McIntyre v. Grigg et al., (2006) 217 O.A.C. 217 (CA)

• Judge: McMurtry, C.J.O., Weiler and Blair, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: November 06, 2006
• Jurisdiction: Ontario
• Citations: (2006), 217 O.A.C. 217 (CA)

McIntyre v. Grigg (2006), 217 O.A.C. 217 (CA)

MLB headnote and full text

Temp. Cite: [2006] O.A.C. TBEd. NO.015

Andrea McIntyre , Duncan McIntyre, Darlene McIntyre, Jennifer McIntyre and Alexis McIntyre by her Litigation Guardian Duncan McIntyre (plaintiffs/respondent) v. Thomas Grigg and Andrew Grigg, McMaster Student Union Incorporated carrying on business as "The Downstairs John" (defendants/appellant)

Andrea McIntyre , Duncan McIntyre, Darlene McIntyre, Jennifer McIntyre and Alexis McIntyre by her Litigation Guardian Duncan McIntyre (plaintiffs/respondent) v. Thomas Grigg and Andrew Grigg , McMaster Student Union Incorporated carrying on business as "The Downstairs John" (defendants/appellants)

Andrea McIntyre, Duncan McIntyre , Darlene McIntyre , Jennifer McIntyre and Alexis McIntyre by her Litigation Guardian Duncan McIntyre (plaintiffs/appellants) v. Thomas Grigg and Andrew Grigg, McMaster Student Union Incorporated carrying on business as "The Downstairs John" (defendants/respondents)

(C41585; C41663; C41674)

Indexed As: McIntyre v. Grigg et al.

Ontario Court of Appeal

McMurtry, C.J.O., Weiler and Blair, JJ.A.

November 6, 2006.

Summary:

McIntyre, a first year university student and an outstanding athlete, was struck by a vehicle owned by Thomas Grigg and driven by Andrew Grigg. Prior to the accident, Andrew Grigg had been drinking at a campus pub owned by McMaster Student Union Inc. (MSU). McIntyre sued Thomas and Andrew Grigg and MSU. McIntyre's parents and her younger sister brought claims under the Family Law Act (FLA). A jury awarded McIntyre $250,000 general damages, $100,000 aggravated damages and $100,000 punitive damages, but denied her family's claims under s. 61 of the FLA. The jury determined that the general damages were payable 70% by the Griggs and 30% by MSU, but the aggravated and punitive damages were payable solely by the Griggs. The Griggs and MSU appealed the damages awarded. MSU also appealed the finding that it was 30% liable for the general damages and the costs awarded. McIntyre's family appealed the dismissal of their claims under s. 61 of the FLA.

The Ontario Court of Appeal upheld the general damages award and deleted the aggravated damages award. The court upheld the awarding of punitive damages, but reduced the quantum from $100,000 to $20,000. Blair, J.A., dissenting on this point only, would have deleted the award of punitive damages in its entirety. The court dismissed MSU's appeal respecting costs. The court allowed the appeal respecting the FLA claims and awarded $15,000 each to McIntyre's parents and $5,000 to her sister.

Damage Awards - Topic 105

Injury and death - Head injuries - Skull fracture and closed head injuries - The plaintiff, a first year university student and an outstanding athlete, suffered serious and permanent injuries when she was struck by a vehicle - The Ontario Court of Appeal acknowledged that the jury's award of $250,000 general damages was perhaps generous and at the high end of the range, but refused to interfere with it - The plaintiff was an active, athletic and intelligent young woman who suffered serious and permanent injuries - Physically, she sustained a closed head injury, soft tissue injuries and various orthopaedic injuries - At trial, she had a reduced range of motion in her right hip, her right hemi-pelvis was tipped down, and she had permanent scarring in two places on her right leg - Psychologically, the accident triggered a major depressive disorder that led to two suicide attempts, several years apart - Her depression was attributed to post-traumatic stress disorder and to her personal reaction to the losses in her function and self-image from her physical injuries - She would require medication and was likely to suffer from anxiety and fear on a long-term basis - Although now back at university and performing well, and traveling and mixing with friends, most aspects of her life had been dramatically affected by the accident and might continue to be for the rest of her life - See paragraphs 42 to 45.

Damage Awards - Topic 200

Injury and death - Psychological injuries - Anxiety state or neurosis - [See Damage Awards - Topic 105 ].

Damage Awards - Topic 204

Injury and death - Psychological injuries - Depression - [See Damage Awards - Topic 105 ].

Damage Awards - Topic 215

Injury and death - Psychological injuries - Post traumatic stress disorder - [See Damage Awards - Topic 105 ].

Damage Awards - Topic 216

Injury and death - Psychological injuries - Suicide attempts - [See Damage Awards - Topic 105 ].

Damage Awards - Topic 590

Torts - Injury to third parties - Loss of care, guidance and companionship - McIntyre, a first year university student, was struck by a vehicle - The driver was intoxicated - McIntyre suffered serious and permanent injuries - Physically, she sustained a closed head injury, soft tissue injuries and various orthopaedic injuries - Psychologically, the accident triggered a major depressive disorder that led to two suicide attempts, several years apart - A jury awarded McIntyre damages that included $250,000 general damages, but dismissed her parents' and younger sister's claims for damages under the Family Law Act - On appeal, the Ontario Court of Appeal awarded $15,000 each to McIntyre's parents and $5,000 to her sister - See paragraphs 90 to 114.

Damage Awards - Topic 2011.2

Exemplary or punitive damages - Drinking and driving - The plaintiff was seriously and permanently injured as a result of being struck by a vehicle - The driver was intoxicated -However, because he was not informed of his right to counsel before the breathalyzer test was administered, the Crown only proceeded with a charge of careless driving - The driver pleaded guilty and received a $500 fine - The Ontario Court of Appeal held that there was sufficient evidence for the jury to make an award of punitive damages - By making the deliberate choice to drink excessively and then drive, the driver's misconduct was more than mere negligence - It demonstrated a conscious and reckless disregard for the lives and safety of others - There was evidence that he was two to three times over the legal limit for alcohol consumption and was speeding and driving recklessly - This was one of those rare cases where the "disproportionality" test applied - It was open to the jury to find that punitive damages did not amount to double punishment despite the careless driving conviction and $500 fine, that others would not be deterred by the fine imposed on him and that punitive damages were appropriate - However, the quantum awarded ($100,000) was too high to meet the rationality test - The court reduced the quantum to $20,000 - See paragraphs 53 to 89.

Damages - Topic 904

Aggravation - General - Aggravated damages defined - The plaintiff was seriously and permanently injured as a result of being struck by a vehicle - The driver was intoxicated - A jury awarded the plaintiff $250,000 general damages and $100,000 aggravated damages, inter alia - The Ontario Court of Appeal deleted the award for aggravated damages - The expert medical evidence was not sufficient to establish that the plaintiff's psychological harm was increased because the driver was impaired at the time of the accident - Further, such damages were part of the general non-pecuniary award and subject to the upper limit for personal injury - Here the general damages award was generous and should not be increased even if there was an evidentiary basis for awarding aggravated damages - See paragraphs 46 to 52.

Damages - Topic 905

Aggravation - General - Aggravated damages - Claim for (incl. pleading) - [See Damages - Topic 904 ].

Damages - Topic 1292

Losses by third parties - Recoverable losses - Loss of care, guidance and companionship - The Ontario Court of Appeal stated that the wording of s. 61 of the Family Law Act and existing jurisprudence indicated that a loss did not have to be permanent in order for an award for loss of care, guidance and companionship to be made - The court also rejected the argument that a claim for loss of companionship and guidance was not available where the injured plaintiff was physically separated from her family in the years following the accident - Companionship was not limited to physical presence - Because companionship involved sharing interests and ideas with another person, communication of interests and ideas by email and telephone was a form of companionship - See paragraphs 110 and 111.

Damages - Topic 1296.1

Exemplary or punitive damages - Exemplary or punitive damages defined - The Ontario Court of Appeal stated that punitive damages were awarded to meet the objective of punishment, deterrence, and denunciation of the defendant's conduct, and not to compensate the plaintiff - Punitive damages should only be awarded in exceptional cases and they should be awarded with restraint - An award of punitive damages therefore required the defendant to have engaged in extreme misconduct - The court stated that the type of conduct required to attract punitive damages had been described in many ways, such as: malicious, oppressive, arbitrary and high-handed that offended the court's sense of decency; a marked departure from ordinary standards of decent behaviour; harsh, vindictive, reprehensible and malicious; offended the ordinary standards of morality or decency; arrogant and callous; egregious; high-handed and callous; arrogant, callous of the plaintiff's rights and deliberate; harsh, reprehensible and malicious; outrageous or extreme; highly unethical conduct which disregarded the plaintiff's rights; and recklessly exposing a vulnerable plaintiff to substantial risk of harm without any justification - See paragraphs 59 and 60.

Damages - Topic 1302.2

Exemplary or punitive damages - Drinking and driving - [See Damage Awards - Topic 2011.2 ].

Damages - Topic 1310

Exemplary or punitive damages - Negligence - [See Damage Awards - Topic 2011.2 ].

Damages - Topic 1310

Exemplary or punitive damages - Negligence - The Ontario Court of Appeal held that it would be inappropriate to narrow the scope of punitive damages by specifically requiring that the defendant's conduct be directed at the plaintiff - Rather, it was sufficient if there was an intention to do the act or combination of acts that eventually caused the injury - See paragraphs 61 to 70.

Evidence - Topic 1251

Relevant facts - Relevance and materiality - Similar acts - General - McIntyre was awarded $250,000 general damages after being struck by a vehicle - The driver was intoxicated - He had been drinking at a campus pub owned by McMaster Student Union (MSU) before the accident - A jury found MSU 30% liable for the general damages - On appeal, MSU submitted that the trial was unfair because the plaintiffs called and relied upon "similar fact" evidence not disclosed before the trial and the trial judge failed to charge the jury on the proper use of that evidence - The evidence consisted of the testimony of a number of individuals who frequented the pub and who testified that they occasionally had been served, and had observed others being served, to the point of intoxication in spite of a "Smart Serve" protocol - These instances were said to have occurred before, on, and after the night in question - The Ontario Court of Appeal held that the evidence was not "similar fact" evidence called to buttress the claim for punitive damages, but rather evidence led to rebut the pub's position that it had policies and procedures in effect such that it would not over-serve alcohol to its patrons - Therefore, there was no need for the trial judge to instruct the jury on the limited use to which similar fact evidence could be put - See paragraph 34.

Practice - Topic 5194

Juries and jury trials - Charge to jury - Respecting evidence - [See Evidence - Topic 1251 ].

Practice - Topic 5199

Juries and jury trials - Charge to jury - Respecting apportionment of fault - The plaintiff was awarded $250,000 general damages after being struck by a vehicle - The driver had been drinking at a campus pub owned by McMaster Student Union (MSU) before the accident - At the time of the accident his blood-alcohol level was nearly three times the legal limit - A jury found MSU 30% liable for the general damages - The Ontario Court of Appeal refused to interfere with the jury's apportionment of liability - While it might have been preferable for the trial judge to have allowed defence counsel's request to charge the jury on apportionment, there was no basis to interfere in the absence of material misdirection or non-direction, unless the verdict was so plainly unreasonable and unjust as to satisfy the court that no jury reviewing the evidence as a whole and acting judicially could have arrived at that conclusion - Here, the jury was entitled to arrive at the verdict regarding apportionment that it did - See paragraphs 21 to 40.

Practice - Topic 8825.3

Appeals - General principles - Duty of appellate court regarding apportionment of fault by trial judge or jury - [See Practice - Topic 5199 ].

Torts - Topic 4195

Suppliers of services - Alcohol - Duty of server - The Ontario Court of Appeal stated that "In Ontario, commercial host liability may be imposed both at common law and by statute where a patron, who subsequently causes injury, has been served while intoxicated or over-served to the point of intoxication, and where it is reasonably foreseeable that the patron will drive a motor vehicle upon leaving the establishment. Commercial vendors of alcohol have an obligation to monitor a patron's consumption of alcohol and should have protocols in place to ensure that all reasonable precautions are taken to prevent such patrons who subsequently drive from becoming intoxicated to the point where they cannot safely operate a motor vehicle. Moreover, a commercial host does not escape liability simply by not knowing that the patron became inebriated before driving; the commercial host is liable if it or its employees knew or ought reasonably to have known in the circumstances that the patron was in such a condition." - See paragraph 23.

Torts - Topic 4195

Suppliers of services - Alcohol - Duty of server - The Ontario Court of Appeal reviewed a trial judge's jury charge respecting commercial host liability (duty and standard of care) - The court held that the trial judge properly charged the jury on the issue of the host's liability at common law and under the Liquor Licence Act - Read as a whole, the charge fairly put the position of the defence to the jury - See paragraphs 24 to 27.

Torts - Topic 7382

Joint and concurrent tortfeasors - Contribution between tortfeasors - Apportionment of fault - General - [See Practice - Topic 5199 ].

Cases Noticed:

Stewart v. Pettie et al., [1995] 1 S.C.R. 131; 177 N.R. 297; 162 A.R. 241; 83 W.A.C. 241, refd to. [para. 23].

Childs v. Desormeaux et al. (2004), 187 O.A.C. 111; 71 O.R.(3d) 195 (C.A.), refd to. [para. 23].

Hague et al. v. Billings et al. (1993), 64 O.A.C. 219; 13 O.R.(3d) 298 (C.A.), refd to. [para. 26].

Dryden et al. v. Campbell Estate et al., [2001] O.T.C. 143; 11 M.V.R.(4th) 247 (Sup. Ct.), refd to. [para. 37].

Snushall v. Fulsang et al. (2005), 202 O.A.C. 297; 78 O.R.(3d) 142 (C.A.), refd to. [para. 38].

McLean v. McCannell, [1937] S.C.R. 341, refd to. [para. 38].

Olmstead v. Vancouver-Fraser Park District, [1975] 2 S.C.R. 831; 3 N.R. 326, refd to. [para. 38].

Ferenczy v. MCI Medical Clinics et al. (2005), 198 O.A.C. 254 (C.A.), refd to. [para. 38].

Mizzi v. Hopkins (2003), 171 O.A.C. 161; 64 O.R.(3d) 365 (C.A.), refd to. [para. 38].

Howes et al. v. Crosby et al. (1984), 2 O.A.C. 375; 45 O.R.(2d) 449 (C.A.), refd to. [para. 38].

Koukounakis et al. v. Stainrod (1995), 81 O.A.C. 36; 23 O.R.(3d) 299 (C.A.), refd to. [para. 38].

Sambell v. Hudago Enterprises Ltd., [1990] O.J. No. 2494 (Gen. Div.), refd to. [para. 39].

Francescucci v. Gilker, [1996] O.J. No. 474 (C.A.), refd to. [para. 39].

Menow v. Jordan House Ltd., [1974] S.C.R. 239, refd to. [para. 39].

Andrews et al. v. Grand & Toy (Alberta) Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182, refd to. [para. 44, footnote 1].

Thornton et al. v. Board of School Trustees of School District No. 57 (Prince George) et al., [1978] 2 S.C.R. 267; 19 N.R. 552, refd to. [para. 44, footnote 1].

Teno et al. v. Arnold et al., [1978] 2 S.C.R. 287; 19 N.R. 1, refd to. [paras. 44, 133, footnote 1].

Whiten v. Pilot Insurance Co. et al., [2002] 1 S.C.R. 595; 283 N.R. 1; 156 O.A.C. 201, appld. [paras. 49, 117].

Norberg v. Wynrib, [1992] 2 S.C.R. 226; 138 N.R. 81; 9 B.C.A.C. 1; 19 W.A.C. 1, refd to. [paras. 50, 117].

T.W. v. Seo et al. (2005), 199 O.A.C. 172 (C.A.), refd to. [para. 51].

Nelson v. Welsh and Snow (1985), 70 N.S.R.(2d) 422; 166 A.P.R. 422 (T.D.), refd to. [para. 55, footnote 3].

Vorvis v. Insurance Corp. of British Columbia, [1989] 1 S.C.R. 1085; 94 N.R. 321, refd to. [paras. 56, 117].

Gerula v. Flores (1995), 83 O.A.C. 128 (C.A.), refd to. [para. 59].

Hill v. Church of Scientology of Toronto and Manning, [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1, refd to. [paras. 60, 117].

Doobay (c.o.b. Venus Fashions) v. York Gate Mall Ltd., [2000] O.J. No. 2219 (C.A.), refd to. [para. 60].

Starkman v. Delhi Court Ltd., [1961] O.R. 467 (C.A.), refd to. [para. 60].

L.F. v. J.R.F. (2001), 144 O.A.C. 372 (C.A.), refd to. [para. 60].

Ferme Gérald Laplante & Fils ltée v. Grenville Patron Mutual Fire Insurance Co. (2002), 164 O.A.C. 1; 61 O.R.(3d) 481 (C.A.), refd to. [para. 60].

Roose v. Hollett et al. (1996), 154 N.S.R.(2d) 161; 452 A.P.R. 161 (C.A.), refd to. [para. 60].

Robitaille et al. v. Vancouver Hockey Club Ltd. (1981), 124 D.L.R.(3d) 228 (B.C.C.A.), refd to. [para. 65].

Kaytor v. Lion's Driving Range Ltd. (1962), 35 D.L.R.(2d) 426 (B.C.S.C.), disagreed with [para. 66].

Nichols v. Guiel (1983), 145 D.L.R.(3d) 186 (B.C.S.C.), disagreed with [para. 66].

Van Oirschot v. Dow Chemical Canada Inc. (1993), 142 A.R. 149 (Q.B.), affd. (1995), 174 A.R. 157; 102 W.A.C. 157 (C.A.), refd to. [para. 68].

Vlchek v. Koshel (1988), 52 D.L.R.(4th) 371 (B.C.S.C.), agreed with [para. 69].

R. v. Orbanski (C.); R. v. Elias (D.J.) (2005), 335 N.R. 342; 195 Man.R.(2d) 161; 351 W.A.C. 161; 196 C.C.C.(3d) 481 (S.C.C.), refd to. [para. 72].

R. v. Bernshaw (N.) (1995), 176 N.R. 81; 53 B.C.A.C. 1; 87 W.A.C. 1; 95 C.C.C.(3d) 193 (S.C.C.), refd to. [paras. 72, 124].

R. v. Proulx (J.K.D.) (2000), 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161; 140 C.C.C.(3d) 449 (S.C.C.), refd to. [para. 73].

R. v. Dharamdeo (R.) (2000), 139 O.A.C. 137; 149 C.C.C.(3d) 489 (C.A.), refd to. [para. 74].

R. v. McVeigh (1985), 11 O.A.C. 345; 22 C.C.C.(3d) 145 (C.A.), refd to. [para. 74].

R. v. Biancofiore (N.F.) (1997), 103 O.A.C. 292; 119 C.C.C.(3d) 344 (C.A.), refd to. [para. 74].

R. v. Henry (D.B.) et al., [2005] 3 S.C.R. 609; 342 N.R. 259; 376 A.R. 1; 360 W.A.C. 1; 219 B.C.A.C. 1; 361 W.A.C. 1, refd to. [para. 77].

To v. Board of Education of Toronto et al. (2001), 150 O.A.C. 54; 55 O.R.(3d) 641 (C.A.), refd to. [para. 106].

Mason v. Peters (1982), 39 O.R.(2d) 27 (C.A.), refd to. [para. 106].

Thornborrow v. MacKinnon (1981), 32 O.R.(2d) 740 (H.C.), refd to. [para. 106].

Hamilton et al. v. Canadian National Railway Co. et al. (1991), 47 O.A.C. 329; 80 D.L.R.(4th) 470 (C.A.), refd to. [para. 107].

Reidy et al. v. McLeod Estate et al. (1986), 15 O.A.C. 200; 54 O.R.(2d) 661 (C.A.), refd to. [para. 107].

Mortimer v. Cameron (1992), 9 M.P.L.R.(2d) 185 (Ont. Gen. Div.), refd to. [para. 107].

Till v. Walker et al., [2000] O.T.C. 51 (Sup. Ct.), refd to. [para. 110].

Fidler v. Sun Life Assurance Co. of Canada (2006), 350 N.R. 40; 227 B.C.A.C. 39; 374 W.A.C. 39; 2006 SCC 30, refd to. [para. 117].

Cassell & Co. v. Broome, [1972] A.C. 1027 (H.L.), refd to. [para. 126].

Statutes Noticed:

Family Law Act, R.S.O. 1990, c. F-3, sect. 61(1) [para. 90].

Liquor Licence Act, R.S.O. 1990, c. L-19, sect. 39 [para. 24].

Authors and Works Noticed:

Canada, Traffic Injury Research Foundation, The Alcohol-Crash Problem in Canada: 2003 (2005), pp. 35, 40 [para. 127, footnote 8].

Mayhew, D.R., Brown, S.W., and Simpson, H.M., The Alcohol-Crash Problem in Canada: 2003 - see Canada, Traffic Injury Research Foundation, The Alcohol-Crash Problem in Canada: 2003.

Ontario, College of Physicians and Surgeons, Final Report of the Task Force on Sexual Abuse of Patients (November 25, 1991), generally [para. 71, footnote 6].

Ontario, Financial Services Commission, Ontario Automobile Policy (OAP 1), Owner's Policy, www.fsco.gov.on.ca/ english/insurance/auto/OAP.asp, p. 16 [para. 131, fn. 9].

Ontario, Law Reform Commission, Report on Exemplary Damages (June 1, 1991), p. 46 [para. 76].

Veilleux, Danny R., Annotation, Intoxication of Automobile Driver as Basis for Awarding Punitive Damages (1995), 33 A.L.R.5th 303, generally [para. 55, footnote 4].

Counsel:

David F. Smye, Q.C., and Michael J. Winward, for the respondent (C41585, C41663), and for the appellants (C41674);

Patrick J. Monaghan, for the appellant (C41585), and for the respondent (C41674), McMaster Student Union Incorporated;

Sheldon A. Gilbert, Q.C., and Shawn R. Stringer, for the appellants (C41663), and for the respondents (C41674), Thomas Grigg and Andrew Grigg.

These appeals were heard on May 15 and 16, 2006, by McMurtry, C.J.O., Weiler and Blair, JJ.A., of the Ontario Court of Appeal. The court delivered the following reasons for judgment on November 6, 2006, including the following opinions:

By the court (Blair, J.A., dissenting in part) - see paragraphs 1 to 115;

Blair, J.A., dissenting in part - see paragraphs 116 to 149.