Jenkins v. Muir, 2012 ABQB 352

Court of Queen ’ s Bench of Alberta Citation: Jenkins v. Muir, 2012 ABQB 352 Date: 20120528 Docket: 0703 01483 Registry: Edmonton Between: Patricia Jenkins, Patricia Jenkins as the Administrator ad litem/ Personal Representative of the Estate of Melanie Elizabeth Bakalar, deceased, Brianna Bakalar, an infant by her Next Friend, Patricia Jenkins, Kyle Bakalar and Blaine Allan Schnell Plaintiffs - and - Rick Muir, Dawn Muir and 4M Water Hauling Ltd. Defendants _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Brian R.

Burrows _______________________________________________________ [ 1 ] Melanie Elizabeth Bakalar died in a head-on collision on the western outskirts of Edson, Alberta at about 2:30 a.m. on Friday, February 11, 2005. The collision occurred on Highway 16 which is a divided highway with two eastbound travel lanes and two westbound travel lanes. Ms. Bakalar was driving her vehicle in an easterly direction in the westbound travel lanes. She collided with a transport truck that was proceeding west. [ 2 ] The Plaintiffs are Ms. Bakalar ’ s mother, as representative of Ms.

Bakalar ’ s estate, and her two children who were 13 and 16

at the time of their mother ’ s death. The claim originally made by Blaine Allan Schnell, Ms. Bakalar ’ s common-law partner at the time of her death, has been discontinued. [ 3 ] The Defendant 4M Water Hauling Ltd. was Ms. Bakalar ’ s employer at the time of her death. Rick Muir was its principal. Dawn Muir was his wife. [ 4 ] The Plaintiffs allege that at the time of the collision Ms. Bakalar ’ s ability to drive was severely impaired by alcohol which she had consumed at the 4M Water Hauling Ltd. office and shop.

They allege that the Defendants failed to meet the standard of care required of an employer by, among other things: - providing alcohol to Ms. Bakalar; - allowing Ms. Bakalar to consume alcohol at their business premises; - not taking any or sufficient steps to prevent Ms. Bakalar from operating a motor vehicle when they knew or ought to have known that her ability to drive was impaired by alcohol; - failing to provide alternate transportation to Ms. Bakalar when they knew or ought to have known that her ability to drive was impaired by alcohol; - failing to monitor Ms.

Bakalar ’ s alcohol consumption and thereby creating unsafe workplace conditions and putting Ms. Bakalar at risk; - failing to set or to implement policies sufficient to forestall employees from driving when their ability to do so was impaired by alcohol. [ 5 ] The Defendants: - deny that Ms. Bakalar was “ on duty ” at the time she drank alcohol in a quantity sufficient to impair her ability to drive and that in the circumstances they owed Ms. Bakalar a duty of care; - deny that they provided the alcohol she drank; - submit that if Ms.

Bakalar consumed alcohol to the point of impairment of her driving ability on 4M ’ s premises, it was alcohol she or someone other than the Defendants provided and that by drinking it on 4M ’ s premises she was in breach of 4M policies of which she was aware; - submit that if Ms.

Bakalar consumed alcohol to the point of impairment of her driving ability, it was not in circumstances where 4M or its principals knew or ought to have known that she was doing so; - submit that 4M had a policy that any employee could at any time and for any reason use a taxi at the expense of 4M to provide them with transportation and Ms. Bakalar was well aware of that policy.

The Defendants also take the position that Ms. Bakalar deliberately drove into an oncoming transport truck in order to take her own life. [ 6 ] The parties have agreed to the quantum of damages. The trial related only to the liability issues. Thursday, February 10, 2005 - 4M Water Hauling office/shop [ 7 ] 4M Water Hauling Ltd. supplied water hauling services mainly to the oil and forestry industries in the Edson area. In February 2005 the company had about 14 employees, mostly truck drivers, and about 12 contractor truck operators. The non-driver employees were the office staff (Ms.

Bakalar and Winifred Schram) and a small shop staff. The shop/office building was located about 4 km southwest of Edson on Range Road 180. Several contract operators had temporary accommodation (their own travel trailers) in the 4M yard. There were utility hookups for them and the contractors had access to the shop and its washroom facilities at all times. [ 8 ] As of February 2005, Melanie Bakalar had been employed by 4M Water Hauling for just under a year. She worked in the firm ’ s office, doing everything that needed to be done, as assistant to Mr. Muir.

Sometime in January 2005 a second woman, Winifred Schram, was hired to work in the office as well. [ 9 ] The “ office ” portion of the building consisted of a general reception area where Ms. Bakalar worked, a separate room, where Ms. Schram worked, and a large office where Mr. Muir worked. The rest of the building was the shop area where vehicles were serviced and maintained. [ 10 ] Mr. Muir testified that he had been out of the office for a good portion of February 10, 2005. He returned to the office at about 5:00 p.m. That was normally the time when the office closed. However that day, Ms. Bakalar and Ms.

Schram were working on safety documentation required by a customer. They decided to stay late to finish the work. [ 11 ] Sometime after 5:00 p.m. two friends of Mr. Muir, both of whom were involved in local businesses operating in the same industries as 4M, came to the office. They were Kevin Knight and Regan Redlick. Mr. Muir testified that they had called to say they were coming. Ms. Schram testified she saw Mr. Knight carrying a bottle in a bag when he arrived. Mr. Muir said they brought rye whiskey with them. Mr. Knight and Mr. Redlick sat down in Mr. Muir ’ s office and poured themselves and Mr.

Muir a drink. [ 12 ] Mr. Muir testified that sometime after 7:00 p.m. Ms. Bakalar and Ms. Schram were finished their work. He testified that Mr. Knight and Mr. Redlick invited them to come into Mr. Muir ’ s office to have a drink. He said he did not know of the invitation when it was made because he was busy with calls and was in and out of his office himself. Ms. Schram testified that, when they had finished their work, she and Ms. Bakalar were invited to have a drink in Mr. Muir ’ s office. [ 13 ] Mr. Redlick also testified. His testimony lacked detail.

By the end of the evening, which, for him, occurred at a bar in town, he was very severely intoxicated. He appeared to me to have little reliable memory of the details of the evening ’ s activities. People in attendance at 4M ’ s premises [ 14 ] Both Mr. Muir and Ms. Schram testified that people came and went from the gathering. Ms. Schram recalls a man named Sean Dodd being there. Others who were present and testified also mentioned him. Mr. Muir testified that a customer by the name of Wayne Dallen came for a short time. Both Mr. Dodd and Mr. Dallen participated in the gathering and drinking in Mr.

Muir ’ s office. [ 15 ] Blair Frazer who worked occasionally for 4M as a welder but who was not sure if he worked from them at the time, and who was also a friend of Mr. Muir ’ s, arrived, he testified, at about 6:30 p.m. to pick up his nephew who was an employee. He testified that he was there for about 2 hours. He left about 8:00 p.m. He participated in the gathering and drinking in Mr. Muir ’ s office.

[ 16 ] Later on in the evening two water truck drivers, Claude Caya and Garry Penno arrived. Mr. Caya was an employee. Mr. Penno was an independent contractor. They both testified that they arrived between 9:00 p.m. and 10:00 p.m. It appears that Mr. Caya arrived before Mr. Penno. [ 17 ] About the same time, 9:00 p.m., Mr. Muir left and went home. Mr. Knight and Mr. Redlick also left at about the same time. They wanted to go to a bar in town and wanted Mr. Muir to join them but he declined. He testified that both Mr. Knight and Mr. Redlick were inebriated. Ms.

Schram who was also leaving at the same time offered to drive them into town. As these five people were leaving, Mr. Caya and then Mr. Penno were arriving. [ 18 ] It is difficult to reconcile the evidence of the various witnesses as to who was there at any specific time. For example Mr. Penno, who appears to have been the last to arrive, testified that Mr. Frazer was there when he was. But according to Mr. Frazer he departed at least a half hour before Mr. Penno testified he arrived. Mr. Caya who arrived before Mr. Penno but after Mr. Frazer said he left, did not mention Mr. Frazer. [ 19 ] Mr.

Muir testified that when he left at about 9:00 p.m. he understood everyone would be leaving soon. Mr. Frazer had already left. Mr. Knight and Mr. Redlick were leaving about the same time as Mr. Muir and Ms. Schram was driving them. Some witnesses testified that Mr. Dodd left with Mr. Muir, though Mr. Muir did not mention that. Mr. Muir said he said goodbye as he left and expected that the others would leave soon and that Ms. Bakalar would lock up the office when she left. There was no evidence whatsoever to suggest that there was anything unreasonable in his having so assumed.

Further there was nothing in the evidence to suggest that Mr. Muir knew or ought to have known that Ms. Bakalar would stay on at the office for a significant time after he left. [ 20 ] The evidence reliably establishes that by 10:00 p.m. the only people remaining were Ms. Bakalar, Mr. Caya and Mr. Penno. They continued drinking. Mr. Penno left at midnight. Mr. Caya and Ms. Bakalar stayed until 2:00 a.m. Mr. Caya testified that they stopped drinking at midnight.

Source of the Alcohol consumed at 4M ’ s premises [ 21 ] The evidence is also unclear as to the source or sources of the alcohol that the people were drinking. Mr. Frazer said it was a bring-your-own-alcohol type of gathering. He said it was not a work function, it was a social function. Ms. Schram testified that she saw Mr. Knight carrying a bottle in a bag when he arrived. Mr. Redlick said he might have brought a bottle - it would be consistent with his usual way of doing things. Ms. Schram said that Mr. Muir had a bottle of rye in his office. Mr. Caya said Mr.

Muir always had a bottle of rye in his office and that there was beer in the storage area. Mr. Muir denied that he had alcohol in his office that day. He testified that he would have alcohol if he knew a client was coming but he did not have any that day. He testified that Mr. Dallen, a customer who was there for 20 minutes, brought beer, had some and then took the remaining beer away again when he left. There was no evidence as to whether any or if so how much alcohol remained at the time Mr. Muir and the others left at 9:00 p.m. Neither Mr. Caya nor Mr.

Penno was asked whether he brought alcohol with him or who supplied the alcohol that the trio drank after everyone else had left. Was Ms. Bakalar intoxicated to the point that her ability to drive was impaired? [ 22 ] The witnesses who were with Ms. Bakalar that night testified as to their impressions concerning her level of intoxication. [ 23 ] Mr. Frazer believed Ms. Bakalar would have been drinking vodka because he understood that was her usual drink. When he left at 8:00 p.m. after drinking 4 or 5 drinks of rye whiskey, he did not feel any affects of alcohol himself.

He did not recall if he noticed that anyone else was impaired when he left. He testified that Ms. Bakalar did not exhibit any signs of impairment to him. She was not slurring her words as far as he knows. [ 24 ] Ms. Schram testified she had only one drink before she left at about 9:00 p.m. She did not know whether Ms. Bakalar had more than that while she was there. She agreed in cross-examination that she had told an insurance investigator that when she spoke to Ms. Bakalar she seemed fine. It did not appear that she had had too much to drink. Though she drove Mr. Knight and Mr.

Redlick into a pub in town, she did not know why they needed a ride. She did not testify as to whether or not she perceived they were impaired.

Others, including Mr. Muir, testified they were inebriated. [ 25 ] Mr. Redlick could not recall whether Ms. Bakalar drank anything when she came in to sit down in Mr. Muir ’ s office. [ 26 ] Mr. Muir said he did not monitor anyone ’ s drinking. He himself had two drinks and he was not sure he finished the second. [ 27 ] As noted, by 10:00 p.m. only Mr. Caya, Mr. Penno and Ms. Bakalar remained. The trio continued drinking. Mr. Penno and Mr. Caya testified that Mr. Penno left at about midnight. Mr. Caya and Ms. Bakalar left at about 2:00 a.m. [ 28 ] Mr. Penno testified that he saw Ms. Bakalar drinking.

She had a glass in her hand, but he did not know what she was drinking or how much of it. He said that in his opinion no-one was drunk. When he left at midnight, he said, Ms. Bakalar was not intoxicated. She never gave him reason to think she was impaired. He confirmed that he told an insurance investigator that Ms. Bakalar was fine when he arrived and fine when he left. As for himself, he testified that he had four 2 or 3 ounce drinks of rye. He said he drank more than he should have. He drove home. [ 29 ] Mr. Caya, who was with Ms. Bakalar until they both left at about 2:00 a.m., testified that Ms.

Bakalar was drinking white rum from a 26-ounce bottle. She was the only one drinking from the bottle. It was empty when the drinking was done, but he did not know how much it had had in it at the start. He testified that he and Ms. Bakalar had stopped drinking alcohol about 2 hours before they left 4M ’ s office/shop. Mr. Caya testified that Ms. Bakalar did not exhibit signs of impairment to him. In his view she was “ OK ” to drive. If that had not been the case, he would not have let her drive. They would have gone to town in his car.

He thought that he was himself fit to drive, he had had 4 or 5 beers between his arrival and midnight and nothing between midnight and 2:00 a.m. [ 30 ] The Plaintiffs called Dr. Graham Jones, the Chief Toxicologist in the Office of the Chief Medical Examiner in Edmonton. He testified that a sample of fluid taken from Ms. Bakalar ’ s eye after she died was tested for alcohol content. This, he testified, is a more reliable method of testing than post-mortem blood alcohol testing because blood alcohol content can be affected by early decomposition of the body after death.

However alcohol content in eye fluid does not equate to blood alcohol content before death. It is necessary to reduce the eye fluid alcohol content by 10% to 20% to arrive at the blood alcohol level at the time of death. [ 31 ] The testing of the eye fluid taken from Ms. Bakalar ’ s eye showed 270 mg of alcohol in 100 ml of eye fluid. Adjusting by the appropriate factor, Ms. Bakalar ’ s blood alcohol level at the time of her death would have been between 216 mg and 243 mg of alcohol in 100 ml of blood.

This is about 3 times the blood alcohol level at which driving a vehicle is criminal (80 mg of alcohol in 100 ml of blood). [ 32 ] I am satisfied that the evidence established the continuity of the sample that was tested and that the test results as related by Dr. Jones were accurately recorded and reported and within the standard deviation. [ 33 ] In cross-examination Dr. Jones was challenged as to the accuracy of the discount factor he used because an

article published in a journal he agreed was authoritative suggested that in some circumstances as much as a 50% discount would be appropriate. In my view Dr. Jones ’ responses showed that the circumstances in which a greater discount factor might be appropriate are unlikely to be applicable here. In any event, even using 50% as a discount factor, Ms. Bakalar ’ s blood alcohol level was 135 mg of alcohol in 100 ml of blood which is well over the level at which driving is criminal. [ 34 ] I am satisfied on the evidence that Ms. Bakalar ’ s ability to drive was impaired by alcohol at the time of the collision.

At what point in the evening she consumed the alcohol that caused her to be impaired was not established in the evidence. Clearly Mr. Caya ’ s assessment that she was not impaired at 2:00 a.m. when they left the 4M premises is not accurate. That she was impaired at 9:00 p.m. when Mr. Muir left, reasonably believing that she would be leaving soon, has not been proved. Neither does the evidence give me any basis for inferring that she was either impaired or displaying signs of impairment when Mr. Muir left. 4M ’ s policy regarding alcohol

[ 35 ] The evidence establishes that 4M Water Hauling had the following written policy concerning alcohol: ALCOHOL No employee shall be under the influence of, or in possession of alcoholic beverages while on a work site, or when in a work vehicle or piece of equipment, either as a driver or a passenger. Violation will constitute grounds for dismissal. [ 36 ] The same policy was rule number 11 on a document entitled “ 4M Waterhauling Ltd. General Rules. ” In that context the policy was expressed as follows: 11.

Possession of, or use on the job of intoxicating beverages or substances, unauthorized drugs or people under the influence of alcohol or drugs is strictly forbidden and constitutes grounds for immediate dismissal. [ 37 ] The evidence establishes as well that Ms. Bakalar was aware of this policy because one of her duties was to ensure that it was explained to and understood by the firm ’ s other employees. [ 38 ] The 4M driver employees who testified confirmed they were aware of the policy. Mr. Caya said that he knew the policy was that when working a driver could not drink.

He testified that if he ever drank on a job site it was not when he was on duty. Mr. Penno testified that it is “ absolute ” that you do not drink when driving on the job. Mr. Muir testified that everyone knew this policy. He considered the drinking he did with customers in his office to be an exception to the policy. 4M ’ s policy regarding use of taxis at company expense [ 39 ] Mr. Muir testified that it was 4M ’ s policy that any employee was free to use a taxi at any time, for any reason, and to charge the company. 4M had contracts with all Edson taxi companies.

He said the policy was well known to all employees. The policy existed because the employees were mainly truck drivers whose livelihood depended on them maintaining their drivers ’ licenses. But in its application it was not limited to situations where a taxi was needed because the employee ’ s driving ability was impaired. [ 40 ] Mr. Frazer testified that 4M would provide a taxi for people who needed one at a company function like the Christmas party. [ 41 ] Mr. Caya testified that he knew that if he needed a taxi he could call one and bill the company. He noted that at 2:00 a.m.

February 11, 2005 he did not think he needed one and he did not think Ms. Bakalar needed one. [ 42 ] Mr. Penno testified that he knew of the policy. He had never checked out the details of the policy because he never used the service. [ 43 ] Ms. Simms, the company controller (who did not work at the office site), confirmed that Edson taxi firms submitted invoices for transporting employees and Ms. Bakalar submitted them to Ms. Simms for payment. Ms. Simms testified that her instructions were to pay any taxi charge made by a 4M employee.

She did not know if any of the charges she paid were for employees using a taxi because they had consumed too much alcohol to drive. [ 44 ] Ms. Schram said she was “ absolutely ” aware of the policy that employees could use taxis at company expense. [ 45 ] The evidence showed that Ms. Bakalar had used taxis at firm expense a few times when her son needed to be driven

somewhere and she was working and not available to drive him. Duty of Care [46] The Plaintiffs claim that Ms. Bakalar’s death resulted from the negligence of 4M, acting through its principal, Mr. Muir. Inorder for the claim to succeed, the three elements of negligence must be proved: 1) that 4M owed Ms. Bakalar a duty of care, 2) that 4M breached that duty, and 3) that the damages claimed in the action resulted from the breach. [47] I note that because the Plaintiffs’ claim is under the Fatal Accidents Act, what must be addressed is the cause of action whichMs.

Bakalar would have had, had she suffered injury and not died in the collision. (Fatal Accidents Act, RSA 2000, c. F-8, s. 2.) Thefirst question, then, is whether in the circumstances 4M and Mr. Muir owed a duty of care to Ms. Bakalar. [48] The modern evolution of the law relating to duty of care in negligence began with Donoghue v. Stevenson (FOREP), [1932] A.C. 562 (H.L), continues and will probably go on for some time. At present, the process of determining whether aduty of care was owed involves a three-step inquiry. [49] The first step is foreseeability.

The Plaintiffs must show that the Defendants ought reasonably to have foreseen the risk thattheir acts or omissions would cause harm to Ms. Bakalar. [50] The second step is proximity. In this case, the Plaintiffs must show that there was sufficient proximity between Ms. Bakalarand the Defendants to justify the recognition of a prima facie duty of care. This second step can involve determining whether therelationship between the Defendants and Ms. Bakalar is in a category of relationship in which a duty of care has been or should berecognized.

It also involves determining whether there are any reasons arising from the relationship of the parties that despite theforeseeability established in the first step, a duty of care should not be recognized. [51] If in the first and second steps the conclusion is that a duty of care existed, then, in the third step, the onus is on theDefendants to show that there are considerations which ought to negative or limit the scope of the duty of care.

The third step involvesexamining policy considerations which may justify limiting or negating the prima facie duty of care which the Plaintiffs established inthe first and second step. [52] This evolution of the law relating to duty of care is clearly and helpfully traced and explained by Professor Klar in Tort Law, 4th Edition, 2008, Thomson Carswell,

chapter 5, beginning at page 163. Foreseeability [53] I turn first to the question of foreseeability. When Mr. Muir permitted Ms. Bakalar to drink alcohol in his office at the 4Mpremises, in the context of the gathering that occurred there on February 10, 2005, ought he to have foreseen the risk that she wouldbecome so intoxicated by alcohol that her ability to drive would become impaired and that in that state of impairment she would drive hercar and be involved in an accident? [54] The Plaintiffs relied on the decision of Levine J. of the British Columbia Supreme Court in Jacobsen v.

Nike Canada Ltd. (1966) (BC SC), 133 D.L.R. (4th) 377. Jacobsen was an employee of Nike. He was part of a small crew of workers

who were assigned to set up a display for Nike at a trade show. Nike had required him to drive his own vehicle to the trade show site inorder to carry some of the required display materials. The crew worked late into the evening. The employer supplied a cooler full ofbeer to the crew several hours before their work for the day was done and placed no restrictions on their drinking while they worked.Members of the crew including their supervisor drank openly while they worked. Jacobsen drank 8 beers in the last 3 hours he worked.

The court held, based in part on expert opinion evidence, that it was likely that Jacobsen displayed obvious signs of impairment when thework was done. His supervisor did not notice those signs because he was not looking for them. Nike knew he would be driving when hefinished his work. Jacobsen had more beer in a pub with workmates after the day’s work was done. Driving home he lost control of andcrashed his vehicle and was severely injured. [55] In Jacobsen it was not necessary for the court to address the issue of duty of care. Nike conceded that it owed a duty of careto Jacobsen.

It conceded that it was reasonably foreseeable that its carelessness could cause Jacobsen injury. The contested issue was asto the standard of care: given that it owed Mr. Jacobsen a duty of care, what, specifically, was Nike required to do or refrain from doingin order to discharge that duty?

Nike’s position was that it had not breached the duty it owed. [56] Though they are not identified in the decision, the features of the situation in Jacobsen which established the necessarydegree of foreseeability, in my view, included: - that Nike had supplied a large quantity of beer for Jacobsen and the others to drink while they worked; - that Nike knew that Jacobsen drank a lot of beer while working; - that Nike knew that Jacobsen had driven his car to the site and would need to drive it home after work.

In these circumstances Nike should reasonably have foreseen that Jacobsen would drive while his ability to do so was impaired byalcohol. Nike should reasonably have foreseen the risk that there would be a motor vehicle accident in which Jacobsen would be injured. [57] Jacobsen may be contrasted to Childs v. Desormeaux 2006 SCC 18 , [2006] 1 S.C.R. 643. Desormeaux was aguest at a New Year’s Eve party at the defendants’ residence. Guests at the party mainly supplied their own alcohol. The defendantsprovided only a small glass of sparkling wine at midnight. Desormeaux was known to his hosts to be a heavy drinker.

He left the partyat 1:30 a.m. One of the hosts walked him to his car and asked him if he was okay. Desormeaux replied that there was no problem. Hedrove away with two passengers, including Childs. He was involved in a head-on collision. Childs was severely injured. [58] McLachlin C.J. analysed foreseeability in the following passage: (para. 28) The question of foreseeability is complicated by ambiguity in the findings of the trial judge. The trial judge found that Mr.

Desormeauxwould be showing "obvious signs of impairment" (para. 73), but did not find that the hosts in the circumstances knew, or ought to haveknown, that Mr. Desormeaux was too drunk to drive. The risks of impaired driving, and their consequences for motorists and theirpassengers, are well known. However, if there is no finding that the hosts knew, or ought to have known, that the guest who was aboutto drive was impaired, how can it be said that they should have foreseen that allowing him to drive might result in injury to othermotorists?

Instead of finding that the hosts ought reasonably to have been aware that Mr. Desormeaux was too drunk to drive, the trial judge basedhis finding that the hosts should have foreseen injury to motorists on the road on problematic reasoning. He noted that the hosts knewthat Mr. Desormeaux had gotten drunk in the past and then driven. He inferred from this that they should have foreseen that unless Mr.Desormeaux's drinking at the party was monitored, he would become drunk, get into his car and drive onto the highway.

The problemwith this reasoning is that a history of alcohol consumption and impaired driving does not make impaired driving, and the consequentrisk to other motorists, reasonably foreseeable. The inferential chain from drinking and driving in the past to reasonable foreseeabilitythat this will happen again is too weak to support the legal conclusion of reasonable foreseeability -- even in the case of commercialhosts, liability has not been extended by such a frail hypothesis. Ms. Childs points to the findings relating to the considerable amount of alcohol Mr. Desormeaux had consumed and his high blood-

alcohol rating, coupled with the fact that Mr. Courrier [page657] accompanied Mr. Desormeaux to his car before he drove away, and asks us to make the finding of knowledge of inebriation that the trial judge failed to make. The problem here is the absence of any evidence that Mr. Desormeaux displayed signs of intoxication during this brief encounter. Given the absence of evidence that the hosts in this case in fact knew of Mr.

Desormeaux's intoxication and the fact that the experienced trial judge himself declined to make such a finding, it would not be proper for us to change the factual basis of this case by supplementing the facts on this critical point. I conclude that the injury was not reasonably foreseeable on the facts established in this case. [ 59 ] In the case before me, as I have found above, it was not proved that 4M or Mr. Muir provided the alcohol that Ms. Bakalar drank. Clearly alcohol was present at the gathering and the people gathered drank it. But it was not proved that 4M supplied it.

In Jacobsen the defendant supplied a large quantity of beer intending Jacobsen to drink it. [ 60 ] Neither did the evidence establish how much alcohol Ms. Bakalar actually drank during the part of the evening that Mr. Muir knew she was participating in the drinking. Some of the people who drank alcohol while Mr. Muir was present were, in his observation, inebriated when he left. Others, including Ms. Bakalar ’ s immediate co-worker who joined the gathering at the same time Ms. Bakalar did, Ms. Schram, had only one drink in the 2 hours. Mr. Muir did not observe that Ms. Bakalar was inebriated when he left.

Neither did any of the other witnesses who were at the gathering. [ 61 ] When Mr. Muir left the office at about 9:00 p.m. he was reasonably of the understanding that the others were about to leave. Most of them in fact did leave. There was nothing in the circumstances which ought to have caused Mr. Muir to expect that Ms. Bakalar, Mr. Penno and Mr. Caya would stay at the premises for several hours and continue to drink. There was no evidence as to what supply of alcohol existed at the office when Mr. Muir left. There was no evidence that any of those who stayed gave any indication to Mr.

Muir that they intended to do so. There was no evidence that there was a history of people staying at the 4M premises and drinking late into the evening. [ 62 ] Further there is no basis for concluding that Mr. Muir ought to have recognized that if Ms. Bakalar stayed and drank so much that her ability to drive was impaired that she would in fact drive. The evidence established that 4M had a generous taxi use policy. Any employee could use a taxi at company expense for any purpose whatsoever. Ms. Bakalar had used taxis pursuant to this policy when her son needed a ride and she was unavailable to provide it. Ms.

Bakalar knew of the policy. Indeed, since it was part of her job to advise the truck driver employees of the policy, she would have known that its main purpose was to ensure that employees did not drive when their ability to do so was impaired. The evidence justifies the inference, which I draw, that if Mr. Muir knew Ms. Bakalar might stay on and become impaired, she would not drive. She would take a taxi at firm expense. [ 63 ] In these circumstances I find that it has not been proved on a balance of probabilities that when Mr. Muir permitted Ms.

Bakalar to drink alcohol in his office at the 4M premises, in the context of the gathering that occurred there on February 10, 2005, he ought to have foreseen the risk that she would become so intoxicated by alcohol that her ability to drive would become impaired and that in that state of impairment she would drive her car and be involved in an accident. Foreseeability and the Employer/Employee Relationship [ 64 ] The Plaintiffs submitted, in effect, that the existence of a duty of care was established by the fact that Ms.

Bakalar was a 4M employee – that the duty of care existed because an employer/ employee relationship existed. This submission gives little, if any, place to foreseeability and, with respect, I reject it. [ 65 ] Throughout the evolution of the law relating to duty of care, the one constant and unchanging feature since 1932 has been the requirement of foreseeability. [ 66 ] The nature of the relationship between the parties can also have vital significance. For example, in the second step of the duty of care inquiry, the proximity inquiry, the nature of the relationship between the parties is central.

And as Jacobson demonstrates, relationship can also have vital significance when the issue of standard of care is addressed, once the existence of a duty of care has been

determined. [ 67 ] Relationship might even, I accept, have significance in the foreseeability analysis itself if the fact of the existence of a particular relationship such as an employer/employee relationship makes the risk that injury could result from the employer ’ s action or inaction foreseeable when outside such a relationship it would not be. Indeed, in this case, an aspect of the fact that Ms. Bakalar was 4M ’ s employee had relevance to the foreseeability question – that as an employee Ms.

Bakalar could use a taxi at company expense contributed to it not being foreseeable that she would drive impaired. [ 68 ] Relationship cannot replace the foreseeability analysis. It is not the law that where an employer ’ s careless act or failure to act results in injury to an employee the employer is liable even though it was not foreseeable that the act or failure to act would do so. [ 69 ] Foreseeability has not been established. The first element necessary for the existence of a duty of care is not present. The action must fail. Accordingly, I dismiss the action.

Contingent Fact Finding [ 70 ] I previously mentioned that the Defendants alleged that Ms. Bakalar ’ s death was the result of her own deliberate action and not the result of her impairment. It may become useful if there are further proceedings in this case for me to have made a contingent fact finding in that regard. [ 71 ] There was much evidence adduced at the trial in relation to the allegation. Ten of the trial witnesses knew Ms. Bakalar personally. They included both her children and her mother. Eight of these witnesses gave evidence as to their relationship with Ms.

Bakalar, their dealings with her in the hours and days before her death, her character, and the stresses in her life around the time of her death. These witnesses were uniformly of the view that Ms. Bakalar had everything to live for, that the problems she faced in her life in February 2005 were ones she was more than capable of dealing with and in respect of most of them had found solutions, and that she simply would not have taken her own life.

I found their opinions on that point to have reasonable foundation. [ 72 ] On the other side of this issue, the driver of the truck which collided with her testified that it appeared to him that she deliberately drove into him. He changed lanes when he saw her coming toward him and she responded by changing lanes to make the collision inevitable. [ 73 ] Aspects of the truck driver ’ s evidence, particularly aspects relating to the actual location of the collision, create concerns as to the reliability of his evidence.

He put the collision at a point where the eastbound and westbound lanes are separated by about a block. Other witnesses put it at a place where the lanes are separated by a conventional ditch median.

The difference was far from trifling. [ 74 ] The truck driver ’ s evidence concerning where another motorist who spoke to him after the collision and who called 911 had been driving before the collision and as to where that motorist had parked his car, was inconsistent with the truck driver ’ s evidence as to where the collision occurred. [ 75 ] In addition it was clear from the demeanour of the truck driver while he testified that, understandably, he was emotionally traumatised by the collision and the destruction of a life which it caused. [ 76 ] In these circumstances I am not prepared to rely on the truck driver ’ s evidence to discount the albeit inexpert opinion evidence of the witnesses who knew Ms.

Bakalar. I find that it has not been proved on a balance of probabilities that Ms. Bakalar took her own life.

Heard on February 13 to 17, 2012. Dated at the City of Edmonton, Alberta this 28 th day of May 2012. Brian R. Burrows J.C.Q.B.A. Appearances: Patrick B. Higgerty for the Plaintiffs Ward A. Hanson for the Defendants