Court File and Parties

Court File No.: CV-12-449692 Date: 2019-01-23 Ontario Superior Court of Justice

Between: Luis Avila, Plaintiff – and – Rui Couto, Joe Avila and Sonia Avila, Defendants

Counsel: Jason F. Katz and Ari J. Singer, for the Plaintiff/Responding Party Michael Best, for the Defendants, Joe Avila and Sonia Avila/Moving Parties

Heard: December 10, 2018

Reasons for Decision

Kimmel, J.

1This is a motion for summary judgment brought by the defendants Joe Avila and Sonia Avila (the “Hosts”) under Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”). The claim against these moving defendants is predicated on a finding of social host liability against them for the conduct of the other defendant, Rui Couto (“Couto”), who was one of the guests at a birthday party they hosted at their home on March 27, 2010 (the “birthday party”).

2The plaintiff was also a guest at the birthday party and his claims arise from injuries he sustained following a physical interaction with Couto. The plaintiff and Couto are the brothers of Joe Avila and Sonia Avila, respectively. Couto is self-represented and did not appear on this motion. ¹ If this motion is granted, the action would still continue against him.

3There is a basic uncontroverted timeline of events that is apparent from the record. However, there is disagreement about how intoxicated Couto was, how aggressive and boisterous his behaviour was and how apparent all of this was to the Hosts (and others). These factual matters will inform the assessment of foreseeability of drunken roughhousing and of the potential for Couto to cause harm to other guests (including the plaintiff). This foreseeability assessment is an important element of both legal theories that the plaintiff is pursuing, in negligence (against all defendants) and under the Occupiers’ Liability Act, R.S.O. 1990, c. O-2 (against the Hosts).

4The Hosts will be witnesses at the trial of the continuing action against Couto and the foreseeability assessment will remain an open issue. While the foreseeability assessment may not be identical for the Hosts and Couto, it is reasonable to expect that there will be overlapping factual considerations (some of which will depend upon the evidence of the Hosts, including possible credibility determinations). In the circumstances of this case, there is a risk of there being different findings at trial on these central issues and I find that it is not in the interest of justice for summary judgment to be granted. The motion is therefore dismissed.

Factual Record

5The basic chronology of events is not controversial:

a. Couto arrived at the birthday party early, and helped set up; b. Couto had been drinking before he arrived and had some Grand Marnier and some additional beers after he arrived and over the course of the evening; c. most of the other guests, including the plaintiff, arrived around dinner time; d. the guests brought their own alcohol but also helped themselves to beer and wine that was in the fridge; e. the plaintiff was drinking (including beer and Grand Marnier) and also smoking marijuana over the course of the evening; f. a buffet dinner was served; g. at some point after dinner, the plaintiff and Couto and others were in the family room gathering to watch a UFC fight that was about to air on television; h. neither of the Hosts were in or near the family room at the time of the incident and they did not observe it; and i. Couto and the plaintiff were wrestling (there is a dispute about how that was precipitated) which led to the plaintiff hitting his left ankle on the coffee table and fracturing it, requiring surgery (he also claims to have suffered some other injuries and symptoms).

6The transcripts from the examinations for discovery of the Hosts, and of the plaintiff were filed by the moving parties, together with an affidavit from each of them. At the hearing, I raised the question of whether the Hosts could rely on their own discovery evidence (particularly about what they say they did, and did not, know) in support of this motion, having regard to Rule 39.04(2).

7Counsel for the moving parties confirmed that the Hosts’ affidavits summarized the salient points from their discovery and that they would be relying upon their affidavits rather than their discovery evidence. The following is a summary of the material evidence from their affidavits:

a. they were not aware of any prior physical altercations between the plaintiff and Couto and they had no concerns about inviting them together to a party in their home; b. they were not aware of Couto being prone to violent or aggressive or emotional outbursts, even when intoxicated; c. they had never witnessed Couto being physically abusive or to have had a physical or verbal altercation with anyone at a party; d. they did not observe Couto exhibiting increased aggressiveness or acting exuberantly towards the other guests at the birthday party or witness him behaving in a manner that could be described as out of control; e. they did not witness other guests asking Couto to stop or to leave the birthday party, and they did not do so; f. they did not observe Couto engaging in what they considered to be inappropriate grabbing, harassing or bothering of other guests; g. when they observed Couto exhibiting increasing signs of intoxication, it was that he was becoming increasingly loud, not that he was exhibiting increasing signs of aggressiveness; h. when they observed Couto becoming verbally loud they told him to “calm down”; i. they did not feel they needed to monitor Couto or at any point become concerned that he was a danger to others; and j. they did not believe Couto posed a risk or danger to the plaintiff or any other guests at the birthday party.

8The plaintiff filed additional materials, including the discovery transcript of Couto, statements made to the insurance adjustor in 2010 and 2011 by the Hosts, Couto, and a neighbour who was at the birthday party (collectively, the “prior statements”), and affidavits from the plaintiff and his wife and brother who were also at the birthday party.

9The plaintiff points out that certain aspects of the discovery evidence of the Hosts, and the prior statements of the Hosts and others are not entirely consistent with certain of the statements made by the Hosts in their affidavits, such as:

a. Couto was intoxicated when he arrived at the party; b. the Hosts were concerned that Couto not get too drunk before people arrived because if he continued to drink people might not have a good time at the party; c. Couto could become loud and rambunctious when drinking, and they became concerned about that over the course of the evening; d. Couto could become aggressive when he drank; e. Couto was prone to emotional outbursts; f. Couto was intoxicated while he was at the party and they allowed him to continue to drink; g. the plaintiff was getting annoyed with Couto because he was being loud and Couto had been talking to the plaintiff’s wife; and h. Couto was grabbing people and hugging them, joking around, and that is how he gets when he drinks.

10The evidence of the plaintiff and some of the other witnesses indicates that Couto had been getting physical with the plaintiff and other guests before the incident occurred.

Positions of the Parties on the Alleged Duty of Care and Breach

Position of the Moving Parties/Hosts

11The Hosts contend that attending a house party where there is alcohol and drug consumption is not an inherently dangerous activity and there was no inherent or obvious risk that they created or controlled by inviting the plaintiff and Couto and the other guests to the birthday party. The relationship between a host and their guests is not a recognized category that gives rise to a duty of care. Further, they maintain that the circumstances here lack the essential causal relationship between risk arising from Couto’s behaviour and some foreseeable injury faced by the plaintiff to create sufficient proximity between the Hosts and the plaintiff to give rise to a positive duty on them to look out for the plaintiff’s interests (such as is alleged in this case, that they had a duty to prevent the incident from occurring by supervising Couto and/or asking him to leave). (See [Childs v. Desormeaux, 2006 SCC 18, [2006] 1 S.C.R. 643, at paras. 15, 31 and 34-37]²)

12Although they have more broadly suggested that Childs is binding authority that social hosts do not owe a duty to persons injured by an inebriated guest at a house party, the position of the Hosts on this motion focussed upon the factual proximity inquiry, and the (admittedly un-contradicted) evidence that there were no known prior incidents between Couto and the plaintiff and that they did not observe (and it is not suggested by any others that they were alerted to) Couto roughhousing or being physically aggressive with the plaintiff or any other guests at the birthday party. They contend that this lack of any knowledge on their parts of prior similar conduct or incidents, or of any known physical aggression by Couto at the birthday party, renders it impossible for the plaintiff to establish the foreseeable risk or harm required for the court to find that there was a duty of care and/or that it was breached.

13The Hosts say that the fact that Couto was known to be rowdy or exuberant and loud when he drank is not enough to give rise to a positive duty on them to act to prevent the incident from occurring. They say that there can be no duty of care of social hosts in these circumstances under the existing jurisprudence (either at common law or under the Occupiers’ Liability Act).

Position of the Responding Party/Plaintiff

14The plaintiff maintains that for the Hosts to be liable, it is not necessary that they have specific knowledge of prior incidents or even knowledge of the actual roughhousing that was occurring that evening. Rather, he contends that the foreseeability of drunken roughhousing can be determined from the other evidence and he points to the case of Lewis v. Wilson, at p.3 in which two guests at a house party who have been drinking engaged in some good humoured “horseplay” and one was injured when they rolled into some empty beer bottles on the floor. The court in that case found the occupiers to be liable because “[…i]t must be taken to be known that roughhousing may well take place during a drinking party”.

15The plaintiff articulates the test to be whether it was reasonably foreseeable that an intoxicated guest acting inappropriately, recklessly, or aggressively could negligently injure another guest. The plaintiff also maintains that in the circumstances of this case it was, or should have been, obvious to the Hosts that Couto posed a danger to other guests given his behaviour over the course of the evening and level of intoxication. The plaintiff says that this was not an unexpected, random assault but was the natural and expected progression of witnessed events that had been developing since the afternoon.

16The plaintiff maintains that, at a minimum, it is enough to establish liability under the Occupiers’ Liability Act that the Hosts were aware that one of their guests was becoming increasingly intoxicated, obnoxious, and loud and that they did not ask him to leave or stop him from drinking, or warn the plaintiff or other guests to keep away from him. The plaintiff also relies on the admission by the Hosts that they were not watching Couto and asserts that they did not properly supervise him because they were themselves impaired. He also relies on the admission of one of the Hosts, Sonia Avila, that she would not have asked Couto to leave even if she knew he was bothering other guests but would expect those other guests to leave of their own accord.

17The Hosts admit that they were occupiers of the house at which the birthday party was held, within the meaning of the Occupiers’ Liability Act. Section 3 provides, inter alia, that:

(1) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.

(2) The duty of care provided for in subsection (1) applies whether the danger is caused by the condition of the premises or by an activity carried on on the premises.

18The plaintiff maintains that the duty arises under the Occupiers’ Liability Act and that he does not need to show that there is a recognized duty at common law (under the test laid down by the Supreme Court of Canada in Childs).

19The plaintiff contends that, in any event and even beyond the established relationship of proximity under the Occupiers’ Liability Act, the proximity of the relationship here is closer than in the Childs case and other cases, which dealt with duties of social hosts to “third parties” who were injured by a guest after the guest left the party (whereas, in this case, the injured person was also at the party and a guest with a closer and more proximate relationship to the Hosts).

20The significance of the enhanced proximity of social hosts to their own guests was highlighted in a decision of this court dismissing a summary judgment motion for injuries sustained by a guest at a drinking party after he left the party. (See Wardak v. Froom, 2017 ONSC 1166, 38 C.C.L.T. (4th) 166.) This case recognized that the law in the area of social host liability is still developing and noted that it was significant that the plaintiff was a guest, not a third-party (at paras. 51 and 52):

51In terms of foreseeability and proximity, a host’s relationship with a guest is likely closer than the relationship between a host and a third party: Kim v. Thammavong, [2007] O.J. 4769, at para. 25.

52It is apparent that the Supreme Court’s ruling in Childs does not preclude finding a duty of care where there is a paternalistic relationship or where the injured party is a guest rather than a third-party [emphasis added]

21The plaintiff also referred to the case of Millar v. Waring as an example of a case where a homeowner was held to be responsible for the safety of invited guests under section 3(1) of the Occupiers’ Liability Act and/or under the common law of negligence. While the facts are different (and more extreme) in that case, the plaintiff points to it to demonstrate that the fact-specific proximity inquiry is not narrow and should not be limited in the way the Hosts suggest, to their specific knowledge of the particular incident in question, but should be a broader consideration of the objective foreseeability of a class or character of incident: In the Millar case, it was the foreseeability that aggressive and confrontational tenants might be a danger to the brother of the home owner; in this case it is the foreseeability that an increasingly inebriated and boisterous guest (like Couto) could injure another guest during drunken roughhousing.

Positions of the Parties on Partial Summary Judgment

22The framework for determining summary judgment motions from the Supreme Court of Canada in the case of Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 7 requires that the judge be confident that the court has the evidence to make the factual findings required to adjudicate the dispute (by applying the law to the facts) and reach a fair and just determination on the merits. The question to ask is whether there is a genuine issue “requiring a trial” and whether it is in the interests of justice for the judge to use the fact-finding powers. This can be considered in light of the goals of timelines, affordability, and proportionality.

Position of the Moving Parties/Hosts

23The moving parties point to the court’s powers under Rule 20.04, to weigh evidence, evaluate credibility of a deponent and draw inferences, and suggest that the points of potential inconsistency in the evidence that the plaintiff identified are not an obstacle to granting summary judgment.

24They submit that Hryniak directs that under the revised Rule 20, a trial is no longer the default procedure.

Position of the Responding Party/Plaintiff

25The plaintiff counters that the Court of Appeal for Ontario has said the opposite in a recent line of cases dealing with circumstances of partial summary judgment (such as this) where the granting of the motion will not finally dispose of the entire case. In this regard, I was directed during oral argument to the recent decision in Mason v. Perras Mongenais, 2018 ONCA 978 at para. 44:

However, nothing in Hryniak detracts from the overriding principle that summary judgment is only appropriate where it leads to “a fair process and just adjudication”: Hryniak at para. 33. Certainly there is nothing in Hryniak that suggests that trials are now to be viewed as the resolution option of last resort. Put simply, summary judgment remains the exception, not the rule. [emphasis added.]

26The plaintiff argues that this is not an appropriate case for summary judgment because:

a. granting this motion will not be dispositive of the case, which will continue against Couto; and b. there are credibility issues that will need to be resolved at trial in order for the court to determine the reasonable foreseeability of harm and how it informs the questions of proximity (duty) and the standard of care (breach).

27On the first ground, the plaintiff maintains that even though there is no risk of continuing cross-claims and the action would be at an end as far as the Hosts are concerned if summary judgment is granted, as long as the plaintiff’s case is continuing against Couto it remains a possibility that factual findings could be made at Couto’s trial that are inconsistent with the factual predicates upon which the Hosts rely for this motion.

28This ties into the second ground, under which the plaintiff argues that in order to grant the summary judgment motion, the court would have to make credibility determinations based on evidence (including from the plaintiff and other guests) that is not consistent with what the Hosts say in their affidavits about Couto’s behaviour at the birthday party and his level of intoxication.

Analysis Regarding Partial Summary Judgment

29In my view, the grounds raised by the plaintiff against the granting of summary judgment in this case are related and dispositive.

30In Wardak (at paras. 39-40) Matheson, J. summarized the procedure to be followed on a motion for summary judgment prescribed by the Supreme Court in Hryniak to be in two stages:

a. 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). b. if there appears to be a genuine issue requiring a 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: Hryniak, at para. 66.

31I find that there is a genuine issue requiring a trial based on the evidence in the record before me. The Hosts’ subjective statements that they were not aware of specific aggressive and physical behaviour by Couto towards the plaintiff prior to or during the birthday party is only one part of the factual matrix that will inform the necessary foreseeability analysis to determine the existence of a duty and/or breach by them. Other facts, such as the level of Couto’s intoxication and his general behaviour at the birthday party, and their awareness of that, as well as the observations of other guests, will also inform that analysis. There are credibility issues arising from that other evidence that will need to be resolved in order for the court to determine the reasonable foreseeability of harm and how it informs the questions of proximity (duty) and the standard of care (breach).

32The Supreme Court of Canada’s description of the “interest of justice” inquiry in the Hryniak case at paras. 58–60 directs the court to consider the consequences of the motion in the context of the litigation as a whole in deciding whether the court’s Rule 20.04(2.1) fact-finding powers should be exercised only at trial. The Supreme Court used the example that if some of the claims against some of the parties will proceed to trial in any event, “it may not be in the interests of justice to use the new fact-finding powers to grant summary judgment against a single defendant. Such partial summary judgment may run the risk of duplicative proceedings or inconsistent findings of fact and therefore the use of the powers may not be in the interest of justice.”

33This underscores the concern about inconsistent findings at trial when a summary judgment motion is not dispositive of the entire case. This is precisely what the Court of Appeal has repeatedly said is not an appropriate case for summary judgment. (See Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, 120 O.R. (3d) 438; Hamilton (City) v. Their + Curran Architects Inc., 2015 ONCA 64, 45 C.L.R. (4th) 1; Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561; Mason v. Perras Mongenais, 2018 ONCA 978, and Healthy Lifestyle Medical Group Inc. v. Chand Morningside Plaza Inc., 2019 ONCA 6.

34I find that, in the circumstances of this case, it is in the interest of justice that the powers that are available to a judge to resolve these credibility issues should only be used at trial. Otherwise, the possibility is left open that the same evidence upon which findings of credibility will have to be made on this motion will also have to be assessed, and findings will have to be made, at the continuing trial against Couto.

35It is reasonable to expect that at the trial against Couto, the evidence of the Hosts will be challenged as it was on this motion, concerning (among other things) the same topics at issue on this motion, about: Couto’s level of intoxication, his behaviour at the birthday party leading up to the incident, and the awareness and observations of the Hosts and others about Couto’s conduct and actions. Even in the case against Couto, there will inevitably be evidence about what the Hosts knew and observed or were told, all of which could inform the foreseeability analysis upon which their own liability depends.

Deferral of Analysis of the Alleged Duty and Breach

36I do not agree with the broad suggestion that Childs is binding authority that social hosts do not owe a duty to persons injured by an inebriated guest at a house party. I, like the court in Wardak v. Froom, consider that to still be an open question. It is not necessary for me to make any findings on the merits given my decision that I am not prepared to grant summary judgment in this case when the action will continue against Couto. However, I will address the contention of the moving parties that there can be no finding of negligence (or breach of occupier’s duty) because the Hosts did not have any actual knowledge of prior altercations between Couto and the plaintiff and they did not observe (and it is not suggested by any others that they were alerted to) Couto roughhousing or being physically aggressive with the plaintiff or any other guests at the birthday party.

37As I have indicated earlier in these reasons, in my view, there is a broader factual matrix that will have to be considered in order for the court to make the liability determination in this developing area of social host liability (and it is that broader matrix that creates the possibility of inconsistent findings at trial).

38I agree that the lack of awareness of the Hosts is a relevant part of the factual matrix that will inform the necessary foreseeability analysis to determine the existence of a duty and/or breach by them. However, other facts, such as the level of Couto’s intoxication and his behaviour at the birthday party, and the Hosts’ awareness of that (which is the subject of some disagreement and remains open to be determined) as well as the observations of other guests, can also inform that analysis. In light of my findings on the summary judgment question, it is not necessary (or appropriate) for me to engage in that fact-finding or foreseeability analysis on this motion.

39Similarly, it is not necessary (or appropriate) for me to rule on the legal questions that were argued, about whether the duty of care of the Hosts can be established under the Occupiers’ Liability Act without the necessity of a foreseeability analysis, or whether, and if so, how, the foreseeability analysis informs the determination of the standard of care (duty) and of whether it was breached. These are matters that should be determined by the trier of fact at the trial. I do not intend to make any determinations of law that would be binding on the parties at trial.

Rule 20.05 Powers of the Court

40At the hearing I asked counsel whether there were ongoing issues that would benefit from trial management or if there were any other procedural directions that could be made under Rule 20.05 in order to ensure that the case proceeds expeditiously. Counsel advised that they have not encountered any issues thus far that they could not resolve themselves in the management of the procedural aspects of this case and that it has been moving forward with expected levels of co-operation of the parties present. They indicated that they intend to proceed in the ordinary course and do not need any special directions or terms attached to my order if the motion is dismissed.

41The plaintiff has noted in his responding factum that, since Couto did not appear on this motion, the court should not make any order that affects his rights or interests. Any directions or terms that I would consider making at this stage (post-discoveries) would necessarily affect Couto’s rights and interests. In light of the fact that he was not before the court and that no other party is asking for the court’s assistance at this time in order to streamline the action for trial, I am not inclined to attach any directions or terms to my order dismissing this motion for summary judgment.

42While I have had a preview of some of the evidence that will likely be presented at trial, I do not feel that in a case like this, where the focus has been on evidence that underlies the question or whether or not to grant partial summary judgment in favour of two defendants, that I need to remain seized of this case for trial. I do not believe that I am in any different position than any other judge in terms of the eventual adjudication of the case as a whole. The rationale for the suggestion by the Supreme Court of Canada in Hryniak for a judge to do so does not apply in this case.

Disposition and Costs

43For the reasons indicated, this summary judgment motion is dismissed.

44At the conclusion of the hearing counsel advised that they were reasonably confident that they would be able to reach an agreement on costs after my decision was released. I encourage counsel to attempt to do so. If they are able to reach an agreement on costs they should advise the court of such by January 31, 2019, and provide a draft order.

45If no agreement is reached on costs, then each side may provide the court with brief written submissions on costs (not to exceed 5 pages double spaced) together with their respective costs outlines by February 8, 2019, and each may respond to the other’s in a brief reply submission on costs (not to exceed 2 pages double spaced) by February 15, 2019. All costs submissions should be served on the opposing parties and delivered to my attention at Judges’ Reception, Superior Court of Justice at 361 University Avenue (Room 170), Toronto, Ontario M5G 1T3.

Kimmel, J.

Released: January 23, 2019

Footnotes

Footnotes

1. 1Couto pleads in his statement of defence that he declared bankruptcy on November 15, 2010 and was discharged from bankruptcy on August 12, 2011. This claim was not proven in the bankruptcy, but he maintains that it was a provable claim and that the recovery against him is thus restricted by virtue of s. 178 of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3.
2. 2This is what would be required under the first part of the test in Anns v. Merton London Borough Council (1977), [1978] A.C. 728 (U.K.H.L). For purposes of this motion, the parties did not get into the second part of the test, as to whether there are policy considerations that would negate any such duty.