Court File and Parties
COURT FILE NO.: CV-17-567200 DATE: 20200817 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
George Earl Campbell, Sandy Campbell, George Alfred Campbell, MacKenzie Campbell, Colin Campbell and Cameron Campbell Plaintiffs – and – The Estate of Greg Campbell by its Estate Trustee, Genevieve Campbell, You Quan Yang o/a New Jessie’s Café or Jessie’s Café Bar & Grill and 1617887 Ontario Ltd. Defendants
COUNSEL: No one appearing, for the Plaintiffs A. Serpa, for the Defendant (Responding Party), The Estate of Greg Campbell by its Estate Trustee, Genevieve Campbell B. Dehghan for the Defendant (Moving Party), 1617887 Ontario Ltd. No one appearing for the Defendants, You Quan Yang o/a New Jessie’s Café or Jessie’s Café Bar & Grill
HEARD: July 31, 2020
O'Brien, J.
REASONS FOR JUDGMENT
Overview
[1] In the early morning hours of January 11, 2015, after spending time at a tavern, the Plaintiff, George Campbell, rode his bicycle onto the road near the intersection of Kingston Road and Warden Avenue in Toronto. He was struck by a vehicle driven by the Defendant, Greg Campbell. [1] The question on this motion for summary judgment is whether the landlord of the tavern can be held liable for the Plaintiff’s injuries. Although the Plaintiff has agreed to release the landlord from the action, the Defendant, Mr. Campbell, has maintained his Crossclaim against the landlord. The landlord brings this motion for summary judgment seeking to be released from the Crossclaim. I conclude that the landlord has no liability and that the Crossclaim should be dismissed against it.
[2] The Plaintiff alleges that when he attended the tavern on January 11, 2015, he was served alcohol to the point of intoxication. He alleges that the Defendant tavern, Jessie’s Café Bar & Grill (the “Tavern”) was liable for supplying him with alcohol when it knew or ought to have known he was impaired. The Plaintiff also alleges in his pleading that the Defendant, 1617887 Ontario Inc. (the “Landlord”) was liable for failing to ensure that the Tavern maintained adequate insurance as stipulated in the lease and for failing to exercise due care and skill in the management and supervision of the premises. However, the Plaintiff is no longer pursuing these allegations. He has agreed to release the Landlord from the action and did not appear on this motion. The Defendant, Mr. Campbell adopted the Plaintiff’s allegations against the Tavern and Landlord in his Statement of Defence and Crossclaim.
[3] The Tavern and its owner, the Defendant, You Quan Yang, were not insured and have not defended this action. The action was commenced over three years ago in January 2017. They have not filed a Notice of Intent to Defend nor a Statement of Defence. I am advised that Mr. Yang initially attended at Examinations for Discovery but then left prior to his own examination. Mr. Yang and the Tavern also did not appear on this motion for summary judgment. The parties before me were not able to confirm that the Tavern and Mr. Yang had been noted in default, but both parties indicated that they intended to ensure these Defendants were noted in default.
[4] The Landlord company owned the building in which the Tavern was located. The Landlord and Tavern had entered into a lease for the premises several years prior to the incident in January 2015. The lease required the Tavern to obtain public liability and property damage insurance via a policy which would name the Landlord as an insured. The Defendant, Mr. Campbell does not allege that the Landlord owned or operated the Tavern, but only that it failed to ensure the Tavern had insurance and it failed to adequately manage and supervise the premises.
[5] The issues for me to determine are: (1) whether there is a genuine issue requiring a trial with respect to the Defendant, Mr. Campbell’s Crossclaim against the Landlord; and (2) if there is no genuine issue requiring a trial, whether the Crossclaim should be dismissed on the basis that the Landlord is not liable to the Plaintiff.
[6] For the reasons that follow, I conclude that (1) there is no genuine issue requiring a trial with respect to the Crossclaim against the Landlord; and (2) the Crossclaim should be dismissed.
Mid-motion adjournment denied
[7] Before turning to those issues, I will address the Defendant Mr. Campbell’s request for an adjournment during the course of the motion. Partway through the hearing of the motion before me, after counsel for the Landlord had completed his submissions, counsel for the Defendant Mr. Campbell requested that the remainder of the motion be adjourned for 45 days. He advised that over the morning break he had become aware of new information as a result of his client’s investigation into the Tavern that could provide additional evidence regarding the relationship between the Landlord and the Tavern. The information allegedly would come from a patron of the Tavern. Counsel was not able to advise me of the witness’ specific evidence, as he did not have an affidavit, but said there could be evidence of the Landlord’s “potential involvement” in the operation of the business.
[8] I denied the adjournment. This motion was scheduled over five months ago in Civil Practice Court. The president and sole shareholder of the Landlord, Yang Ping Tang, was examined for discovery over a year ago on May 15, 2019 and, at that time, provided evidence about the relationship between the Landlord and the Tavern. She also swore an affidavit for the purpose of this motion, on which it appears the Defendant chose not to cross-examine her. Further, the Plaintiff’s accident occurred over five years ago and the action was commenced over three years ago. The Defendant has had ample time to conduct investigations and was required to have completed its investigations long before the morning of the motion. In any event, I was not provided with any evidence specific enough to persuade me that the Defendant’s ongoing investigation was likely to have any impact on the outcome of the motion.
Is there a genuine issue requiring a trial?
[9] I conclude that there is no genuine issue requiring a trial with respect to the Crossclaim.
[10] Pursuant to r. 20.04(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the court shall grant summary judgment if it is satisfied that there is no genuine issue requiring a trial. According to Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 49,
There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when 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.
[11] The Supreme Court continues, at para. 50, “the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.”
[12] The motion judge should first determine if there is a genuine issue requiring a trial based only on the evidence before her, without using the fact-finding powers in r. 20.04(2.1) and (2.2). If there appears to be a genuine issue requiring a trial, she should then determine whether the need for a trial can be avoided using the fact-finding powers. Rule 20.04(2.1) permits the motion judge to (1) weigh the evidence, (2) evaluate the credibility of a deponent, or (3) draw any reasonable inference from the evidence. Under r. 20.04(2.2.), the motion judge, for the purposes of exercising these powers, can order that oral evidence be presented. The expanded fact-finding powers may be used provided that their use is not against the interests of justice: see Hryniak, at para. 66.
[13] The Defendant Mr. Campbell’s primary submission is that it will be for the jury to determine whether the Landlord owed a duty of care to the Plaintiff and other members of the public, to ensure the Tavern was operating a proper and legal business, and to ensure the Tavern carried liability insurance. However, he has not identified any persuasive reason I am not able to make that determination on this motion. As set out above, Ms. Tang has sworn an affidavit providing evidence regarding the relationship between the Landlord and the Tavern. She also provided evidence on examination for discovery. The Defendant has not identified any credibility issues that need to be determined with respect to her evidence and did not cross-examine her on her affidavit.
[14] While the Tavern’s owner, Mr. Yang, did not provide any evidence on examination for discovery, it is not enough for the Defendant to assert that Mr. Yang may provide evidence at trial under summons. The responding party on a motion for summary judgment is required to put its “best foot forward” or risk having summary judgment awarded against it: Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200 at para. 26, aff’d 2014 ONCA 78, leave to appeal dismissed, 2015 39803 (SCC). Generally, the court is entitled to assume that the record on a motion for summary judgment contains all the evidence the parties would present at trial. Although there can be exceptions to this principle, where there is missing evidence, a burden of persuasion rests on the responding party to establish that it has taken reasonable steps to obtain the evidence it needs for the motion and that the missing evidence would be material to the disposition of the motion: Sweda Farms, at para. 28.
[15] The service of a Jury Notice does not automatically preclude summary judgment and does not change the test on a motion for summary judgment: Wallace v. Ralph-Edwards, 2019 ONSC 899, at para. 47; Hollingshead v. Aerarium Development Corporation Limited, 2019 ONSC 231, at para. 63; Alexander v. Doe et al., 2018 ONSC 588, at para. 46. Where judges have considered the Jury Notice to be a relevant factor in determining whether there is a genuine issue requiring a trial, typically their concern is whether it is in the interests of justice to use the expanded fact-finding powers in r. 20.04(2.1): Mitusev v. General Motors Corporation, 2014 ONSC 2342, at paras. 91-92; McDonald v. John/Jane Doe, 2015 ONSC 2607, at para. 45; Wardak v. Froom, 2017 ONSC 1166, at para 42.
[16] I am not aware of any evidence that the Defendant, Mr. Campbell made any effort to obtain evidence from Mr. Yang for the purposes of this motion, nor is there any evidence to suggest that Mr. Yang’s evidence at trial, were he to testify, would be inconsistent with Ms. Tang’s evidence. Indeed, the only evidence the Defendant Mr. Campbell has provided in response to this motion for summary judgment is an affidavit of counsel, though he also relies on Ms. Tang’s discovery evidence. The affidavit of counsel attaches witness statements obtained by the Landlord as part of its investigation, including evidence summarizing a conversation with Mr. Yang. The summary includes Mr. Yang’s statement that he did not have insurance, but otherwise does not comment on issues related to the Landlord or lease.
[17] The Defendant Mr. Campbell was required to put his best foot forward on this motion. It is not sufficient to speculate that some new evidence could emerge if Mr. Yang were to testify at trial. Ms. Tang has provided evidence on this motion, as well as on her Examination for Discovery, regarding the relationship between the Tavern and the Landlord. In view of this, I am able to make findings of fact and apply the law to those facts. This is not a case in which I need to use my expanded fact-finding powers, nor in which oral evidence is necessary to determine the issues in dispute. Therefore, the service of the Jury Notice does not preclude summary judgment in this case. I conclude that it is not necessary to defer the issue of the Landlord’s liability to a jury.
[18] Before determining whether summary judgment is appropriate, I also need to consider that the Landlord in this case is seeking only partial summary judgment. That is, the Landlord is seeking to have the Crossclaim dismissed; however, the claim brought by the Plaintiff against the Defendant, Mr. Campbell will continue. In Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d), the Court of Appeal outlined the concerns with granting partial summary judgment. These include the risk of duplicative proceedings and inconsistent findings. The Court of Appeal stated at para. 34: “A motion for partial summary judgment should be considered to be a rare procedure that is reserved for an issue or issues that may be readily bifurcated from those in the main action and that may be dealt with expeditiously and in a cost-effective manner.”
[19] In this case, I am satisfied that the issue of the Landlord’s liability is discreet and may be readily bifurcated from the other issues in the action. It may be dealt with in a cost-effective manner on this motion. Although the parties focused a substantial portion of their argument on the question of whether the Tavern served excessive alcohol to the Plaintiff, I find I do not need to determine that issue for the purpose of this motion. If the Tavern has been or is noted in default, it will be deemed to admit the allegations against it with respect to the over service of alcohol. However, even if the Tavern is deemed to admit, or the Defendant, Mr. Campbell is able to prove at trial that the Tavern served excessive alcohol to the Plaintiff, I conclude that this does not impact the analysis of the Landlord’s alleged liability. A finding that the Landlord was liable would require finding it had a duty of care to ensure the Tavern had insurance or a duty to monitor and supervise the Tavern, neither of which are impacted by whether or not the Plaintiff was over-served alcohol on the night in question. Further, as the Tavern has not defended this action nor initiated a Crossclaim against the Landlord and as the Plaintiff has agreed to release the Landlord from the action, I am able to determine the issue of the Landlord’s liability on this motion without the risk of subsequent inconsistent rulings on the same issue. Therefore, I am able to determine the question of the Landlord’s liability in a manner that is cost-effective and that will narrow the issues at trial. I conclude that in this case, summary judgment is a proportionate, more expeditious and less expensive means to attain a just result.
Did the Landlord owe a duty of care to manage and supervise the premises?
[20] I conclude that the Landlord did not owe a duty of care to manage and supervise the Tavern. In alleging a duty of care, the Defendant Mr. Campbell does not rely on the Landlord as an occupier and does not plead the Occupier’s Liability Act. Instead he submits that the Landlord owed a duty to manage and supervise the Tavern as a Landlord in the context of commercial host liability. However, the Defendant has not pointed to any cases in which a Landlord has been held liable for the excessive service of alcohol to the patron of a tenant. Meanwhile, the existing case law provides that a landlord is not ordinarily liable for the supervision and operation of a tenant’s business.
[21] Blount v. H. Corp. Coiffures Ltd. (L’attitudes International Images Centres), [2008] O.J. No. 3690 (S.C.) involved a motion for summary judgment by the property manager and landowner of a retail tenant, a salon and spa, in the Toronto Eaton Centre. The plaintiff alleged he sustained a head injury following an eyebrow piercing procedure, when he either fainted or fell and hit his head on the floor in the salon. The plaintiff argued that the landowner and property manager were required to oversee the operation of the salon and accept liability to third parties. The court found that no such duty existed.
[22] The facts of the current case similarly do not support a duty of care. The Landlord owned the two-storey building in which the Tavern was located. It leased units in the building to residential and commercial tenants, including the Tavern. Mr. Yang owned and operated the Tavern independently and without oversight from the Landlord. He leased the premises personally from the Landlord pursuant to a five-year commercial lease, the terms of which do not support the imposition of a duty on the Landlord toward members of the public. The relevant provisions of the lease include the following: Mr. Yang was entitled to quiet enjoyment of the premises without interruption or disturbance from the Landlord; Mr. Yang was required to ensure his business complied with applicable laws and regulations; Mr. Yang was responsible for repairing and maintaining the premises; Mr. Yang was required to indemnify the Landlord against all claims arising from the maintenance, use or occupancy of the premises; and Mr. Yang would obtain his own insurance, including public liability insurance naming the Landlord as an insured. None of these terms suggest any obligation on the Landlord to monitor and supervise the premises or otherwise take responsibility for the operation of the Tavern’s business.
[23] In addition, the conduct of the parties does not support the existence of a duty of care. Ms. Tang’s evidence was that her interactions with Mr. Yang were largely limited to collecting his monthly rent payments. She was not in attendance at the Tavern on the date of the incident. Although Ms. Tang’s ex-spouse owned and operated a tavern in the same location as the Tavern, following their divorce in 2009, her ex-spouse sold and transferred his business to Mr. Yang. This connection from several years prior to the incident does not support imposing liability on the Landlord. At the time of the incident in 2015, Mr. Yang was the tenant and he personally held the Liquor Sales Licence for the Tavern. I am not aware of any evidence that the Landlord had any involvement in the management or operation of the Tavern.
[24] I do not find that the Defendant Mr. Campbell’s reliance on commercial host liability cases assists. In order to find a duty of care, I must start by finding a relationship of proximity between the Landlord and third-party members of the public. As the Defendant is not able to provide any cases establishing such a duty, he relies on the principles behind commercial host liability, as set out in cases like Childs v. Desormeaux, 2006 SCC 18. However, in Childs, the Supreme Court of Canada specifically distinguished social hosts from commercial hosts on the basis that commercial hosts have the capacity to monitor alcohol consumption. Commercial hosts have a special incentive to monitor consumption, as they are being paid for service. In addition, patrons expect that the number of drinks they consume will be monitored. None of these factors apply to a Landlord who has no involvement in the operation and management of a commercial establishment. The Landlord in this case did not have any capacity to monitor or control the consumption of alcohol by patrons.
[25] Other cases relied on by the Defendant are distinguishable. In Derling v. Teskey, 2014 ONSC 1041, the Divisional Court upheld the motion judge’s refusal to strike a claim at a motion for certification. The motion judge held that it was not plain and obvious that the defendants, who were landlords to a group of propane handling companies allegedly responsible for a series of devastating explosions and fires, did not owe a duty of care to third parties in the residential neighbourhood surrounding the leased property. Given the nature of the motion, there was no final determination regarding whether a duty of care existed, only that it was not “plain and obvious” that one did not exist. In any event, in that case, the landlords maintained a measure of control through the lease. They had the right to inspect, control, monitor and investigate the tenant’s “dangerous propane business.” The Landlord in the current case had no such right or involvement, under the lease or in practice, in the business of the Tavern.
[26] In Youssef v. Redi-Mix Limited, 2018 ONSC 6409, the plaintiff motorist struck a donkey that had escaped onto a roadway. The court found that the landlord of the farmland from which the donkey had escaped was negligent for failing to maintain the property’s fences. However, in that case, under the Residential Tenancies Act and regulations, the landlord had a specific obligation to maintain the fences in a good state of repair. There is no comparable statutory obligation or obligation under the lease owed by the Landlord in this case.
[27] In short, given that, in the circumstances of this case, the Landlord did not have any involvement in the operation or management of the Tavern, there is no proximity to a third-party member of the public attending the Tavern. I conclude that the Landlord did not owe the Plaintiff a duty of care to manage and supervise the premises.
Did the Landlord owe a duty of care to ensure the Tavern had public liability insurance?
[28] The Defendant further submits that the Landlord owed a duty of care to members of the public to ensure the Tavern had liability insurance, as required by the terms of the lease. Again, he has not provided any cases in support of this position.
[29] As set out in similar circumstances in Cass v. 1410088 Ontario Inc., 2018 ONSC 5439, at para. 64, privity of contract excludes the Plaintiff from any benefit under the lease. In that case, the plaintiff suffered an ankle injury after slipping on liquid at a tavern. The court allowed the landlord’s motion for dismissal of the action against it, reasoning in part that the plaintiff patron was not a party to the lease between the tavern and the landlord. The Supreme Court of Canada has indicated that one of the requirements for relaxing the doctrine of privity of contract is if the parties to the contract intended to extend the benefit to the third party: Fraser River Pile & Dredge Ltd. v. Can-Dive Services Ltd., 1999 SCC 654, [1999] 3 S.C.R. 108, at para. 31. There is no evidence in the current case that the parties to the lease intended third parties to benefit from the insurance provisions in the lease. Rather, the obvious inference is that the Landlord included a requirement in the lease for the Tavern to obtain public liability insurance, and to name the Landlord as an insured, in order to protect the Landlord in the event of a claim. In any event, as set out in Cass, at para. 62, even if it was possible to find a relationship of proximity between the Landlord and a member of the public, the Landlord’s failure to enforce the terms of the lease did not cause the accident. There is no causal connection between enforcing the insurance terms of the Lease and the injuries the Plaintiff suffered. I conclude that the Landlord is not liable on this basis.
Disposition
[30] Accordingly, the motion for summary judgment is allowed and the Crossclaim is dismissed as against the Landlord. I also dismiss the Plaintiff’s claim as against the Landlord on the basis that the Plaintiff has agreed to release the Landlord from the action.
[31] I encourage the parties to reach an agreement with respect to costs. If they are unable to do so, the Landlord may provide written submissions of no more than four pages within 14 days of the date of this decision. The Defendant Mr. Campbell will then have 10 days to provide responding submissions with the same limitation on length. The costs submissions may be sent to my judicial assistant, Anna Maria Tiberio.
O'Brien, J.
Released: August 17, 2020
[1] Greg Campbell passed away on August 20, 2017 due to causes unrelated to the accident. Despite their shared last name, there was no prior connection between the Plaintiff and Defendant, Mr. Campbell. I will refer to Greg Campbell and the Estate of Greg Campbell in these Reasons as “the Defendant, Mr. Campbell.”