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Monday Morning Case Bites for December 10, 2018

Last Week’s Court Rulings from the Alberta Court of Queen’s Bench, Court of Appeal and SCC.
Edited by Amanda Kostek & Christie Dewar

Zuk v Alberta Dental Association and College, 2018 ABCA 398
Costs l Substantially Successful
Kroeker v Zoric, 2018 ABQB 967
Used Vehicle Purchase l Caveat Emptor
Condominium Corporation No. 0613782 v Read More

Monday Morning Case Bites for December 3, 2018

Last Week’s Court Rulings from the Alberta Court of Queen’s Bench, Court of Appeal and SCC.
Edited by Amanda Kostek & Christie Dewar

Williams v. Richard, 2018 ONCA 889
Social Host Liability l Variety of Factual Permutations l Host ‘s knowledge plus “something more”
Moss v Sun Life Assurance Company of Canada, 2018 ABQB 953
Life Insurance l Misrepresentations l Void
797549 Alberta Ltd o/a Skyline Travel Centre v John Gilliatt and Lynn Gilliatt and Alberta Motor Association Insurance Company, 2018 ABPC 262
Insurance Act Dispute Resolution Process l Repair Cost

Williams v. Richard, 2018 ONCA 889

This was an unsuccessful summary dismissal application. The Ontario Court of Appeal concluded, that while Childs remains the leading case, a variety of “factual permutations” could give rise to a positive duty of care of social hosts. In this case, the parties were colleagues and friends who regularly got together to drink after work. On the evening in question the deceased Plaintiff drank 15 cans of beer over a 3 hour period at the home of the mother of Jake Richards, the alleged social host. The deceased Plaintiff then loaded his children into a car and drove. He was killed in a serious collision and his children suffered injuries.

Jake Richards knew the deceased Plaintiff was going to drive with his children in the car, and threatened to call police, but did nothing further:
[9] Mr. Richard became aware of Mr. Williams’ intention to drive the babysitter home in his personal vehicle and was aware that Mr. Williams would have his children in the car when he did so. The men had a pact that if either of them were going to drive while intoxicated and children were involved, the other would call the police. According to Mr. Richard, he threatened to call the police but he did not believe that Mr. Williams took that threat seriously. There is some evidence he received an assurance from Mr. Williams that he would not drive the babysitter home.
[10] It is far from clear whether Mr. Richard was satisfied with Mr. Williams’ assurance. His evidence regarding whether he believed that Mr. Williams was going to drive the babysitter was internally inconsistent. There was also inconsistent evidence regarding what Mr. Richard told his mother. Mr. Richard testified that he advised his mother that Mr. Williams was going to drive the babysitter home with the children in the car. Ms. Richard testified that she understood from the conversation with her son that Mr. Williams would not be driving the babysitter home.
[11] Beyond threatening to call the police, Mr. Richard did nothing further to stop Mr. Williams from driving while drunk. He did not call Mr. Williams’ wife or the babysitter to alert them to the situation. He did not ask his mother, who was not drinking, to drive the babysitter home. He did not walk to Mr. Williams’ home to see if his personal vehicle was in the driveway. It is also clear that Ms. Richard took no steps to prevent Mr. Williams from driving.
Jake Richards later called police from a payphone to alert them to a drunk driver:
[12] According to Mr. Richard, approximately ten minutes after Mr. Williams left, he accompanied his mother to a variety store in Otterville to buy cigarettes. He did so in part because he was worried that Mr. Williams might have driven the babysitter home. Mr. Richard admitted to being concerned about the situation before he left with his mother. His mother’s evidence was that they did not leave the house to go to the store until approximately a half hour after Mr. Williams left.
[13] While driving to the Otterville store, Mr. Richard noted that Mr. Williams’ personal vehicle was not in his driveway. He went in the store and found that it did not have his mother’s brand of cigarettes. Upon leaving the store, Mr. Richard called the police from a payphone outside the store to alert them about a drunk driver. He and his mother then travelled to another store in Norwich to buy cigarettes.
[14] On the way back from Norwich, Mr. Richard and his mother came upon the scene of Mr. Williams’ accident. He had driven into the rear of a stationary tractor towing a trailer. Mr. Williams was ejected from the vehicle and died as a result of his injuries.
The Court noted that whether there is a duty of care in a social host setting depends on the host’s knowledge of his guest’s intoxication and whether the guest is going to engage in “potentially dangerous activity that subsequently causes harm,” and whether there is “something more” to create a positive duty to act:
[24] The post-Childs jurisprudence on social host liability, discussed below, demonstrates that there is no clear formula for determining whether a duty of care is owed by social hosts to third parties or guests. Rather, the determination of whether such a duty of care exists usually hinges on fact specific determinations pertaining to two main issues. The first issue is the host’s knowledge of a guest’s intoxication or future plans to engage in a potentially dangerous activity that subsequently causes harm. This is a foreseeability analysis. The second determination asks if “something more” is present on the facts of the case to create a positive duty to act. The “something more” could be facts that suggests the host was inviting the guest to an inherently risky environment or facts that suggest a paternalistic relationship exists between the parties. This is a proximity analysis.
The Court will consider other factors related to the proximity of the parties:
[27] Much of the post-Childs jurisprudence regarding proximity has engaged in a factually specific evaluation of whether “something more” is present to suggest that a positive duty to act may exist. While there is no definitive list, the case law has looked at a variety of factors to determine what could qualify as “something more” that would make a social gathering an inherent and obvious risk, including: whether alcohol was served at the party or whether guests were invited to bring their own alcohol, the size and type of the party, and whether other risky behaviour was occurring at the party, such as underage drinking or drug use: see generally Childs, Sidhu, Wardak, Lutter, Sabourin, Kim, Allen v. Radej, 2014 ABQB 171 (CanLII), Oyagi v. Grossman, 2007 CanLII 9234 (ON SC), 2007 CanLII 9234 (Ont. Sup. Ct); Wenzel v. Desanti, 2011 ABCA 226 (CanLII), 510 A.R. 327, leave to appeal to S.C.C. refused, [2011] S.C.C.A. No. 437.
[28] There are many different factual permutations of what could transform a social gathering into an invitation to an inherent and obvious risk. It is helpful to think of these situations as being situated along a spectrum. At one end of the spectrum is Childs, which was a “bring your own alcohol” party where the hosts provided minimal alcohol. Similarly, private parties of a reasonable size are usually viewed by the courts as not inherently risky: see Robinson v. Lewis, 2015 ABQB 385 (CanLII), at paras. 72-77. Likewise, an invitation to a co-worker’s home to have dinner and after-work drinks outside is not inherently dangerous or risky: see Allen, at para. 78. Moving further down the spectrum, a young adult throwing a “wild” Halloween party and providing alcohol for around 40 people, some of whom are using illegal drugs, may implicate a host in the creation of an inherent risk: see Kim, at paras. 9-10, 25. On the far end of the spectrum, a teenager throwing a house party at which over 100 people attend, most of whom are underage drinkers, while their parents are out of town, likely implicates the host in the creation of an inherent risk: Oyagi, at paras. 6-7, and 12.
The Court declined to dismiss the claim summarily, and directed that liability be determined at Trial for the following reasons:
[34] The next issue is the question of proximity as it applies to Mr. Richard. I am not satisfied that the motion judge’s analogy between the facts at hand and the facts of Childs is apt. The motion judge did not advert to or consider the obvious factual differences between the cases. This was not a large social gathering, rather it was two men drinking heavily in a garage. There was a developed pattern of this behaviour, enough so that the men had a pact as to what to do in the event one of them drove children while under the influence. Alcohol was provided or served, to a certain extent, as the garage refrigerator the men were accessing had 30 to 40 cans of beer in it. These facts distinguish the case at bar from Childs. Moreover, nowhere in her analysis did the motion judge consider the statement in Childs, at para. 44, that “it might be argued that a host who continues to serve alcohol to a visibly inebriated person knowing that he or she will be driving home has become implicated in the creation or enhancement of a risk sufficient to give rise to a prima facie duty of care to third parties”.

[37] With respect to the issue of proximity and Ms. Richard, the unique circumstances of this case, including her awareness of the general pact between Mr. Richard and Mr. Williams, Mr. Williams’ habitual heavy drinking on her property, and her knowledge of his alcohol consumption and intention to drive on that evening, could potentially implicate Ms. Richard in the creation or control of an obvious and inherent risk. There was conflicting evidence on these issues and I find that there is a genuine issue requiring a trial to determine the question of proximity as it relates to Ms. Richard.

Moss v Sun Life Assurance Company of Canada, 2018 ABQB 953

In this case, the Court granted the Plaintiff’ s application for summary trial, and reached a decision in the Plaintiff ‘s favour. In 1994 Dr. Moss obtained a $600,000 life insurance policy from the Defendant’s predecessor. In 2009 he applied for a replacement policy, which was subsequently issued. 6 months later he died. The Defendant voided the policy alleging misrepresentations to medical questions in the 2009 replacement policy application.

The Court concluded that if the insurer was entitled to void the 2009 policy, then it must void the entire 2009 policy. The implication of this decision was that the 1994 policy was still in force. None of the misrepresentations in the 2009 policy effected the 1994 policy:
[6] On the summary trial itself, I find that if the 2009 Policy were voided, the 1994 Policy would be revived, because the contract entered into between Dr. Moss and Sun Life in May 2009 was for both issuance of the 2009 Policy and cancellation of the 1994 Policy. If Sun Life is entitled to void the 2009 Policy, it must rescind the entire May 2009 contract, including the cancellation of the 1994 Policy. Any misrepresentations made by Dr. Moss in the 2009 application have no effect on his beneficiaries’ entitlement under the 1994 Policy, so Dr. Moss’s children and his adult interdependent partner are entitled to the $600,000 benefit.

797549 Alberta Ltd o/a Skyline Travel Centre v John Gilliatt and Lynn Gilliatt and Alberta Motor Association Insurance Company, 2018 ABPC 262

This was an unsuccessful summary dismissal application by an insurer. The Plaintiff, Skyline, brought a claim for repair costs against the Defendants, John and Lynn Gilliatt. The Defendants assert that the repairs took place pursuant to the express or implied authority given to them by a representative of the Insurer, and that they are not bound by the subsequent umpire’ s hearing. A Read More

Monday Morning Case Bites for November 19, 2018

Last Week’s Court Rulings from the Alberta Court of Queen’s Bench, Court of Appeal and SCC.
Edited by Amanda Kostek & Christie Dewar

CWC Well Services Corp v Option Industries Inc, 2018 ABQB 908 (CanLII)
Dismissal for Delay l Participation by Defendants l Prejudice
This was an unsuccessful application for dismissal for long delay Read More

Tuesday Morning Case Bites for November 13, 2018

Last Week’s Court Rulings from the Alberta Court of Queen’s Bench, Court of Appeal and SCC.
Edited by Amanda Kostek & Christie Dewar

Radovanovic v Dubensky, 2018 ABQB 890
Slip and Fall l Occupier’s Liability Act l Negligence l Homeowner l Snow Removal Contractor
Allen v Telfer, 2018 ABQB 876
Undertakings l Broad Request Read More

Monday Morning Case Bites for November 5, 2018

Last Week’s Court Rulings from the Alberta Court of Queen’s Bench, Court of Appeal and SCC.
Edited by Amanda Kostek & Christie Dewar

SWAT Consulting Ltd v Canadian Western Bank, 2018 ABQB 875
Clean-up Costs l Duty of Insurer to Service Provider
This was a successful summary dismissal application by both the insurer and Read More

Monday Morning Case Bites for October 29, 2018

Last Week’s Court Rulings from the Alberta Court of Queen’s Bench, Court of Appeal and SCC.
Edited by Amanda Kostek & Christie Dewar

Gao v. Dietrich, 2018 BCCA 372
Past loss of Income l Standard of Proof for Hypothetical Events l Capital Asset Approach
Jacobs v McElhanney Land Surveys Ltd, 2018 ABQB 867
Dismissal Read More