Tag Archives: case law

Eastwood v Walton, 2019 ONSC 4019

Written By: Patrick Brown and Ryan Marinacci, Summer Student

Therefore the plaintiff submits, we are left with a commercial host, a patron with approximately three times the legal limit of alcohol in her system who left the establishment, drove her car and caused an accident resulting in devastating injuries to the plaintiff and the liability for the plaintiff’s damages should be left to a jury.

A jury is well able to decide whether Versailles met its duty of care related to how they served alcohol and tracked the consumption of individual patrons.”

In his recent decision Eastwood v Walton 2019 ONSC 4019, Justice Sloan dismissed the defendant banquet hall’s motion for summary judgment against the plaintiff due to the absence of direct evidence from any of the servers or bartenders serving alcohol at the event on the night in question.

The plaintiff sustained serious injuries in a motor vehicle accident on the night of November 24, 2012, including a traumatic brain injury.  The defendant driver was on her way home from a company Christmas party held at the defendant banquet hall where she had spent the evening drinking.  Liability was not at issue as between the two drivers.  The plaintiff also started an action against the defendant banquet hall, claiming it breached its duty of care as a commercial host by serving the defendant driver to the point of intoxication and allowing her to leave.

The defendant banquet hall moved for summary judgment against the plaintiff.  The banquet hall emphasized the evidence from the driver’s co-workers, none of whom had noticed any signs of intoxication.  Hence, the banquet hall submitted, its staff would not have noticed any intoxication either if no one sitting at the table did, relying on Stewart v Pettie 1995 SCC 147.

The banquet hall also contended that it met its duty of care as a commercial host by requiring the thirty on-shift servers and bartenders to have Smart Serve Training and to report intoxication, and by posting notices about alcohol consumption and taxi company phone numbers.

In response, the plaintiff made three essential points.  First, taking issue with the co-worker statements, the plaintiff submitted that these were interested witnesses (at the time of the Discovery, they were employees of the defendant company who hosted the Christmas party) and pointed out that no one saw the defendant driver leave.  While she could have left between 9-9:30pm as indicated, it was also likely that she stayed longer in the room of 350 to 400 people and kept drinking.

Second, relying on its reports by a toxicologist and a commercial host expert, the plaintiff emphasized that a jury could find that the banquet hall did not meet industry standards despite the defendant not showing signs of intoxication.  Importantly, the plaintiff distinguished Stewart because in that case it was reasonable for the establishment to assume one of the two sober individuals would drive the group home as they had arrived together.  Here, the defendant had arrived alone and was attending the event by herself, which precluded a reasonable assumption that someone else would drive her home.

Third, and most importantly, the banquet hall failed to produce any of the staff on-shift serving the alcohol on the night in question.  This was critical, as Justice Sloane concluded:

[62] Currently there is no evidence from any of Versailles’s staff who were on duty on the night of the accident, with respect to what they understood their duties were in regards to alcohol service and patrons and what if anything they noticed on the night in question.

[63] The statement of claim was issued November 20, 2014, and assuming that it was served on Versailles shortly after that date, they have had over 4 years to try to contact the staff they had on the night in question.  It seems unusual that an employer would not have the SIN numbers of their employees and some method of contacting them even if they were casual.

[64] The court was not directed to any evidence to show what efforts have been made by Versailles to contact their casual staff.

[65] Based on the evidence produced on this motion the court is unable to conclude whether or not staff members were at the exits so that they could assess the sobriety of patrons when they were leaving so they could intervene if they thought it necessary.

In the absence of direct evidence on the procedures followed by the staff with respect to serving alcohol, Justice Sloane was not prepared to grant the summary judgment.  The motion was dismissed with costs.

Setting the Bar for Commercial Host Liability

Written By: Salvatore Shaw and Brandon Pedersen, Summer Student

Three friends go to a bar one night, and drink to the point of intoxication. The bartender continuously serves them alcohol, even after noticing their intoxicated states. The three friends then leave the bar, and one of them gets behind the wheel of a car. Subsequently, the driver collides with a third party vehicle, leaving the driver of the car severely injured. Is the bar liable?

If a clearly drunken patron ends up leaving a bar after being served numerous drinks, the bar would likely bear a degree of liability for the damages suffered by the drunken patron. This duty of care relationship exists between the bar and the patron it overserved.

This relationship was first recognized in Jordan House Ltd. v Menow, a 1974 Supreme Court decision, which involved an overserved patron of a hotel bar who was kicked-out and later was struck by a vehicle. The Court held that the hotel had a duty to protect the patron once they had assisted the patron in becoming intoxicated.

The Courts have further expanded the responsibilities of commercial hosts to include owing a special duty not only to their own patrons, but also to third party users of the road who may become injured or killed as a result of conduct committed by their patrons. This duty was first recognized in Stewart v Pettie, a landmark Supreme Court decision, which established that there is a special relationship between commercial hosts and the public that could require such hosts to take affirmative steps to protect them.

What does this mean? In order to meet the standard of care, commercial hosts must take positive steps to protect third-parties from intoxicated patrons who decide to drive. Some factors the Courts may look to in assessing liability of commercial establishments may include whether there was a system or policy in place to control and monitor alcohol consumption; whether the commercial establishment arranged for transportation; and whether the staff is properly trained in accordance with regulatory policies.

In a recent British Columbia Supreme Court decision, the Court proposed a list of common sense commercial host practices that can act as a general guideline for bars to follow:

74      While the standard of care expected of a commercial host will, in large part, be governed by the particular circumstances of any given case, there are several general standards of conduct that could well apply simply as a matter of common sense, including:

    • ensure there are adequate supervision, monitoring and training systems in place so employees know and abide by responsible serving practices;
    • ensure there is a sufficient number of serving staff on duty so that effective monitoring of alcohol consumption by patrons is possible;
    • ensure employees know the signs of intoxication and the various factors that influence intoxication (gender, weight, rate of consumption, food, et cetera);
    • inquire if the patron is driving and identify any “designated driver” for groups of patrons;
    • know how to estimate blood-alcohol concentrations and ensure any driver does not consume more than the appropriate number of drinks to stay on the “right side” of the legal limit;
    • display “tent cards” on tables, posters on walls and washrooms, and menu inserts with easy-to-read charts and information about blood-alcohol concentration;
    • ask apparently-intoxicated patrons if you contact anyone to assist them or if you can get them a taxi and, if necessary, offer to pay for it;
    • display posters advertising free ride-home services available in the neighbourhood; and
    • if the patron rejects alternative options and insists on driving, despite being urged otherwise, contact the police to seek assistance and/or provide whatever information might encourage their intervention.[1]

Commercial hosts have an obligation to take positive steps to protect third-parties from intoxicated patrons who decide to drive. Meeting the standard of care requires the establishment to use common sense and take proactive steps to protect intoxicated patrons from causing harm to themselves or others. All commercial hosts should have protocols in place to ensure that all reasonable precautions are taken to prevent patrons who subsequently drive after becoming intoxicated.

If you or someone you know has been injured by a drunk driver, contact the team at McLeish Orlando LLP for more information about your rights, and receive a free consultation.

[1] Widdowson v Rockwell, 2017 BCSC 385.

A Reminder of the Importance of Reasonable Foreseeability in Negligence Claims

Written By: Joseph Cescon and Brandon Pedersen, Summer Student

Negligence Claims

Importance of Reasonable Foreseeability in Negligence Claims

At law, certain relationships are recognized to give rise to a prima facie duty of care. It is a well-known fact and well-established point of law that a driver of a car who is at-fault owes a duty of care to a person who was injured as a result of the driver’s negligence. The reason for this is that a risk of personal injury after a driver’s negligent conduct (for example, being intoxicated while driving) is reasonably foreseeable.

In what circumstances might a property owner owe a duty of care to a thief who steals from their business? On the face of things, the notion that an innocent party could owe a duty of care to someone who steals from them seems illogical; however, last year, the Supreme Court of Canada revisited the question of foreseeability in establishing a duty of care.

In Rankin (Rankin’s Garage & Sales) v JJ,[1] two teenagers drank alcohol and smoked marijuana to the point of intoxication, and subsequently went to Rankin’s Garage in Paisley, Ontario.  At the time, Rankin’s was an unsecured car dealership and mechanic property, where the teens found an unlocked vehicle with the keys in the ashtray. The two teenagers decided to go for a joyride, though the driver did not have a driver’s license and was drunk and high. As most could anticipate, the driver got into a serious single-vehicle accident, and the passenger suffered a catastrophic brain injury as a result.

After the Ontario Court of Appeal upheld the trial court’s decision that Rankin’s Garage was negligent, the Supreme Court of Canada was forced to conduct a thorough analysis to determine if a duty of care existed.  In a split decision, 7-2, the majority for the Court determined that “this case [could] be resolved based on a straightforward application of existing tort law principles” by applying the Anns-Cooper test.[2] Based on the application of the test, the Court affirmed that what needs to be “reasonably foreseeable” is not only the risk of theft, but that the type of harm suffered – in this case, devastating personal injuries – was reasonably foreseeable to someone in the position of the thief, when considering the security of the vehicles stored at the garage. The Supreme Court of Canada ruled that a commercial car garage did not owe a duty of care to a person who was injured following the theft of a vehicle from its premises.

Implications for Tort Law

  • The decision in Rankin’s demonstrates that risk needs to be assessed on a case-by-case basis, and a duty of care must be based on the reasonably foreseeable risk of harm rather than just a mere possibility of such harm. The outcome of Rankin’s is likely to result in greater attention being paid to the foreseeability inquiry in future negligence cases.
  • While the majority’s decision clarified that a business will only be liable in this kind of situation where both the theft and the unsafe operation of the stolen vehicle should have been foreseen, it indicated that a defendant may still owe a duty of care even if a plaintiff participates in criminal activity.
  • The question that remains is whether or not individual automobile owners owe a duty of care to those injured as a result of the theft of their car. The Rankin’s decision illustrates that cars are not inherently dangerous, and storing them (whether for commercial or personal reasons) will only create a reasonably foreseeable risk in certain circumstances.

Contact the lawyers at McLeish Orlando LLP for more information about your rights, and the options available to you.

[1] Rankin (Rankin’s Garage & Sales) v JJ , [2018] 1 SCR 587, 2018 SCC 19 (CanLII)

[2] Cooper v Hobart, [2001] 3 SCR 537, 2001 SCC 79

Snowball v Ornge, 2017 ONSC 4601

Written By: Michael Warfe and Endrita Isaj, Summer Student

The ability for families to claim damages for their loss of guidance, care, and companionship from the injury or death of a loved one is well-established by section 61 of the Family Law Act (FLA). However, the ability for families to claim damages for their mental distress arising from the loss or injury of a family member has always been relatively restricted. Typically, a claimant would not be able to advance a claim for damages for mental distress unless they witnessed the death or bodily injury of their family member, were involved in its aftermath, or tried to help save the injured person.

The case of Snowball v Ornge, 2017 ONSC 4601, has opened the door for family members to bring an action in negligence to claim damages for mental distress that resulted from the death or injury of their family member, without having been there to witness the incident.

In Snowball v Ornge, Christopher Snowball was a paramedic who lost his life aboard an air ambulance helicopter operated by Ornge in Moosonee, Ontario. The helicopter crashed and burned, killing all four on board, including Christopher, two pilots, and another flight paramedic.

Christopher’s then 16 year old daughter and his parents brought an action in negligence against Ornge for damages for their mental distress and for damages under s. 61 of the FLA. In their Statement of Claim, the Snowball family outlined the particulars of their mental distress stemming from Christopher’s loss. These mental injuries included “intense and prolonged physical distress at exposure to cues that [reminded] them of Christopher, dissociative reactions, persistent negative emotional states, recurring ruminations over the horrible manner in which the late Christopher Snowball met his death, and the terrible agony he endured before perishing,” among other symptoms.[1]

The defendant, Ornge, brought a motion to strike the plaintiffs’ claim for damages for mental distress pursuant to Rule 21 of the Rules of Civil Procedure. Ornge submitted to the court that on the facts of the case there was no right of action for mental distress damages arising from a negligently caused death. Ornge maintained that the only way to meet this threshold was if the plaintiffs witnessed the incident or its aftermath.

Justice Faieta of the Ontario Superior Court of Justice dismissed Ornge’s Rule 21 motion to strike out the plaintiffs’ claim for mental distress damages. Justice Faieta relied on the Supreme Court of Canada’s ruling in Saadati v Moorhead, 2017 SCC 28, to come to the conclusion that the plaintiffs’ claims for mental distress following Christopher’s death might succeed, even though they were secondary victims who did not witness the traumatic event. Justice Faieta relied on the principles the Supreme Court of Canada drew in Saadati, observing:

[G]iven that the court in Saadati rejected the “primary/secondary victim” distinction, as well as the view that there are geographic, temporal and relational proximity restrictions that are an absolute limitation on the duty to take reasonable care to avoid causing foreseeable mental injury, it is my view that the plaintiffs’ claims for mental distress following Snowball’s death might succeed even though they are secondary victims who did not witness this sudden, traumatic event.[2]

In line with Saadati, Justice Faieta held that the outcome of the plaintiffs’ action should be assessed through a “robust application of the elements of an action in negligence by the trier of fact,”[3] rather than an analysis which focused on the temporal, geographic, and relational factors or the distinction placed between primary and secondary victims.[4] The Supreme Court of Canada in Saadati confirmed that the analysis must be “sufficiently flexible to capture all relevant circumstances that might in any given case go to seeking out the ‘close and direct’ relationship which is the hallmark of the common law duty of care.”[5] The Saadati ruling led Faieta J. in Snowball to recognize that the plaintiffs could have a successful claim in negligence for the mental distress they suffered, despite the fact that they were not there temporally to witness the helicopter crash.

This case is important as it provides another avenue for aggrieved family members to claim damages in negligence for the psychological injuries they have suffered following a family member’s injury or death, without witnessing the actual event. The court has recognized that following a traumatic event, a person’s mental health has to be compensated for in negligence law as it plays an integral part in how a person chooses to live their life and pursue their goals.[6]

If you or a loved one have suffered from mental distress from a family member being injured or killed, please do not hesitate to contact the critical injury lawyers at McLeish Orlando LLP for a free consultation.

[1] Snowball v Ornge, 2017 ONSC 4601 at para 7 [Snowball].

[2] Ibid at para 21.

[3] Ibid.

[4] Ibid.

[5] Saadati v Moorhead, 2017 SCC 28 at para 24.

[6] Ibid at para 23.

Photo from Canadian Press.