CITATION: Linton v. Tholos Restaurant Inc., 2016 ONSC 7955

COURT FILE NO.: 481/16 and 483/16

DATE: 20121221

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: MATTHEW LINTON and STEPHANIE LINTON, Plaintiffs/Responding Parties

AND:

THOLOS RESTAUANT INC. and KAYTOO RESTAURANT AND BAR LIMITIED, Defendants/Moving Parties

AND:

MICHAEL SMITIUCH, Litigation Administrator for the ESTATE OF HARVEY KERRY GOLDMINTZ and BLUE MOUNTAIN CHALETS, Defendants/Responding Parties

BEFORE: MOLLOY J.

COUNSEL: Vincent G. Burns, for the Moving Party, Kaytoo Restaurant and Bar Limited

Robert H.C. Barrett, for the Moving Party, Tholos Restaurant Inc.

Dale V. Orlando and Joseph A. Cescon, for the Responding Party/Plaintiff

David A. Zuber and Neil Searles, for the Responding Parties/ Defendants Estate of Harvey Kerry Goldmintz and Blue Mountain Chalets

HEARD: In writing

ENDORSEMENT

Introduction

[1] The defendant Kaytoo Restaurant and Bar Limited (in Div. Ct. File #481/16) and the defendant Tholos Restaurant Inc. (in Div.Ct. File # 483/16) seek leave to appeal from the order of Pollak J. dated September 20, 2016 dismissing their motions for summary judgment.

[2] In May 2009, the plaintiff Matthew Linton and some of his friends had rented a chalet in the Blue Mountain resort area for several days for a bachelor party. On the afternoon of May 22, they golfed and drank alcohol. After checking into the chalet where they were staying, they went to Tholos Restaurant where they had dinner and further alcohol. They carried on to Kaytoo, where at least some of the group, including the plaintiff, had further alcohol. At around midnight, they walked back to the chalet where they continued to party and were planning to use the hot tub.

[3] Tragically, the plaintiff fell down an exterior set of steps at the chalet and sustained a severe traumatic brain injury. Nobody saw the actual fall.

[4] The plaintiff has sued Tholos, Kaytoo and the owners of the chalet. There are claims against the friends of the plaintiff who were with him at the chalet.

[5] The claims against Tholos and Kaytoo are based on their liability as commercial hosts to ensure the safety of those to whom they serve alcohol. They argue that their duty of care ended when the plaintiff safely reached his final destination at the chalet and/or when he was placed in the charge of other responsible persons upon leaving the defendant establishments.

[6] The claims against the owners of the chalet and the friends of the plaintiff will be continuing to trial.

[7] The motion judge dismissed the summary judgment motions brought by the two commercial hosts, both of whom now seek leave to appeal.

Test for Leave to Appeal

[8] The test for granting leave to appeal under Rule 62.02(4) is well-settled. It is recognized that leave should not be easily granted and the test to be met is a very strict one. There are two possible branches upon which leave may be granted. Both branches involve a two-part test and, in each case, both aspects of the two-part test must be met before leave may be granted.

[9] Under Rule 62.02(4)(a), the moving party must establish that there is a conflicting decision of another judge or court in Ontario or elsewhere (but not a lower level court) and that it is, in the opinion of the judge hearing the motion, “desirable that leave to appeal be granted.” A “conflicting decision” must be with respect to a matter of principle, not merely a situation in which a different result was reached in respect of particular facts: Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), 1992 7405 (ON SC), 7 O.R. (3d) 542 (Div. Ct.).

[10] Under Rule 62.02(4)(b), the moving party must establish that there is reason to doubt the correctness of the order in question and that the proposed appeal involves matters of such importance that leave to appeal should be granted. It is not necessary that the judge granting leave be satisfied that the decision in question was actually wrong – that aspect of the test is satisfied if the judge granting leave finds that the correctness of the order is open to “very serious debate”: Nazari v. OTIP/RAEO Insurance Co., 2003 40868 (ON SC), [2003] O.J. No. 3442 (S.C.J. per Then J.); Ash v. Lloyd’s Corp. (1992), 1992 7652 (ON SC), 8 O.R.(3d) 282 (Gen. Div. per Farley J.). In addition, the moving party must demonstrate matters of importance that go beyond the interests of the immediate parties and involve questions of general or public importance relevant to the development of the law and administration of justice: Rankin v. McLeod, Young, Weir Ltd. (1986), 1986 2749 (ON SC), 57 O.R. (2d) 569 (H.C.J. per Catzman J.); Greslik v. Ontario Legal Aid Plan (1988), 1988 4842 (ON SCDC), 65 O.R. (2d) 110 (Div. Ct.).

Analysis

[11] In my view, the motion judge correctly applied the test for summary judgment as defined by the Supreme Court of Canada in Hyrniak v. Mauldin, 2014 SCC 7, [2014] S.C.R. 87. Although the moving parties have identified cases in which the liability of a commercial host terminated upon the plaintiff arriving home, each case of this nature must turn on its particular facts. The motion judge’s decision in this case was different in its result, not on a general issue of principle, but rather on the application of those principles to the evidence before her.

[12] One of the central questions is foreseeability of risk. If it is foreseeable that the plaintiff would not be safe even upon arriving at the chalet, then the general principle that delivery home ends the commercial host’s duty of care may not be applicable. Similarly, if the persons supposedly taking care of the plaintiff are themselves inebriated, they may not qualify as “responsible persons” to whom the plaintiff’s care was entrusted so as to end the commercial host’s duty of care. The motion judge found that it was not possible to make these determinations on a summary judgment motion as credibility issues could affect the result. For example, although toxicology reports and expert evidence establish the extreme level of intoxication of the plaintiff, the evidence with respect to the degree of sobriety of the other individuals at the party is not easily ascertainable. The motion judge determined, in the exercise of her discretion, that these difficult issues would best be decided in the context of a trial with viva voce evidence and cross-examination and in which all parties were involved. She was also concerned about the possibility of inconsistent findings of fact if the commercial hosts’ liability was determined at the summary judgement stage based on affidavit evidence upon which there had been no cross-examination, particularly where the deponents of some of those affidavits could be adverse in interest.

[13] I have no good reason to doubt the correctness of the motion judge’s decision in this matter. Neither do I find that her decision is in conflict with other cases on a matter of principle. Accordingly, both motions for leave to appeal are dismissed.

[14] None of the parties addressed the issue of costs of these motions. The successful parties are entitled to their costs on a partial indemnity basis. If the parties cannot agree on those costs, brief written submissions may be filed by no later than January 6, 2017.

MOLLOY J.

Date: December 21, 2016