Docket: CACV2462 Beverly Wandy Appellant - v. -, 2014 SKCA 81

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 81 Date: 2014-07-29 Between: Docket: CACV2462 Beverly Wandy Appellant - and - Richard Danyluk and River Valley Ventures Inc. Respondents Coram: Klebuc , Caldwell and Whitmore JJ.A. Counsel: Terry J. Zakreski for the appellant Kevin Miller for the respondent River Valley Ventures Inc. No one appearing for Richard Danyluk Appeal: From: 2013 SKQB 309 Heard: February 24, 2014 Disposition: Appeal dismissed

Written Reasons: July 29, 2014 By: The Honourable Mr. Justice Klebuc In Concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr. Justice Whitmore Klebuc J.A. I. Introduction [ 1 ] In 1998, River Valley Ventures Inc. (River Valley) leased and operated a licensed bar located in Canora, Saskatchewan called the Tavern. The Tavern forms part of the Grandora Hotel. In the early morning hours of October 31, 1998, Ms. Beverly Wandy was socializing with friends in the Tavern and was seriously injured when struck by a chair thrown by the respondent, Mr. Richard Danyluk, who also was a patron of the Tavern.

In this action Ms. Wandy sued to recover damages from River Valley and Mr. Danyluk for the injuries she suffered as a result of their respective negligence. [ 2 ] The trial judge held that Mr. Danyluk was negligent and liable for damages arising out of the injury Ms. Wandy suffered but dismissed her claim against River Valley because her injury was not attributable to any negligence on the part of River Valley. Ms. Wandy appeals from the trial court’s dismissal of her claim against River Valley. Mr. Danyluk did not oppose her appeal. [ 3 ] For the reasons set forth below, I would dismiss the within appeal by Ms.

Wandy and award River Valley its taxable costs. II. Background Facts [ 4 ] The Tavern was licensed for a maximum of 144 patrons and on the date in question was near to its maximum capacity and very busy. Throughout the evening of the preceding day and during the morning hours of the day in question, Ms. Diane Rose and Mr. Leonard Skibinsky (both officers and shareholders of River Valley in 1998) were working as bartenders behind the Tavern’s bar and were busy filling drink orders placed by three waitresses who served alcoholic beverages to patrons.

No employee or other person had been specifically assigned to monitor the conduct and sobriety of Tavern patrons or to intervene if a patron was intoxicated, disorderly or a danger to himself or others. Rather, Ms. Rose undertook to perform monitoring and crowd control functions while also working behind the Tavern’s bar. The waitress serving Mr. Danyluk did not consider the enforcement of security measures to be part of her duties. [ 5 ] Mr. Danyluk was a frequent patron of the Tavern who often became intoxicated and loud, and Ms. Rose permitted him to do so on numerous occasions.

He was not known to be violent while drinking at the Tavern other than for one occasion when he engaged in a fist fight with a patron outside the Tavern over an issue that arose in the Tavern. [ 6 ] Mr. Danyluk came to the Tavern early in the evening of the preceding day and was seated with his girlfriend and other patrons at a table somewhere between 10 and 20 feet from the Tavern bar where Ms. Rose was preparing drinks. During the evening he consumed a significant amount of alcohol but the waitress serving him, who knew him well, did not consider him to be overly intoxicated or belligerent.

At the time, she would have been serving as many as 40 patrons. Ms. Wandy arrived at the Tavern shortly after midnight and sat with her friends at a table approximately 10 to 20 feet away from Mr. Danyluk’s table. [ 7 ] Shortly before the chair-throwing incident, Mr. Danyluk was engaged in a loud and heated argument with his girlfriend; patrons at other tables were able to hear. When the girlfriend got up to leave, Mr. Danyluk made a loud and disparaging remark to her and intentionally or accidently tipped the table over where he was sitting. The beverage glasses on the table fell to the floor and broke.

Immediately thereafter a patron sitting at Ms. Wandy’s table shouted, “Way to go Richard.” [ 8 ] This angered Mr. Danyluk and prompted him to loudly ask, “Who said that?” When no one responded, Mr. Danyluk threw the chair that struck and injured Ms. Wandy. The nature of Ms. Wandy’s injury was not addressed by the trial judge beyond stating Ms. Wandy was stunned, felt pain in her mouth and had to be taken to a hospital. [ 9 ] Ms. Rose acknowledged the following: (

a) the Tavern was busy and she was unable to keep an eye on all patrons, including Mr. Danyluk; (

b) she did not hear Mr. Danyluk arguing with his girlfriend or see the table being tipped over; (

c) she first became aware of a problem when she heard the sound of breaking glass; and (

d) she should have immediately intervened but failed to do so. The trial judge gave little weight to Ms. Rose’s admission of fault. [ 10 ] Witnesses estimated “from a couple of seconds, to 20 seconds, to up to two minutes” (para. 21) passed between the end of the argument and the chair being thrown. [ 11 ] Mr. Danyluk did not participate in the trial or attempt to avoid liability. In these circumstances, Ms. Wandy and River Valley read in as evidence specific questions and answers from an examination for discovery of Mr. Danyluk. In his answers Mr.

Danyluk stated he was so intoxicated by alcohol that he had no recollection of what had occurred during the evening in question. He further confirmed that he frequently drank at the Tavern and during a typical night would drink as much as 24 ounces of vodka or other distilled liquors. III. Decision of the Queen’s Bench Court [ 12 ] The trial judge interpreted the duty of a commercial host as one requiring the host to safeguard its invitees from foreseeable harm. The trial judge concluded that Ms. Wandy failed to establish that there was a reasonable risk of harm by virtue of Mr.

Danyluk being unruly and intoxicated, which River Valley failed to address. On that basis she dismissed Ms. Wandy’s claim. At para. 29 the trial judge summarized her conclusion:

[29] Based on all of the evidence I am satisfied that even if Richard was intoxicated and even if River Valley was aware or should have been aware that Richard was intoxicated, there was nothing in River Valley’s extensive history with this patron that would reasonably cause it to thereby be concerned for the safety of other patrons.

Likewise, given River Valley’s history of dealing with Richard, even if Diane or one of her employees had witnessed all of Richard’s actions in the minutes leading up to the chair throwing incident, his actions, at least up to the point that he angrily asked “Who said that?”, would not reasonably be cause for concern or heightened vigilance. By the time Richard asked who made the comment, there was simply no time to act. In the broadest sense, it might be foreseeable that any intoxicated person could act irrationally and thereby cause harm to others.

However, the obligation on River Valley is only to guard against danger that might reasonably be anticipated. It is not an insurer of the plaintiff’s safety and in my view, the plaintiff has failed to establish that the defendant River Valley should reasonably have foreseen and somehow averted the injury caused by Richard. [ 13 ] The trial judge found Mr. Danyluk entirely responsible for the injuries sustained by the plaintiff and awarded taxable costs against him. IV.

Jurisdiction and Standard of Review [ 14 ] The jurisdiction of this Court to hear and determine the within appeal arises pursuant to s.s. 7(2) and s.10 of The Court of Appeal Act , 2000 , S.S. c. C-42.1. In tort actions tried by a judge sitting alone, the standard of review applicable to findings of facts by the judge, the conclusions and inferences drawn by the judge from the facts he or she found, and the finding of negligence by the judge upon applying a legal standard to the facts he or she found, is the standard of palpable and overriding error. See Housen v.

Nikolaisen 2002 SCC 33 , [2012] 2 S.C.R. 235 at paras. 26 and 26 , and H.L. v. Canada (Attorney General) , 2005 SCC 25 , [2005] 1 SCR 401 at para. 55 . Thus, this Court may only interfere with a trial judge’s findings of fact when the trial judge has committed a palpable and overriding error in finding a fact or made a finding that is unreasonable or unsupported by the evidence. The correctness standard applies to the

interpretation of the law upon which a decision is founded: see Housen at para. 8 . V. Analysis [ 15 ] The following issues arise from the evidence, the applicable law and the submissions by the appellant and the respondent: A. Did the trial judge make a palpable and overriding error by finding that Mr . Danyluk was likely intoxicated but not to the degree that he had no recollection of what had occurred at the Tavern during the evening in question? B. Did negligence on the part of River Valley cause or contribute to the injuries and damages Ms. Wandy suffered? [ 16 ] I turn to the first question. A.

Did the trial judge make a palpable and overriding error by finding that Mr. Danyluk was likely intoxicated but not to the degree that he had no recollection of what had occurred at the Tavern during the evening in question? [ 17 ] The trial judge made the following relevant findings of fact: [8] Richard maintains that he has no memory of the events as he suffered an alcohol-induced blackout. The evidence of all others that knew him at the time establishes that he was a very heavy drinker.

Nevertheless, despite considerable evidence as to Richard’s reputation as a heavy drinker, there was little direct evidence at trial regarding the extent of his drinking and level of intoxication on the night in question. … [17] Based on all the evidence, I am prepared to conclude that at the time of the incident Richard was likely intoxicated. However, I find no credible evidence that at the time he had consumed alcohol to such an extent that he would suffer a memory blackout.

Of course, it is possible that he continued drinking after he left the Tavern following the incident. [ 18 ] The aforementioned findings are inconsistent with the following questions and answers comprising part of the examination for discovery of Mr. Danyluk, which Ms. Wandy and River Valley read-in as evidence: 4 Q [to Mr. Richard Danyluk] You’re the defendant in a lawsuit brought by Beverly Wandy, QB number 30 of 2000 in which she has brought a claim against River Valley Ventures, Inc., Richard Danyluk, being you, and Diane Rose; is that correct, sir?

A Yes. 5 Q And you’re aware that your answers are under oath today? A Yes, I do. … 20 Q You’re aware that this is the whole -- this whole thing is about a chair-throwing incident that happened on October 30, 1998? A Yes. 21 Q Obviously, you were aware of that. Do you recall how much -- much of that day, Mr. Danyluk? A I do not recall any of it. Let me stop there.

22 Q You do not recall any of it? A I don’t recall any of it. I didn’t make a statement because I was intoxicated. I would’ve -- it would have just been by hearsay, what I heard the next day from my girlfriend and Diane. 23 Q What about earlier that evening? A I don’t recall where I was or what I was doing earlier that evening. … 26 Q When does your memory -- do you have a blackout of the incident? A Yes. Yes, I did. I didn’t recall any of it the next day. 27 Q Do you have these blackouts frequently? A Well, not since then because I’ve quit drinking since then, so -- 28 Q When did you quit drinking?

A Thirteen years, March 7th. … 32 Q Because you quit drinking and because you had a blackout of this incident, would you say at the time you were an alcoholic? A Oh, definitely. Definitely. I started going to AA. Yes, definitely had an alcohol problem, yes. 33 Q Did you have a propensity to become violent after you drink? A Sometimes I -- yeah, I guess I could have. Could, you know? Yeah, I would say once in a while I would get, you know, violent. But, I mean, it wasn’t all the time, but -- … 35 Q Where was your favorite drinking hole?

A The Grandora Hotel. … 34 Q Picking up a chair and hurling it across a bar may not be typical behaviour before you when you’re sober, but is that the sort of behaviour? A Well, not necessarily. I don’t think I’d ever -- ever really done anything like that, you know? … 36 Q So they were well familiar with you there? A Yes. 37 Q Did you have a bar tab? A No, I don’t think so. 38 Q Do you remember, sort of, approximately how much money you were spending there in a typical night, what you would spend?

A You know, a couple hundred bucks, a hundred bucks or whatever. 39 Q What was your -- I was going to say what was your poison, what was your drink of choice? A Hard liquor. I wasn’t much of a beer drinker. Hard liquor was my choice of drink, so -- 40 Q So what would that be? A Vodka, usually. 41 Q Vodka was your drink?

A Yeah. 42 Q So you have a blackout of the night, but, in all likelihood, it was vodka that you were drinking? A I would think so, yes. 43 Q Would it be vodka and orange? A Vodka and water. 44 Q Okay, did you know the staff well there? A Yes. 45 Q Did you know Diane Rose very well? A Yes, I did. … 50 Q Were there any previous sort of incidents with you in the hotel becoming violent like in the Grandora Hotel?

A Well, I was in a few fights there over the years, I guess, but nothing out of the ordinary with a bunch of drunk people Iguess. … 52 Q Were you ever asked to, like, be, kind of like a bouncer for them, throw somebody out, or -- A No. 53 Q Do you recall, like sort of, in any way, say the three years before that incident how many fights you may have been in? A Oh just, maybe, a couple. Two maybe and it was never really escalated to anything. It was pretty much broken up orwhatever. 54 Q Who would break them up? A Just friends, friends of friends from the bar kind of thing. … (T109–113) [19] While Ms.

Wandy and River Valley are bound by the aforementioned questions and answers, the trial court was entitled toevaluate Mr. Danyluk’s answers in the context of all evidence regarding his state of mind and level of intoxication. However, there beingno other evidence before the trial court directly contradicting Mr. Danyluk’s evidence as to his level of intoxication, I am satisfied thetrial judge made a palpable and overriding error by finding that Mr.

Danyluk was likely intoxicated at the material time rather thanactually intoxicated and not “blacked out,” in the sense he was so drunk that he could not remember what had occurred during the nightand morning in question. The significance of his uncontested evidence, if any, is addressed later. That said I turn to the principal issue. B. Did negligence on the part of River Valley cause or contribute to the injuries and damages Ms. Wandy suffered? [20] This issue requires consideration of (

i) the duty of care a commercial host owes a patron, (ii) the standard of care applicable tothe relationship between River Valley and Ms. Wandy and whether River Valley breached the applicable standard of care, and (iii) if abreach of the applicable standard occurred, whether it caused or contributed to the injury Ms. Wandy suffered. i. Duty of Care Owed by River Valley [21] River Valley and Ms. Wandy agreed that the trial judge correctly interpreted the duty of care owed by a commercial host to apatron.

That duty requires a commercial host to protect its patrons from reasonably foreseeable harm, as articulated in Stewart v. Petti, (SCC), [1995] 1 S.C.R. 131 and Jordan House v. Menow, (SCC), [1974] S.C.R. 239. Counsel forMs. Wandy aptly summarized the duty of a tavern as follows: A tavern profits from and is in a position of control with respect to the sale of alcohol, the effects of which can foster a riskyenvironment.

As such, the common law has recognized that a tavern will be held responsible if third parties and innocent parties areinjured when it is reasonably foreseeable that they could be harmed by an intoxicated person who drank and/or was intoxicated on thetavern’s premises. (AF7–8, para. 25) ii. Standard of care [22] In Stewart, supra, Major J. described the difference between a host’s duty of care and the standard of care attributable to a hostat para. 32: The question of whether the duty of care exists is a question of the relationship between the parties, not a question of conduct. The

question of what conduct is required to satisfy the duty is a question of the appropriate standard of care. He also quoted with approval the observations of John Fleming, The Law of Torts , 8th ed. (Sydney: Law Book Co., 1992).

Of particular note are the following observations by the learned writer: It is for the court to determine the existence of a duty relationship and to lay down in general terms the standard of care by which to measure the defendant’s conduct; it is for the jury to translate the general into a particular standard suitable for the case in hand and to decide whether that standard has been attained. (pp. 105–106) [ 23 ] Justice Major then stated the standard of care applicable to a host operating a tavern only requires the host “to take some action” (p. 133) if “there is some foreseeable risk of harm to a patron or a third party.” He then went on to say the following at para. 35: 35 I doubt that any liability can flow from the mere fact that Mayfield may have over-served Pettie.

To hold that over-serving Pettie per se is negligent is to ignore the fact that injury to a class of persons must be foreseeable as a result of the impugned conduct. I fail to see how the mere fact that an individual is over-imbibing can lead, by itself, to any risk of harm to third parties. It is only if there is some foreseeable risk of harm to the patron or to a third party that Mayfield and others in their position will be required to take some action. [ 24 ] The trial judge applied the standard articulated by Major J. to the evidence and concluded there was no foreseeable risk of harm arising out of Mr.

Danyluk being over-served alcoholic beverages and therefore River Valley was not required to take any additional measures to protect Ms. Wandy. In support of her conclusion, the trial judge quoted the aforementioned observation by Major J. at para. 35 of Stewart . [ 25 ] Ms. Wandy’s position is that the trial judge erred in three respects.

First, she failed to take into consideration all of the factors related to the applicable duty of care and standard of care articulated by Laskin J. in Jordan House , supra , at p. 247, and approved in Stewart at para. 34 , namely: The common law assesses liability for negligence on the basis of breach of a duty of care arising from a foreseeable and unreasonable risk of harm to one person created by the act or omission of another.

This is the generality which exhibits the flexibility of the common law; but since liability is predicated upon fault, the guiding principle assumes a nexus or relationship between the injured person and the injuring person which makes it reasonable to conclude that the latter owes a duty to the former not to expose him to an unreasonable risk of harm.

Moreover, in considering whether the risk of injury to which a person may be exposed is one that he should not reasonably have to run, it is relevant to relate the probability and the gravity of injury to the burden that would be imposed upon the prospective defendant in taking avoiding measures. ( Jordan House , p. 247) [ 26 ] Secondly, the appellant submits the trial judge failed to recognize that the matter before her involved more than a mere over- imbibing by Mr. Danyluk and, therefore, the trial judge should have taken the following into account: (

a) Mr. Danyluk was over-served alcohol to the point he “blacked out,” in the sense he had no recollection of what he did on the night and morning in question; (

b) Mr. Danyluk frequently drank at the Tavern and was known to consume alcohol in such amounts as to become very intoxicated and so loud that Ms. Rose had to intercede; (

c) on at least one occasion he was involved in a fight near but not on the Tavern’s premises; and (

d) during the night in question, Mr. Danyluk engaged in an argument with his girlfriend which ended with her leaving the Tavern. [ 27 ] Third, the trial judge failed to give due consideration to the wilful blindness factor articulated in Stewart at para. 56 : 56 … establishments which serve alcohol must either intervene in appropriate circumstances or risk liability, and that this liability cannot be avoided where the establishment has intentionally structured the environment in such a way as to make it impossible to know whether intervention is necessary. Such was the situation in Canada Trust Co. v.

Porter , supra , where the alcohol was served from behind a bar and it was impossible for the establishment either to monitor the amount consumed or to determine whether intervention was necessary. A similar situation arose in Gouge v. Three Top Investment Holdings Inc. , [1994] O.J. No. 751 (Ont. Ct. (Gen. Div.)) (QL) [ 22 C.C.L.T. (2d) 281 ], where the plaintiff attended a company Christmas party which had a “cash bar”, over-indulged, and then was involved in an accident.

In such circumstances, it would not be open to the establishment to claim that they could not foresee the risk created when the inability to foresee the risk was the direct result of the way the serving environment was structured. [ 28 ] No witness trained or experienced in handling security issues in liquor establishments was called to opine on foreseeable risks associated with allowing patrons to become intoxicated, or on procedures and staff required to protect third parties when a patron is very intoxicated and unruly. Ms. Wandy essentially relied on the admission by Ms.

Rose that she was responsible for keeping an eye on all patrons and was not able do so, the evidence of Mr. Danyluk read-in from his discovery, and common knowledge that intoxicated patrons are more likely than sober ones to harm themselves and third parties. [ 29 ] Against this background I turn to the decision under appeal. In arriving at her decision that Ms. Wandy failed to establish on a balance of probability that Mr. Danyluk had a propensity for violence when intoxicated, or if he did, that River Valley knew or should have known of that propensity, the trial judge took into account that Mr.

Danyluk “was a heavy drinker” (para. 19), “quick to show anger” (para. 19), and “was loud when alcohol was involved, not violent, aggressive or likely to conduct himself outrageously as he did in the evening in question” (para. 19). [ 30 ] The trial judge considered Ms. Wandy’s submissions and came to a materially different conclusion. Based on her assessment of the evidence she made the following material findings of fact: (

i) that nothing in Mr. Danyluk’s conduct, prior to his angry response to a sarcastic comment by another patron, should have caused River Valley to be concerned for the safety of its other patrons; and (ii) there was insufficient time between Mr. Danyluk’s angrily asking “Who said that?” and the time he threw the chair that struck Ms. Wandy, for River Valley to have intervened. I am satisfied she made no palpable and overriding error in making the aforementioned findings of fact or other findings material to her decision. [ 31 ] The trial judge considered and correctly distinguished the decisions in Hartley v.

RCM Management Ltd. , 2010 BCSC 579 ; Mellanby v. Chapple, [1995] O.J. No. 1299 (Ont. Gen. Div.) ; and Greenslade v. Hurley , [1991] B.C.T.C. Uned. 338 (B.C. S.C.). In these cases there was foreseeable risk of harm by virtue of prior inappropriate conduct on the part of a patron. In the instant case there was no

prior misconduct or potential misconduct giving rise to a foreseeable risk of harm. The wilful blindness argument advanced by Ms. Wandy does not apply by virtue of the trial judge’s finding of fact. [ 32 ] In sum, I conclude that the trial judge made no palpable or overriding error in her application of the facts to the applicable standard of care. Having found no breach of the applicable standard of care by River Valley, the trial judge was not required to address whether a causal link existed between the breach of a hypothetical standard of care and the injury suffered by Ms. Wandy.

Thus her discussion of such a causal relationship is obiter dicta and should not be addressed. VI. Conclusion [ 33 ] I would dismiss the within appeal and award River Valley its taxable costs. DATED at the City of Regina, in the Province of Saskatchewan, this 29th day of July, 2014 . “Whitmore J.A.” for Klebuc J.A. I concur “Caldwell J.A.” Caldwell J.A. I concur “Whitmore J.A.” Whitmore J.A.