Eastwood v. Walton
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Whitney Eastwood Plaintiff
– and –
Constance Walton, Desjardins General Insurance Group Inc., Le Dome Banquet Hall Inc., Versailles Convention Centre Inc., Security National Insurance Company and Primmum Insurance Company Defendant
COUNSEL:
J. Patrick Brown - Counsel for the Plaintiff
Todd J. McCarthy - Counsel for the Defendant Versailles
HEARD: June 25, 2019
The Honourable Justice James W. Sloan
REASONS FOR JUDGMENT
1This is a summary judgment motion brought by Versailles seeking to dismiss the plaintiff’s claim against it. Essentially only the plaintiff, Walton and Versailles are left in the action.
2On the date in question Desjardins was holding its staff Christmas party at the Versailles premises. Walton was a long time employee of Desjardins and attended the party.
3The action involves a motor vehicle accident which occurred on November 24, 2012 after Walton left the Christmas party.
4Walton has an insurance policy with a $2,000,000 limit.
5This action will continue whether or not Versailles’ summary judgment motion is successful.
6There is essentially no liability issue between the plaintiff and Walton and therefore if the summary judgment motion is successful and a trial is necessary, it will essentially be on the issue of damages only. That of course would significantly shorten what would otherwise be a jury trial of many weeks.
7At all material times Versailles had obtained a liquor license and was responsible for the sale, service and monitoring of alcohol consumption on that date.
8Walton consumed alcohol while at Versailles and she caused the motor vehicle accident after leaving the establishment. At the time of the accident Walton’s blood alcohol reading was approximately two or three times the legal limit. There is no evidence to suggest that Walton drank alcohol anywhere else that evening.
9The event was set up, such that there were two bottles of wine on each table of either 8 or 10 guests. In addition each guest received 2 liquor tickets and if they wanted, they could buy more drinks once they use the tickets.
10During the evening Versailles had a staff of 30 which included 3 bartenders and approximately one waiter for every 25 guests. This would translate to one waiter for approximately every three tables
11There is some evidence to suggest that Walton left the Christmas function between 9:15 and 9:30 PM although it could have been later since the accident happened at approximately 11:30 PM.
12Her evidence is that she was going to drive directly home which was approximately 37 minutes away and therefore it appears that there is some time unaccounted for.
13The plaintiff who suffered a traumatic brain injury, pleads Versailles was negligent in the performance of its duty of care as a commercial host.
Versailles’s Position
14None of Walton’s co-workers, including those sitting at her table recall anything happening that evening that would lead them to think that Walton was intoxicated. Therefore, Versailles submits, if people sitting at Walton’s table did not notice any intoxication, the court should assume that none of Versailles’ staff would have noticed any intoxication either.
15Mr. Taggar is the president and owner of Versailles. He swore an affidavit dated January 29, 2019 upon which he was not cross-examined.
16He deposed, that it was his information and belief that all the managers, staff and bartenders were following the Smart Serve rules with respect to the service of alcohol & they had been trained to follow the rules in accordance with the Smart Serve Program and Certification.
17As of the date in question, Taggar swore to the following:
a) All staff members who were serving alcohol had taken the mandatory Smart Serve course in addition to in-house training by managers on alcohol service.
b) No staff member would serve alcohol to someone they observed to be intoxicated.
c) The staff would notify the organizer of the event if a visibly intoxicated person had been observed.
d) Taxi stickers were placed on the entrance and exit doors, advertising the phone number of a local taxi service, to encourage guests to use public transportation options.
e) The manager and his partner were monitoring guests at the exit doors and were advising guests of the taxi services which were available.
f) Versailles has no record of over serving a patron, a patron being intoxicated or any disruptive behaviour on November 24, 2012.
18The plaintiff has the onus of proving negligence and although it is difficult if not impossible to contact the almost 30 casual Versailles staff members who were working that evening in 2012, it will be difficult if not impossible for them to prove negligence without such evidence. Even if such casual employees could be located how could they possibly remember events which were essentially not unusual from 6 ½ years ago. They would have no reason to remember such an ordinary evening at work.
19Taggar was not cross-examined and the cross-examination of Desjardins’ employees yielded very little thereby confirming Taggar’s affidavit.
20Megan Gillespie a coworker of Walton’s who sat with her at the table for dinner, testified she would have noticed, but did not notice anything unusual about Walton that evening. She did not see Walton leave the building or go to her car.
21Several other coworkers testified that they did not notice anything unusual about Walton that evening.
22Versailles submits that the coworkers and particularly those sitting with Walton at her table would be in a much better position to observe Walton’s behaviour than a server who was working 3 or 4 tables.
23The plaintiff contends that Versailles did not have a written protocol with respect to serving alcohol and did not have a drink counting system.
24Versailles submits that the Smart Serve training is in writing, is a protocol and in addition they do in-house training.
25With respect to the issue of a drink counting system, there is no evidence about what a drink counting system is or how it might work in the real world, particularly where bottles of wine are put on the table, people are given drink tickets and some people may very well get drinks for others.
26Versailles submits, that the allegation of not having a drink counting system must be put in context. In this case part of the context includes the posters with respect to alcohol consumption, taxi posters with phone numbers on the exit doors, training for employees serving liquor, rules that employees must report any issues of intoxication.
27In this case there was simply nothing to observe.
28Affidavits were filed on behalf of Christine Abesamis, Sharandeep Bhogal and Amanda Gillespie. All three people in their affidavits testify that:
a) The event began with emcees reminding people not to drink and drive.
b) All three were seated at a table with Ms. Walton and saw her several times during the evening,
c) At no time did they notice Walton slurring her words, talking slowly, walking with difficulty or exhibiting any other type of behaviour that would lead them to believe she was intoxicated.
29With respect to the toxicologist’s report of James Wigmore dated October 3, 2017, Versailles submits, that the report does not address the issues of negligence, breach of duty of care or causal connection. In addition he concludes that Walton’s impairment may have been increased due to her anti-migraine medication.
30The report of Stephen Summerville should be given little if any weight. His conclusions at page 29 of his report are conclusions of mixed fact and law. In item 2 on page 29, he is incorrect because the overwhelming evidence is that Versailles did operate under the Smart Serve standards.
31Versailles relies on the cases of Stewart v. Pettie 1995 CanLII 147 (SCC), [1995] 1 SCR 131, Childs v. Desormeaux, 2006 SCC 18, and Rudderham v. Folkes 2012 ONCA 603.
32Versailles submits, the duty of care in this case is that they must act and step in, if a patron is intoxicated. It submits that it did so by having the Smart Serve protocol in place and having alternative transportation visibly displayed at its exits. In addition in this case there was no visible impairment.
33In the Stewart case with respect to the standard of care they referred to paragraphs 34, 35, 36, 48 and 49.
34… “The common law assesses liability for negligence on the basis of breach of a duty of care arising from a foreseeable an unreasonable risk of harm to one person created by the act or omission of another”. The respondent argued and the Court of Appeal agreed, that Mayfield was negligent because they (a) served Stewart Pettie past the point of intoxication, and (b) failed to take any steps to prevent harm from coming to himself or a third person once he was intoxicated.
35 I doubt that any liability can flow from the mere fact that Mayfield may have over served Pettie. To hold that over serving Pettie per se is negligent is to ignore the fact that injury to a class of persons must be foreseeable as a result of the impugned conduct. I fail to see how the mere fact that an individual is over imbibing can lead, by itself, to any risk of harm to third parties. It is only if there is some foreseeable risk of harm to the patron or to a third party that Mayfield and others in their position will be required to take some action. This standard of care is the second “duty” identified by the respondent and the Court of Appeal.
36 It is true that the applicable liquor control legislation in Alberta, and across the country, prohibits serving alcohol to persons who are apparently intoxicated. Counsel for the respondents pressed that pointed argument. There are however, two problems with this argument. The first is that it is not clear that there was any violation of liquor control legislation in this case, given the fact that Pettie was apparently not exhibiting any signs of intoxication. Moreover, even if it could be said that Mayfield was in violation of legislation, this fact alone does not ground liability: … Without a reasonably foreseeable risk of harm to him or a third party, the fact of over serving Pettie is an innocuous act. Therefore, liability on the part of Mayfield, if it is to be found, must be in their failure to take any affirmative action to prevent the reasonably foreseeable risk to Gillian Stewart.
48 I do, however, have difficulty accepting the proposition that the mere existence of this “special relationship”, without more, permits the imposition of a positive obligation to act. Every person who enters a bar or restaurant is in an invitor-invitee relationship with the establishment, and is therefore in a “special relationship” with that establishment. However, it does not make sense to suggest that, simply as a result of this relationship, a commercial host cannot consider other relevant factors in determining whether in the circumstances positive steps are necessary.
49 The existence of this “special relationship” will frequently warrant the imposition of a positive obligation to act, but the sine qua non of tortious liability remains the foreseeability of the risk. Where no risk is foreseeable as a result of the circumstances, no action will be required, despite the existence of a special relationship. The respondent argue that Mayfield should have taken positive action, even though Mayfield knew that the driver was with three other people, two of whom are sober, and it was reasonable to infer from all of the circumstances that the group was travelling together.
34In this case because Versailles had a system in place and no one saw any signs of impairment Versailles had no reason to take some type of positive action.
35In the Childs case, Versailles relies on paragraphs 34 through 39. At paragraphs 37, 38 and 39 the court stated:
37 The third situation where a duty of care may include the need to take positive steps concerns defendants who either exercise a public function or engage in a commercial enterprise that includes implied responsibilities to the public at large. … In these cases, the defendants offer a service to the general public that includes attendant responsibilities to act with special care to reduce risk. Where a defendant assumes a public role, or benefits from offering a service to the public at large, special duties arise. The duty of a commercial host who serves alcohol to guest to act to prevent foreseeable harm to third-party users of the highway falls into this category: Stewart v. Pettie.
38 Running through all of these situations is a defendant’s material implication in the creation of risk or his or her control of the risk to which others have been invited. The operator of a dangerous sporting competition creates or enhances the risk by inviting and enabling people to participate in an inherently risky situation. It follows that the operator must take special steps to protect against the risk materializing… The public provider of services undertakes a public service, and must do so in a way that appropriately minimizes associated risks to the public.
39 Also running through the examples is a concern for the autonomy of persons affected by the positive action proposed. The law does not impose a duty to eliminate risk. It accepts that competent people have the right to engage in risky activities. Conversely, it permits third parties witnessing risk to decide not to become rescuers or otherwise intervene. It is only when these third parties have a special relationship to the person in danger or material role in the creation or management of the risk that the law may impinge on autonomy. Thus, the operator of a risky sporting activity may be required to prevent a person who is unfit to perform a sport safely from participating or, when a risk materializes, to attempt a rescue. Similarly, the publican may be required to refuse to serve an inebriated patron who may drive, or a teacher be required to take positive action to protect the child who lacks the right or power to make decisions for itself. The autonomy of risk takers or punitive rescuers is not absolutely protected, but, at common law, it is always respected.
36Versailles submits, based on the above, that it must act reasonably based on the evidence and it did so.
37In the Ruddenham case they rely on paragraphs 41, 42 and 43 which stated as follows:
41 The plaintiffs have no evidence to suggest that TJ’s served alcohol to Mr. Rudderham to a point that TJ’s knew or ought to have known that he was at risk of harm due to his intoxication as a result of their service to him. The plaintiffs, therefore, have no evidence to link Mr. Rudderham’s level of intoxication at the time of the accident TJ’s.
42 Mr. Doan asks me to infer that the plaintiff’s consumption of alcohol that led to his state of intoxication at 11:41 p.m. was a result of being over served at TJ’s. I do not think that there is any basis whatsoever for that inference to be drawn. I agree with Meisner J. in the Butterfields case cited by MacDonald J. The facts upon which Mr. Doan relies do not permit speculation that the plaintiff was over served alcohol at TJ’s in the period leading up to his accident, speculation, I might add, which is at odds with the available direct evidence. The evidence could not support an inference that TJ’s conduct was sufficient to impose a duty on Mr. Grimes to take steps to prevent the plaintiff from leaving on foot. The conclusions that Mr. Doan asks me to infer are not such as to acquire the status of anything even remotely approaching probability. In fact, unlike the facts in the Butterfields case I do not even think it could be said that the inferences Mr. Doan asks me to draw are more likely than a number of other possible conclusions. They are, in this case clearly less likely.
43 There is no positive, proven facts from which inferences the plaintiff seeks can be made. What is left is, in my view, therefore, there speculation or conjecture…
The Plaintiff’s Position
38The plaintiff submits, the evidence is clear in that Versailles is a commercial host who sold alcohol to Walton, she cannot recall how much she drank, she only drank alcohol at Versailles and at the time of the accident she had three times the legal limit of alcohol in her system.
39She submits, Versailles only told its staff not to serve a patron who was intoxicated and that Versailles had no system to monitor the number of drinks a particular patron consumed.
40Without the names and addresses of the employees at work on the date in question it is not possible to test what they did. Versailles’s answers to their best efforts undertakings at discovery is that such information is not available because the employees were employed as casual employment and they have no contact information for them.
41Despite that problem, a jury could still conclude that there was no system in place. This would be based on the expert toxicologist report that placed Walton’s blood alcohol level between 154 and 185 at the time of the accident. In addition Walton cannot recall how much she drank.
42Based on Wigmore’s report, with or without drugs Walton was incapable of operating a motor vehicle properly. In addition the police had reasonable and probable grounds to request a Breathalyzer.
43With respect to the affidavits from Desjardins employees, at the time they swore their affidavits they were employees of a named the defendant in this action. In addition, none of them saw her leave so they cannot comment on her sobriety at the time she left.
44Given the estimates of when Walton left the Christmas party and the time of the accident it is entirely likely that she did not leave at 9 or 9:30 PM and simply stayed longer to visit with some of the 350 or 400 people in the room.
45Irena Marone is one of the Desjardin employees who filed an affidavit which is referred to by Versailles. It is her testimony, that there were no managers at the door checking people as they left & that the only people at the door were smokers.
46Based on evidence that no one was at the door to watch patrons leave, the jury could very well find that Versailles breached its duty.
47In addition, none of the Desjardin people who swore affidavits, were trained in Smart Serve, nor were they there to monitor anyone’s alcohol consumption or to keep tabs on Walton.
48The court in Stewart at paragraphs 52 & 56 stated:
52 I agree with the Court of Appeal that Mayfield cannot escape liability simply because Stewart Pettie was apparently not exhibiting any visible signs of intoxication. The waitress kept a running tab, and knew that Pettie had consumed 10 to 14 ounces of alcohol over a five-year period. On the basis of this knowledge alone, she either knew or should have known that Petty was becoming intoxicated, and this is so whether or not he was exhibiting visible symptoms.
56 I agree that establishments which serve alcohol must either intervene in appropriate circumstances or risk liability, and that this liability cannot be avoided where the establishment has intentionally structured the environment in such a way as to make it impossible to know whether intervention is necessary. Such was the situation in Canada Trust Co. v Porter, supra, where the alcohol was served from behind the bar and it was impossible for the establishment either to monitor the amount consumed or to determine whether intervention was necessary. A similar situation arose in Gouge v Three Top Investment Holdings Inc. [1994] O. J. No. 751 … Where the plaintiff attended a company Christmas party which had a “cash bar”, overindulged, and then was involved in an accident. In such circumstances, it would not be open to the establishment to claim that they could not foresee the risk created when the liability to foresee the risk was the direct result of the way the serving environment was structured.
49The plaintiff submits, based on the above, that Versailles can be held liable even if there were no visible signs of intoxication.
50The plaintiff also relies on the case of McIntyre v. Grigg 2006 CarswellOnt 6805, where the Court of Appeal stated the following at paragraph 25, 29 and 31. A bar was run by McMaster and it took exception to the trial judge’s charge to the jury part of which charge was set out in paragraph 25 which is reproduced below.
25 McMaster alleges that the trial judge erred by instructing the jury that liability under s. 39 is “absolute” without telling them about the necessary “fault close quote or negligent component of such liability…
Common law and statutory law therefore impose a duty on taverns to its patrons and others to ensure that the tavern does not serve alcohol which would either intoxicate or increase the patrons intoxication. They do not escape liability simply because a patron does not exhibit any physical signs of intoxication if in the circumstances the tavern knew or ought to have known that the person was becoming intoxicated. Likewise, commercial vendors of alcohol cannot avoid liability where the establishment has intentionally structured the environment in such a way to make it impossible to know whether intervention is necessary this therefore imposes a very high or heavy responsibility upon owners and managers of drinking establishments.
The tavern standards are too low if drinks are only refused of a patron exhibit signs of impairment such as being too loud, starting arguments, knocking over drinks, falling down, creating problems for staff, or upsetting other patrons. Taverns have a duty also to take affirmative action to prevent intoxicated patrons from driving. In circumstances where it is reasonable to expect that a patron has come by car, there is a heavier duty on the tavern staff to keep an eye on the patron when they depart to check to see if the patron is driving and to arrange safe transportation, if necessary.
29 We reject McMaster’s submission that there was insufficient evidence to support these findings. In this respect McMaster relies upon the evidence indicating that Andrew Greg had an unusual capacity to display little sign of intoxication, in spite of significant blood alcohol levels, and that there were no visible signals of intoxication on his part before or after the accident.
31 In spite of the foregoing testimony, however, there was evidence upon which the members of the jury were entitled to make the finding they made…
51The plaintiff submits, based on McIntyre that the standards referred to in Summerville’s report were not met and that the jury could accept the toxicologist’s evidence and find that Versailles did not follow industry standards.
52Also based on paragraph 35 of McIntyre which reads:
35 Nor would we to give effect to the argument that the trial was unfair because plaintiff’s counsel referred, in closing, to the fact the McMaster called no employees to establish the Pub was following its own procedures, in spite of the judge’s ruling that no comments ought to be made in the addresses about adverse inferences. Counsel for the plaintiff was entitled to comment on the submissions of counsel for McMaster that everything had been done properly, when no evidence was called to prove its policies and procedures were actually followed.
Therefore the jury is entitled to make adverse inferences if none of Versailles’s employees are called to testify.
53In the case of Linton v. Tholos Restaurant Inc. 2016 ONSC 4167, the court at paragraphs 46 & 47, cautioned against relying on evidence from interested witnesses, here the court in is being asked to rely on evidence from employees of one of the named defendants, as a basis for making findings of fact on a summary judgment motion.
54In the case of Frame v. Watt 2016 ONSC 718 the court held that trying to decide between two competing expert opinions should be avoided on a summary judgment motion. The plaintiff submits that this case is similar, because we have lay witnesses versus experts.
55The plaintiff also relies on paragraph 91 of the case of Mitusev v. General Motors Corp. 2014 ONSC 2342 which reads:
91 Juries are told every day that they may draw reasonable inferences from the evidence even though there is no direct evidence on a particular point. On a motion for summary judgment, while it is clear that the motion judge is required to determine whether there is a genuine issue for trial – even in the face of a Jury Notice, where the motion judge is unable from the evidence filed to make findings of fact, and to thereafter apply the law, it seems to me that it would be the exceptional case that the motion judge would exercise the expanded fact-finding allowed by Rule 20.04(2.1) and (2.2) to effectively usurp the fact-finding role of the jury.
56Unlike the Stewart case, Walton did not attend the Christmas function in the accompaniment of others and was by herself therefore there was no reasonable assumption that some other person was going to drive her home.
57Joseph Daly a member of the social committee responsible for planning the Christmas party testified, that although information about taxis had been provided to employees at the previous year’s Christmas party, the taxi information was not repeated at the subject Christmas party.
58Walton testified that:
a) she had no alcohol before the party,
b) cannot recall who she sat with,
c) other people poured wine into her glass,
d) she cannot recall how many glasses of wine she had,
e) she does not recall speaking to others or circulating around the room,
f) she cannot recall anybody like a manager being in attendance at the exit door, and
g) she planned to go directly home.
59Taggar confirmed that they do not count drinks because they cannot and therefore their employee’s only judgment is to look at the person to determine if they display signs of intoxication. Neither he nor his employee Maryanne could confirm if they had any security people there that night.
60Therefore the plaintiff submits, we are left with a commercial host, a patron with approximately three times the legal limit of alcohol in her system who left the establishment, drove her car and caused an accident resulting in devastating injuries to the plaintiff and the liability for the plaintiff’s damages should be left to a jury.
Findings
61The facts and issues of this case are challenging.
62Currently there is no evidence from any of Versailles’s staff who were on duty on the night of the accident, with respect to what they understood their duties were in regards to alcohol service and patrons and what if anything they noticed on the night in question.
63The statement of claim was issued November 20, 2014, and assuming that it was served on Versailles shortly after that date, they have had over 4 years to try to contact the staff they had on the night in question. It seems unusual that an employer would not have the SIN numbers of their employees and some method of contacting them even if they were casual.
64The court was not directed to any evidence to show what efforts have been made by Versailles to contact their casual staff.
65Based on the evidence produced on this motion the court is unable to conclude whether or not staff members were at the exits so that they could assess the sobriety of patrons when they were leaving so they could intervene if they thought it necessary.
66A jury is well able to decide whether Versailles met its duty of care related to how they served alcohol and tracked the consumption of individual patrons.
67Therefore, based on the foregoing reasons and the case law referred to, I am not prepared to grant summary judgment to Versailles. I therefore dismiss Versailles’s summary judgment motion with costs.
68If the parties are unable to agree on costs, Mr. Brown shall forward his brief submissions on costs to me by July 12, 2019. Mr. McCarthy shall forward his brief response to me by July 18, 2019. Mr. Brown shall then forward his reply, if any, to me by July 24, 2019. Cost submissions may be sent to my attention by email, care of Kitchener.Superior.Court@ontario.ca. Cost submissions, excluding bills of costs, shall be limited to 5 pages using spacing of 1.5 and 12 pitch font.
James W. Sloan
Released: July 08, 2019
COURT FILE NO.: CV-1097-14
DATE: 2019 07 08
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Whitney Eastwood
Plaintiff
- and –
Constance Walton, Desjardins General Insurance Group Inc., Le Dome Banquet Hall Inc., Versailles Convention Centre Inc., Security National Insurance Company And Primmum Insurance Company
Defendant
REASONS FOR JUDGMENT
J.W. Sloan J.
Released: July 08, 2019