Reasons for Decision on Summary Judgment

Court File and Parties

Court File Nos.: 16-58711-A1 & 17-60499 Date: 20181026 Superior Court of Justice - Ontario

Re: MARTIN ANDREW WOOLSEY, COLLEEN WOOLSEY, TAYLOR WOOLSEY, by her litigation Guardian, MARTIN WOOLSEY, OLIVIA WATSON, by her litigation Guardian, COLLEEN WOOLSEY and DAVID WATSON, by his litigation Guardian, COLLEEN WOOLSEY, Plaintiffs

And

REGAN BRENNAN and INTACT INSURANCE COMPANY, Defendants

And

JEFF MAILOUX and JAKE ROUNDTREE, Third Parties

Counsel: Matthew A. Caldwell Counsel, for the Plaintiffs (not appearing) Jasmina Mrkalj-Skelly, Counsel, for the Defendant, Brennan Sheila Shoghian, Counsel, for the Defendant, Intact Insurance Company (not appearing) Linda M. O’Brien, Counsel, for the Third Party, Jake Roundtree

And Re: REGAN MAUREEN BRENNAN and CORNELIUS A. BRENNAN, Plaintiffs

And

JEFF MAILOUX and JAKE ROUNDTREE, Defendants

Counsel: Cornelius A. Brennan, Counsel, for the Plaintiffs Linda M. O’Brien, Counsel, for the Defendant, Jake Roundtree

Before: The Honourable. Mr. Justice R. B. Reid Heard: May 30, 2018

Introduction

[1] Jake Rowntree (incorrectly shown in the Title of Proceedings as “Jake Roundtree”) brings two motions for summary judgment, one in each of two actions arising from a motor vehicle accident between Martin Woolsey and Regan Brennan. In the first action, Mr. Woolsey has sued Ms. Regan who in turn has made a third-party claim against Mr. Rowntree and Jeff Mailoux for contribution and indemnity. In the second action, Ms. Brennan is the plaintiff, and Mr. Rowntree and Mr. Mailoux are defendants.

[2] The claims against Mr. Rowntree are based on negligence and occupiers liability.

[3] Mr. Rowntree seeks summary judgments dismissing the action and the third-party claim made against him by Ms. Brennan. He alleges that no reasonable cause of action is disclosed against him since he cannot owe a duty of care to either Ms. Brennan or Mr. Woolsey and therefore cannot be held liable for the injuries suffered in the motor vehicle accident.

Background

[4] Jeff Mailoux and Jake Rowntree were housemates in Guelph, Ontario. They were also co-workers at a factory located there.

[5] Ms. Brennan lived in Toronto and was Mr. Mailoux’s girlfriend.

[6] Ms. Brennan stayed overnight on February 9–10, 2015 as a guest of Mr. Mailoux at the house in Guelph.

[7] Messrs. Mailoux and Brennan went to work together on February 9 and returned in the early morning of February 10. Because it appeared that Ms. Brennan had accessed some of Mr. Rowntree’s alcohol without permission and otherwise disturbed his premises, Mr. Rowntree asked Mr. Mailoux to have Ms. Brennan leave. Mr. Mailoux complied. Ms. Brennan left.

[8] Later that morning, Ms. Brennan was involved in a motor vehicle accident with Mr. Woolsey on Highway 6 in Flamborough, Ontario. She was charged with having a blood alcohol level over the legal limit.

[9] Mr. Mailoux has not defended either claim against him and has been noted in default. He was not examined for discovery and provided no information relating to the summary judgment motions.

[10] Neither Mr.Woolsey and his family, plaintiffs in court file number 16-58711-A1, nor Intact Insurance Company, defendant in that action, responded to or participated in the summary judgment motions.

Facts

Relationship between Jake Rowntree and Jeff Mailoux

[11] In February 2015, Mr. Rowntree and Mr. Mailoux shared a house Mr. Rowntree owned. They had an informal relationship with no lease. Mr. Mailoux’s living quarters were in the basement. Both had access to the kitchen on the main floor.

[12] Mr. Rowntree and Mr. Mailoux worked on the night shift at the same factory in Guelph. Mr. Rowntree drove the two of them to and from work. Mr. Rowntree knew that Mr. Mailoux had alcohol addiction issues and that his driver’s licence was suspended owing to a conviction for a drinking and driving offence.

[13] Mr. Mailoux moved out of the premises in March 2016, but they still work together in the same factory.

Relationship between Jeff Mailoux and Regan Brennan

[14] Mr. Rowntree was aware that Mr. Mailoux and Ms. Brennan had been dating since approximately August 2014. He knew they met in an alcohol rehabilitation center and that she had alcohol abuse issues. Mr. Rowntree was also aware that Mr. Mailoux spent occasional weekends with Ms. Brennan, sometimes at her premises in Toronto and sometimes in Mr. Mailoux's residence in Guelph. The Guelph visits occurred approximately once per month.

Relationship between Regan Brennan and Jake Rowntree

[15] Ms. Brennan and Mr. Rowntree occasionally interacted, in conjunction with Mr. Mailoux. They did not socialize together. Mr. Rowntree saw Ms. Brennan intoxicated on one occasion.

Facts as to Events Preceding the Motor Vehicle Accident

[16] According to Ms. Brennan, Mr. Mailoux visited her in Toronto on the weekend beginning Friday, February 6, 2015. She drank to the point of being “blackout drunk” and has a spotty memory of the weekend’s events.

[17] Mr. Mailoux needed to return to Guelph on Monday to work the night shift of February 9–10. According to Ms. Brennan, he was worried about leaving her alone in her apartment due to her advanced state of intoxication. He therefore drove her in her car to his residence in Guelph. Mr. Rowntree recalled that the two arrived at about 10 p.m. on February 9.

[18] Messrs. Rowntree and Mailoux departed for work on the night shift at about 11 p.m. leaving Ms. Brennan downstairs in Mr. Mailoux’s quarters. No one else was present in the house.

[19] Messrs. Rowntree and Mailoux returned from work just after 7 a.m. on February 10.

[20] Mr. Rowntree noted that photos from the refrigerator were scattered on the kitchen floor. On further investigation, he discovered that a gin bottle, which he recalled having held a few ounces of gin, was empty. He also noticed that some of his personal belongings had been disturbed.

[21] Ms. Brennan has admitted that at some point, when the two men were at work, she drank a few shots of gin and one beer.

[22] As a result of Ms. Brennan’s unauthorized access to his effects, Mr. Rowntree instructed Mr. Mailoux to have her leave the house. Apparently he did, and Ms. Brennan subsequently left in her car.

[23] Ms. Brennan recalled Mr. Mailoux saying that if she did not leave, Mr. Rowntree would “kick him out.” Mr. Rowntree denied that allegation.

[24] Mr. Rowntree denies knowing that Ms. Brennan was intoxicated when she left the premises on the morning of February 10. He denies that he knew she had been drinking on February 9 before her arrival or Mr. Mailoux’s reason for bringing her to spend the night in Guelph.

[25] Mr. Rowntree denies speaking to Ms. Brennan on February 9 or 10 and says that he had no reason to believe she was intoxicated. There is no suggestion he made inquiries as to her condition nor any offer of assistance or transportation.

[26] Following the accident, which occurred at about 8:26 on the morning of February 10, Ms. Brennan was found to have a blood alcohol level approximately three times the legal limit.

Issue for Decision

[27] Is there is a genuine issue requiring a trial on the question of whether Mr. Rowntree owed a duty of care to Ms. Brennan and/or Mr. Woolsey and his family?

Criteria for Summary Judgment

[28] Under subrule 20.04(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, summary judgment shall be granted if the court is satisfied that there is no genuine issue requiring a trial.

[29] As the Supreme Court of Canada stated in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 49, there will be no genuine issue requiring a trial if the judge is able to reach a fair and just determination on the merits of the case, using the summary judgment process. This will be the case where the process: “(1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.”

[30] In a recent judgment of this court, Wardak v. Froom, 2017 ONSC 1166, at para. 40, Justice Matheson adopted the reasoning in Hryniak to the effect that:

On a motion for summary judgment, the judge should first determine if there is a genuine issue requiring a trial based only on the evidence before him or her without using the fact-finding powers in subrule 20.04(2.1). If there appears to be a genuine issue for trial, Rule 20.04 (2.1) permits the motion judge, at his or her discretion, to: (1) weigh the evidence, (2) evaluate the credibility of a deponent, or (3) draw any reasonable inference from the evidence unless it is in the “interest of justice” for these powers to be exercised only at trial.

[31] Parties to a summary judgment motion must put their “best foot forward” with respect to the existence or non-existence of material issues to be tried. That principle was confirmed by the Ontario Court of Appeal in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, 108 O.R. (3d) 1, at para. 56. It was implicitly adopted in Hryniak in the requirement that summary judgment provide a fair and just determination on the merits.

Analysis

[32] The main cause of action against Mr. Rowntree in both the action and the third party claim is based on negligence. He was the owner and an occupant of the premises into which Ms. Brennan was brought by Mr. Mailoux. There is no allegation that she came to the premises under the auspices of Mr. Rowntree, although arguably she was there with his implicit permission.

[33] The relationship between Ms. Brennan and Mr. Rowntree does not fit any recognized category within which a duty of care exists. Therefore, Ms. Brennan’s claims seek to establish a new class within which a duty of care exists.

[34] To establish a duty of care, Ms. Brennan needs to satisfy the court as to three requirements: (1) foreseeability, such that Mr. Rowntree ought to have expected that his conduct would impact her; (2) proximity, such that her relationship with Mr. Rowntree was sufficient to give rise to a prima facie duty of care; and (3) the absence of any overriding public policy that would negate any duty of care established pursuant to the first two requirements. Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263.

[35] Mr. Rowntree has relied heavily on the decision of the Supreme Court of Canada in Childs v. Desmoreaux, 2006 SCC 18, [2006] 1 S.C.R. 643 to support the proposition that no duty of care is made out in the circumstances of this case.

[36] In Childs, the court considered the relationship between a social host and a third party who was subsequently injured by a party guest. No duty of care was found to exist between the social host and the third party. The court noted that the trial judge had failed to find that the hosts, in the circumstances, knew or ought to have known that the guest was too drunk to drive. Therefore, foreseeability was a problem.

[37] As well, on the subject of foreseeability, the court in Childs noted that no overt act of the host directly caused foreseeable physical harm. At para. 31, McLachlin C.J. noted:

In the absence of an overt act on the part of the defendant, the nature of the relationship must be examined to determine whether there is a nexus between the parties. Although there is no doubt that an omission may be negligent, as a general principle, the common law is a jealous guardian of individual autonomy. Duties to take positive action in the face of risk or danger are not free-standing. Generally, the mere fact that a person faces danger, or has become a danger to others, does not itself impose any kind of duty on those in a position to become involved.

Clearly, the failure to act as opposed to the presence of an overt act (nonfeasance vs. misfeasance) on the part of the social hosts was of significance to the court’s consideration of whether a duty of care existed.

[38] On the subject of proximity, the court reviewed the features of relationships, identified generally in common law, which can lead to positive duties to act. One of those could apply to this case, namely paternalistic relationships, which are based on the plaintiff’s special vulnerability and the defendant’s position of power. Conventionally, such relationships are between parents and children or teachers and students. There is a right of control by one party with a corresponding duty to take care of the other’s safety. Childs v. Desmoreaux, 2006 SCC 18, [2006] 1 S.C.R. 643, at para. 36. As McLachlin C.J. observed, the relationships do not form strict legal categories, but rather serve as examples of features of relationships that “bring parties who would otherwise be legal strangers into proximity and impose positive duties on defendants that would not otherwise exist.” Childs v. Desmoreaux, 2006 SCC 18, [2006] 1 S.C.R. 643, at para. 34.

[39] As to proximity, the court kept the door open for reconsideration of social host liability based on different facts when, at para. 47, McLachlin C.J. stated: “I conclude that hosting a party at which alcohol is served does not, without more, establish the degree of proximity required to give rise to a duty of care on the hosts of third-party highway users who may be injured by an intoxicated guest.” [emphasis added].

[40] To negate any suggestion of proximity in this case, Mr. Rowntree notes that Ms. Brennan was not his tenant but rather his housemate’s guest. He did not have any social relationship with her. He did not create a risky environment in his home. He did not invite Ms. Brennan to his home nor did he serve her alcohol. He expected her to be respectful of his property and when that respect was not forthcoming, he asked that she leave the premises. He had no knowledge that Ms. Brennan was intoxicated when she left his home.

[41] Ms. Brennan responds that as owner, Mr. Rowntree had full control of who remained on the premises. He knew that Ms. Brennan was there and that she had consumed his alcohol; however, he did not know how much or when alcohol was consumed. He knew that she had alcohol addiction issues but took no steps to ascertain her condition when he insisted that she leave the premises. He was aware that her vehicle was parked in front of his house and that she lived in Toronto, so he would have known she was about to drive.

[42] On those facts, Mr. Rowntree states that Ms. Brennan was an adult to whom he owed no paternalistic duty of care. By contrast, Ms. Brennan states that she was known by Mr. Rowntree to be a vulnerable person with a history of alcohol abuse and psychological issues, and he was in a position of power such that he could demand her departure from the premises.

[43] In addition to his position on proximity, Mr. Rowntree submits that Ms. Brennan’s injuries, or those caused by her, were not reasonably foreseeable to him. He did not know nor ought to have known that she was too drunk to drive. His failure to make inquiries on that subject amounted to nonfeasance which, as described in Childs, does not support a finding of foreseeability.

[44] Ms. Brennan responds that Mr. Rowntree’s demand for her to leave the premises was an overt act, an act of misfeasance. As well, on the facts, he ought to have known that Ms. Brennan was under the influence of alcohol sufficient to make driving a danger to herself and others. For those reasons, harm was directly foreseeable.

[45] I have already noted the three components to a negligence finding in the circumstances of this case, namely foreseeability, proximity, and an absence of policy considerations that would negate any duty of care established if the first two requirements are met. A conclusion about the first two components requires a detailed consideration of the factual matrix in the case. The third requires a more broadly based consideration after a prima facie duty of care is established.

[46] Working backwards, a court should have no difficulty in undertaking the policy analysis by way of summary judgment. By definition, the necessary facts would have been established in considering the prima facie duty of care.

[47] For the issues of proximity and foreseeability to be analysed on a summary judgment motion, such that it can be determined that there is no genuine issue requiring a trial, the court must be satisfied that a decision can be made on the merits that is fair and just to the parties.

[48] I agree that on a summary judgment motion it is not necessary to call evidence that is the equivalent of that which would be heard at trial. To do so would defeat the purpose of a procedure that is designed to avoid a trial where one is not required, that is where there is no genuine issue requiring a trial. I also agree that neither party to a summary judgment motion can support their position by simply suggesting that other evidence may be available at trial to assist them.

[49] However, the evidence on the motion must be such that the court can be confident in the fair resolution of the dispute by way of summary judgment. Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at paras. 56 and 57.

[50] There is a major missing link in the evidence presented by the parties in these motions, namely the testimony of Jeff Mailoux. That evidence might support the position of either Mr. Rowntree or Ms. Brennan. Did Mr. Mailoux speak to Mr. Rowntree about the reason for Ms. Brennan being left in his premises overnight or of her condition? What conversation took place during the drives to and from work? Back at home after work, was Mr. Mailoux given an ultimatum by Mr. Rowntree to have Ms. Brennan leave “or else”? Answers to those and other questions could well be relevant to the issues of foreseeability and proximity.

[51] In this case, the absence of Mr. Mailoux’s evidence prevents the court from having confidence in a fair resolution on summary judgment in applying the facts (as presented) to the law since it is not possible to make the necessary findings of fact. I have already identified that each party is obliged to put its best foot forward. Although it is unknown which party would be supported by the missing evidence, Mr. Rowntree bears the onus of satisfying the court that no genuine issue requiring a trial exists. Based on the evidence, or lack of it, I conclude there is a genuine issue for trial.

[52] Next, I turn to the question of whether access to the expanded powers set out in subrule 20.04(2.1) would assist in identifying whether a genuine issue requiring a trial exists. I conclude that such procedures would not assist since they leave unanswered the concern about the absence of Mr. Mailoux’s evidence. To the extent that conflicts exist between the evidence of Ms. Brennan and Mr. Rowntree, to which I have referred, the concern is less about credibility than reliability, especially based on Ms. Brennan’s admission of her state of intoxication and poor memory as a result. Expanded fact-finding and credibility assessments, for example through a mini-trial, would not assist.

[53] Since Mr. Rowntree has not satisfied me that fairness to the parties can be achieved on summary judgment, even with the expanded powers of subrule 20.04(2.1), I conclude that the two summary judgment motions must be dismissed.

[54] Finally, I have considered whether I should remain seized of this matter to assist the parties in moving to a conclusion on the merits at trial. Neither party has requested that involvement, but it is in keeping with the Supreme Court’s mandate in Hryniak, with the goal of bringing matters to a conclusion in a timely and cost-effective way. However, I also note that in this judicial region, the judges are required to circuit, while civil cases are typically scheduled for hearing in defined sittings. The result of seizing myself with the matter could well have the opposite effect of that desired, namely that a trial on the merits would be delayed. In addition, I note that my involvement in these summary judgment motions has encompassed only one discrete part of the two claims, without any connection to the circumstances of the accident or the injuries alleged. I, therefore, decline to seize myself of these two actions.

Proposed Alternative claims by Ms. Brennan

[55] At the motion hearing, counsel for Ms. Brennan as plaintiff in action number 17–60499 indicated his intention to amend the statement of claim in two ways. First, he intended to add a claim against Mr. Rowntree pursuant to the Occupiers Liability Act, R.S.O. 1990, c. O.2. Second, he intended to plead that Mr. Mailoux was an agent for Mr. Rowntree in his actions on February 10, 2015, directed toward Ms. Brennan.

[56] I do not consider it appropriate for a party to base its response to a summary judgment motion on theories of liability not yet pleaded. Obviously, I make no comment on how such amendments, if made, may affect the outcome of the case. However, based on my decision that summary judgment should not be granted in favour of Mr. Rowntree, it is unnecessary for me to deal with the proposed amendments as part of these motions.

Costs

[57] I encourage the parties to resolve any issue as to costs consensually. In the event they do not, they may make brief submissions on costs, totalling no more than 10 pages, according to the following timetable:

• Both counsel for Ms. Brennan (as third party and as defendant) are to serve each other and counsel for Mr. Rowntree with written costs submissions and a Bill of Costs on or before November 9, 2018.
• Counsel for Mr. Rowntree is to serve both counsel for Ms. Brennan with written costs submissions and a Bill of Costs on or before November 23, 2018.
• Both counsel for Ms. Brennan are to serve each other and counsel for Mr. Rowntree with any responding submissions on or before December 7, 2018.

[58] All submissions are to be filed with the court no later than December 10, 2018. If submissions are not received by that date or any agreed extension, the matter of costs will be deemed settled.

Reid J. Date: October 26, 2018