In the recent decision, McHugh v. 2209664 Ontario Inc. et al, 2022 ONSC 3729, the Court considered a motion to strike a third party claim commenced by an occupier against a tavern.
The main action arose out of a 2018 slip and fall on an allegedly ice-covered walkway located on the premises of the defendant motel. The snow maintenance contractor was also named as a defendant, but took no position on the motion.
The defendant motel’s Statement of Defence and Crossclaim included an allegation that the plaintiff’s injuries and damages resulted from the negligence of the plaintiff, one of the particulars of which was that the plaintiff, “consumed alcohol… which interfered with his ability to proceed in a safe manner”.
The defendant motel later brought a third party claim against the tavern, which had allegedly served alcohol to the plaintiff on the night of the slip and fall. The motel alleged, among other things, that the plaintiff had been served with alcoholic beverages “to the point of intoxication and beyond” and that the tavern had breached the provisions of the Liquor Licence Act.
Positions of Parties
Prior to defending the third party claim, the tavern brought the subject motion to strike on the ground that it disclosed no reasonable cause of action.
The tavern argued, broadly, that since the motel had already attributed alcohol-related negligence to the plaintiff, it was no longer open to the motel to attribute that same negligence to the tavern.
For example, if the motel was taking the position that the plaintiff was contributorily negligent for intoxication, then the motel would therefore have no remaining alcohol-related negligence for which to claim contribution and indemnity in the third party claim.
Furthermore, the motel argued that a third party claim for contribution and indemnity should not be allowed because there is no risk that the defendant could be held responsible for the type of liability (commercial host liability) alleged against the third party.
The motel argued, broadly, that the allegations of contributory negligence are distinct from the allegations of negligence as against the tavern, because the plaintiff’s negligence is based on over-consumption, whereas the tavern’s negligence is based on over-serving. These allegations of negligence do not overlap and the tavern should still be held responsible for any negligence it shares as a commercial host after the percentage of damages attributable to contributory negligence have been taken into account.
The issue for Justice Leach to consider was whether it was plain and obvious that the third party claim asserted by the motel against the tavern had no reasonable prospect of success.
More specifically, in order to answer this question, Justice Leach was required to determine whether the plaintiff’s negligence for consumption of alcohol was indeed distinct from the third party’s negligence in serving alcohol.
His Honour also considered whether the defendant could claim against the third party for contribution and indemnity for a category of liability it would not itself be held liable for.
Outcome and Reasoning
Justice Leach engaged in a review of the law surrounding apportionment of responsibility in cases where a plaintiff is injured through negligence. His Honour stated that “a defendant may not ‘double-dip’”, meaning that if the negligence alleged in the third party claim is attributable to the plaintiff alone, the defendant has no cause of action against the third party.
However, there are numerous cases which stand for the proposition that: “where the pleadings and the alleged facts raise the possibility of a claim against the third party for which the plaintiff may not be responsible, the third party claim should be allowed to stand”.
Justice Leach indicated that “alcohol related negligence” cannot be considered to be all-encompassing, as the tavern had asserted. His Honour stated: “I also think it well settled that our law now clearly accepts that the existence of a plaintiff’s alcohol-related contributory negligence should not and does not negate the possible co-existence of separate and distinct alcohol-related negligence of commercial hosts and others for which a plaintiff should not be held responsible…”
Justice Leach held in favour of the motel. His Honour found that the pleadings and facts in this case indicated the possibility of a claim against the tavern that was not wholly accounted for by the plaintiff’s contributory negligence.
Justice Leach engaged in a demonstrative example, which illustrated specifically how the apportionment of liability would hypothetically operate in this case. In doing so, His Honour clearly explains the unfairness wrought upon a concurrent tortfeasor who is not permitted to bring an action against all those who may be also be concurrent tortfeasors.
In this case, should the tavern, although a concurrent tortfeasor, not be before the court, the motel would have to pay a greater apportioned share of the plaintiff’s damages. This payment would be owing whether or not some portion of those damages arose from commercial host liability.
Justice Leach concluded that it was not plain and obvious that the third party claim advanced by the motel against the tavern disclosed no reasonable cause of action. Therefore, the tavern’s motion was dismissed.
This decision is instructive on multiple topics, most particularly, the treatment of apportionment of liability across concurrent tortfeasors, including a discussion of contributory negligence.
A defendant who wishes to plead that the plaintiff was contributorily negligent for consuming alcohol, but also wants to seek contribution and indemnity as against another concurrent tortfeasor on the basis of commercial host liability is free to do so, but should carefully make the distinction in their pleadings between negligent consumption of alcohol and negligent service of alcohol.