Linton v. Tholos Restaurant Inc., 2016 ONSC 4167

Denied motion for summary judgment about tavern liability.

Heard June 21, 2016Full Decision [CanLII]

This is a motion for summary judgment dealing with tavern liability. The Plaintiff was in Blue Mountain for a bachelor party. He apparently became extremely intoxicated over the course of an afternoon. He may have been served alcohol at a restaurant located in Blue Mountain’s village. He was then served alcohol at a bar located within Blue Mountain’s village. After leaving Blue Mountain’s village, the Plaintiff returned to a chalet that was rented for bachelor party weekend. The Plaintiff fell down a set of exterior stairs and suffered a traumatic brain injury.

The Plaintiff sued the restaurant and bar, who moved for summary judgment. On the motion, an unclear evidentiary picture was presented. The Plaintiff was unable to prove he had been served alcohol at the restaurant. Moreover, he was unable to provide any statements from bachelor party attendees saying either (1) he had been drinking at the restaurant; or (2) he was visibly intoxicated. All the Plaintiff had was an expert report from Jim Wigmore. Mr. Wigmore examined the Plaintiff’s BAC in hospital and determined the Plaintiff must have had a BAC level of about four times the legal limit at the time of the fall. Based on this conclusion, Mr. Wigmore thought the Plaintiff had likely displayed signs of visible intoxication.

The Moving Defendants failed to cross-examine Mr. Wigmore. Furthermore, they provided evidence that was not completely helpful, and somewhat self-serving. In the end, the Court declined to grant summary judgment. It applied the Hyrniak Test as follows:

I am of the view that the evidence relied upon by the parties should not be used as a basis for making the necessary findings of fact on this motion. The Moving Party Defendants could have cross-examined the Plaintiff’s expert to challenge his findings but they did not do so. My answer to the question the Supreme Court of Canada asks the Court to consider on these motions, namely — do I have the evidence required to fairly and justly adjudicate the dispute in a timely, affordable and proportionate procedure, under Rule 20.04(2)(a)(2). The answer is no. As it appears to me that there may be at least one issue which requires a trial (namely the level of alcohol consumed and the resulting effects of intoxication), I must ask if I should use my discretion to determine if the need for a trial on these issues can be avoided by the use of my fact-finding powers. I have to ask myself, would it be in the interest of justice to do so? Will the use of these powers lead to a “fair and just result” that will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole? I do not think that it would be in the interests of justice to use my expanded fact finding powers on this motion because of the effect it would have on the trial which will proceed against the non-moving defendants. To resolve the issues on this motion justly and fairly, it would be necessary for me to use my fact-finding powers to conduct a large portion of the trial with respect to the issue of liability of these Moving Defendants. This, in my view, is against the interests of justice as the trial against the non-moving defendants will continue with the adjudication of the major issues I have referred to above.

As I have already stated, this is a very difficult decision to make, as the evidence before the court is, in my view, inadequate. Most importantly, the findings of this Court with respect to the levels of Mr. Linton’s intoxication at different times of the evening in question will be necessary findings for the trial judge to make with respect to the issues as they relate to the liability of the remaining non-moving defendants. There is a risk of contradictory findings of this Court.

Read the full decision on CanLII

Decision of: Pollak J

Counsel:

  • Dale Orlando, Joseph A. Cescon, for Plaintiffs
  • Robert Barrett, for Defendant, Tholos Restaurant
  • Vincent Burns, for Defendant, Kaytoo Restaurant and Bar Limited
  • Neil Searles, for Defendants, Michael Smitiuch, Litigation Administrator for the Estate of Harvey Kerry Goldmintz, deceased, and Blue Mountain Chalets
Written by

Jordan's practice focuses on motor vehicle accidents, occupiers’ liability, product liability, municipal liability, medical malpractice, wrongful death, accident benefits, and long-term disability claims.

In his spare time, he enjoys golfing, downhill skiing, road cycling, and fishing. Jordan is also an avid NFL and Toronto Blue Jays fan.