced to serve alcohol and, in every version of the events, Mr. Ramjattan consumed some alcohol at Caribbean Heat.

40The chart below sets out the major elements of Mr. Ramjattan’s various accounts of what he was doing before the accidents.

October 16, 2008 Statement

June 30, 2010 Statement

February 25, 2014 Statement

October 16, 2014 Examination for Discovery

Alone, Mr. Ramjattan went to Caribbean Heat around 7 or 8 p.m. He was served by an oriental man and an oriental woman. He had a meal of barbecued pork, jerk chicken, and curried goat. He drank two beers and a shot of Jack Daniels. He left at 9 p.m.

After eating at a restaurant near the intersection of Jane and Finch, Mr. Ramjattan went to Caribbean Heat around 8 or 9 p.m. accompanied by a friend, Kevin, who did not go into the restaurant but visited friends at a nearby apartment. In the restaurant, Mr. Ramjattan was served by a fair-skinned woman. He took out a meal of barbecued pork, and shrimp. He met four friends and drank two beers and three shots of Jack Daniels. He left at 9 or 10 p.m.

Mr. Ramjattan left home and picked up food at a corner store and at a restaurant. He then went to Caribbean Heat around 8 p.m. He drank 6 or 7 Jack Daniels with coke. He gave inconsistent evidence as to whether he met a young Somalian man at the restaurant. He left after 10 p.m.

Before going to Caribbean Heat, Mr. Ramjattan went to two other restaurants where he ordered takeout. He consumed alcohol at these restaurants and then he went to Caribbean Heat around 7 p.m. He sat alone and was served by a Chinese man. He had a meal of barbecued pork. He drank 8 or 9 drinks of beer, shots of Jack Daniels, and coke. He left around 8 p.m.

41Caribbean Heat has produced the bill roll with all sales attached from May 4, 2008. None of the bills match any of Mr. Ramjattan’s stated food and drink orders. The bill roll shows only one shot of Jack Daniels ordered for the entire day, at approximately 3:40 p.m.

42On May 4, 2008, Sing Wong was the manager working at Caribbean Heat. He worked with a server named Farah. Mr. Wong, who was shown a picture of Mr. Ramjattan, does not recall seeing him at the restaurant. Servers at Caribbean Heat were required to have Smart Serve certification, and Mr. Wong was Smart Serve certified. Mr. Wong testified that he would never have served any single patron 8 to 9 drinks in an hour and permitted the patron to drive.

43There is no corroborating evidence of what happened at the restaurant. Caribbean Heat’s personnel have no recollection of Mr. Ramjattan. There are no clues in its business records that come close to confirming any customer, let alone Mr. Ramjattan, ordering Jack Daniels drinks of the amounts recounted by him. There are no independent witnesses to confirm - or to refute - Mr. Ramjattan’s account of what occurred at Caribbean Heat.

E. DISCUSSION AND ANALYSIS

44Caribbean Heat submits that the case at bar is an appropriate case for a summary judgment dismissing S.C. Construction’s crossclaim. It submits that based on the evidence there is no genuine issue for trial that a case of commercial host liability can be made out against Caribbean Heat about the events of May 4, 2008.

45Caribbean Heat submits that for the crossclaim to succeed, it must be proven that: (a) Mr. Ramjattan attended at Caribbean Heat on May 4, 2008; (b) he was served alcohol by Caribbean Heat to the point of intoxication; and (c) Caribbean Heat permitted Mr. Ramjattan to leave the premises and drive in an intoxicated state, leading to the accident.

46Caribbean Heat submits that on the record for this summary judgment motion there is no credible evidence to establish that Mr. Ramjattan attended at Caribbean Heat’s premises on May 4, 2008, or that, if he did attend at the premises, there is no credible evidence that he was served an excessive amount of alcohol and permitted to drive by employees of Caribbean Heat.

47To be more precise, in submitting that there is no credible evidence upon which it could be found negligent, Caribbean Heat is saying that there is no way that it could be found culpable based on the evidence of Mr. Ramjattan, which it says is both not credible and also insufficient, to prove a case of commercial host liability.

48Caribbean Heat submits that Mr. Ramjattan’s statements are replete with inconsistencies and are not corroborated by any other witnesses or documentation, and, therefore, the Court ought not to accept any of his evidence and having not accepted any of his evidence, there is nothing left for the Court to do but to grant a summary judgment dismissing S.C. Construction’s crossclaim.

49In my opinion, it is not as easy as Caribbean Heat would have it to obtain a summary judgment in the case at bar. As a matter of procedure, rule 20.04(2)(a) of the Rules of Civil Procedure provides 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.”

50With amendments to Rule 20 introduced in 2010, the powers of the Court to grant summary judgment have been enhanced. Rule 20.04(2.1) states:

20.04 (2.1) In determining under clause (2)(a) 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:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

51Rule 20.04 (2.2) states:

Oral Evidence (Mini-Trial)

(2.2) A judge may, for the purposes of exercising any of the powers set out in subrule (2.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

52In Hryniak v. Mauldin, 2014 SCC No. 7, the Supreme Court of Canada held that on a motion for summary judgment, the Court should first determine if there is a genuine issue requiring trial based only on the evidence in the motion record, without using the fact-finding powers enacted when Rule 20 was amended in 2010. The analysis of whether there is a genuine issue requiring a trial should be done by reviewing the factual record and granting a summary judgment if there is sufficient evidence to fairly and justly adjudicate the dispute and a summary judgment would be a timely, affordable and proportionate procedure.

53In the case at bar, based only on the evidence in the motion record and without using the fact-finding powers under rule 20.04(2.1), there is a genuine issue for trial. I say this because there is reliable evidence that: (a) Mr. Ramjattan was very drunk at the time of the accident, and (b) Caribbean Heat had the capability of serving alcohol (it had a liquor licence). There is un-weighed evidence that Mr. Ramjattan was at Caribbean Heat where he drank a great deal of alcohol. Based on this evidence, in the case at bar there is a genuine issue for trial about the crossclaim against Caribbean Heat. The un-weighed and contested evidence provided by Mr. Ramjattan must be weighed and resolved.

54Under the approach to summary judgment, mandated by Hryniak v. Mauldin, if there is a genuine issue requiring a trial, then the Court should determine if the need for a trial can be avoided by using the powers under rules 20.04(2.1) and (2.2).

55As a matter of discretion, the motions judge may use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if their use will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

56In the case at bar, in my opinion, the need for a trial cannot be avoided by using the powers under rules 20.04(2.1) and (2.2).

57I would not on a purely paper record, make the very serious finding that Mr. Ramjattan is a totally incredible and unreliable witness such that none of his evidence should be given weight.

58I could possibly make such a hard finding against Mr. Ramjattan after ordering, pursuant to rule 20.04(2.2), that oral evidence be presented by him. If Mr. Ramjattan gave oral evidence, a Court could make findings of fact as to his credibility and about the issues of whether he was at Caribbean Heat and about how much he ate and drank at the restaurant; however, there is no guarantee that the outcome of those determinations would be dispositive without the necessity of having a trial.

59It is possible, for instance, that after seeing Mr. Ramjattan testifying in the witness box, I could conclude that on a balance of probabilities, Mr. Ramjattan was not at Caribbean Heat and must have become intoxicated somewhere else. That would be dispositive and would result in the dismissal of the crossclaim. This outcome of the mini-trial, however, is not inevitable, because it is also possible, among other possibilities, that after an oral examination and cross-examination of Mr. Ramjattan, I could find that he was at Caribbean Heat and that Caribbean Heat sold liquor to Mr. Ramjattan whose condition was such that the consumption of liquor would intoxicate him or increase his intoxication so that he would be in danger of causing injury to another person; i.e., in this case Mr. Jacinto. That too would be dispositive, and would result in granting the crossclaim, but then there would have to be a complete trial to determine fairly the liability of Mr. Ramjattan, the matter of any contributory negligence by Mr. Jacinto, and the matter of fairly apportioning liability under the Negligence Act. And so little to no economy would be achieved by having a mini-trial about Mr. Ramjattan’s credibility and his evidence.

60The case at bar is not a case where using the powers under rules 20.04(2.1) and (2.2) would be in the interest of justice. The use of these powers will not necessarily lead to a fair and just result and the use of these powers will not serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole. In those circumstances it would be an error in principle for me to have resort to the powers under rules 20.04(2.1) and (2.2).

F. CONCLUSION

61For the above reasons, I dismiss Caribbean Heat’s summary judgment motion.

62If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with S.C. Construction’s submissions within 20 days of the release of these Reasons for Decision followed by Caribbean Heat’s submissions within a further 20 days.

Perell, J.

Released: February 4, 2015

CITATION: Jacinto v. Ramjattan, 2015 ONSC 833

COURT FILE NO.: CV-09-380441

DATE: 20150204

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

DANNY JACINTO, ANTONIO JACINTO, MARIA JACINTO and SERGIO JACINTO

Plaintiffs

– and –

JASON RAMJATTAN, S.C. CONSTRUCTION LTD., CARIBBEAN HEAT FAMILY RESTAURANT LIMITED and STATE FARM MUTUAL AUTOMOBILE INSURANCE CO.

Defendants

– and –

WAWANESA MUTUAL INSURANCE COMPANY added by an Order pursuant to the provisions of s. 258(14) of the Insurance Act, R.S.O. 1990, c. I.8

Third Party