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Monday Morning Case Bites for January 25, 2021

Last Week’s Court Rulings from the Alberta Court of Queen’s Bench, Court of Appeal and SCC.

Edited by Tony Slemko Q.C. & Steven Graham

Allnutt v Carter, 2021 ABQB 51
Commercial Host Liability | Reasonable Foreseeability of Harm

Allnutt was assaulted by Carter at a Hudson’s Canadian Taphouse location in Edmonton. The Master had dismissed the Plaintiff’s application for summary judgment and the Defendants’ cross-application for summary dismissal. Both outcomes were appealed. 

The Plaintiff argued that Hudsons should have identified Carter as intoxicated and with the potential to harm a patron, such that it was reasonably foreseeable that Carter posed a risk of harm. Hudsons argued conversely that the assault was not foreseeable and while Hudsons conceded they owed the Plaintiff a duty of care, that duty was not breached.  

On appeal, the Plaintiff produced an affidavit from Dr. Leonard, a psychologist, who opined that Carrter was at an increased risk of engaging in violent behaviour as a result of his intoxication, and the risk of violence to himself and others was reasonably foreseeable. The Defendants objected to the admission of this affidavit, and the Court agreed, as it opined on the ultimate issue before the Court and was not of necessity to the trier of fact: 

[55]           There is no general rule that automatically excludes expert opinion evidence in respect of the ultimate issue: R v Johnston, 2010 ABCA 230 at para 52 [Johnston] and R v Juneja, 2010 ABCA 262 at para 12 [Juneja]. 

[56]           In R v Mohan, 1994 CanLII 80 (SCC), [1994] 2 SCR 9 [Mohan] the Court set out a four-part test for the admission of expert evidence: relevance, necessity and assistance to the trier of fact, the absence of any exclusionary rule and proper qualification of the expert. In Johnston, at para 53, the Court also instructs that the probative value of the evidence should be weighed against the prejudicial effect. 

[57]           Mohan, paras 28-29, also cautions that the closer the evidence gets to the ultimate issue the more cautious a court should be and that a heightened degree of scrutiny is warranted. 

[58]           As well, at para 26, the Court in Mohan explained that opinion evidence must be necessary and that it is generally intended to assist the judge or jury with matters that are outside of their knowledge or experience. 

[59]           In Juneja the opinion evidence in question concerned the operation of bawdy houses which the Court of Appeal hoped was outside the knowledge and experience of a judge. In the present case Leonard’s evidence that a nexus exists between the consumption of alcohol and violence is within the knowledge and experience of most citizens, even those who do not drink, as they have likely encountered or witnessed individuals who have over-imbibed. It is certainly within the experience of a judge given their own experiences of witnessing over consumption and from hearing a litany of cases involving the adverse effects that flow from the irresponsible consumption of alcohol. 

[60]           In R v D(D), 2000 SCC 43 at para 47, Justice Major, in citing Mohan, re-affirmed that “mere helpfulness” is not sufficient and that the evidence must be necessary in order to allow the fact finder to appreciate facts due to their technical nature or if ordinary persons require the assistance of an expert. 

[61]            Leonard’s conclusion that Carter’s danger to himself and others was “a real risk and a foreseeable outcome” approaches the ultimate issue before this Court. 

[62]           While I do not question Leonard’s expertise or literature review I do find that his evidence does not satisfy the necessity aspect of the Mohan test and I decline to admit it. The determination of reasonable foreseeability in the present case does not involve the examination of technical or complicated scientific evidence or matters that are outside the ordinary knowledge of an individual. While it is relevant, interesting and somewhat helpful it does not meet the necessity test for the reasons that I have outlined. 

The Court found that the matter was appropriate for summary judgment: 

[72]           Not all matters are appropriate for summary judgment. When this matter was before the Master he found that the facts were largely not in dispute but pointed to gaps in the factual record and suggested that more evidence must exist. Unlike the Master, I have a more fulsome record in front of me which addressed many of his concerns. Both parties suggest that the matter is appropriate for summary disposition. I agree for the following reasons: 

  • While the factual record is not perfect most of the shortcomings flow from issues of reliability and not credibility. I feel comfortable making the necessary factual findings based upon the affidavits and transcripts before the Court.
  • The Assault occurred over eight years ago. Memories will not improve and it is unlikely that additional witnesses will be found to fill in the gaps.
  • I am satisfied that I have been able to make the necessary findings of fact to reach a finding on judgment/dismissal.
  • The determination of liability in this matter will not be determined by the evidence of the individual Plaintiffs. It is not necessary for the Plaintiffs to be questioned. Instead, it will be determined by a Court’s findings of fact flowing from the evidence of the Defendants and other witnesses. This has largely occurred. From a fairness perspective I am not persuaded that a trial is necessary.
  • Carter’s evidence was not present before the Master. A transcript of his questioning now exists. This evidence assists in fact finding and supports a finding that this matter is appropriate for summary disposition.

 The Court outlined the test for reasonable foreseeability:  

[81]           In Rankin (Rankin’s Garage & Sales) v JJ, 2018 SCC 19 [Rankin] the Supreme Court of Canada had to determine whether it was reasonably foreseeable that third parties would be injured by vehicles that were stolen from Rankin’s Garage. Rankin’s had a practice of leaving the keys in unattended vehicles which made them easier to steal. 

[82]           The Court in Rankin at paras 46 and 53 enunciated the following principles that guide the determination of reasonable foreseeability: 

  • The fact that something is possible does not mean it is reasonably foreseeable;
  • Evidence is required to establish foreseeability;
  • Reasonable foreseeability is an objective test;
  • Courts should be careful not to cloud their analysis by the fact that the event in question did occur; and
  • A court should not rely upon the benefit of “20/20 hindsight”.

[83]           In assessing foreseeability, it is not necessary for Allnutt to prove the extent of injury or specific manner of occurrence; it is only necessary to prove the foreseeability of the type or kind of injury: see Phillip (Next Friend of) v Bablitz, 2011 ABCA 383 [Phillip] 

After providing an analysis of relevant authority pertaining to liability of commercial hosts, the Court ultimately concluded that while Carter was intoxicated when he arrived at Hudsons, there were no outward indications of his intoxication that Hudsons could or should have observed. Based on this and the length of time that Carter was at Hudsons, there was no reasonable foreseeability of harm: 

[96]           In the present case I have found that Carter was intoxicated when he entered Hudsons; however, he did not exhibit any significant or troubling outward signs of intoxication and he did not come to the attention of Hudsons’ staff prior to the assault. Unlike the situation in Stewart Hudsons had not served Carter all evening. In Stewart Justice Major noted that the dinner theater could not rely upon Pettie’s lack of visible intoxication as they had served him 10 to 14 ounces of alcohol over a 5-hour period. As I noted at paragraph 50, while I find that Carter was intoxicated, this is on the basis of his own evidence and that of Boyd and Amyotte post assault. 

[97]           The Assault was unprovoked and in that regard was similar to the findings in Harding, Baron, Temple and Wandy. Similarly, there was no prior adverse conduct to suggest or forewarn Hudsons that Carter would act violently. A lack of prior adverse conduct distinguishes this case from the circumstances in Hartley. 

[98]           Carter was only present at Hudsons for approximately 15- 30 minutes prior to the assault and had consumed one drink there and purchased a second. While he was intoxicated his behaviour prior to the assault and his consumption of alcohol at Hudsons do not support a finding that it was reasonably foreseeable that he would harm another patron. 

 

[101]      In the present case Carter did not exhibit any significant or outward signs of intoxication prior to the assault. While a commercial host is obligated to monitor its premises, it is likely that the majority of the individuals in its premises have consumed some alcohol. Short of administering a breath test it is difficult to accurately assess an individual’s level of intoxication[4]. Hudsons is only required to take such reasonable steps to ensure reasonable safety. 

 The Court found the following factors weighed against concluding that the assault was reasonably foreseeable: 

[107]      The evidence concerning the circumstances of the Assault must be considered: 

  • Carter and Allnutt did not know one another;
  • They had not interacted with one another prior to the Assault;
  • The Assault was unprovoked and therefore difficult to predict;
  • The Assault was perpetrated by a spilled drink; and
  • Carter was not known to Hudsons as a troublemaker.

[108]      This evidence also does not support a finding that the Assault was reasonably foreseeable. 

Ultimately, the Court held that since there was no prior disturbance or inappropriate behavior, an unprovoked assault is not reasonably foreseeable, and that ‘over service’ by itself cannot establish liability:

[112]      I am not bound by all of the authorities that I have cited; however, I agree with the weight of the authorities that in the absence of a prior disturbance or inappropriate behaviour an unprovoked assault is not reasonably foreseeable. Had Hudsons detected Carter’s level of intoxication they should not have served him two additional drinks; however, as noted in Stewart, “over service” by itself cannot establish liability.    

[113]      It is possible that any intoxicated person might become angry and attack a patron or staff member at Hudsons. However, for the reasons outlined above I am unable to conclude, on a balance of probabilities, that Carter’s attack on Allnutt was a foreseeable risk of harm. To conclude otherwise would make Hudsons an insurer of Allnutt and make Hudsons liable for the acts of any patron who was intoxicated whether they exhibited signs of impairment or not. 

On the basis of these findings, the Court summarily dismissed the Plaintiff’s claim against Hudsons.