Donaldson v. John Doe et al., 2009 BCCA 38

• Judge: Rowles, Prowse and Frankel, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: October 15, 2008
• Jurisdiction: British Columbia
• Citations: 2009 BCCA 38;(2009), 265 B.C.A.C. 257 (CA)

Donaldson v. John Doe (2009), 265 B.C.A.C. 257 (CA);

    446 W.A.C. 257

MLB headnote and full text

Temp. Cite: [2009] B.C.A.C. TBEd. FE.019

Derek Blair Donaldson (appellant/plaintiff) v. John Doe, Pacific Promotions Ltd., 530077 B.C. Ltd. carrying on business as the Commodore Ballroom, and Pensionfund Properties Ltd., Christopher George Briggs (respondents/defendants)

(CA035019; 2009 BCCA 38)

Indexed As: Donaldson v. John Doe et al.

British Columbia Court of Appeal

Rowles, Prowse and Frankel, JJ.A.

February 4, 2009.

Summary:

The plaintiff attended an Oktoberfest event at which souvenir glass beer mugs were distributed to patrons. After the event ended and the patrons had left the host premises, the plaintiff was injured when struck in the eye by a beer mug held by another patron (Briggs). The plaintiff sued for damages, alleging negligence by Briggs, the promoter of the event (Pacific Promotions), and the owner of the venue (Commodore). Only the liability of promoter and the venue owner was in issue at trial.

The British Columbia Supreme Court, in a decision at [2007] B.C.T.C. Uned. C54, dismissed the claims against the promoter and owner, holding that neither owed a duty of care to the plaintiff. The plaintiff appealed.

The British Columbia Court of Appeal held that both the promoter and the owner owed a duty of care to the plaintiff. However, the court declined to pronounce in detail on the standard of care because, regardless of what standard of care was appropriate, there were evidentiary gaps in the plaintiff's case that made it impossible to affix either the promoter or owner with liability. The court therefore dismissed the appeal.

Torts - Topic 10

Negligence - Standard of care - General - The British Columbia Court of Appeal stated that foreseeability in the duty of care analysis and foreseeability in the standard of care analysis were two different legal concepts - The court stated that "In determining whether A owes a duty of care to B, foreseeability is a factor with respect to whether the relationship between them warrants imposing such a duty. The question is whether B falls within a class of persons who could reasonably be expected to be harmed by A's conduct. If a duty of care is found to exist, then foreseeability with respect to the specific risk of harm is considered in determining whether A was negligent, i.e., whether there has been a breach of the standard of care" - See paragraph 26.

Torts - Topic 54

Negligence - Causation - Test for (incl. "but for" test and "material contribution" test) - [See first Torts - Topic 4195 ].

Torts - Topic 76

Negligence - Duty of care - General principles - [See Torts - Topic 10 ].

Torts - Topic 4195

Suppliers of services - Alcohol - Duty of server (commercial hosts) - The plaintiff attended an Oktoberfest event at which souvenir glass beer mugs were distributed to patrons - After the event ended and the patrons had left the host premises, the plaintiff was injured when struck in the eye by a beer mug held by another patron (Briggs) - The trial judge dismissed the plaintiff's claims for damages against the promoter of the event and the owner of the venue, holding that neither owed a duty of care to the plaintiff - The plaintiff appealed - The British Columbia Court of Appeal held that both the promoter and the owner owed a duty of care to protect persons such as the plaintiff from injury by patrons of Oktoberfest who left the event intoxicated - However, the court held that a full standard of care analysis was unnecessary where, as against the promoter and owner, the plaintiff failed to adduce evidence with respect to Briggs's drinking and conduct - The evidence adduced at trial was capable of proving only that Briggs was intoxicated to some unknown degree when he left the event - That was not sufficient to establish a breach of the standard of care by commercial hosts - Nor was it sufficient to satisfy the "but for" causation test as it would be speculation to infer that alcohol was a factor in Briggs's actions - The court therefore dismissed the appeal - See paragraphs 25 to 54.

Torts - Topic 4195

Suppliers of services - Alcohol - Duty of server (commercial hosts) - The British Columbia Court of Appeal stated that "I have difficulty accepting that the mere fact that a person who has been drinking leaves an alcohol-serving establishment with glassware gives rise to a foreseeable risk of harm to others. However, assuming, without deciding, that (a) such a risk exists, and (b) that the appropriate standard of care requires the establishment to have a monitoring system in place to reduce that risk, the establishment will only have failed to meet that standard if that person's level of intoxication is sufficient to objectively raise concerns that he or she may act, deliberately or carelessly, in such a way as to injure someone with the glassware. If the person was not in fact intoxicated to a level that objectively raises such concerns, then regardless of what standard of care is appropriate, a breach of that standard will not have occurred. To conclude otherwise would be to hold a commercial host to a standard of perfection, and make it liable for the acts of its patrons regardless of their actual level of intoxication. Perfection, however, is not what the law requires" - See paragraphs 44 to 45.

Torts - Topic 4195

Suppliers of services - Alcohol - Duty of server (commercial hosts) - The British Columbia Court of Appeal stated that "to affix a commercial host with liability, a plaintiff must establish that the patron was intoxicated to the point where he or she posed a foreseeable danger to others. If the patron was not in such a condition, then there is nothing that the commercial host could know, or ought to have known, that would require the host to take some action" - See paragraph 50.

Cases Noticed:

Childs v. Desormeaux et al., [2006] 1 S.C.R. 643; 347 N.R. 328; 210 O.A.C. 315; 2006 SCC 18, consd. [para. 21].

Cooper v. Registrar of Mortgage Brokers (B.C.) et al., [2001] 3 S.C.R. 537; 277 N.R. 113; 160 B.C.A.C. 268; 261 W.A.C. 268; 2001 SCC 79, refd to. [para. 21].

Cooper v. Hobart - see Cooper v. Registrar of Mortgage Brokers (B.C.) et al.

Stewart v. Pettie et al., [1995] 1 S.C.R. 131; 177 N.R. 297; 162 A.R. 241; 83 W.A.C. 241, consd. [para. 21].

Jordan House Ltd. v. Menow, [1974] S.C.R. 239, refd to. [para. 21].

Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), refd to. [para. 21].

Hill et al. v. Hamilton-Wentworth Regional Police Services Board et al., [2007] 3 S.C.R. 129; 368 N.R. 1; 230 O.A.C. 260; 2007 SCC 41, consd. [para. 30].

Mustapha v. Culligan of Canada Ltd., [2008] 2 S.C.R. 114; 375 N.R. 81; 238 O.A.C. 130; 2008 SCC 27, consd. [para. 30].

Simpson v. Baechler et al. (2009), 264 B.C.A.C. 262; 445 W.A.C. 262; 2009 BCCA 13, refd to. [para. 30].

Design Services Ltd. et al. v. Canada, [2008] 1 S.C.R. 737; 374 N.R. 77; 2008 SCC 22, refd to. [para. 32].

Donoghue v. Stevenson, [1932] A.C. 562 (H.L.), refd to. [para. 35].

Haughton et al. v. Burden et al., [2001] O.T.C. Uned. C26 (Sup. Ct.), refd to. [para. 38].

McIntyre v. Grigg et al. (2006), 217 O.A.C. 217; 274 D.L.R.(4th) 28 (C.A.), refd to. [para. 48].

Hanke v. Resurfice Corp. et al., [2007] 1 S.C.R. 333; 357 N.R. 175; 404 A.R. 333; 394 W.A.C. 333; 2007 SCC 7, refd to. [para. 53].

Bohun v. Sennewald et al. (2008), 250 B.C.A.C. 231; 416 W.A.C. 231; 77 B.C.L.R.(4th) 85; 2008 BCCA 23, refd to. [para. 53].

Bohun v. Segal - see Bohun v. Sennewald et al.

Authors and Works Noticed:

Fleming, John G., The Law of Torts (8th Ed. 1992), pp. 105, 106 [para. 28].

Linden, Allen M., and Feldthusen, Bruce, Canadian Tort Law (8th Ed. 2006), p. 302 [para. 33].

Osborne, Philip H., The Law of Torts (3rd Ed. 2007), p. 70 [para. 29].

Counsel:

D.G. Cowper, Q.C., and K.A.J. Grist, for the appellant;

M.K. Skorah and D.R. Mackenzie, for the respondent, Pacific Promotions Ltd.;

J.C. Taylor and K.R. Taylor, for the respondent, Commodore Ballroom.

This appeal was heard on October 15, 2008, at Vancouver, British Columbia, before Rowles, Prowse and Frankel, JJ.A., of the British Columbia Court of Appeal. The following judgment of the Court of Appeal was delivered by Frankel, J.A., on February 4, 2009.