Court File and Parties

COURT FILE NO.: CV-19-819-A1

DATE: 2022/06/22

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: JOSHUA JAMES McHUGH, Plaintiff

AND:

2209664 ONTARIO INC. operating as KNIGHTS INN LONDON and EDWARD BUTLER operating as ED’S SNOW PLOWING, Defendants

AND:

BEEF BARON TAVERN INC., Third Party

BEFORE: Justice I.F. Leach

COUNSEL: M. Peres-Toledo, for the Plaintiff Ayron Brown, for the Defendant 2209664 Ontario Inc., operating as Knights Inn London No one appearing on behalf of the Defendant Edward Butler, operating as Ed’s Snow Plowing Talaal Bond, for the Third Party

HEARD: January 22, 2021

ENDORSEMENT

[1] Before me is a motion by the third party in this action, pursuant to Rule 21.01(1)(b) of the Rules of Civil Procedure, for an order dismissing the third party claim brought against it by one of the named co-defendants to the proceeding, on the suggested ground that the third party claim fails to disclose a reasonable cause of action.

Background

[2] By way of further background:

a. This litigation stems from an alleged slip and fall accident that is said to have taken place on the evening of January 9, 2018, here in the city of London. In particular, the plaintiff Joshua James McHugh, (“the Plaintiff”), is said to have slipped and fallen on an ice-covered concrete walkway located on premises owned by the defendant 2209664 Ontario Inc. operating as Knight’s Inn London, (“the Motel”), which were being maintained by the defendant Edward Butler operating as Ed’s Snow Plowing, (“the Maintainer”), pursuant to a contract with the Motel.

b. The statement of claim herein was issued on April 23, 2019, naming the Motel and Maintainer as co-defendants. Among the allegations pleaded therein, it was said:

i. that each defendant was an occupier of the relevant premises, within the meaning of the Occupiers’ Liability Act, R.S.O. 1990, c.0.2, as amended, making each defendant responsible for the relevant walkway in various ways, including snow removal, salting and “de-icing”;

ii. that each defendant accordingly owed a duty of care to the Plaintiff in that regard;

iii. that each defendant breached that duty by allowing the relevant concrete walkway to become slick with ice on the evening in question;

iv. that the Plaintiff slipped on the ice-covered concrete walkway after checking-in at the Motel’s main office, while walking to the room assigned to him;

v. that the Plaintiff fell backwards onto the ground, sustaining physical injuries that included a fractured right ankle that required surgical intervention and internal fixation, and further damages including economic loss; and

vi. that each defendant was liable to the Plaintiff for his alleged damages resulting from the slip and fall, pursuant to the provisions of the Negligence Act, R.S.O. 1990, c.N.1 as amended.

c. On June 7, 2019, the defendant Motel delivered a statement of defence and crossclaim.[^1] Among the allegations pleaded therein, the Motel:

i. specifically denied that the alleged incident was caused or contributed to by any breach of duty on its part;

ii. asserted that it had complied with all of its obligations under the Occupier’s Liability Act, supra, by methods that included contracting with the Maintainer as a competent contractor to ensure that snow and ice maintenance of the premises was done properly;

iii. denied that the Plaintiff had sustained the injuries and damages alleged, and asserted that any such injuries and damages resulted from conditions which had no cause or connection with the alleged slip and fall incident;

iv. asserted that any such injuries and damages resulted from the negligence of the Plaintiff, (i.e., the contributory negligence of the Plaintiff), the particulars of which included an assertion, at sub-paragraph 5(f) of the pleading, that the Plaintiff “consumed alcohol … which interfered with his ability to proceed in a safe manner”;

v. adopted the allegations in the Plaintiff’s statement of claim vis-à-vis the Maintainer, and claimed contribution and/or indemnity from the Maintainer for any damages, interest or costs for which the Motel may be found liable to the Plaintiff; and

vi. expressly asserted its rights via the Negligence Act, supra; e.g., in relation to its allegations regarding the Plaintiff’s contributory negligence and its crossclaim for contribution and indemnity from the Maintainer.

d. On August 27, 2019, the Motel delivered a third party claim against Beef Baron Tavern Inc., (“the Tavern”); a pleading which claims, inter alia, “contribution and indemnity for such amount as [the Motel] is liable to the Plaintiff by reason of any judgment, interest or costs and may be ordered to pay to the Plaintiff”. Among the other allegations pleaded therein, the Motel:

i. pled and relied upon the allegations in its statement of defence;

ii. denied that there was any negligence or other breach of duty on its part which either caused or contributed to the alleged damages being claimed by the Plaintiff;

iii. asserted that the Plaintiff was present in and a patron of the Tavern, where he was served and consumed a number of alcohol beverages, prior to his alleged slip and fall;

iv. asserted that the Plaintiff’s alleged slip and fall was caused or contributed to by the negligence and/or breach of duty of the Tavern, including a breach of its statutory duty under the Liquor Licence Act, R.S.O. 1990, in respect of its service of alcohol beverages to the Plaintiff prior to his alleged slip and fall, and particularized its allegations in that regard with assertions that the Tavern, inter alia:

1. served the Plaintiff with alcohol beverages “to the point of intoxication and beyond”;

2. served alcohol to the Plaintiff after it knew or should have known that the Plaintiff was intoxicated and was in danger of causing injury to himself;

3. failed to take any reasonable precautions to ensure the Plaintiff did not become intoxicated;

4. encouraged the Plaintiff to consume alcohol beverages;

5. failed to have a system in place to monitor the consumption of alcohol by persons on its premises or, in the alternative, failed to implement and enforce such a system;

6. failed to hire or train competent employees, servants or agents;

7. failed to employ Smart Serve certified bartenders and/or wait staff;

8. failed to adequately supervise its employees, servants or agents;

9. failed to adequately supervise its employees, servants or agents or, in the alternative, failed to fully and properly implement and enforce such a system; and/or

10. breached the provisions of the Liquor Licence Act, supra; and

v. expressly asserted its rights via the Negligence Act, supra; e.g., in relation to its assertion of its pleaded entitlement “to be indemnified by [the Tavern] for any such amounts [the Motel] is liable to the Plaintiff, including costs in defending the action brought by the Plaintiff, as well as costs in the Third Party proceedings”.

e. The Tavern served its motion record herein on all other parties, (via their respective counsel), or about January 4, 2021, making the motion returnable in regular motions court on January 22, 2021. Consistent with the provisions of Rule 21.01(2)(b) of the Rules of Civil Procedure, the motion record contains no evidence; i.e., it includes only the Tavern’s notice of motion, the Plaintiff’s statement of claim, the Motel’s statement of defence and crossclaim, and the Motel’s third party claim against the Tavern. The motion record nevertheless was supported by a factum and book of authorities.

f. On January 18, 2021, the Motel delivered material responding to the Tavern’s motion; i.e., a factum and book of authorities. Neither the Plaintiff nor the Maintainer defendant delivered any responding material.

g. On January 21, 2021, the Tavern delivered a further factum, replying to the factum and book of authorities delivered by the Motel.

h. When the matter came before me in regular motions court on January 22, 2022:

i. Counsel appeared on behalf of the Plaintiff, simply to indicate that the Plaintiff was taking no position in relation to the Tavern’s motion.

ii. No one appeared on behalf of the defendant Maintainer, but I was advised by counsel for the Tavern of his understanding that the Maintainer also was taking no position in relation to the Tavern’s motion.

iii. The motion then was fully argued by counsel for the Tavern and counsel for the Motel, following which I reserved my decision.[^2]

Party positions

[3] I have reviewed and reflected on the detailed written and oral submissions made by counsel for the Tavern and counsel for the Motel, and the following overview of their respective positions and arguments should not suggest otherwise.[^3]

[4] However, by way of broad summary, submissions advanced on behalf of the Tavern included the following:

a. that a defendant cannot claim contribution and indemnity from a third party with respect to damages for which that defendant will never be liable;

b. that the defendant Motel in this case, in its statement of defence and counterclaim, has made allegations of contributory negligence on the part of the Plaintiff that should and will reduce the Motel’s liability for damages to the Plaintiff in relation to all “alcohol related negligence” pursuant to section 3 of the Negligence Act, supra;

c. that the defendant Motel, by pleading and relying upon such contributory negligence on the part of the Plaintiff, already had “severed” any possibility of the Motel being made responsible for damages stemming from any “alcohol related negligence” and the plaintiff’s consumption of alcohol, and/or had “severed” the possibility of the Motel being held responsible for payment of any such damages, prior to the Motel’s issuance of any third party claim; i.e., leaving the Motel with “nothing to claim over for” vis-à-vis the Tavern in relation to damages for “alcohol related negligence”, (the only type of negligence pleaded against the Tavern in the Motel’s third party claim), pursuant to section 5 of the Negligence Act, supra;

d. that the third party claim by the Motel nevertheless attempts to claim contribution and indemnity from the Tavern in relation to “precisely the same” damages for “alcohol related negligence” which already have been “severed” from the damages for which the Motel might possibly be held liable to the Plaintiff;

e. that the law does not permit such third party claims by a defendant, which improperly try to “double dip” on legislated mechanisms, (i.e., apportionment of liability to Plaintiffs for contributory negligence and apportionment of responsibility for damages to third parties through claims for contribution and indemnity), capable of reducing the percentage of a Plaintiff’s damages for which a defendant ultimately may be held responsible;

f. that the Motel’s third party claim accordingly discloses no reasonable cause of action against the Tavern and should be dismissed.

[5] By way of a similarly broad summary, responding submissions advanced on behalf of the Motel included the following:

a. that the Motel readily acknowledges:

i. that a defendant may not seek contribution and indemnity in relation to damages for which that defendant will not be held liable;

ii. that, insofar as a plaintiff’s claim for damages from a defendant is reduced because of the plaintiff’s own contributory negligence, that defendant will not have to pay such damages, and accordingly does not have a claim for contribution and indemnity from a third party in relation to such damages; and

iii. that any attempt by a defendant to “double dip” on reduction of its responsibility to pay a percentage of the plaintiff’s damages, (i.e., by alleging that a portion of such damages were caused by the plaintiff’s contributory negligence, and then advancing a third party claim for contribution and indemnity in relation to that same portion of damages in respect of which contributory negligence was claimed), is impermissible;

b. that the Motel’s third party claim for contribution and indemnity from the Tavern nevertheless does not offend those well-established principles because:

i. contrary to characterizations made on behalf of the Tavern, the contributory negligence attributed to the Plaintiff via the Motel’s allegations in its statement of defence and crossclaim is of a fundamentally different and distinct character than the negligence attributed to the Tavern via the Motel’s allegations in its third party claim;

ii. in particular, the contributory negligence alleged by the Motel in its statement of defence and crossclaim is expressly focused on the fault that should be attributed to the Plaintiff for negligently consuming too much alcohol, whereas the Motel’s third party claim is expressly focused on the fault that should be attributed to the Tavern for negligently serving the Plaintiff too much alcohol;

iii. the provisions of the Negligence Act, supra, allow for apportionment of responsibility for a plaintiff’s damages between all those who have caused or contributed to those damages based on respective degrees of fault, including:

1. allocation of a percentage of that responsibility to the Plaintiff for his consumption of alcohol, thereby impairing his ability to take reasonable care for his own safety; and

2. allocation of a separate, distinct and non-overlapping percentage of that responsibility to the Tavern for its serving of alcohol in a manner that breached its separate and distinct duties of care owed by commercial hosts to their patrons, (at common law and by statute), which include obligations on such commercial hosts to ensure they do not serve patrons alcohol to the point of intoxication and beyond, and to take positive steps to protect patrons from the dangers of intoxication;

iv. the allegations of contributory negligence advanced in the Motel’s statement of defence and counterclaim in this case are intended to ensure that the defendant is not held liable for the percentage of the Plaintiff’s damages that should be apportioned to the Plaintiff himself, owing to his contributory negligence for consuming alcohol; and

v. the allegations of negligence advanced in the third party claim, and corresponding claim for contribution and indemnity from the Tavern, are intended to ensure that the Tavern does not escape responsibility for contributing to the remainder of the Plaintiff’s damages, (i.e., those damages remaining after the percentage of damages attributable to contributory negligence have been taken into account), which will include the percentage of the Plaintiff’s remaining damages that should be apportioned to the Tavern owing to its negligent breach of the common law and statutory duties owed by a commercial host, and responsibility for which will fall entirely on the named defendants, (including the Motel), in the absence of the Motel’s third party claim;

c. that the Motel’s third party claim against the Tavern for breach of its duties as a commercial host, causing or contributing to the Plaintiff’s damages, raises a separate, distinct and well recognized claim that for negligence not attributable to the Plaintiff, and which could not be raised against the Plaintiff by way of a contributory negligence defence; and

d. that the high threshold for striking a pleading pursuant to Rule 21.01(b) of the Rules of Civil Procedure accordingly has not been met in this case.

[6] By way of reply, submissions by counsel for the Tavern included the following assertions:

a. that it was impossible to separate the Tavern’s alleged liability for over-serving alcohol to the Plaintiff from the Plaintiff’s alleged contributory negligence for consuming alcohol, as both necessarily involved, depended upon and therefore stemmed from the Plaintiff’s consumption of alcohol;

b. that the Plaintiff “must accept an apportionment for moral blameworthiness of alcohol related negligence or seek to claim it from an additional party”, and the Plaintiff chose not to do the latter in this case; and

c. that the Motel’s pleading of contributory negligence in this case “deflects whatever moral blameworthiness [may be] associated with alcohol consumption back to the plaintiff”, such that the Motel “is thereby insulated from any apportionment of damages attributed to it”; i.e., in relation to such alcohol consumption.

General principles

[7] Before assessing such arguments in the course of my analysis below, I pause to note a number of general principles applicable to such matters.

[8] In that regard, the general rules and principles concerning motions of this nature were not disputed. In my view, they include the following:

a. Rule 21.01(1)(b) of the Rules of Civil Procedure permits a party to move before a judge “to strike out a pleading on the ground that it discloses no reasonable cause of action”, and the judge “may make an order or grant judgment accordingly”.

b. Rule 21.01(2)(b) of the Rules of Civil Procedure indicates that “no evidence is admissible” on a motion brought under Rule 21.01(1)(b); i.e., to determine whether the targeted/impugned pleading “discloses no reasonable cause of action”.

c. The primary focus in this context accordingly is on the targeted/impugned pleading, and a judge hearing a motion brought under Rule 21.01(1)(b) must accept the facts alleged in that targeted/impugned pleading as proven unless they are patently ridiculous or manifestly incapable of being proven. The court should not look beyond the pleadings to determine whether a claim has any chance of success; to do otherwise is to effectively conduct a summary judgment proceeding under Rule 20 of the Rules of Civil Procedure, without having the sworn evidence of the parties as a basis for determining whether there is a genuine issue for trial.[^4]

d. The governing test is to ask whether, (assuming that the facts as stated in the targeted/impugned pleading can be proved), is it “plain and obvious”, and beyond reasonable doubt, that the pleading discloses no reasonable cause of action and has no reasonable prospect of success.[^5]

e. In applying the required test, the targeted/impugned pleading should be read generously, to accommodate drafting deficiencies.[^6]

f. Novelty of a pleaded claim is not, by itself, a concern or sufficient reason to find “no reasonable cause of action”. A novel claim should be struck at the pleadings stage only where it is clearly unsustainable. The fact that the law has not yet recognized a particular cause of action also is not determinative. Nor should the court, at an early stage of the pleadings, dispose of matters that are not fully settled in the jurisprudence.[^7]

g. The purpose of the rule is to eliminate hopeless claims and should be used with care. In that regard, it should be remembered that the law imposes a very low standard for the demonstration of a cause of action; i.e., the threshold for sustaining a pleading under Rule 21.01(1)(b) of the Rules of Civil Procedure is not a high one. In particular, the court will not strike a claim where there is at least a germ or scintilla of a cause of action, and some chance of success.[^8]

[9] As for whether the specific targeted/impugned pleading in this case discloses no reasonable cause of action, (i.e., whether it is plain and obvious that the third party claim asserted by the Motel against the Tavern has no reasonable prospect of success), I will have more to say about relevant principles and their application during the course of my analysis.

[10] However, as the required determination in this case requires an understanding of the manner in which the law of Ontario allows for the apportionment of responsibility for damages sustained by a plaintiff injured by negligence, I think it helpful to outline, at the outset of my analysis, some further general rules and principles in that regard. In my view, they include the following:

a. At common law, our early courts developed certain rules and principles of negligence law that later courts and modern legislatures increasingly viewed as anachronistic and unfair when it came to restrictions on the ability of triers to apportion responsibility for a plaintiff’s damages among all parties who may have caused or contributed to those damages. Of particular concern were rules or “doctrines” developed by the common law, (and which many modern legislatures have sought to eliminate and correct), whereby:

i. any established contributory negligence on the part of a plaintiff operated as a complete bar to the plaintiff recovering any damages; and

ii. in situations where a plaintiff’s damages had been caused by the negligence of two or more concurrent tortfeasors,[^9] a concurrent tortfeasor was denied any right to recover, from his or her “co-offender” or “co-offenders”, any part of the damages he or she had been obliged to pay to the plaintiff.[^10]

b. In its current form, the response of the Ontario Legislature to such concerns is found in the Negligence Act, supra, the full text of which is attached to these reasons as Appendix “A”, for ease of reference. The primary purpose of the legislation is to enable apportionment of responsibility for damages when the fault of two or more persons causes or contributes to those damages; i.e., when there is concurrent negligence of two or more persons. In particular, once it has been established that damages were caused by the negligence of two or more persons, the job of the trier is to apportion ultimate responsibility for those damages based on the degree of fault of those persons, (i.e., based on the degree or percentage of their respective “moral blameworthiness”), rather than any attempt to divide joint causation.[^11] In that regard:

i. Section 1 of the Negligence Act, supra, provides that, where damages have been caused or contributed to by the fault or neglect of two or more persons, each is jointly and severally liable to the plaintiff who has suffered those damages, but as between themselves, “each is liable to make contribution and indemnify each other in the degree in which they are respectively found to be at fault or negligent”.[^12]

ii. Section 2 of the Negligence Act, supra, permits a defendant who has settled with the plaintiff for more than its proportionate share of the plaintiff’s damages to make a claim for contribution and indemnity against another person “who is, or would if sued have been, liable” for those damages.[^13]

iii. Section 5 of the Negligence Act, supra, contemplates the situation where a defendant has been sued but believes there is another wrongdoer who caused or contributed to the plaintiff’s injury and has not yet been sued. It allows a defendant to pursue a right of contribution and indemnity against that person by third party claim, according to the rules of court for adding third parties.[^14] Such a third party claim, based on the contribution and indemnity provisions of the Negligence Act, supra, does not require that the third party owe a duty of care to the defendant. It is sufficient that the third party owe a duty of care to the plaintiff, making the third party someone who, if sued by the plaintiff, would have been liable in respect of damages suffered by the plaintiff.[^15]

iv. The aforesaid contribution and indemnity provisions of the Negligence Act, supra, must be understood in light of the purpose they serve. In particular:

1. as a general rule, a wrongdoer who caused or contributed to a plaintiff’s injury is liable to compensate that plaintiff in full, even if another wrongdoer caused or contributed to the plaintiff’s injury;

2. the contribution and indemnity provisions nevertheless allow a wrongdoer who is not solely at fault, but at risk of being held liable for 100% of the plaintiff’s damages, to claim indemnity from another wrongdoer to the extent of the latter wrongdoer’s relative degree of fault; and

3. if the defendant’s claim for contribution and indemnity is successful, (i.e., resulting in a finding that the third party’s fault or negligence caused or contributed to the plaintiff’s damages), the defendant will remain 100% liable to the plaintiff, but may obtain indemnity from the third party according to the third party’s relative degree of fault.[^16]

v. However, pursuant to section 3 of the Negligence Act, supra, a plaintiff’s own contributory negligence will reduce his or her claim for damages against a defendant. In particular:

1. a defendant to a negligence claim accordingly may raise, as a defence, fault or negligence on the part of the plaintiff that caused or contributed to the plaintiff’s damages; and

2. if that defence is successful, (i.e., resulting in a finding of fault or negligence on the part of the plaintiff that contributed to his or her damages), the plaintiff’s claim for damages against the defendant will be reduced according to the plaintiff’s relative degree of fault.[^17]

vi. Section 4 of the Negligence Act, supra, is intended to apply only when it is fair to apportion responsibility equally, in situations where it is “not practicable to determine the respective degree of fault or negligence as between any parties to an action”. Where the wrongdoing by one party is recognized as greater, either in magnitude or because that party engaged in different kinds of contributing negligence, it is the duty of the trier to assign a larger proportion of fault to that party.[^18]

c. In applying the aforesaid provisions of the Negligence Act, supra, it must be remembered that contribution rights arise only where a defendant is required to pay more than its proportionate share of damages; i.e., that the purpose of claims for contribution and indemnity is to allow a defendant wrongdoer to obtain indemnity for payment of damages to the plaintiff that exceed that wrongdoer’s relative degree of fault. A defendant’s exposure in that regard, (and corresponding potential claims for contribution and indemnity), therefore effectively may be eliminated or reduced where there is a voluntary or circumstantial reduction in the plaintiff’s claim against that defendant. For example:

i. In his or her statement of claim, a plaintiff might voluntarily and specifically limit his or her claims against a sole named defendant to that defendant’s proportionate share of fault, (i.e., to losses attributable to that defendant’s negligence), instead of claiming, from the named defendant, 100% of all the plaintiff’s damages jointly caused by the defendant and concurrent tortfeasors. In such circumstances, the named defendant is only at risk of being held liable for the portion of damages attributable to the defendant’s negligent conduct, there is no risk of the defendant having to pay damages to the plaintiff that exceed that wrongdoer’s relative degree of fault, and there accordingly is no need or basis for the defendant to claim contribution and indemnity from other concurrent tortfeasors by way of a third party claim.[^19]

ii. Alternatively, it may be that the plaintiff’s claims for damages against a defendant are reduced by a finding of contributory negligence on the part of the plaintiff, and a corresponding apportionment of damages to the plaintiff according to the degree of his or her fault pursuant to section 3 of the Negligence Act, supra. Such an attribution of negligence to the plaintiff reduces the plaintiff’s claim against a defendant, “so that the defendant is only at risk of being held liable for the portion of the plaintiff’s damages attributable to the defendant’s negligent conduct and to the distinct negligent conduct of other parties; i.e., negligent conduct that is distinct from the plaintiff’s negligent conduct”.[^20] [Emphasis added.]

d. A defendant may not “double dip” into or effectively benefit twice from the mechanisms of the Negligence Act, supra, (i.e., avoidance of responsibility for payment of any portion of the plaintiff’s damages attributable to the plaintiff’s contributory negligence via section 3 of the Act, and avoidance of responsibility for ultimate payment of any portions of damages attributable to concurrent tortfeasors via sections 1, 2 and 5 of the Act), so as to reduce that defendant’s liability below the apportionment of damages for which that defendant properly should be held responsible according to that defendant’s degree of responsibility. That would be the result in situations where negligence identified in a third party claim for contribution and indemnity actually is negligence attributable to the plaintiff, in respect of which the defendant’s exposure already will be reduced by a contributory negligence defence. For such reasons:

i. whether a claim by a defendant seeking contribution and indemnity from a third party for alleged negligence that caused or contributed to the plaintiff’s damages discloses a reasonable cause of action is a function of whether that negligence is attributable to the plaintiff; and

ii. if the negligence alleged in the third party claim is attributable to the plaintiff, the defendant has no cause of action against the third party.[^21]

e. A third party claim accordingly will not lie against another person with respect to an obligation belonging to the plaintiff, (i.e., the plaintiff’s obligation to accept responsibility for a portion of his or damages caused or contributed to by his or her own contributory negligence), which the defendant can raise directly against the plaintiff by way of defence. In particular, where the only negligence alleged against the third party is attributable to the plaintiff, there is no need for third party proceedings since the defendant has his or her full remedy against the plaintiff. On the other hand, “where the pleadings and the alleged facts raise the possibility of a claim against the third party for which the plaintiff may not be responsible, the third party claim should be allowed to stand”.[^22]

[11] With the above background, party positions and principles in mind, I turned to my consideration of whether the relief sought by the Tavern’s motion should be granted or denied; i.e., to a determination of whether the Motel’s third party claim against the Tavern in this particular case discloses no reasonable cause of action.

Analysis

[12] For the reasons that follow, I accept and agree with the arguments and position of the Motel, as outlined and summarized above.

[13] In my view, there was no real dispute between the Tavern and the Motel that a defendant should not be permitted to seek contribution and indemnity from a third party in relation to damages caused by negligence which a defendant attributes or could attribute to the plaintiff by pleading a defence of contributory negligence.

[14] Nor do I think there could there be any legitimate dispute in that regard, given the general principles and authorities noted above.

[15] In my view, the present dispute between the Tavern and the Motel, in relation to the propriety of the latter’s third party claim, stems from:

a. the Tavern incorrectly approaching alcohol-related negligence and damages as if they were homogenous and indivisible monoliths, incapable of being separately apportioned; and

b. the Tavern’s inaccurate characterization, in fact and law, of what the Motel actually has asserted by its contributory negligence defence pleaded vis-à-vis the Plaintiff, and by its third party claim seeking contribution and indemnity from the Tavern.

[16] In relation to the first point, the written material and oral submissions tendered on behalf of the Tavern repeatedly referred to “alcohol-related negligence” without qualification or differentiation, (i.e., as if any and all negligence related to alcohol necessarily refers to precisely the same fault or delict, to which all damages caused by any alcohol-related negligence should be apportioned), and/or referred to negligence relating to a plaintiff’s consumption of alcohol and negligence relating to a tavern’s service of alcohol as if they were the same thing. In particular:

a. In its notice of motion, the Tavern asserted:

i. that the Motel “claims contributory negligence from the Plaintiff for any damages that may be attributed to alcohol related negligence”;

ii. that the Motel, through its third party claim for contribution and indemnity from the Tavern, “seeks several liability from [the Tavern] as it pertains to allegations of alcohol related negligence”; and

iii. that by “claiming contributory negligence against the Plaintiff for alcohol related negligence prior to issuing the Third Party Claim, [the Motel] has already severed any damages caused by alcohol related negligence from any amounts it may be liable”.[^23]

b. In his factum, counsel for the Tavern acknowledged that the Motel had pleaded a defence of contributory negligence in relation to the plaintiff’s consumption of alcohol,[^24] and that the Motel’s third party claim sought contribution and indemnity from the Tavern in relation to the Tavern’s service of alcohol,[^25] but then proceeded to argue as if there was no distinction whatsoever between the two; i.e., as if they were references to precisely the same negligence. In particular, after expressly noting that the Motel’s defence pleading of contributory negligence relates to the plaintiff’s consumption of alcohol, whereas the Motel’s third party claim for contribution and indemnity refers to the Tavern’s negligent service of alcohol, counsel for the Tavern then asserted:

i. that “the only allegations of negligence made by the [Motel] against the third party [Tavern] relate to the service and plaintiff’s consumption of alcohol”;[^26] and

ii. that the Motel “seeks contribution and indemnity from the third party in respect of the plaintiff’s consumption of alcohol” but “claimed this negligence is attributable to the plaintiff in its Statement of Defence”.[^27]

c. In his oral submissions, counsel for the Tavern repeatedly made similar broad and unqualified references to “alcohol-related negligence”, as well as assertions that the alcohol-related negligence addressed by the Motel’s pleading of contributory negligence on the part of the Plaintiff in consuming alcohol and the alcohol-related negligence alleged in the third party claim against the Tavern relating to its service of alcohol were the same thing. For example, it was said:

i. that the Motel, in its statement of defence, had claimed “contributory negligence from the plaintiff in respect of alcohol-related negligence”, such that any damages “that may be attributed to the plaintiff’s intoxication and subsequent impairment” would be apportioned to the Plaintiff;

ii. that the Motel, by its pleading of contributory negligence, had “carved out the plaintiff’s alcohol related negligence and then issued a third party claim for contribution and indemnity for the same negligence”;

iii. that “the alcohol-related negligence, if any, has already been severed off to the plaintiff”, such that the Motel “can’t claim over again for alcohol-related negligence because that’s been passed out”;

iv. that, having regard to the Motel’s defence pleading of contributory negligence, “it must be assumed that it’s true that the plaintiff was negligent for his own intoxication and whatever impairment that brought about giving rise to damages”, such that “the plaintiff is going to assume the risk for any negligence associated with alcohol related negligence”;

v. that the defendant Motel, by its pleading of contributory negligence, “deflects all alcohol related negligence” and “will never be held liable for any alcohol related damages”;

vi. that the defendant Motel’s third party claim against the Tavern is “limited to the service of alcohol, which has already been claimed over” via the Motel’s defence pleading of contributory negligence; and

vii. that the defendant Motel, through its pleading of contributory negligence, was “actually saying” that “it’s the plaintiff’s fault for alcohol”, and “some other party can’t be responsible for something that’s been alleged against the plaintiff”.

[17] When pressed about such comments, counsel for the Tavern provided responses indicating that the failure to make any distinction between alcohol-related contributory negligence of the Plaintiff alleged in the Motel’s statement of defence, and the alcohol-related negligence of the Tavern alleged in the Motel’s third party claim, was quite deliberate. As he put it: “I mean, realistically, you can’t have negligence against a bar without somebody consuming alcohol. You can’t.” In reply, he added: “The nexus of all alcohol related claims is consumption. … It is impossible to intoxicate anyone without consumption. We can’t have intoxication without consumption.”

[18] I fundamentally disagree with the approach taken by the Tavern and its counsel in that regard, for reasons that include the following:

a. I think it well settled that our law actually recognizes various and distinct types of “alcohol-related negligence”, attributable to different types of actors, all of which concurrently may cause or contribute to a plaintiff’s damages. Such distinct types of “alcohol-related negligence” include the following:

i. Contributory negligence attributable to a plaintiff, for his or her fault in consuming alcohol to an extent that impaired his or her ability to take reasonable care of himself or herself, in circumstances where that want of care caused or contributed to the plaintiff’s injuries.[^28]

ii. Negligence attributable to an alcohol-supplying commercial host, (e.g., taverns, bars, restaurants and other establishments where alcohol is served to patrons in exchange for payment/consideration), based on a breach of its duties owed pursuant to common law and/or liquor licencing legislation, (in circumstances where resulting damages were reasonably foreseeable), such as:

1. failing to ensure that alcohol is not served to patrons in a manner that would intoxicate them or increase their intoxication; and/or

2. failing to take positive steps to protect patrons and others from the foreseeable dangers created by intoxication of patrons, including dangers to the intoxicated patrons themselves.[^29]

iii. Negligence attributable to others who, standing in a “special relationship” with a person intoxicated by alcohol, and knowing of a person’s alcohol-related intoxication, nevertheless fail to take positive action to protect that person; e.g., by placing him or her in a position where it is foreseeable that the intoxicated person could suffer injury from “inability to handle the situation in which he or she has been placed”.[^30]

b. I also think it well settled that our law now clearly accepts that the existence of a plaintiff’s alcohol-related contributory negligence should not and does not negate the possible co-existence of separate and distinct alcohol-related negligence of commercial hosts and others for which a plaintiff should not be held responsible; i.e., negligence of those who breach a recognized duty of care to a plaintiff who consumes alcohol, and thereby cause or contribute to that plaintiff’s injuries and damages. Such recognition of separate and co-existing alcohol-related liabilities reflects not only the enactment of apportionment legislation such as the Negligence Act, supra, emphasizing that all tortfeasors concurrently causing and contributing to a plaintiff’s loss should be held responsible for that loss, (even if such responsibility may be diminished by a degree of contributory negligence on the part of a plaintiff), but also a recognition that an intoxicated person is a vulnerable person, with an impaired ability to make sensible self-protective decisions, thereby negating any proper or valid voluntary assumption of risk by that person. In particular:

i. the ability of patrons and/or guests imbibing alcohol to fully appreciate and accept the risks of injury, (e.g., risks of injury flowing from a breach of duty by their commercial or social hosts), is correspondingly diminished;[^31] and

ii. more generally, it is wrong in principle to dissolve a duty of care that arises on the facts of a case merely because the person to whom the duty is owed knows that he or she may be exposing himself or herself to some danger, and especially so when there is applicable apportionment legislation.[^32]

c. For such reasons, our law now regards each form of alcohol-related misconduct as separate and distinct “fault or negligence” capable of concurrently causing or contributing to a plaintiff’s injuries and damages, in turn giving rise to a claim for attribution of apportioned responsibility for such damages pursuant to the Negligence Act, supra. Were it otherwise, our courts would not routinely make such attributions, clearly differentiating between a plaintiff’s alcohol-related contributory negligence and the alcohol-related negligence of others, (including commercial hosts such as the Tavern in this case), when granting judgments apportioning responsibility for a plaintiff’s damages.[^33]

d. In this case, it therefore is entirely possible for the trier in this case to make findings whereby the plaintiff Mr McHugh’s damages were caused or contributed to by a number of concurrent causes, (each satisfying the applicable “but for” or “material contribution” test for causation), including not only the alcohol-related contributory negligence of the Plaintiff and the occupier-related negligence of the Motel and the Maintainer, but also the concurrent yet notionally separate and distinct alcohol-related commercial host negligence of the Tavern; negligence for which the Tavern should then bear ultimate responsibility for a portion of the plaintiff’s damages commensurate with the Tavern’s determined degree of fault or negligence, pursuant to the Negligence Act, supra.[^34]

e. In such circumstances, if the Motel is not permitted to seek contribution and indemnity from the Tavern pursuant to its third party claim, (despite the Tavern’s fault or negligence having been a concurrent cause of the plaintiff’s damages)[^35], the Motel unfairly will be placed at risk of having to assume responsibility for ultimate payment of more damages than it would have had to pay if all those actually responsible for the plaintiff’s damages were before the court; i.e., a situation of injustice which the Negligence Act, supra, was intended to prevent. By way of a sustained hypothetical example, with variation, to illustrate the point:

i. If the plaintiff and all alleged tortfeasors (the Motel, the Maintainer and the Tavern) are before the court, it is entirely possible that the trier might find that the plaintiff Mr McHugh’s alleged slip and fall damages would not have occurred “but for” each of the following factors being simultaneously at work at the time of the alleged accident:

1. the contributory alcohol-related negligence of Mr McHugh in consuming alcohol to excess, impairing and diminishing his ability, (e.g., by paying more attention to ice-covered surfaces on which he was walking, and/or by having a greater capacity to maintain his balance if he slipped on an ice-covered surface), to take reasonable care of himself;

2. the negligence of the Motel and/or Maintainer in failing to ensure that the relevant walkway was reasonably safe, (e.g., not covered in slippery ice), for its intended pedestrian use by guests staying at the hotel; and

3. the alcohol-related negligence of the Tavern for any or all of the reasons alleged in paragraph 5 of the Motel’s third party claim, including but not limited to serving Mr McHugh alcohol to the point of intoxication and beyond, serving alcohol to Mr McHugh after the Tavern knew or should have known that Mr McHugh was intoxicated and in danger of causing harm to himself, and breaching the provisions of the Liquor Licence Act, R.S.O. 1990, c.L.19.

ii. Pursuant to the provisions of the Negligence Act, supra, in those circumstances the trier then would be obliged to apportion responsibility for Mr McHugh’s damages between Mr McHugh, the Motel, the Maintainer and the Tavern in various percentages, commensurate with the degree to which each was respectively found to be at fault or negligent; for example, (and merely for purposes of this sustained example), apportioning responsibility to Mr McHugh at 60%, to the Motel at 15%, to the Maintainer at 15%, and to the Tavern at 10%.[^36]

iii. In that sustained example, the defendants then each would be jointly and severally liable to Mr McHugh for 40% of his proven damages; i.e., his damages remaining after a 60% deduction was made to reflect the damages apportioned to Mr McHugh’s alcohol-related contributory negligence. By virtue of its joint liability to Mr McHugh, the Motel might then be obliged to initially pay Mr McHugh the entire 40% of such damages. However, pursuant to the Negligence Act, supra, its crossclaim against the Maintainer, and its third party claim against the Tavern, the Motel then could claim contribution and indemnity from the Maintainer and Tavern to the extent of their several liability, leaving the Motel ultimately responsible only for payment of 15% of the plaintiff’s damages; i.e., reflecting the Motel’s allocated degree of concurrent fault or negligence causing or contributing to Mr McHugh’s damages.

iv. However, in the same example, if the Tavern and its separate and distinct alcohol-related contributory negligence are not before the trier for apportionment consideration pursuant to the Negligence Act, supra, (e.g., because the Motel is not permitted to advance its third party claim against the Tavern for contribution and indemnity), and the trier remains consistent with its 60% determination regarding the degree of Mr McHugh’s contributory negligence, the remaining 40% of Mr McHugh’s damages must be allocated, pursuant to the Negligence Act, supra, among the concurrent tortfeasors, before the court as parties to the litigation, who caused or contributed to those damages. If the trier similarly remains consistent with its determination that the respective degree of fault or negligence of the Motel and the Maintainer should be the same, each would be apportioned ultimate responsibility for 20% of Mr McHugh’s damages. By virtue of its joint liability to Mr McHugh, the Motel might still then be obliged to initially pay Mr McHugh the entire 40% of such damages. Pursuant to the Negligence Act, supra, and its crossclaim against the defendant Maintainer, the Motel could then claim contribution and indemnity from the Maintainer to the extent of its several liability. However, because the Tavern is not before the court as a concurrent tortfeasor made a party to the litigation, the Motel can only recover 20% of the damages from the Maintainer, leaving the Motel ultimately responsible for 20% of the plaintiff’s damages. Compared with the scenario and outcome described in the previous sub-paragraph, the Motel would be obliged to absorb ultimate responsibility for a greater share of the plaintiff’s damages; i.e., because it was not permitted to bring the Tavern and concurrent alcohol-related negligence as a commercial host before the court via a third party claim, even though that particular alcohol-related negligence, (separate and distinct from the plaintiff’s alcohol-related contributory negligence already taken into account), concurrently caused or contributed to the plaintiff’s damages.

v. As shown by this example, in my view it is important not to lose sight of how responsibility for a portion of the damages caused by a concurrent tortfeasor, not before the court by way of a third party claim, may be passed onto a concurrent defendant tortfeasor through operation of the Negligence Act, supra, even though the defendant tortfeasor was held liable for a form of negligence entirely different from the type of negligence committed by the concurrent tortfeasor not before the court by way of an appropriate third party claim. In particular, I think it no answer for such a third party to say, (as counsel for the Tavern repeatedly emphasized in this case), that a third party claim for contribution and indemnity should not be permitted because there is no risk of the relevant defendant, (who seeks to advance the third party claim), being held responsible for the type of liability alleged against the targeted third party. For example, in this case, there is no allegation that the Motel provided any form of alcohol to the plaintiff, and therefore no realistic possibility of the Motel being found liable for alcohol-related liability of a commercial host. However, that does not negate the very real possibility of the defendant Motel being made ultimately responsible for payment of a portion of the plaintiff’s damages that properly and fairly might be apportioned to the Tavern for its alcohol-related commercial host negligence, if the Tavern, (assumed to be a concurrent tortfeasor for purposes of this motion), is not before the court via an appropriate third party claim. The point repeatedly made by counsel for the Tavern regarding different types of liability of concurrent tortfeasors is simply not relevant to the unfairness which the Negligence Act sought to address; i.e., by enabling triers to apportion responsibility for a plaintiff’s damages between concurrent tortfeasors, however they came to have that status.

[19] In short: while no one can argue with the proposition that damages attributable to the contributory negligence of a plaintiff cannot be the subject of a claim for contribution and indemnity from a third party, the arguments made by the Tavern in support of its motion are premised on false equivalency. In particular:

a. Alcohol-related contributory negligence of a plaintiff and alcohol-related negligence of a commercial host are simply not the same thing; i.e., the alcohol-related commercial host negligence is a separate and distinct form of negligence that is not attributable to an intoxicated plaintiff.

b. Damages apportionable to the alcohol-related contributory negligence of a plaintiff are simply not the same as damages apportionable to the alcohol-related negligence of a commercial host.

[20] Moreover, in a case where alcohol-related contributory negligence of a plaintiff, the separate and distinct alcohol-related commercial host negligence of a tavern, and the separate and distinct non-alcohol-related negligence of another tortfeasor all concurrently caused or contributed to a plaintiff’s damages, (i.e., applying the mandated legal test for causation to the negligence of each tortfeasor), it is entirely possible that the concurrent tortfeasor guilty of non-alcohol-related negligence, and named as a defendant, unfairly will bear responsibility for payment of a greater apportioned share of the plaintiff’s damages if the negligent commercial host concurrently causing or contributing to the plaintiff’s damages is not before the court; i.e., if the negligent commercial host is not named as a defendant, and the concurrent tortfeasor guilty of non-alcohol-related negligence and named as a defendant is not permitted to bring a third party claim for contribution and indemnity, pursuant to section 5 of the Negligence Act, supra.

[21] As noted above, (in paragraph 15 of these reasons), the Tavern’s failure to properly distinguish between a plaintiff’s alcohol-related contributory negligence and the alcohol-related negligence of a commercial cost is compounded in this case by the Tavern’s inaccurate characterization of what the Motel actually has asserted by its contributory negligence defence pleaded vis-à-vis the Plaintiff, and by its third party claim seeking contribution and indemnity from the Tavern. In that regard:

a. As emphasized by counsel for the Motel, the Tavern’s characterization in that regard is wrong in fact. In particular:

i. As noted above, in paragraph 2(c)(iv) herein, in paragraph 5 of its statement of defence and crossclaim, the Motel pleaded “that if the Plaintiff has sustained the injuries and damages as pleaded, … they were caused as a result of the negligence of the Plaintiff, the particulars of which include, but are not limited to, the following: … He consumed alcohol … which interfered with this ability to proceed in a safe manner.” [Emphasis added.]

ii. Read properly and fairly, the Motel’s pleaded contributory negligence defence is focused entirely on the alleged negligence of the Plaintiff in consuming alcohol to the point of impairment, and the damages caused by that negligence. In my view, it is therefore both inaccurate and unfair to repeatedly suggest, as counsel for the Tavern does, that the contributory negligence defence pleaded by the Motel seeks to attribute all forms of “alcohol-related negligence”, all “liability that may be attributed to the plaintiff’s intoxication and subsequent impairment”, and/or all damages caused by “alcohol-related negligence” or the “plaintiff’s intoxication and subsequent impairment” to the Plaintiff.

iii. As noted above, the Motel, in paragraphs 4 and 5 of its Third Party Claim, pleaded “that the … slip and fall was caused or contributed to by the negligence and/or breach of the Third Party”, in that “prior to the … slip and fall, the Plaintiff was present in and patrons (sic) of the [Tavern]”, and “the Third Party … was negligent and/or in breach of its statutory duty under the Liquor Licence Act in respect of its service of alcohol beverages to the Plaintiff”; alleged negligence and breaches which are then particularized in ten sub-paragraphs indicating what “It”, (i.e., the Tavern), is said to have done in that regard.

iv. Read properly and fairly, the Motel’s third party claim is focused on the alleged negligence and breach of statutory duty of the third party Tavern in its service of alcohol to the Plaintiff, and the damages caused by that negligence and breach of statutory duty. In my view, it accordingly is inaccurate and unfair to repeatedly suggest, as counsel for the Tavern does, that the Motel’s pleaded third party claim seeks contribution and indemnity in relation “to the precise same” liability and damages attributed to the Plaintiff in the Motel’s pleaded contributory negligence defence.

v. In my view, the above findings are warranted by a review of the Motel’s pleadings on their face. However, to the extent necessary, I think the above finding in relation to the Motel’s third party claim is buttressed by reading that targeted/impugned pleading generously, to accommodate any drafting deficiencies in that regard – as one must do when determining a motion brought pursuant to Rule 21(1)(b) of the Rules of Civil Procedure.[^37]

b. In my view, the Tavern’s inaccurate characterization of the Motel’s pleading are not only wrong in fact, but also wrong in law. In particular:

i. Regardless of party pleadings, a plaintiff cannot be held responsible in law for the independent alcohol-related negligence of a commercial host not acting as the plaintiff’s agent, and a third party commercial host cannot be held responsible in law for a plaintiff’s independent contributory negligence. In other words, even if the Motel’s pleadings were construed in a manner consistent with the submissions of counsel for the Tavern, they could not and would not have the outcome and effect suggested by counsel for the Tavern.

ii. By operation of law, the Plaintiff’s alcohol-related contributory negligence and corresponding apportioned share of responsibility for his damages therefore would not overlap with, let alone coincide completely with, the Tavern’s alcohol-related negligence as a commercial host and its corresponding apportioned share of responsibility for the Plaintiff’s damages.

iii. In my view, such legal realities are reflected in and reinforced by the condensed but effective test for determining the propriety of a third party claim for contribution and indemnity highlighted by our Court of Appeal in Hengeveld v. The Personal Insurance Company, supra, wherein it was emphasized that whether a third party claim for contribution and indemnity discloses a reasonable cause of action is a function of whether the negligence alleged in the particular third party claim is attributable to the plaintiff. In this particular case:

1. The negligence and breach of statutory duty alleged against the Tavern in the Motel’s third party claim is not something attributable to the Plaintiff. It is fault or negligence which our law attributes to the Tavern as a commercial host.

2. The Motel’s third party claim for contribution and indemnity from the Tavern therefore discloses a reasonable cause of action.

3. It therefore self-evidently is not “plain and obvious” that the Motel’s third party claim discloses no reasonable cause of action, and the Tavern’s Rule 21.01(1)(b) motion herein must be dismissed accordingly.[^38]

[22] In reaching that conclusion, I have considered and reflected upon all arguments and submissions of counsel for the Tavern, (some of which I already have noted and addressed), but was not persuaded by them.

[23] For example, as noted above, in the course of his submissions, counsel for the Tavern suggested that a defendant tortfeasor, facing claims by a plaintiff who was intoxicated at the time of his or her injuries, is unable to advance third party claims based on alleged concurrent alcohol-related liability of a commercial host in situations where the plaintiff has chosen not to advance such claims directly, and the defendant already has put the plaintiff’s intoxication in issue by pleading alcohol-related contributory negligence. In that regard, it was said that the alcohol-related liability of a commercial host could not be “separated” into a distinct cause of action, (i.e., separate and apart from the alcohol-related liability of the Plaintiff), as any such claims necessarily would on the same/common underlying factual “nexus” of the Plaintiff’s intoxication, already being addressed in the litigation by the Plaintiff’s alleged contributory negligence in that regard. I reject that submission in its entirety, for reasons that include the following:

a. A plaintiff’s assertion of alcohol-related commercial host liability for a plaintiff’s damages and a defendant’s assertion of alcohol-related contributory negligence on the part of the plaintiff also both depend on the same/common underlying “nexus” of the plaintiff’s intoxication, yet that obviously now presents no bar to a plaintiff asserting a claim for the separate and distinct fault or neglect of a commercial host which caused or contributed to his or her injuries, and a judgment apportioning a degree of responsibility for that plaintiff’s damages to the negligent commercial host.[^39] There is no merger of the plaintiff’s alcohol-related contributory negligence and the commercial host’s alcohol-related negligence in that regard. Were the situation otherwise, the Negligence Act, supra, would have failed to accomplish one of its principal objectives; i.e., changing the position at common law, so as to enable apportionment of responsibility to all those whose negligence demonstrably has caused or contributed to a plaintiff’s injuries, despite a plaintiff’s own contributory negligence in that regard.

b. I see no reason in logic or policy for differentiating between the direct claims of a plaintiff responsible for some degree of alcohol-related contributory negligence against a commercial host whose alcohol-related negligence has caused or contributed to a plaintiff’s injuries, and a third party claim for contribution and indemnity brought by a concurrent tortfeasor defendant against a commercial host for the same reason. Without limiting the generality of the foregoing:

i. Again, both claims stem from the common factual “nexus” of the plaintiff’s intoxication, yet claims against a commercial host for its alcohol-related negligence, brought directly by a plaintiff responsible for some degree of contributory negligence, are clearly permissible. As a matter of logic, the fact that a defendant’s third party claim for contribution and indemnity and a plaintiff’s contributory negligence both stem from the plaintiff’s intoxication cannot, by itself, be a disqualifying consideration.

ii. In my view, acceptance of the tavern’s submission would undermine a central legislative purpose of the Negligence Act, supra; i.e., to change the position prevailing at common law, and enable apportionment of responsibility to all those whose concurrent negligence demonstrably has caused or contributed to a plaintiff’s injuries. Without limiting the generality of the foregoing:

1. As noted above, legislation such as Ontario’s Negligence Act, supra, was an intended remedial response to the perception of modern courts and legislatures that the pre-legislation outcomes dictated by the common law governing such matters was anachronistic and unfair, insofar as it prohibited triers from allocating responsibility for a plaintiff’s damages amongst all those whose concurrent negligence had caused or contributed to those damages.

2. I see no reason why a commercial host who committed concurrent alcohol-related negligence causing or contributing to a plaintiff’s injuries and damages should escape responsibility for a portion of those damages simply because the plaintiff failed to name the commercial host as a defendant in the plaintiff’s statement of claim.

3. In that regard, I think it should be recognized that there are inherent underlying litigation dynamics which may increase the prospect of plaintiffs failing to name a negligent commercial host as a co-defendant in their pleadings. In particular:

a. In situations where a plaintiff consumed alcohol prior to his or her accident and resulting injuries, the plaintiff and his or her supportive witnesses inherently have an incentive to avoid or downplay that fact as much as possible; i.e., because doing otherwise may provide support for defence assertions of contributory negligence on the part of the plaintiff, in turn reducing the damages the plaintiff is likely to recover.[^40]

b. A plaintiff has a similar incentive to avoid suing a commercial host for serving the plaintiff alcohol to the point of intoxication and beyond, (thereby highlighting the plaintiff’s significant pre-accident intoxication and corresponding contributory negligence), in situations where the plaintiff perceives that he or she has a meritorious claim against another concurrent tortfeasor capable of being named as a defendant who also caused or contributed to the plaintiff’s injuries, and who also has the ability, through personal assets or liability insurance, to pay 100% of the plaintiff’s damages. In that situation, (i.e., where neither the plaintiff nor the negligent commercial host has any incentive or desire to have the commercial host named as a co-defendant to the litigation, and the plaintiff fails to name the negligent commercial host as a co-defendant in the plaintiff’s statement of claim), the concurrent tortfeasor who has been named as a defendant in the statement of claim faces the prospect, (without a permissible third party claim for contribution and indemnity against the negligent commercial host whom the plaintiff has not made a party to the litigation), of ultimately having to pay more damages than he or she would have to pay if all concurrent tortfeasors causing or contributing to the plaintiff’s damages had been made parties to the litigation. Such unfairness is precisely the sort of injustice the Legislature sought to avoid through passage of the Negligence Act, supra.

4. Moreover, in my view, the wording of the Negligence Act, supra, (and section 5 thereof in particular), makes it quite clear that the Legislature did not intend to leave such named defendants at the mercy of a plaintiff’s pleading decisions; i.e., when it came to ensuring that all concurrent tortfeasors causing or contributing to a plaintiff’s damages could be brought before the court to enable a just apportionment of responsibility for those damages. Pursuant to section 5 of the Negligence Act, supra, “Wherever it appears that a person not already a party to an action is or may be wholly or partly responsible for the damages claimed, such person … may be made a third party to the action in the manner prescribed by the rules of court for adding third parties”.

[24] In the course of his submissions, counsel for the Tavern also argued that the Court of Appeal’s decision in Hengeveld v. The Personal Insurance Company, supra, where the Court of Appeal affirmed the decision of the motions judge striking out the defendants’ third party claim, was “directly on point”. I disagree. In particular:

a. In that decision, the Court of Appeal did not indicate or suggest that a defendant’s pleading of any contributory negligence on the part of the plaintiff immediately forecloses the possibility of that defendant asserting claims for contribution and indemnity from third parties pursuant to the Negligence Act, supra.

b. To the contrary, as noted above, the Court of Appeal’s decision in the Hengeveld case emphasized a more nuanced approach, whereby the court is required to look closely at the particular negligence alleged in the relevant third party claim, and determine whether that particular alleged negligence is negligence attributable to the plaintiff. If the negligence pleaded in the third party claim is negligence attributable to the plaintiff, and therefore capable of being fully defended and deflected by the defendant pursuant to a pleaded defence of contributory negligence, the defendant has no need or right to seek contribution and indemnity from a third party in relation to that negligence, and a third party claim in that regard should be struck out. However, where the particular negligence alleged in the third party claim is not negligence attributable to the plaintiff, (i.e., because it alleges a form of negligent conduct by the third party that is distinct from the plaintiff’s negligent conduct), the third party claim should be allowed to stand.

c. In the Hengeveld case, the plaintiffs sued their insurance company, alleging that the insurance company negligently failed to preserve evidence. The insurance company brought a third party claim seeking contribution and indemnity from the plaintiffs’ lawyers, (in relation to any amounts the insurance company was obliged to pay the plaintiffs), alleging that the failure to preserve evidence was caused by negligent acts and omissions of the plaintiffs’ lawyers. The motions judge held, and the Court of Appeal agreed, that the negligence asserted by the third party claim was actually negligence attributable to the plaintiffs themselves; i.e., insofar as the alleged negligent acts and omissions pleaded against the plaintiffs’ lawyers all fell within the scope of their agency retainer, when the lawyers were acting on the plaintiffs’ behalf. The third party claim in that case accordingly sought contribution and indemnity for negligence attributable to the plaintiffs; i.e., negligence which the defendant insurance company had the ability to address and defend fully through a pleading of contributory negligence. The ability of the defendant insurance company to bring its intended third party claim accordingly was foreclosed under “fully established legal principles”.

d. That is not the situation in the case before me. The Motel’s pleaded defence of contributory negligence focuses on negligent conduct of the Plaintiff; i.e., his consumption of alcohol in a manner that interfered with his ability to proceed along the relevant walkway in a safe manner. In my view, (stated again at the risk of repetition), the particular negligence alleged against the Tavern in the Motel’s third party claim focuses on a separate and distinct form of negligence not attributable to the plaintiff himself; i.e., the Tavern serving the plaintiff alcohol in a manner that breached its common law and statutory duties the Tavern owed to patrons such as the Plaintiff as a commercial host, thereby causing or contributing to the Plaintiff’s injuries and damages. The alleged negligent acts and omissions of the Tavern in that regard, (which I must assume to be true for purposes of this motion), are not failings which the defendant Motel could raise against the Plaintiff via its pleaded defence of contributory negligence. They instead represent concurrent negligence of the Tavern which caused or contributed to the Plaintiff’s damages; i.e., negligence on the part of a wrongdoer who is not a party to the action without the third party claim, and from which the Motel is entitled to claim contribution and indemnity pursuant to the provisions of sections 1, 2 and 5 of the Negligence Act, supra.

[25] In the course of his submissions, counsel for the Tavern also asserted that the decision to sue or not sue the Tavern for alleged alcohol-related negligence was “entirely up to the Plaintiff to make”; that the Plaintiff chose not to sue the Tavern; that the Plaintiff thereby chose “to accept all the risk associated with what the defendant says about him being drunk and falling down and hurting himself”; and that the defendant Motel effectively was bound by the plaintiff’s decision in that regard. In support of those propositions:

a. It was said that section 1 of the Negligence Act, supra, (allowing for apportionment of liability and creating joint and several liability), applies only to defendants, and that section 5 of the Negligence Act, supra, affords the Motel no relief in that regard, as it contemplates a defendant making someone a third party to the litigation, but such third party claims are permissible only where a duty is owed by the third party to the defendant, rather than the plaintiff; and

b. Reliance was placed on comments by our Court of Appeal in Martin v. Listowel Memorial Hospital, supra, at paragraph 48, and on comments by Justice Rady in her decision in Tuffnail v. Meekes, 2019 ONSC 525, affirmed 2020 ONCA 340.

[26] I disagree with and reject those submissions for numerous reasons, including those which follow.

[27] In relation to Martin v. Listowel Memorial Hospital, supra, counsel for the Tavern relied in particular on the following comments made by the panel in paragraph 48 of the Court of Appeal’s decision:

In our view, the effect of s.1 of the Act is to define the legal effect of a finding of fault by concurrent wrongdoers. The effect is to change the common law, and impose on concurrent wrongdoers joint and several liability to the plaintiff. It is the only section of the Act which imposes liability, as opposed to apportioning fault. The section is substantive, not procedural. Therefore, when applying the section to any specific action, it is understood that joint and several liability to the plaintiff can and will attach only to a party defendant, although others who may also have been at fault could potentially have been found jointly and severally liable had they been sued by the plaintiff. Because procedurally the section only affects defendants, under this section the court is to apportion degrees of fault only to defendants. [Emphasis added.]

[28] Insofar as counsel for the Tavern construed the emphasized portions of those remarks as authority for the proposition that a third party cannot be held responsible for its negligence causing or contributing to a plaintiff’s damages, if the plaintiff has chosen to not name the third party as a defendant in the plaintiff’s statement of claim, I respectfully think that the remarks in question have been taken out of context. Without limiting the generality of the foregoing:

a. In the Martin case, an infant plaintiff had suffered brain damage during his birth at a hospital, owing to the negligence of two doctors, a nurse, and ambulance attendants. The plaintiff reached a settlement with the two doctors, and proceeded with an action before a trial judge wherein only the hospital and ambulance attendants were named as defendants; i.e., with the hospital being sued for its alleged negligent training of the relevant nurse and ambulance attendants, and on the basis that it was vicariously liable for the negligence of the nurse. The nurse herself was not named as a defendant. Nor did any of the named defendants seek contribution and indemnity from the nurse by way of a third party claim. (There apparently were no third party claims brought in the litigation.) The nurse accordingly was not a party to the action, either as a defendant or a third party.

b. Even though the trial judge had found the nurse guilty of negligence causing or contributing to the infant plaintiff’s damages, he declined to determine her degree of fault or negligence pursuant to section 1 of the Negligence Act, supra, and apportion ultimate responsibility for a degree of damages to her, because the nurse was not a party to the action. On appeal, it was argued that the trial judge should have made such a determination in relation to the nurse, as well as the named defendants to the action, as the literal wording of section 1 of the Negligence Act, supra, refers to “persons” and not “parties”.

c. In my view, a full reading of the Martin decision makes it quite clear that the Court of Appeal, when making its remarks in paragraph 48 of the panel’s decision, was focused on the specific legal issue of whether section 1 of the Negligence Act, supra, required the trial judge to determine the degree of fault of non-parties as well as parties to the litigation.[^41]

d. In the result, the Court of Appeal found that, notwithstanding the literal wording of section 1 of the Negligence Act, supra, its provisions required a trier to apportion fault or negligence, and corresponding responsibility for damages, only among the “parties” or “persons sued” in the litigation, and did not extend to any “non-party” or “absent concurrent wrongdoer”. As the Court of Appeal noted, in the course of outlining its reasons for that conclusion, any other approach would make the provisions of the Negligence Act “virtually unworkable”; e.g., insofar as it would require the trier to make assessments of liability in relation to persons not usually present or represented at trial, (e.g., to give explanations in relation to the underlying accident), and leave defendants to the litigation at risk of being obliged to pay all damages owed to the plaintiff without the possibility of full contribution and indemnity beyond their several liability, depending on the party from whom the plaintiff initially chose to demand payment.[^42]

e. In my view, a proper reading of Martin v. Listowel Memorial Hospital, supra, in its entirety, makes it clear that the Court of Appeal never intended to suggest that the apportionment provisions of the Negligence Act had no application to persons who were parties to litigation, (including those made parties to litigation by virtue of a third party claim advanced pursuant to section 5 of the Negligence Act, supra), and/or that such a third party claim could not be advanced by a named defendant against another concurrent tortfeasor simply because the plaintiff failed to name that additional concurrent tortfeasor as a defendant in the plaintiff’s statement of claim. Without limiting the generality of the foregoing:

i. As the case before it involved only plaintiffs and defendants, and no third party claims, the initial final comments of the Court of Appeal not surprisingly focused on the joint and several liability attaching to party defendants named by the plaintiff. However, as noted above, the reasons of the panel focus repeatedly on the distinction between parties and non-parties when it comes to apportionment of responsibility for damages; e.g., rather than on distinctions between those who are parties to the litigation as named defendants, and those who are made parties to the litigation as third parties.

ii. Other comments by the panel make it clear that the Court of Appeal accepted that apportionment of responsibility and damages to other concurrent tortfeasors, (i.e., other wrongdoers who also caused or contributed to a plaintiff’s damages, but were not named by the plaintiff as defendants to the litigation), can and should be achieved via third party claims for contribution and indemnity. For example:

1. At paragraph 37 of the decision, the panel said this: “Because it is in the interests of the parties to ensure that everyone potentially liable is joined in the action, in practice, it is therefore most unlikely that any solvent, known person with the potential to be found at fault, would not be joined in the action as a party in some capacity. Section 5 of the Act makes special provision for adding parties, again to ensure that all parties who should be contributing to compensate the plaintiff for the loss are joined in the action which fixes everyone’s responsibility”. [Emphasis added.]

2. At paragraph 39 of the decision, the panel, when discussing the case of Batchelor v. Brown (1980), 28 O.R. (2d) 590 (H.C.J.), which did involve a third party claim, refers approvingly to Negligence Act allocations of responsibility for damages affecting “the contribution inter se of the defendants and third party for the damages, suffered by the plaintiffs, for which the defendants were found liable”. [Emphasis added.]

3. In the concluding remarks of paragraph 48 of the decision, the panel says this: “The court must also apportion fault to other parties, the plaintiff and third parties, not under s.1 of the Act but rather pursuant to ss.3 and 4 (sic)[^43] of the Act, and in accordance with the requirement of the pleadings”. [Emphasis added.]

iii. In its later jurisprudence, the Court of Appeal has made clear its view that section 5 of the Negligence Act “contemplates the situation where a defendant has been sued but believes there is another wrongdoer who caused or contributed to the plaintiff’s injury and has not yet been sued; in which case section 5 “allows a defendant to pursue a right of contribution and indemnity against that person by third party claim, according to the rules of court for adding third parties”.[^44] [Emphasis added.]

[29] In relation to Tuffnail v. Meekes, supra, counsel for the Tavern relied in particular on the following comments made by Justice Rady in paragraph 28 of her decision: “It is noteworthy that the Rule”, [i.e., Rule 29.01 of Ontario’s Rules of Civil Procedure, governing the commencement of “a third party claim against any person who is not a party to the action”], “speaks to a third party’s liability to the defendant for all or part of the plaintiff’s damages. It does not say liability for all or part of the plaintiff’s damages”. [Original underlined emphasis.]

[30] In his factum and oral submissions, counsel for the Tavern interpreted those comments as an indication that “Third Party Claims are limited to liability owed by the third party to the defendant”.[^45] Based on that interpretation:

a. it was suggested by counsel for the Tavern that third party claims must be based on a duty owed by the third party to the defendant, and should not be permitted in circumstances where the third party claim focuses on a duty owed by the proposed third party to the plaintiff but not to the defendant; and

b. counsel for the Tavern emphasized that, in this case, the Motel’s third party claim focused on common law and statutory commercial host duties owed by the Tavern to the Plaintiff, (who chose not to sue the Tavern by naming it as a defendant in his statement of claim), and not to any duties owed by the Tavern to the defendant Motel.

[31] I reject those submissions for numerous reasons, but foremost among them is this: they suggest precisely the opposite of what our Court of Appeal has emphasized expressly and repeatedly in its jurisprudence decided before and after Justice Rady’s decision; i.e., “A third party claim based on the contribution and indemnity provisions of the Negligence Act does not require that the third party owe a duty of care to the defendant. It is sufficient that the third party owe a duty of care to the plaintiff, making the third party someone who, if sued by the plaintiff, would have been liable in respect of the damage the plaintiff suffered”.[^46] [Emphasis added.]

[32] Again, the purpose of the Negligence Act, supra, was to facilitate a fair and just apportionment of responsibility for a plaintiff’s damages between all those whose concurrent negligence caused or contributed to those damages – including concurrent tortfeasors who may not have been named as defendants by the plaintiff, and therefore need to be brought into the litigation as third parties.

[33] Moreover, in my view the passages from the Court of Appeal’s decision in Tuffnail v. Meekes, supra, relied upon by counsel for the Tavern, have little or no bearing on the determination I have to make. In that regard:

a. The facts underlying the Tuffnail litigation involved a situation where, (according to later jury findings), the plaintiff was an automobile passenger who sustained damages in a single vehicle accident that were caused or contributed to by the contributory negligence of the plaintiff (3.85%), the concurrent negligence of the plaintiff’s intoxicated driver (65%), the concurrent negligence of the host who arranged the party at which the plaintiff’s driver was served alcohol (20.03%), and the concurrent negligence of the particular bartender who had served the plaintiff’s driver (11.12%).

b. In his statement of claim, the plaintiff had sued his driver and his host, as well as his own automobile insurer pursuant to the underinsured motorist coverage the insurer had issued pursuant to a standard OPCF44 endorsement. The plaintiff did not sue the relevant bartender directly; i.e., by including the bartender among the defendants named in the plaintiff’s statement of claim. However, the host and the insurer each brought a third party claim against the bartender seeking contribution and indemnity.

c. After trial, the plaintiff and the host entered into minutes of settlement whereby, inter alia, the host assigned, to the plaintiff, the host’s third party claim for contribution and indemnity from the bartender.

d. The comments of the Court of Appeal, highlighted and relied upon by counsel for the Tavern, were expressly focused on the question of what sum the plaintiff could recover from the bartender pursuant to that assigned third party claim.[^47] In that regard, it had to be determined, in particular, whether:

i. recovery pursuant to that third party claim by the host against the bartender was limited to a proportion of the total judgment equal to the 11.2% degree of fault assigned to the bartender; or

ii. the plaintiff could recover, from the bartender, the full amount of damages awarded by the jury; i.e., as if the bartender had been sued directly by the plaintiff as a defendant.

e. The Court of Appeal upheld Justice Rady’s conclusion that the bartender’s liability via the assigned third party claim was limited to his apportioned 11.12% degree of fault or negligence. The facts did not make the bartender jointly liable to the plaintiff for all of the plaintiff’s damages, which would have been the case had the plaintiff sued the bartender directly as a named defendant.

f. In my view, nothing in the comments or analysis of Justice Rady or the Court of Appeal relied upon by counsel for the Tavern, (including the finding that a concurrently negligent third party owes no direct joint liability for all of a plaintiff’s damages to a plaintiff who failed to sue that party directly as a defendant), has any bearing on the ability of a defendant tortfeasor to bring a third party claim seeking contribution and indemnity from another concurrent tortfeasor who was not named as a defendant but nevertheless also caused or contributed to a plaintiff’s damages; i.e., the determination I am required to make. Without limiting the generality of the foregoing, in the Tuffnail litigation, the propriety of the relevant third party claim by the host against the bartender, (assigned to the plaintiff), was not in dispute. Nor, in my view, did any of the comments made by Justice Rady or the Court of Appeal suggest that direct joint liability of a third party to the plaintiff pursuant to the third party claim, (as opposed to the third party being a concurrent tortfeasor who caused or contributed to the plaintiff’s damages by breaching a duty owed by the third party to the plaintiff), was any form of prerequisite to the bringing of such a third party claim. It bears emphasizing that the third party claim for contribution and indemnity brought by the defendant host in that case, against the third party bartender, was not only brought but succeeded.

Conclusion

[34] For the reasons outlined above, I find that it is not plain and obvious that the third party claim advanced by the Motel against the Tavern discloses no reasonable cause of action, and the Tavern’s motion to strike the third party claim on that basis, pursuant to Rule 21.01(b) of the Rules of Civil Procedure, therefore must be dismissed.

[35] An order dismissing the Tavern’s motion shall go accordingly.

Costs

[36] My preliminary view, subject to hearing from the parties, is that the Motel should receive its costs of the motion from the Tavern on a partial indemnity basis.

[37] However, because my decision was reserved, the parties were unable to make any submissions regarding costs of the Tavern’s motion. If the parties are unable to reach an agreement on costs in that regard:

a. the Motel may serve and file written cost submissions, not to exceed five pages in length, (not including any bill of costs), within two weeks of the release of this decision;

b. the Tavern then may serve and file responding written cost submissions, also not to exceed five pages in length, within two weeks of service of the Motel’s written cost submissions or the deadline for delivery of those submissions, whichever comes first; and

c. the Motel then may serve and file, within one week of receiving any responding cost submissions from the Tavern, reply cost submissions not exceeding two pages in length.[^48]

[38] If no written cost submissions are received within four weeks of the release of this decision, there shall be no costs of the motion.

Justice I.F. Leach

Date: June 22, 2022

Appendix “A”

Negligence Act R.S.O. 1990, CHAPTER N.1

Extent of liability, remedy over

1. Where damages have been caused or contributed to by the fault or neglect of two or more persons, the court shall determine the degree in which each of such persons is at fault or negligent, and, where two or more persons are found at fault or negligent, they are jointly and severally liable to the person suffering loss or damage for such fault or negligence, but as between themselves, in the absence of any contract express or implied, each is liable to make contribution and indemnify each other in the degree in which they are respectively found to be at fault or negligent. R.S.O. 1990, c. N.1, s. 1.

Recovery as between tortfeasors

2. A tortfeasor may recover contribution or indemnity from any other tortfeasor who is, or would if sued have been, liable in respect of the damage to any person suffering damage as a result of a tort by settling with the person suffering such damage, and thereafter commencing or continuing action against such other tortfeasor, in which event the tortfeasor settling the damage shall satisfy the court that the amount of the settlement was reasonable, and in the event that the court finds the amount of the settlement was excessive it may fix the amount at which the claim should have been settled. R.S.O. 1990, c. N.1, s. 2.

Plaintiff guilty of contributory negligence

3. In any action for damages that is founded upon the fault or negligence of the defendant if fault or negligence is found on the part of the plaintiff that contributed to the damages, the court shall apportion the damages in proportion to the degree of fault or negligence found against the parties respectively. R.S.O. 1990, c. N.1, s. 3.

Where parties to be deemed equally at fault

4. If it is not practicable to determine the respective degree of fault or negligence as between any parties to an action, such parties shall be deemed to be equally at fault or negligent. R.S.O. 1990, c. N.1, s. 4.

Adding parties

5. Wherever it appears that a person not already a party to an action is or may be wholly or partly responsible for the damages claimed, such person may be added as a party defendant to the action upon such terms as are considered just or may be made a third party to the action in the manner prescribed by the rules of court for adding third parties. R.S.O. 1990, c. N.1, s. 5.

Jury to determine degrees of negligence of parties

6. In any action tried with a jury, the degree of fault or negligence of the respective parties is a question of fact for the jury. R.S.O. 1990, c. N.1, s. 6.

When plaintiff may be liable for costs

7. Where the damages are occasioned by the fault or negligence of more than one party, the court has power to direct that the plaintiff shall bear some portion of the costs if the circumstances render this just. R.S.O. 1990, c. N.1, s. 7.

8. REPEALED: 2002, c.24, Sched. B, s.25.

[^1]: I note in passing that the material filed in relation to the third party’s motion includes no indication as to whether or not the Maintainer has delivered a pleading, (e.g., a statement of defence, a statement of defence and crossclaim, a defence to crossclaim, or a third party claim), and that information is not available to me on the relevant One Drive folder for this matter.

[^2]: A few weeks after the hearing, I sustained an injury which unfortunately prevented continuation with any judicial work for an extended period during the course of my recovery, and permitted only slow but gradually increasing progress thereafter. While every effort was made to return to that work as soon as possible, completion of these reasons regrettably was delayed until now.

[^3]: To ensure that the force of oral submissions was not diminished by the passage of time, I supplemented a review of my handwritten notes by the ordering of a transcript of the motion’s hearing before me, which I reviewed while listening to the relevant DRD recording of the proceedings.

[^4]: See, for example: Prete v. Ontario (1993), 16 O.R. (3d) 161 (C.A.), leave to appeal refused (1994), 17 O.R. (3d) xvii (note) (S.C.C.); Nash v. Ontario (1995), 27 O.R. (3d) 1 (C.A.); Trillium Power Wind Corp. v. Ontario (Ministry of Natural Resources) 2013 ONCA 683, 117 O.R. (3d) 721 (C.A.); and Paton Estate v. Ontario Lottery and Gaming Corp. (2016), 2016 ONCA 458, 131 O.R. (3d) 273 (C.A.).

[^5]: See, for example: Hunt v. T&N plc, [1990] 2 S.C.R. 959; R.D. Belanger & Associates Ltd. v. Stadium Corp. of Ontario Ltd. (1991), 5 O.R. (3d) 778 (C.A.); Knight v. Imperial Tobacco Company Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45; Paton Estate v. Ontario Lottery and Gaming Corp., supra; Trillium Power Wind Corp. v. Ontario (Ministry of Natural Resources), supra; Apotex Inc. v. Eli Lilly and Co. (2012), 111 O.R. (d) 683 (S.C.J.), reversed 2013 ONSC 5937 (Div.Ct.), affirmed (2015), 2015 ONCA 305, 125 O.R. (3d) 561 (C.A.), leave to appeal refused (January 14, 2016) Doc. 36538, 2016 CarswellOnt 465 and 2016 CarswellOnt 466 (S.C.C.); and Trillium Power Wind Corp. v. Ontario (Ministry of Natural Resources), supra.

[^6]: See, for example: Doe v. Metropolitan Toronto (Municipality) (Commissioners of Police) (1990), 74 O.R. (2d) 225 (Div.Ct.); and Trillium Power Wind Corp. v. Ontario (Ministry of Natural Resources), supra.

[^7]: See, for example: Doe v. Metropolitan Toronto (Municipality) (Commissioners of Police), supra; Hanson v. Bank of Nova Scotia (1994), 19 O.R. (3d) 142 (C.A.); Nash v. Ontario, supra; Choc v. Hudbay Minerals Inc. (2013), 2013 ONSC 1414, 116 O.R. (3d) 674 (S.C.J.); Trillium Power Wind Corp. v. Ontario (Ministry of Natural Resources), supra; and Apotex Inc. v. Eli Lilly and Co., supra.

[^8]: See, for example: Hanson v. Bank of Nova Scotia, supra; Millwright Regional Counsel of Ontario v. Celestica Inc. (2012), 2012 ONSC 6083, 113 O.R. (3d) 264 (S.C.J.), affirmed (2014), 2014 ONCA 90, 118 O.R. (3d) 641 (C.A.), additional reasons 2014 ONCA 344, affirmed 2015 SCC 60, [2015] 3 S.C.R. 801; Paton Estate v. Ontario Lottery and Gaming Corp., supra; Trillium Power Wind Corp. v. Ontario (Ministry of Natural Resources), supra; and Golden Oaks Enterprise Inc. v. Lalonde (2016), 113 O.R. (3d) 513 (S.C.J.), appeal quashed Salewski v. Lalonde (2017), 137 O.R. (3d) 762 (C.A.).

[^9]: In these reasons, I use the term “concurrent tortfeasors” in the same manner as that used by Justice Strathy, (as he then was), in Sale v. O’Grady’s Restaurant, 2011 ONSC 2437, at paragraph 32; i.e., to describe several tortfeasors whose acts combine to produce the same damage. Such acts need not be concurrent in time.

[^10]: See V.C. Macdonald, “The Negligence Action and the Legislature” (1935), 8 C.B.R. 535, at pp.541-542 and pp.548-549; and Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd., [1997] 3 S.C.R. 1210, at paragraphs 90, 96-97, and 101-102. The “last clear chance” doctrine, (now generally considered to have been abolished in Canada), was a judicial attempt to ameliorate perceived injustice caused by the first of those two rules.

[^11]: See Allen M. Linden et al., Canadian Tort Law, 11^th ed. (LexisNexis Canada, Toronto, 2018), at p.469. As to whether a particular person or party concurrently has “caused or contributed” to damages, such questions fall to be determined by the general “but for” and exceptional “material contribution” tests for causation which have been established, confirmed and/or clarified by the Supreme Court of Canada in cases such as Athey v. Leonati, [1996] 3 S.C.R. 458, and Hanke v. Resurfice Corp., 2007 SCC 7, [2007] 1 S.C.R. 333.

[^12]: See Hengeveld v. The Personal Insurance Company (2019), 2019 ONCA 497, 146 O.R. (3d) 182 (C.A.), at paragraph 20.

[^13]: Ibid, at paragraph 20.

[^14]: Ibid, at paragraph 20. In Ontario, commencement of third party claims is governed by Rule 29 of the Rules of Civil Procedure.

[^15]: See 478649 Ontario Ltd. v. Corcoran (1994), 20 O.R. (3d) 28 (C.A.), at pp.35-36, and Hengeveld v. The Personal Insurance Company, supra, at paragraph 21.

[^16]: See: Athey v. Leonati, supra, at paragraph 22; Endean v. St Joseph’s General Hospital, 2019 ONCA 181; and Hengeveld v. The Personal Insurance Company, supra, at paragraphs 22 and 24.

[^17]: See Hengeveld v. The Personal Insurance Company, supra, at paragraphs 23 and 24.

[^18]: See Martin v. Listowel Memorial Hospital (2000), 51 O.R. (3d) 384 (C.A.), at paragraphs 22-24.

[^19]: See Taylor v. Canada (Attorney General), 2009 ONCA 487, at paragraph 30; Johnston v. Sheila Morrison Schools, 2012 ONSC 1322, [2012] O.J. No. 915 (Div.Ct.), at paragraph 13; Allianz Global Risks US Insurance Company v. Nalco Chemical Company, 2014 ONSC 4302, at paragraphs 23-28; and Hengeveld v. The Personal Insurance Company, supra, at paragraphs 25-26.

[^20]: See Hengeveld v. The Personal Insurance Company, supra, at paragraph 28.

[^21]: Ibid, at paragraphs 22-29.

[^22]: See Adams v. Thompson, Berwick, Pratt & Partners (1987), 15 B.C.L.R. (2d) 51 (C.A.), at pp.55-56, expressly cited, quoted and applied in Cameron v. Equinox Technologies Ltd., 2009 BCSC 221 (S.C.), at paragraphs 10 and 12, and expressly cited, quoted with approval and applied in Hengeveld v. The Personal Insurance Company, supra, at paragraph 31. [Emphasis added.] See also Davy Estate v. CIBC World Markets Inc., 2009 ONCA 763, [2009] O.J. No. 4554 (C.A.), at paragraphs 22-23, and Basile v. Home Depot Canada GP ULC, 2017 ONSC 728 (S.C.J.), at paragraph 17. As emphasized by counsel for the Tavern in his reply factum, the Basile case did not involve a motion brought pursuant to Rule 21.01(b), but a motion for summary judgment brought pursuant to Rule 20.01(3) and 20.09 of the Rules of Civil Procedure. That notwithstanding, the court in Basile accepted the basic proposition that if negligence of a third party is attributable to the plaintiff, there is no need for a third party claim because such negligence “would stand as a defence”; i.e., could be pleaded as a contributory negligence defence. That in turn suggests acceptance of the converse proposition; i.e., that if pleaded negligence of a third party is not attributable to the plaintiff, the third party claim is needed and discloses a reasonable cause of action.

[^23]: See the Tavern’s notice of motion herein, at paragraphs 5, 6 and 7 respectively. The underlined emphasis is found in the Tavern’s notice of motion. I have added the italicized emphasis.

[^24]: See the Tavern’s factum herein, at paragraphs 3, 7 and 10.

[^25]: See the Tavern’s factum herein, at paragraph 4.

[^26]: See the Tavern’s factum herein, at paragraph 5. Emphasis added.

[^27]: See the Tavern’s factum herein, at paragraph 21. Emphasis added.

[^28]: Such contributory negligence does not depend on a duty of care owed by one person to another, but on foreseeability; i.e., foreseeability of harm to oneself. “A person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable, prudent person, he might be hurt himself, and in his reckonings, he must take into account the possibility of others being careless.” See Jones v. Livox Quarries, [1952] 2 Q.B. 608 (Eng.C.A.), cited and quoted with approval in Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd., supra, at paragraph 76. For some examples of such alcohol-related contributory negligence, see the following cases:

a. Menow v. Honsberger, [1974] S.C.R. 239, where the plaintiff drank to excess at a tavern before being ejected, (because he was being objectionable to several patrons), and while walking home wandered onto the travelled portion of a highway where he was struck by an automobile. The plaintiff “had a tendency to drink to excess and then act recklessly”, had been “drinking to excess”, “had become intoxicated”, and thereby “created a risk of injury to himself by excessive drinking on the night in question”. In the result, one third of his resulting damages were apportioned to his contributory negligence in that regard. (See paragraphs 2, 4-5, 14 and 20 of the decision.)

b. Crocker v. Sundance, [1988] 1 S.C.R. 1186, where the plaintiff drank large quantities of his own alcoholic beverages, attended a ski resort to enter its promotional “tubing competition”, drank further quantities of alcohol provided by the resort before and between “heats” of the competition, (while wearing a “bib” identifying him as a tubing competitor), and was rendered a quadriplegic after injuring his neck when flipped out of his inner tube upon hitting a mogul. The plaintiff had “contribute[d] to his injuries by his own want of care in deliberately getting drunk and participating in the races”. In the result, 25% of his resulting damages were apportioned to his contributory negligence in that regard. (See paragraphs 11 and 37 of the decision.)

c. Gouge v. Three Top Investment Holdings Inc., [1994] O.J. No. 751 (Gen.Div.), where the plaintiff drank alcohol at home before proceeding on his motorcycle to a hotel, where he “continuously” consumed more and more alcohol despite his becoming visibly intoxicated. Minutes after refusing a proffered ride home and leaving the hotel on his motorcycle, the plaintiff had an accident while riding home and was injured. The court noted that it was “difficult to feel much sympathy for the plaintiff because he [was] so substantially the author of his own misfortune”, and 95% of his resulting damages were apportioned to his contributory negligence in that regard. (See paragraphs 51 and 70 of the decision.)

d. Whitlow v. 572008 Ontario Ltd., [1995] O.J. No. 77 (S.C.J.), where the plaintiffs’ husband and father was killed after falling down a tavern stairwell while inebriated by alcohol. The court found held that his death was caused in part by his own contributory negligence in that regard; i.e., “by drinking to a state of extreme intoxication, Mr Whitlow … contributed to his own demise”. In the result, 80% of the damages resulting from his death were apportioned to that contributory negligence. (See paragraphs 23, 31 and 73 of the decision.)

[^29]: See Menow v. Honsberger, supra, at paragraphs 14-17 and 22-23; Gouge v. Three Top Investment Holdings Inc., supra, at paragraphs 44, 49 and 51-52; Stewart v. Petrie, [1995] 1 S.C.R. 131, at paragraphs 28, 33, 47 and 56; and Whitlow v. 572008 Ontario Ltd., supra, at paragraphs 47-52 and 58-59.

[^30]: See Crocker v. Sundance, supra, (whose underlying facts are described above), at paragraphs 20-23. For additional examples, see:

a. Dunn v. Dominion Atlantic Railway Co. (1920), 60 S.C.R. 310, where a railway company removed a drunken passenger from one of its trains, leaving him in the night at a closed and unlighted station, where he was then killed when hit by another train;

b. Hempler v. Todd (1970), 14 D.L.R. (3d) 637 (Man.Q.B.), where a car owner permitted or instructed an impaired person to drive his car, and the impaired person then suffered fatal injuries when he drove the vehicle off the road and into a ditch; and

c. Jacobsen v. Nike Canada Ltd., [1996] B.C.J. No. 363 (S.C.), where an employer, (who had instructed the plaintiff employee to bring his car to work, and who then provided the plaintiff and other members of a work crew with large amounts of beer in a hot working environment, over the course of a work day extending from 7:30am to 11:30pm.), allowed the intoxicated plaintiff to drive his car away from the workplace, after which the plaintiff fell asleep at the wheel, drove his car into a ditch, and was rendered an incomplete quadriplegic.

[^31]: See Menow v. Honsberger, supra, at paragraph 18; and Whitlow v. 572008 Ontario Ltd., supra, at paragraph 31. See also Crocker v. Sundance, supra, at paragraph 28, where the Supreme Court of Canada noted that a patron’s irresponsible voluntary intoxication is the “very reason” why those engaged in commercial operations for profit are legally obliged to take all reasonable steps to prevent such an obviously incapacitated patron from exposure to harm.

[^32]: See Mitchell v. C.N.R. (1974), 46 D.L.R. (3d) 363 (S.C.C.), at page 380.

[^33]: See, for example:

a. Hempler v. Todd, supra, where the court apportioned the plaintiffs’ damages equally between the alcohol-related contributory negligence of the plaintiffs’ fatally injured husband/father (50%), and the alcohol-related negligence of the friend who placed that father/husband in a position of danger by allowing him to drive the friend’s car while visibly intoxicated (50%);

b. Menow v. Honsberger, supra, where the Supreme Court of Canada upheld the judgment granted at trial apportioning the plaintiff’s damages equally between the alcohol-related contributory negligence of the plaintiff (one third), the alcohol-related commercial host negligence of the tavern (one third), and the driving negligence of the defendant motorist (one third);

c. Crocker v. Sundance, supra, where the judgment granted at trial, upheld/reinstated by the Supreme Court of Canada, apportioned the plaintiff’s damages to alcohol-related contributory negligence of the plaintiff (25%), and the alcohol-related negligence of the ski resort which supplied the plaintiff with alcohol and allowed him to participate in a dangerous competition while visibly intoxicated (75%);

d. Gouge v. Three Top Investment Holdings Inc., supra, where the court granted judgment apportioning the plaintiff’s damages to alcohol-related contributory negligence of the plaintiff, (95%), and alcohol-related commercial host negligence of a hotel (5%);

e. Whitlow v. 572008 Ontario Ltd., supra, where the court granted judgment apportioning the plaintiffs’ damages to alcohol-related contributory negligence of the plaintiffs’ husband/father (80%), alcohol-related commercial host negligence of a Legion Branch (5%), and alcohol-related commercial host negligence of a tavern (15%); and

f. Jacobsen v. Nike Canada Ltd., supra, where the court granted judgment apportioning the plaintiffs’ damages to alcohol-related contributory negligence of the plaintiff (25%), and alcohol-related negligence of the employer (75%).

[^34]: Indeed, as the allegations in the Motel’s third party claim against the Tavern are not demonstrably incapable of proof, (in my view), and must be taken as proven/true for the purposes of determining this Rule 21.01(1)(b) motion, the motion must be approached on the basis that the Tavern has negligently breached its commercial host duties owed to the Plaintiff, in all of the ways particularized in the impugned/targeted pleading, thereby causing or contributing to the resulting foreseeable damages sustained by the Plaintiff.

[^35]: Again, this assumes the allegations in the Motel’s third party claim against the Tavern to be true, for purposes of the Tavern’s motion.

[^36]: Perhaps it would go without saying, but I have assigned these percentages on an entirely arbitrary basis, solely for the purpose of providing a numerical example of one of the myriad ways in which overall responsibility for the plaintiff’s damages might be apportioned in such a scenario, and have done so without meaning to indicate, in any way, (and in the complete absence of any substantive evidence on which such degrees of respective fault or negligence actually might be determined), how responsibility for Mr McHugh’s damages might be allocated. It obviously is entirely possible for the trier to find that the degree of respective fault or negligence of Mr McHugh, or the Motel, or the Maintainer, or the Tavern, for Mr McHugh’s accident and resulting damages, is anywhere from zero to 100 percent – provided the total of all allocated percentages of several responsibility for the plaintiff’s damages adds up to 100. As outlined in more detail below, our Court of Appeal has emphasized, in Martin v. Listowel Memorial Hospital, supra, that responsibility for a plaintiff’s damages must be completely apportioned among those who are parties to the litigation in some capacity; i.e., leaving no percentage of such responsibility apportioned to a non-party or to non-parties. See also Endean v. St Joseph’s Hospital, supra, wherein the Court of Appeal reiterated that a non-party’s fault should not be considered in apportioning liability pursuant to the provisions of the Negligence Act, supra.

[^37]: Again, see paragraph 8(e) herein. To be clear, I am not assuming that the allegations in the Motel’s statement of defence and crossclaim are true/proven for purposes of this motion, or that it must be read generously to allow for drafting deficiencies. Those principles are applied only to the targeted/impugned pleading, which in this case is the Motel’s third party claim against the Tavern.

[^38]: That is the determination literally required by Rule 21.01(1)(b) of the Rules of Civil Procedure. In the more fulsome words of the governing test noted in paragraph 8(e) of these reasons, assuming that the facts as stated in the Motel’s third party claim can be proved, in my view it is not “plain and obvious”, and beyond reasonable doubt, that the Motel’s third party claim against the Tavern discloses no reasonable cause of action and has no reasonable prospect of success.

[^39]: See, again, authorities such as those noted and described in paragraph 33 herein.

[^40]: That reality has been noted and highlighted in cases such as Whitlow v. 572008 Ontario Ltd., supra, at paragraph 18.

[^41]: That specific issue and context, focusing on whether section 1 of the Negligence Act extends to “non-parties” as well as “parties” or “persons sued”, requiring apportionment of damages between non-parties as well as parties, are referred to repeatedly by the panel throughout its analysis leading up to the noted comments in paragraph 48 of the Martin decision. See, for example, Martin v. Listowel Memorial Hospital, supra, at paragraphs 30, 31, 32, 33, 36, 37, 38, 39, 41, 43, 44, 45, 46 and 47.

[^42]: See Martin v. Listowel Memorial Hospital, supra, at paragraphs 30-48, and paragraph 41 in particular.

[^43]: It may be wondered whether this was intended to be a reference to section 5 of the Negligence Act, supra, rather than section 4. As noted above, section 3 of the Act makes reference to the contributory negligence of plaintiffs, and section 5 of the Act makes reference to the addition of third parties who are wholly or partly responsible for a plaintiff’s damages. It therefore would make sense for the Court of Appeal to make reference to apportionment of fault to the plaintiff and third parties pursuant to ss. 3 and 5 of the Act, respectively, in order to complete the symmetry of the sentence references. (As noted above, section 4 deals with situations where it is not practicable to determine the respective degree of fault or negligence between parties to an action, making it appropriate to deem them equally at fault. It contains no express reference to third parties, and no indirect reference to apportioning fault to third parties except in the rare circumstance where determining the degree of fault or negligence of parties is not practicable.)

[^44]: Again, see Hengeveld v. The Personal Insurance Company, supra, at paragraph 20.

[^45]: See paragraph 13 of the factum filed by counsel for the Tavern.

[^46]: See Hengeveld v. The Personal Insurance Company, supra, at paragraph 21. See also 478649 Ontario Ltd. v. Corcoran, supra, at pp.35-36.

[^47]: See the Court of Appeal’s decision in Tuffnail v. Meekes, supra, at paragraph 77.

[^48]: This timetable for the receipt of written cost submissions obviously assumes that no costs will be sought from the Plaintiff or the defendant Maintainer, and that neither of those parties will seek costs; assumptions which seem reasonable based on the effective non-participation of those parties in relation to the Tavern’s motion, apart from the “watching brief” adopted by counsel for the Plaintiff. If for some reason costs are sought against or by the Plaintiff and/or defendant Maintainer, those parties are hereby granted leave, pursuant to Rule 1.09(b) of the Rules of Civil Procedure, to communicate a request to me in writing sent via the London judicial secretaries, and copied to counsel for all other parties, for an appropriate revision or revisions to this timetable.