Court File and Parties

COURT FILE NO.: 3724-11 DATE: 20170512 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Gregory Alan Tuffnail, Patricia Diane Tuffnail, David Alan Tuffnail and Michael Alan Tuffnail Plaintiffs – and – Steven Andrew Meekes, State Farm Mutual Automobile Insurance Company, Sharon Carlene Drown as Litigation Administrator for the Estate of Thomas Michael Bolton Defendants – and – Steve Coulthard Third Party

Counsel: J. D. Virtue and R. El-Tawil, for the plaintiffs J. Masterson, for State Farm Insurance B. Mitchell, for Tom Bolton J. Brown, for Steve Coulthard

HEARD: April 20, 2017

Rady J.

Ruling – Expert Opinion on Signs of Intoxication

[1] Gerald Kupferschmidt was tendered by the defendant Bolton Estate to give expert toxicological opinion evidence respecting the blood alcohol concentration levels of Mr. Meekes and Mr. Tuffnail on the night of the accident.

[2] The plaintiffs objected to that part of his proposed testimony on the issue of whether Mr. Meekes exhibited signs of intoxication while at the wedding reception. They also objected to various parts of his report which they characterized as a “polemic”, by which I understood them to suggest Mr. Kupferschmidt was being partisan or going beyond the bounds of his expertise. However, neither did I understand counsel to say that he was not qualified to give opinion evidence on BAC levels.

[3] In any event, I ruled that Mr. Kupferschmidt was qualified to give opinion evidence about the two men’s BAC levels based on the assumptions that he was asked to make. He could comment about the effect of an individual’s physiology and tolerance on BAC levels. I would not permit him to offer opinion evidence on Mr. Meekes’ signs of intoxication at the reception or others’ ability to detect impairment or intoxication. I note that Dr. Ward had not offered an opinion on this latter issue.

[4] I had been provided with a copy of Mr. Kupferschmidt’s report, dated January 30, 2017. In it, Mr. Kupferschmidt concluded on the issue of Mr. Meekes’ BAC and impairment:

1. A serum alcohol level of 116 mg/100 ml is equivalent to 104 mg/100 ml in blood when considering the average conversion factor.
2. Based upon the indicated consumption for Mr. Meekes his BACs at 10:30 pm, 12:04 am and 2:20 am, should not have exceeded 0-64 mg/100 ml, 0-48 mg/100 ml and 0-25 mg/100 ml respectively.
3. In order to generate a reading of 104 mg/100 ml at 2:20 am, Mr. Meekes would have been required to consume 10.6-15.9 standard drinks beginning at 4:00 pm.
4. Because the indicated consumption pattern for Mr. Meekes was not commensurate with the BAC reported for him at 2:20 am, it would have been necessary for him to consume an additional 4.0-9.3 standard drinks than indicated at some point between 4:00 pm and 11:00 pm.
5. Ignoring the consumption of alcohol from 4:00 pm to 7:30 pm, Mr. Meekes would have been required to consume 8.8-12.4 standard drinks while at the reception when consideration is given to a blood alcohol level of 104 mg/100 ml at 2:20 am.
6. Assuming a blood alcohol level of 104 mg/100 ml at 2:20 am, Mr. Meekes’ BAC at 12:04 should not have exceeded 107-149 mg/100 ml. Between 10:30 pm and 11:00 pm should not have exceeded 117-180 mg/100 ml.
7. Even though a retrograde extrapolation suggest a BAC of 117-180 mg/100 ml at 10:30 pm, when Mr. Meekes’ left the reception, it is important to note that an assumption must be made that no alcohol was consumed after leaving the reception. If any alcohol was consumed after the fact, it is clear that the projected readings at 10:30 pm would need to be reduced, as would the projected quantity he may have consumed at the reception. There was an indication that a bottle of rye was present in his truck, as well as an open case of beer in Tuffnail vehicle.
8. Mr. Meekes was identified as a moderately tolerant drinker. This would suggest that he may have been able to mask the symptoms of alcohol intoxication, which was corroborated by all those who saw him that evening.

[5] The plaintiffs considered paragraphs one to six above to be unobjectionable but expressed concern about the final two and, in particular, the reference to the bottle of rye at the accident scene and Mr. Meekes’ ability to mask signs of intoxication.

[6] They also objected to several other passages in his report in which Mr. Kupferschmidt reviewed evidence from examinations for discovery and mediation briefs in order to offer the following comments:

• Mr. Meekes had a tolerance for alcohol;
• Mr. Meekes “and his friends” engaged in binge drinking;
• Mr. Meekes might have been able to mask some or all signs of intoxication;
• observers might not be able to detect from him signs of intoxication;
• Mr. Meekes may have become impaired or intoxicated after leaving the reception; and
• the absence of rear brakes in the Meekes’ vehicle could have dictated the outcome, regardless of alcohol consumption.

[7] In my view, Mr. Kupferschmidt seems to have taken a hypothesis (ie. that Mr. Meekes drank after leaving the reception) and looked for support for it by sifting through the evidence. This, it seems to me, is anathema to the role of an expert. Clearly, had Mr. Kupferschmidt been asked to assume that Mr. Meekes consumed alcohol between 11:00 p.m. and midnight and determined its impact on his BAC level at the time of the accident, this would be unobjectionable. It is not his function, however, to look for evidence in support of a hypothetical or theory he himself developed.

[8] As to the issue of the bottle of rye found at the accident scene, Mr. Virtue submitted that there was absolutely no evidence of alcohol consumption after the three men left the reception. I disagree. There was indirect evidence on the issue. Mr. Tuffnail had no recollection of events after leaving Tavistock. Mr. Meekes had no recollection of the events after the wedding ceremony. The half empty bottle of rye was found at the scene. Mr. Meekes smelled of alcohol according to a first responder and the homeowner where the accident occurred. Whether that evidence would support an inference remained to be seen and would be the subject of an instruction.

[9] Returning then to the issue of signs of intoxication, the decision in R. v. Graat, [1982] 2 S.C.R. 819 is instructive.

[10] In that case, the accused was convicted of driving while impaired. In support of his appeal, he contended that the trial judge erred in admitting the opinions of police officers that his ability to drive was impaired. The Supreme Court disagreed and at para. 54, it noted:

54 Nor is this a case for the exclusion of non-expert testimony because the matter calls for a specialist. It has long been accepted in our law that intoxication is not such an exceptional condition as would require a medical expert to diagnose it. An ordinary witness may give evidence of his opinion as to whether a person is drunk. This is not a matter where scientific, technical, or specialized testimony is necessary in order that the tribunal properly understands the relevant facts. Intoxication and impairment of driving ability are matters which the modern jury can intelligently resolve on the basis of common ordinary knowledge and experience. The guidance of an expert is unnecessary.

[11] Robert Simpson, who testified on State Farm’s behalf, developed the predecessor to the Smart Serve protocol, a service to those in the hospitality industry to protect against liability. The workbook was marked as an exhibit and Mr. Simpson testified about its contents. Notably it contained a chart setting out signs of intoxication. It would no doubt be of assistance to a jury and Mr. Kupferschmidt’s testimony would add nothing to their consideration of the facts.

[12] In other words, the opinion evidence of Mr. Kupferschmidt regarding signs of intoxication at the reception or others’ ability to detect impairment or intoxication was not necessary in order for the jury to make a correct judgment in the absence of special knowledge: see White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, following the test earlier set out in R. v. Mohan, [1994] 2 S.C.R. 9.

[13] Finally, I note that a commercial host does not escape liability because a guest does not exhibit visible signs of intoxication if in the circumstances, it knew or ought to have known that the patron was becoming intoxicated. See McIntyre v. Grigg, 2006 ONCA 827.

[14] I concluded therefore that Mr. Kupferschmidt’s opinion on BAC levels and impairment would be of assistance to and necessary for the jury’s understanding of the underlying science. However, the issue of signs of intoxication and the ability to detect such signs is a question of fact for the jury and required no expert opinion. The jury would be perfectly capable of making that determination based on their assessment of the evidence and relying on their own experience and common sense.

“Justice H. A. Rady” Justice H. A. Rady Released: May 12, 2017

COURT FILE NO.: 3724-11 DATE: 20170512 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Gregory Alan Tuffnail, Patricia Diane Tuffnail, David Alan Tuffnail and Michael Alan Tuffnail Plaintiffs – and – Steven Andrew Meekes, The Optimist Club of Downie Inc., State Farm Mutual Automotive Insurance Company, Tom Bolton, The Corporation of the Township of Perth South, and Doug Hearn Defendants – and – Steve Coulthard Third Party Ruling – expert opinion on signs of intoxication Rady J.

Released: May 12, 2017