Court File and Parties

COURT FILE NO.: 3724-11 DATE: 20170501 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

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 4, 2017

H. A. Rady

Ruling – Amendment to Pleading

Introduction

[1] At the opening of trial, the plaintiffs moved for an order permitting them to amend the statement of claim to plead that the defendant Thomas Bolton is vicariously liable for the negligence of the third party, Steve Coulthard. Several housekeeping amendments were also sought, which were unobjectionable.

[2] Mr. Mitchell, on behalf of the Bolton Estate resisted the proposed amendment to plead vicarious liability on the basis of prejudice, given Mr. Bolton’s death. He also submitted that the requested amendment was made too late.

[3] At the conclusion of oral submissions, the amendment was permitted with these reasons to follow.

The Claim

[4] The claim arises from a single car motor vehicle accident that occurred on September 12, 2009. Mr. Tuffnail suffered serious personal injuries. Mr. Petrie was killed. Mr. Meekes, who was also injured, was the driver. He subsequently pleaded guilty to driving “over 80” causing death and bodily injury contrary to s. 253 (1) (b) of the Criminal Code.

[5] The three men had earlier attended a wedding reception hosted by Mr. Bolton and his wife, where alcoholic beverages were served by Mr. Coulthard. Mr. Bolton was the holder of the necessary liquor licence. He hired Mr. Coulthard to tend the cash bar.

[6] Mr. Tuffnail and his family sued Mr. Meekes, Mr. Bolton and their own insurer, State Farm. The remaining defendants were let out of the action by virtue of their earlier motion for summary judgment. No claim was made against Mr. Coulthard but he was added as a third party by State Farm and Mr. Bolton. Mr. Coulthard defended the main action. Examinations for discovery were held. Sadly, Mr. Bolton passed away of esophageal cancer after the claim was started and after his examination for discovery.

[7] In their claim as originally pleaded, the plaintiffs particularized the allegations of negligence against Mr. Bolton as follows:

a) he caused, or permitted to be caused, the over-service of alcohol to the defendant Meekes, to the point of or beyond intoxication;

b) at all material time he was the occupier of premises on which the defendant Meekes was over-served and at all material times this defendant failed to monitor or control the service and consumption of alcohol on the premises;

c) he failed to hire competent employees, servants or agents and failed to train them in the proper and safe service of alcohol;

d) he failed to inspect or supervise his employees, servants and agents;

e) he breached the provisions of s. 39 of the Liquor Licence Act, R.S.O. 1990, c. L-19; and

f) he failed to keep their premises in reasonably safe condition in breach of the Occupiers’ Liability Act, R.S.O. 1990, c. 0-2.

Analysis

[8] Rule 26 of the Rules of Civil Procedure makes mandatory amendments to pleadings at any stage of a proceeding absent non compensable prejudice.

[9] In my view, the proposed pleading does not raise a new cause of action against Mr. Bolton. It simply attaches a “legal label” to what is already factually particularized in para. 14 of the statement of claim and elsewhere. Mr. Bolton was aware of the material facts underlying the proposed amendment from the outset. They have not changed and arise from the following circumstances:

a) Mr. Bolton was a commercial host because alcohol was being offered for sale;

b) he engaged Mr. Coulthard to tend bar; and

c) Mr. Meekes was served alcohol allegedly in excess by Mr. Coulthard.

[10] I agree with the analysis and decision of my colleague Leach J. in Martin v. St. Thomas Elgin General Hospital et al., 2016 ONSC 294. In that case, the plaintiffs sought to amend their statement of claim to plead that London Health Sciences Centre was vicariously liable for the negligence of a physician. The court reasoned that for the purposes of Rule 26.01 a new cause of action is not raised where:

• an alternative claim for relief is made arising from the same facts already pleaded and no new facts are relied upon;
• different legal conclusions are drawn from the same set of facts; and
• particulars are given of an allegation already pleaded.

[11] The court observed:

…this motion really involves amendments which seek to particularize express or implicit facts upon which the original right of action is based. In essence, the desired amendments make it clear the plaintiff is alleging that Dr. Degen was one of the LHSC employees who failed the plaintiff on the LHSC’s behalf, and the plaintiff includes allegations to say why that is so. The allegations then assert and include a conclusion of law, (vicarious liability), based on those particularized facts. In the result, the plaintiff’s amendments do not constitute assertion of a new claim in tort. Rather, the amendments and references to vicarious liability effectively particularize and refer to the alleged negligence of the LHSC originally pleaded in the initial statement of claim.

[12] Those comments are applicable here.

[13] I would also observe that the parties were examined for discovery and participated in two judicial pre-trials. It is inconceivable that Mr. Bolton’s defence would not have understood that the plaintiffs say his liability arises from his responsibilities as a commercial host, either for his own actions or omissions or for those working for him or on his behalf.

[14] Whether the claim for vicarious liability is borne out is a legal question to be determined by the facts as established at trial and the relevant law. It is a question for adjudication at the conclusion of trial, and after the jury has delivered its verdict.

Justice H. A. Rady Released: May 11, 2017