Stewart v. Pettie et al., (1995) 177 N.R. 297 (SCC)

• Judge: McLachlin, Iacobucci and Major, JJ.
• Court: Supreme Court (Canada)
• Case Date: January 26, 1995
• Jurisdiction: Canada (Federal)
• Citations: (1995), 177 N.R. 297 (SCC);1995 CanLII 147 (SCC);[1995] 1 SCR 131;25 Alta LR (3d) 297;[1995] 3 WWR 1;23 CCLT (2d) 89;[1995] SCJ No 3 (QL);162 AR 241;8 MVR (3d) 1;177 NR 297;121 DLR (4th) 222

Stewart v. Pettie (1995), 177 N.R. 297 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

....................

Mayfield Investments Ltd., operating as the Mayfield Inn (appellant) v. Gillian Stewart and Keith Stewart and Stuart David Pettie (respondents)

Gillian Stewart and Keith Stewart (cross-appellant) v. Mayfield Investments Ltd., operating as the Mayfield Inn and Stuart David Pettie (cross-respondents)

(23739)

Indexed As: Stewart v. Pettie et al.

Supreme Court of Canada

La Forest, Sopinka, Gonthier, Cory,

McLachlin, Iacobucci and Major, JJ.

January 26, 1995.

Summary:

Stewart and her sister-in-law and their husbands attended a dinner theatre operated by Mayfield. The sister-in-law's intoxicated husband drove when they left the theatre. The husband lost control of the vehicle on a slippery highway and Stewart was rendered a quadriplegic. Intoxication was a contribut­ing cause of the accident. Stewart and her hus­band sued the driver, the operator of the dinner theatre and the City of Edmonton in negligence for damages. The quantum of damages was agreed to. The issues were liability and contributory negligence.

The Alberta Court of Queen's Bench found the intoxicated driver negligent and 75% at fault and Stewart contributorily negligent and 25% at fault for failing to wear her seat belt. The court dismissed the claim against the dinner theatre operator. Stewart and her husband appealed, claiming the operator was liable in negligence.

The Alberta Court of Appeal, in a judg­ment reported 141 A.R. 4; 46 W.A.C. 4, allowed the appeal and agreed with the trial judge's provisional assessment that the oper­ator was 10% at fault. The dinner theatre operator appealed. Stewart and her husband cross-appealed the finding that the driver was not grossly negligent.

The Supreme Court of Canada allowed the appeal and dismissed the action as against the dinner theatre operator. The court dis­missed the cross-appeal against the finding that the driver was not grossly negligent.

Torts - Topic 10

Negligence - Standard of care - General - The Supreme Court of Canada dis­tinguished between a duty of care and the standard of care - The court stated that "the question of whether a duty of care exists is a question of the relationship between the parties, not a question of conduct. The question of what conduct is required to satisfy the duty is a question of the appropriate standard of care." - See paragraphs 30 to 32.

Torts - Topic 61

Negligence - Causation - Causal connec­tion - [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 - A patron of an alcohol-serving establishment had five-seven double drinks in five hours - The waitress knew or ought to have known he was becoming intoxi­cated, notwithstanding the apparent lack of visible signs of intoxication - The patron was with his wife and sister, who were both sober - The establishment took no positive steps to ensure the patron did not drive - The wife and sister discussed the patron's ability to drive and concluded that he was okay to drive - An accident occurred - The sister was rendered a quadriplegic - The Supreme Court of Canada held that the establishment was not negligent in failing to take positive steps - It was reasonable to assume that the wife or sister would either drive or find alter­nate transportation (i.e., not foreseeable that the patron would drive in these cir­cumstances) - Further, the court held that absent proof that the establishment's inter­vention would have affected the wife's and sister's independent and considered deci­sion to let the patron drive, there was no established causal connection between the establishment's impugned conduct and the loss - See paragraphs 52 to 69.

Torts - Topic 4195

Suppliers of services - Alcohol - Duty of server - The Supreme Court of Canada discussed the standard of care of alcohol-serving establishments - The court stated that over-serving patrons, per se, was not negligence - "To hold that over-serving [a patron] per se is negligence if to ignore the fact that injury to a class of persons must be foreseeable as a result of the impugned conduct" - The issue was whether, on the facts of each case, the establishment was required to take positive steps to ensure that patrons did not drive - Every person who entered a bar or res­taurant was in an invitor-invitee relation­ship - The court stated that "the existence of this 'special relationship' will frequently warrant the imposition of a positive obli­gation to act, but the sine qua non of tortious liability remains the foreseeability of risk. Where no risk is foreseeable as a result of the circumstances, no action will be required, despite the existence of a special relation­ship." - See paragraphs 34 to 50.

Torts - Topic 4195

Suppliers of services - Alcohol - Duty of server - The Supreme Court of Canada held that alcohol-serving establishments owed a duty of care not only to patrons, but also to third parties who might reason­ably be expected to come into contact with the patron and to whom the patron may pose some risk - "It is clear that a bar owes a duty of care to patrons, and as a result, may be required to prevent an in­toxicated patron from driving where it is apparent that he intends to drive. Equally such a duty is owed, in that situation, to third parties who may be using the high­ways." - See paragraphs 24 to 28.

Torts - Topic 4195

Suppliers of services - Alcohol - Duty of server - The Supreme Court of Canada stated that "I agree that establishments which serve alcohol must either intervene in appropriate circumstances or risk liabil­ity, and that this liability cannot be avoided where the establishment has in­tentionally structured the environment in such a way as to make it impossible to know whether intervention is necessary." - See paragraph 56.

Cases Noticed:

Jordan House Ltd. v. Menow, [1974] S.C.R. 239, appld. [para. 1].

Crocker v. Sundance Northwest Resorts Ltd., [1988] 1 S.C.R. 1186; 86 N.R. 241; 29 O.A.C. 1, appld. [para. 20].

Schmidt v. Sharpe (1983), 27 C.C.L.T. 1 (Ont. H.C.), refd to. [para. 21].

Canada Trust Co. v. Porter (1980), 2 A.C.W.S.(2d) 428 (Ont. C.A.), refd to. [para. 21].

Sambell v. Hudago Enterprises Ltd., [1990] O.J. No. 2494 (Gen. Div.), refd to. [para. 21].

Hague et al. v. Billings et al. (1989), 48 C.C.L.T. 192 (Ont. H.C.), affd. in part (1993), 64 O.A.C. 219; 13 O.R. 298 (C.A.), refd to. [para. 21].

Anns v. Merton London Borough Council, [1978] A.C. 728; [1977] 2 W.L.R. 1024; [1977] 2 All E.R. 492 (H.L.), consd. [para. 24].

Kamloops (City) v. Nielsen et al., [1984] 2 S.C.R. 2; 54 N.R. 1, consd. [para. 24].

Just v. British Columbia, [1989] 2 S.C.R. 1228; 103 N.R. 1; [1990] 1 W.W.R. 385; 41 B.C.L.R.(2d) 350; 18 M.V.R.(2d) 1; 64 D.L.R.(4th) 689, consd. [para. 25].

Hall v. Hebert, [1993] 2 S.C.R. 159; 152 N.R. 321; 26 B.C.A.C. 161; 44 W.A.C. 161, consd. [para. 25].

Donoghue v. Stevenson, [1932] A.C. 562; [1932] All E.R. Rep. 1 (H.L.), refd to. [para. 25].

McAlister (Donoghue) v. Stevenson - see Donoghue v. Stevenson.

Saskatchewan Wheat Pool v. Canada, [1983] 1 S.C.R. 205; 45 N.R. 425, refd to. [para. 36].

Arland v. Taylor, [1955] O.R. 131 (C.A.), refd to. [para. 50].

Gouge v. Three Top Investment Holdings Inc., [1994] O.J. No. 751 (Gen. Div.), refd to. [para. 56].

Snell v. Farrell, [1990] 2 S.C.R. 311; 110 N.R. 200; 107 N.B.R.(2d) 94; 267 A.P.R. 94; 72 D.L.R.(4th) 289; 4 C.C.L.T.(2d) 229, refd to. [para. 65].

Statutes Noticed:

Contributory Negligence Act, R.S.A. 1980, c. C-23, generally [para. 19].

Highway Traffic Act, R.S.A. 1980, c. H-7, generally [para. 19].

Liquor Licence Act, R.S.O. 1980, c. 244, sect. 53 [para. 44].

Authors and Works Noticed:

Fleming, John G., The Law of Torts (8th Ed. 1992), pp. 105, 106 [para. 32].

Counsel:

Daniel W. Hagg, Q.C., and Allan A. Greber, for the appellant/cross-respon­dent, Mayfield Investments Ltd.;

J. Philip Warner, Q.C., and Doris I. Wilson, for the respondents/cross-appel­lants, Gillian Stewart and Keith Stewart;

Peter R. Chomicki, Q.C., for the respon­dent/cross-respondent Stuart David Pet­tie (written submission only).

Solicitors of Record:

Bryan & Company, Edmonton, Alberta, for the appellant/cross-appellant;

Bishop & McKenzie, Edmonton, Alberta, for the respondents/cross-appellants, Gillian Stewart and Keith Stewart;

Chomicki, Baril, Edmonton, Alberta, for the respondent/cross-respondent, Stuart David Pettie.

This appeal was heard on October 13, 1994, before La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ., of the Supreme Court of Canada.

On January 26, 1995, Major, J., delivered the following judgment for the court in both official languages.