AUSTIN, SIMMONS AND GILLESE JJ.A.
BETWEEN: |
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LINDA LEIGH HUNT, by her litigation guardian RANDOLF WADE HUNT and RANDOLF WADE HUNT Respondents (Plaintiffs) |
Earl A. Cherniak, Q.C. |
- and - |
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SUTTON GROUP INCENTIVE REALTY INC. and PETER J. BROWN c.o.b. as P.J.’S PUB Appellant (Defendants) |
Roger G. Oatley |
HEARD: May 15, 2002 |
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On appeal from the judgment of Justice Clair Marchand of the Superior Court of Justice dated February 5, 2001, reported at 52 O.R. (3d) 425.
AUSTIN J.A.:
[1] The substantive issue considered in this appeal is the extent of the duty of care owed by an employer to an employee driving home after an office Christmas party. The main procedural issue considered is the exercise of the trial judge’s discretion in discharging the jury upon grounds of complexity and publicity.
FACTS
[2] The appellant employer, Sutton Group Incentive Realty Inc. (“Sutton”), had a real estate sales office in Barrie, Ontario run by its principal, Don Jerry (“Jerry”). The respondent employee, Linda Leigh Hunt (“Hunt”), worked there as a secretary and receptionist.
[3] On Friday, December 16, 1994, beginning at about 1:00 p.m., Sutton held an office party in its premises for employees, agents, brokers, customers and others with whom it had business relationships. Guests served themselves from an open bar. No one was designated to monitor alcohol consumption. Jerry was in charge.
[4] Hunt attended the event both as an employee and as a guest. As expected, she cleaned up the premises at the end of the party and left with several others at about 6:30 p.m. She lived in Wasaga, about a half hour drive from the office, and customarily drove herself to and from work. Instead of driving home from work on this occasion, she went with several others to a nearby establishment called P.J.’s Pub.
[5] Hunt left P.J.’s about 8:00 p.m., again with several people who had been at Sutton’s. At about 9:45 p.m. Hunt was very seriously injured in a motor vehicle accident about 12.2 kilometres away from P.J.’s, on the way towards Wasaga. She appeared to have lost control of her motor vehicle on a slushy downhill slope and to have slid into the opposite lane where the left side of her motor vehicle was hit by an oncoming vehicle. Hunt has no memory of the accident nor of any event in the week before it. Apart from the time required to drive the 12.2 kilometres, there is no evidence as to how she spent the period from 8:00 to 9:45 p.m.
[6] It is common ground that during the evening the weather was bad for driving and was getting worse.
[7] Two blood alcohol samples were taken from Hunt after the accident. The first was at Royal Victoria Hospital in Barrie at 11:20 p.m. It indicated a blood alcohol level of 149 mg/100 ml of blood. The second was at Sunnybrook Hospital in Toronto at 2:30 a.m. the following day. It indicated a blood level alcohol of 105 mg/100 ml of blood. Based on these samples Hunt was convicted of driving with a blood alcohol level in excess of 80 mg/100 ml of blood.
[8] The expert evidence called on behalf of the plaintiff was that, assuming Hunt drank no alcohol before the party, only two drinks at P.J.’s and no alcohol thereafter, her blood alcohol level on leaving the party at Sutton’s would have been 151‑200 mg/100 ml and that at the time of the accident, it would have been 165‑181 mg/100 ml.
[9] The alcohol-related issues at trial may be summarized as follows:
a) how much alcohol did Hunt consume at Sutton’s;
b) to what extent was Sutton aware of how much alcohol Hunt consumed at Sutton’s;
c) to what extent should Sutton have been aware of how much alcohol Hunt consumed at Sutton’s;
d) should Sutton have anticipated that Hunt would go on to consume alcohol at P.J.’s or elsewhere;
e) did Sutton owe Hunt a duty of care; and
f) if Sutton owed Hunt a duty of care, what, if anything, should Sutton have done?
[10] Counsel for Sutton served a jury notice and the trial was commenced with a jury, in Barrie, on October 2, 2000. The case was something of a cause célèbre locally and on two occasions, at the beginning and during the course of the hearing, the trial judge, at the request of the plaintiffs’ counsel, instructed the jury to ignore the public comments the trial attracted. On two other occasions, Sutton’s counsel asked the trial judge to declare a mistrial by reason of remarks of plaintiffs’ counsel. In the alternative, Sutton’s counsel asked that the jury be discharged. None of these requests was granted and there is no appeal from those decisions.
[11] Before the last witness was called (on damages), plaintiffs’ counsel moved to discharge the jury on combined grounds of complexity and public comments. This motion was granted and the jury was discharged on October 19, 2000. The last witness was heard on October 19 and 20. The argument was then heard by the trial judge on October 23 and 24 and judgment was reserved. Reasons for judgment were released on February 5, 2001. The trial judge found that:
a) Hunt was inebriated when she left Sutton’s;
b) her blood alcohol content then was approximately 175 mg of alcohol in 100 ml of blood;
c) Sutton should have foreseen or anticipated that some employees would stop for a drink on the way home;
d) Hunt did not have more than another two drinks at P.J.’s;
e) Sutton, as her employer, owed her a duty of care;
f) accepting Hunt’s declining of assistance was an error on the part of Sutton because of Hunt’s impairment;
g) the worsening of the weather added to the employer’s duty;
h) Sutton’s duty was not discharged by “offering a cab to its employees generally, and even having possibly specifically invited to drive the plaintiff home as suggested by Dorothy Culbert”, another employee;
i) forcibly putting Hunt in a taxi would not amount to false imprisonment or kidnapping;
j) appropriating her car keys would not have been tantamount to theft;
k) Sutton, as Hunt’s employer, should have insisted on her leaving her keys at the office or on her taking a taxi or should have phoned her husband to come and pick her up or should have phoned the police if need be; and
l) Sutton could have ensured that Hunt was taken to a local hotel or could have found somebody who had not been drinking to drive her home.
[12] Counsel for Hunt conceded that she was partly to blame; he suggested a 70% allocation of responsibility to her. The trial judge found Hunt 75% responsible. P.J.’s Pub did not defend the action. The facts pleaded against P.J.’s were accordingly deemed admitted. The trial judge found it impractical to quantify the respective degrees of negligence as between Sutton and P.J.’s and accordingly applied the Negligence Act, R.S.O. 1990 c. N.1, s. 4 and found them jointly and severally liable for 25% of the damages. Damages were assessed at a total of $1,124,916 and judgment was given in Hunt’s favour for $288,104 plus interest.
ISSUES
[13] Although the notice of appeal raises issues respecting the assessment of damages, they were not addressed in the appellant’s factum or oral argument. They are therefore not considered in these reasons.
[14] The appellant raises three grounds of appeal:
· the trial judge erred in discharging the jury;
· Sutton was not guilty of any negligence which was a proximate cause of the accident; and
· the trial judge erred in permitting plaintiffs’ counsel to cross-examine two lay witnesses with respect to the standard of care of commercial hosts.
ANALYSIS
[15] It is convenient to deal with these in the reverse order, but my conclusion is that the appeal should be allowed upon the basis of the first ground and a new trial ordered.
Issue 1: Admission of Evidence of Lay Witnesses
[16] The two witnesses in question were Fred McColman and Bruce Sutherland. They were called by the defence to testify as to their observations of Hunt at the party, and in McColman’s case, at P.J.’s. McColman had been a bar owner and Sutherland was a bartender. The trial judge permitted plaintiffs’ counsel, over the objections of defence counsel, to cross-examine these witnesses about the “server intervention program” offered through the Liquor Licence Board of Ontario. That program was designed to make professional servers of alcohol conscious of their responsibility to monitor the intake of patrons of licensed premises, to be alert to signs of the influence of alcohol and to take steps, where appropriate, to refuse to serve further alcohol and to ensure the safety of patrons and persons with whom they came in contact after leaving the licensed premises. Neither witness was qualified as an expert to give the evidence in question and no report by either had been provided to opposing counsel. No reasons appear in the transcript for the admission of this evidence. The purpose of the evidence appears to have been to provide an evidentiary basis for what was said to be the standard of care for persons working in licensed premises and therefore arguably, a standard against which the conduct of Sutton could be measured.
[17] The objection raised by defence counsel was that lay witnesses were being asked to give opinion evidence as opposed to simply stating facts relating to their observations. Sopinka, The Law of Evidence in Canada, 2nd ed. (1999) deals with this at p. 609 as follows:
Courts now have greater freedom to receive lay witnesses’ opinions if: (1) the witness has personal knowledge; (2) the witness is in a better position than the trier of fact to form the opinion; (3) the witness has the necessary experiential capacity to make the conclusion; and (4) the opinion is a compendious mode of speaking and the witness could not as accurately, adequately and with reasonable facility describe the facts she or he is testifying about. But as such evidence approaches the central issues that the courts must decide, one can still expect an insistence that the witnesses stick to the primary facts and refrain from giving their inferences. It is always a matter of degree. As the testimony shades towards a legal conclusion, resistance to admissibility develops.
[18] That is our situation. Counsel for the plaintiffs, through the testimony of McColman and Sutherland, was trying to persuade the trier of fact to adopt as applicable to Sutton a standard observed by commercial hosts or a higher standard. It is apparent from the reasons for judgment that counsel succeeded in this regard. Whether success came by reason of the testimony of McColman or Sutherland or through the testimony of others who discussed the same matters, the evidence of McColman and Sutherland does not strike me as being either unfair or objectionable.
[19] As to McColman, the trial judge dealt with his evidence as follows:
Except for Fred McColeman (sic), their [the group who went to P.J.’s Pub] testimony seemed to be in accord that during the one and one-half hours spent at The Pub, they ate and also consumed approximately one or two servings of liquor. Fred McColeman, an associate realtor sharing office [space] at the defendant, Sutton’s, business enterprise, testified on its behalf. In chief, he testified that he had more than four drinks and less than ten at The Pub. He is convinced that the plaintiff did consume much more than two drinks while at The Pub without being certain as to how many additional drinks she might have consumed. I find that I cannot rely on Mr. McColeman’s testimony. It is apparent to me that he did not wish to compromise the defendant’s case. He admits that during the afternoon and the subsequent attendance at the premises of the defendant, Pub, he might have consumed as much as twenty-two drinks. He was argumentative in his testimony and his recollection of the time when the office party ended is inconsistent with that of the other witnesses whose evidence I accept. He doesn’t recall how he got to The Pub nor does he remember how his colleagues got there. He doesn’t remember what he had to drink nor how much the others had to drink either. He admits that his main concern upon leaving The Pub was the weather conditions and confirms that no one should have been driving, especially if one resided out of town as the plaintiff did. He confirms that freezing rain had fallen while at The Pub but at the time of departure, it had turned to snow. I find that after the plaintiff had consumed two drinks at The Pub, the party broke up at approximately 8:00 p.m. [Emphasis added]
[20] I conclude that the trial judge gave no weight whatever to McColman’s evidence.
[21] No mention is made of Sutherland in the reasons for judgment nor is it possible to identify any of his evidence in particular in the reasons. Some of the steps mentioned by him, such as taking a patron’s car keys or calling a taxi or for the police, appear in the trial judge’s discussion of the standard of care in the reasons for judgment but those steps were discussed with other witnesses. Accordingly, it cannot be stated categorically that Sutherland was a source of that information.
[22] Having regard to the whole of the evidence, it cannot be said that the evidence of Sutherland either did or did not have an effect on the outcome of the trial. As noted earlier, I find the testimony neither unfair or objectionable and accordingly I would not find it an error on the part of the trial judge to admit it as evidence.
Issue 2: Proximate Cause
[23] I turn now to the matter of causation or proximate cause. In Snell v. Farrell, [1990] 2 S.C.R. 311 at 326 Sopinka J. described causation as follows:
Causation is an expression of the relationship that must be found to exist between the tortious act of the wrongdoer and the injury to the victim in order to justify compensation of the latter out of the pocket of the former.
Counsel for Sutton argues that if Sutton was “negligent”, that negligence was not the proximate cause of the loss. Putting it another way, the loss is said to be so remote as to be not compensible at law.
[24] The test for determining remoteness is foreseeability of the possibility of the type of harm that occurs. If an intervening act, eg. the visit to P.J.’s, “is such that it might reasonably have been foreseen or anticipated as the natural and probable result of the original negligence, then the original negligence will be regarded as the proximate cause of the injury, notwithstanding the intervening act”: Cotic v. Gray (1981), 33 O.R. (2d) 356 (C.A.), per Lacourcière J.A. at p. 379.
[25] In the instant case, the plaintiffs argued that Hunt became intoxicated at the office party, had more to drink at P.J.’s Pub and was still intoxicated at the time of the accident, three and one-quarter hours after leaving the office. The plaintiffs also argued that Sutton was negligent in having an open bar (as a result of which it was more difficult to monitor alcohol intake), in letting Hunt leave by herself and in failing to anticipate further drinking by Hunt at a nearby pub. The plaintiffs argued that the state of inebriation was such that it continued up to the time of the accident. It was argued therefore that there was no breach or interruption in the chain of causation.
[26] In Stewart v. Pettie, [1995] 1 S.C.R. 131 at 143, Major J. said in dealing with the duty of a commercial host that, “[i]t is clear that a bar owes a duty of care to patrons, and as a result, may be required to prevent an intoxicated patron from driving where it is apparent that he intends to drive”. Hunt’s position is that she was intoxicated by reason of alcohol supplied by Sutton, that Sutton knew or should have known that she was intoxicated, that Sutton knew she intended to drive and that in those circumstances Sutton should have taken more steps than it did to protect her.
[27] The trial judge dealt with causation as follows:
DID THE FAILURE TO MEET THE AFORE-MENTIONED STANDARD OF CARE CAUSE THE HARM SUFFERED?
Although the weather might certainly have contributed to the accident, I find that the preponderance of evidence satisfies me that her degree of intoxication played a major role in the accident. I find that the likelihood of such an accident occurring in her state of intoxication was foreseeable and is a direct consequence of the failure on the part of the defendant Sutton in discharging his duty owed to his employee at the workplace. I find that it is a reasonable inference to draw that the plaintiff’s failure to engage the four-wheel drive in her motor vehicle in the road conditions existing at the time contributed to her loss of control of the motor vehicle. I find that her degree of impairment inevitably impaired her judgment in putting the motor vehicle in four-wheel drive.
Later, in dealing with the question whether Hunt was also negligent, the trial judge found that:
Her impaired judgment caused her to neglect to engage the four-wheel drive on her motor vehicle which undoubtedly contributed to her loss of control of the said motor vehicle.
[28] The evidence established that Hunt’s vehicle was not in four-wheel drive at the time of the collision. The toxicologist was asked what the relationship would be, if any, between Hunt drinking alcohol and then “failing to engage the four-wheel drive on her vehicle when she’s about to drive in slippery conditions”. She replied that:
…alcohol will affect the ability to concentrate. The power of concentration would be affected and the person would not be able to concentrate on more than one task. They can do one task maybe very well. But whenever there are many other tasks, like in this instance, there was other things to consider or just to make a decision, but unable to make a decision on them all.
[29] Beyond this, there was no evidence to support the trial judge’s findings with respect to why the vehicle was not in the four-wheel drive position.
[30] The trial judge dealt with the “interruption” i.e. the visit to P.J.’s and the one and three-quarter hours unaccounted for, by reference to and reliance upon the passage from Cotic v.Gray, supra, set out above.
[31] The trial judge also relied upon the decision at trial in John v. Flynn, [2000] O.J. 128 (Sup. Ct.). In that case the employer, Eaton Yale, was held liable notwithstanding that its employee, Mr. Flynn, had left work, gone home, had a snack and had then set out again on the highway before colliding with Mr. John. The trial judge dismissed Eaton Yale’s motion for a directed verdict, holding that the employer remained responsible for Flynn’s conduct notwithstanding the events and passage of time between Flynn’s drinking at work and the accident involving John. The reliance of the trial judge in the instant case on the finding of the trial judge in John v. Flynn was misplaced. The trial decision in John v. Flynn was reversed (2001), 54 O.R. (3d) 774 (C.A.), leave to appeal to the Supreme Court of Canada refused May 2, 2002.
[32] As to the visit to P.J.’s the trial judge said in his reasons:
. . . I find it inconceivable that the defendant host did not know, or ought not to have known, that the group had planned to stop for a drink on the way home. I find that he ought to have reasonably foreseen or anticipated such an action on their part.
[33] No reference is made in the reasons on causation to: (a) the absence of any evidence of signs of inebriation on the part of Hunt while at P.J.’s; (b) an invitation Hunt received at P.J.’s to spend the night with others; (c) where Hunt might have spent the “missing” one and three-quarters hours; or (d) the possibility that some of that time was spent drinking.
[34] The appellant asks this court to find that the trial judge erred in dealing with causation. The appellant also invites this court to deal with the matter of causation, to find Sutton not responsible for any negligence causing or contributing to Hunt’s injuries and on that basis to allow the appeal and dismiss the action.
[35] I agree with the appellant that the trial judge erred in dealing with causation. I disagree, however, with the proposition that this court can and should deal with the matter of causation, should find that if Sutton was negligent, that that negligence neither caused nor contributed to the accident, and should therefore dismiss the action.
[36] In my respectful view, the trial judge made two errors in dealing with causation. The first error occurred in failing to deal with evidence tending to show that Hunt was not inebriated when she left Sutton’s. The second error was in failing to deal with the assumptions underlying the evidence of the toxicologist.
[37] The plaintiffs’ position was that Hunt was obviously intoxicated when she left the party. Sutton’s position, as noted by the trial judge, was that “except for some concern about the plaintiff’s state of inebriation in the middle of the afternoon, she, thereafter, showed no signs of inebriation” and that when the party broke up “he [Jerry] had no reason to suspect that her ability to drive herself home was impaired and that it could put her life or safety in danger”.
[38] The evidence on the issue of signs of alcohol consumption was conflicting. The trial judge reviewed some of the evidence as follows:
It is clear however, that those who do remember the plaintiff, described her at trial as “intoxicated”, “more jovial than usual”, “happy”, “enjoying herself”, “being in a party mood”, “friendly with everyone”, “outgoing and standing out”, “not feeling any pain”, “having a good time”, “telling off-coloured jokes”, “saying non-sensitive things”, “having a degree of slur in her speech”, “more intoxicated than the other guests”, “impaired”.
[39] This review appears in paragraph 7 of the reasons for judgment. The conclusion to be drawn from it does not appear until paragraph 63, at which point the trial judge was considering the liability of P.J.’s Pub. In this regard he said:
It is clear from the evidence as disclosed by the witnesses who attended the office party that the plaintiff was exhibiting signs of inebriation or impairment, when she left the party just a few minutes prior to her attendance at the Pub. It seems to me that if such signs of impairment were so visible to inexperienced observers, much more so should it have been to the staff of a professional establishment who are trained or ought to be trained in detecting such impairment. In any event, the fact that the Pub failed to defend the action is deemed in law to be an admission of the plaintiff’s plea in that regard.
[40] In reaching this conclusion, however, the trial judge made at least two errors. At the end of his review of the evidence supporting Hunt’s position he said:
In cross-examination, he [Jerry] confirmed that he was not in a position to contradict one of his associates, Bob Garner, that at approximately 4:00 o’clock, the plaintiff was drunk.
This is an error. Garner said he left the party and returned to it between 4:00 and 5:00 p.m. at which time he saw Hunt with a drink in her hand. Garner, however, had no recollection of her being affected by alcohol. This is particularly important as Garner was one of the group who went to P.J.’s.
[41] To the same effect largely was the evidence of David Wilson, another real estate agent at Sutton’s. He testified that Hunt exhibited symptoms of intoxication, such as slurring her speech, in the early stages of the party, but did not stand out as being any more affected by alcohol than the other guests towards the end. He testified that he did not see Hunt drink anything of an alcoholic nature while he was at the party.
[42] Rourke Howard, an abstainer who had a long time business association with Jerry, testified that he was at the party, and that while Hunt had drunk a bit at the beginning of the party, she had stopped drinking by about 4:00 p.m. He described her at the end of the party as not noticeably intoxicated; she was walking and talking normally. He also testifed that, as was his custom at such affairs, he offered rides home. He said he specifically offered Hunt a lift home.
[43] This was confirmed by Dorothy Culbert who did the administrative and secretarial work at the office when Hunt was not there. Culbert was at the Sutton party from 3:00 or 4:00 p.m. and was part of the group which went to P.J.’s Pub. Her opinion was that Hunt was not impaired.
[44] None of the group which went to P.J.’s testified that Hunt’s conduct there indicated that she was intoxicated. None of this evidence was reviewed by the trial judge.
[45] In the context of the question whether the chain of causation was broken, no consideration appears to have been given to the discussion which took place at P.J.’s as to whether Hunt would go on with others to McColman’s home nearby and then, because of the worsening weather, to spend the night at Dorothy Culbert’s home.
[46] In my view, the evidence referred to above in paragraphs 40 to 45 required consideration in resolving the question respecting Hunt’s condition and Sutton’s awareness of it, and the question of whether the chain of causation was broken.
[47] The other error was in failing to deal with the presumptions underlying the toxicologist’s opinion evidence. As noted earlier, the trial judge first reviewed in summary fashion the evidence of some of the witnesses as to Hunt’s condition. Instead of then stating his conclusions, the trial judge turned immediately to the evidence of the toxicologist who was, in the trial judge’s language:
The most compelling witness as to the plaintiff’s state of intoxication at the time she left the party . . .
[48] The gist of the toxicologist’s evidence is set out in paragraph 8 of these reasons. Fundamental to her opinion are the assumptions that Hunt had had nothing to drink before the party, that she had two drinks at P.J.s, and that she had had nothing further to drink before the accident. The finding with respect to the consumption of two drinks at P.J.’s is fully explained in the reasons. The trial judge, however, offered no explanation as to why the assumption of no consumption of alcohol during the period from 8:00 to 9:45 p.m. should be accepted. If the assumption is erroneous or cannot be made out on a balance of probabilities, the foundation for the toxicologist’s conclusion as to the amount of alcohol consumed at the Sutton party collapses and the trial judge’s finding in that regard cannot stand.
[49] On the evidence before this court, I am unable to make a determination as to the validity of the assumption and therefore cannot make the requisite findings of fact as to Hunt’s degree of intoxication at the time she left the Sutton party.
[50] As noted earlier, no reference is made in the reasons as to a) the absence of any evidence of signs of inebriation on the part of Hunt while at P.J.’s; b) an invitation Hunt received at P.J.’s to spend the night with others; and c) where and how Hunt might have spent the missing one and three-quarter hours. These matters are relevant to the chain of causation and without the trial judge’s findings on them and in the absence of evidence upon which to make those findings, this court is unable itself to decide the matter of causation.
[51] The appellant also invites this court to hold that, even accepting the findings of fact of the trial judge and whether or not the appellant had more drinks after she left P.J.’s, the trial judge ought to have found a break in the chain of causation by virtue of the lapse of time between the end of the party at Sutton’s and the accident. I am not prepared to make that finding. In my view, the trial judge’s findings of fact concerning the chain of causation are incomplete and prevent this court from making an independent determination of the issue of causation. Even accepting the findings of negligence made by the trial judge, as well as his findings of fact relating to causation, and assuming that all outstanding factual issues would be resolved in favour of the respondents, I am not prepared to hold that a trier of fact would be precluded from finding that the negligence of the appellant was a proximate cause of the accident.
Issue 3: Discharging the Jury
[52] The remaining issue in the appeal challenges the trial judge’s discharge of the jury upon the grounds of complexity and public commentary. The law in this regard is clear. The right to trial by jury is a statutory right and a substantial one. A judge, on the motion of a party, may strike out a jury notice or discharge a jury. The trial judge is in the best position to determine how to exercise that power. The decision of the trial judge to keep or to discharge a jury is an exercise of a discretionary power. An appellate court may not interfere with that exercise unless it has been carried out arbitrarily, capriciously or on wrong or inapplicable principles: Courts of Justice Act, R.S.O. 1990 c. 43 s. 108(1) and (3), Rule 47.02(2) and (3); Hamstra (Guardian ad Litem of) v. British Columbia Rugby Union (1997), 145 D.L.R. (4th) 193 (S.C.C.) per Major J. at p. 203; Aitken v. Forsell (1991), 50 C.P.C. (2d) 176 (Ont. C.A.) per Lacourcière J.A. at p. 178; Graham v. Rourke (1990), 75 O.R. (2d) 622 per Doherty J.A. at pp. 625-26.
[53] The respondent’s motion was based upon the proposition that the case was too complex and that there was a concern over publicity. The appellant’s position is that the trial judge discharged the jury for reasons which had no substance and that in doing so he erred in law and relied upon principles which were inapplicable in the circumstances. To deal with this argument, it is necessary to review the proceedings in some detail.
[54] The trial judge concluded his reasons for discharging the jury with the statement that:
Because of the aforementioned complexities submitted by the plaintiff and reproduced above, I have come to the conclusion that it would be inappropriate in this instance for this court to continue to proceed with the jury, and in the circumstances, I have discharged same.
[55] At the outset of his argument on this issue, plaintiffs’ counsel stated that:
. . . the case before this jury is one where the combination of so many legal issues does make it intolerable for the jury to discharge its responsibilities and potentially impossible for Your Honour to properly instruct a jury, given that there are so many legal issues, and the second main point . . . is the difficulty in any jury case where there are mixed questions of fact and law . . .
[56] Counsel then provided a list of what might be called jury concerns. It may be summarized as follows:
(a) does Sutton owe Hunt a duty of care?;
(b) how is the standard of care defined?;
(c) is that standard higher in the case of an employer than in the case of a tavern?;
(d) are the adverse weather conditions and the degree of intoxication to be taken into account in determining the standard of care?;
(e) what is the legal significance of noting P.J.’s Pub in default?;
(f) how is the Negligence Act applied in a case like this?;
(g) how is the absence of the tavern to be explained to the jury?;
(h) how could all this be put to the jury in the limited time available?;
(i) how will the jury deal with the concept of the adverse inferences, as for instance, in the case of the toxicologist not called by the defence?;
(j) how are mixed questions of fact and law to be divided up, as for instance, is Sutton required to take reasonable steps to prevent Hunt from driving?:
(k) is the plaintiff entitled to recover a loss of shared family income?;
(l) how does a jury apply a concept of cross-dependency?;
(m) what is the evidentiary value of medical reports not filed pursuant to s. 52 of the Evidence Act?;
(n) what is the entitlement of the plaintiff for the loss of a future possibility of economic loss, as for instance, the possibility that Hunt’s trauma may materially contribute to the failure of her marriage?;
(o) explaining that CPP contributions are to be ignored when considering income loss; and
(p) explaining positive and negative contingencies.
[57] The trial judge in his reasons did not touch on all of these matters, but added to them as follows:
In addition, although not argued by the plaintiff, I do find that the evidence of the toxicologist who attempted to establish the degree of intoxication of the plaintiff when she left her employer’s party based on the degree of intoxication at the time when the sample was taken after the accident to be extremely complex especially because of the intervening intake of alcohol at the co-defendant’s bar following the party.
[58] The trial judge also commented in his reasons that:
. . . The plaintiff admits that taken individually, each and every one of these complexities could likely be dealt with by a jury, properly instructed. He rather relies on the quantity of those complexities to render this action so complex so as to make it inappropriate to continue with the jury.
[59] The appellant’s first point is that many of the matters relied upon by plaintiffs’ counsel are matters of law and as such are the concern of the trial judge, not the jury. As an example, the question whether Sutton owes Hunt a duty of care is a question of law: Stewart v. Pettie, supra, per Major J. at pp. 144-45, citing Fleming, The Law of Torts 8th ed. (1992) at pp. 105-6. In any event, it was conceded by Sutton from the outset that it owed Hunt a duty of care by virtue of the employer-employee relationship.
[60] The trial judge himself referred to the passage from Stewart and Fleming which makes it clear that:
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 to a particular standard suitable for the case in hand, and to decide whether that standard has been attained.
[61] The reasons of Finlayson J.A. in John v. Flynn, supra, indicate that where an employer serves alcohol to its employees, the scope of the duty of care may extend beyond the workplace. That was the case in Jacobsen v. Nike Canada Ltd. (1996), 133 D.L.R. (4th) 377 (B.C.S.C.) in which the court found the employer owed the same duty owed by commercial drinking establishments to take “positive steps” to prevent the employee from driving while impaired. In general terms, the standard of care that the law imposes is to act reasonably to avoid reasonably foreseeable harm. What is “reasonable” may vary from one community to another. Accordingly, it is particularly appropriate that this “finding of fact” be made by a jury.
[62] On the motion to discharge the jury, the plaintiffs’ particular concern was “questions of mixed law and fact” and the trial judge addressed the matter on that basis. This does not strike me as a helpful approach. The determination of the standard of care in any given case is always a question of “mixed fact and law”. As Iacobucci J. stated for the Supreme Court of Canada in Southam Inc. v. Director of Investigation and Research, [1997] 1 S.C.R. 748 at 766-7:
Briefly stated, questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests. A simple example will illustrate these concepts. In the law of tort, the question what “negligence” means is a question of law. The question whether the defendant did this or that is a question of fact. And, once it has been decided that the applicable standard is one of negligence, the question whether the defendant satisfied the appropriate standard of care is a question of mixed law and fact.
Just because an issue is one of “mixed fact and law” does not mean it is especially complex.
[63] With respect to the “complex” questions respecting damages, it is argued that some of these were legal questions, to be dealt with by the trial judge, and that the others are dealt with by juries every day.
[64] In a jury case, the judge resolves the legal questions and provides the answers to the jurors who first find the facts and then determine whether those facts comply with or satisfy the requirements of the law. There is therefore nothing inherently complex in the fact that it may be a question of mixed fact and law.
[65] The toxicological evidence was typically complicated but not unusual. There was no conflicting evidence to reconcile. The jury was not required to understand the various steps taken – just the results, as juries do in criminal cases on a regular basis.
[66] On two occasions in his submissions respecting discharge of the jury, counsel for the plaintiff suggested that the judge take time to consider the decision on the merits rather than be forced “by the nature of the proceeding in a short compressed period of time, to come to grips with these highly complicated issues” in order to instruct the jury.
[67] The trial judge acknowledged that submission. In his reasons discharging the jury he said:
It is the further submission of the plaintiff that it would be unreasonable to expect a trial judge to compress the short degree of time usually available to him in preparing a charge to do so appropriately and in any event, for the jury to comprehend and remember the different shades of standards to apply in attributing the negligence between the respective parties.
[68] With respect, this is not a proper consideration. The right of a litigant to a jury is a substantial right. It is not to be voided except for substantial reasons. The trial began on October 2nd and ended on October 24th. If there was insufficient time during that period to prepare a charge, time could have been taken after the completion of argument to do so. The shortness of the time usually taken between the end of argument and the delivery of the charge to the jury is not a substantial reason for depriving a party of its right to a jury.
[69] It was also an error on the part of the trial judge to fail to consider splitting the trial and letting the jury decide liability while he dealt with damages. Section 108(3) of the Courts of Justice Act provides as follows:
s. 108(3) On motion, the court may order that issues of fact be tried or damages assessed, or both, without a jury.
Defence counsel expressly asked the trial judge to consider this option. According to counsel for the plaintiffs there was a “mountain” of documentary evidence on damages. Dividing the trial would have solved that problem, if indeed it was a problem: Sloane v. Toronto Stock Exchange (1991), 5 O.R. (3d) 412 (C.A.).
[70] Although the trial judge gave relatively lengthy reasons for his decision to discharge the jury, he never mentioned the defendant’s arguments, nor did he say why he was granting the order, beyond the fact that it would be “inappropriate for this court to continue to proceed with a jury”. To the extent that his difficulty lay in explaining the law to the jury, as appears to have been the case, that was an error of law. It is an error of law to rely upon a trial judge’s inability to explain the law to the jury as a basis for discharging the jury.
[71] In Murray v. Collegiate Sports Ltd. (1989), 40 C.P.C. (2d) 1 (C.A.) the court said at p. 3:
We are of the opinion, however, that the trial judge erred in discharging the jury. In his reasons, he stated that he was motivated by the fact that there were “serious, difficult and unsettled questions of law as to who should bear the onus in this case.” It was his obligation to resolve the question of onus and put the appropriate question to the jury. If other questions necessarily followed he could put those further questions and if that brought about difficulties, the question of discharging the jury could be reconsidered.
[72] In Cosford v. Cornwall (1992), 9 O.R. (3d) 37 (C.A.) Goodman J.A. said at p. 47:
The trial judge did not exercise his discretion in dispensing with the jury on the ground that the nature of the evidence was too complex or technical for a jury to make a proper assessment. On the contrary, as indicated in the excerpt from his reasons set forth above, he dispensed with the jury on the basis that the law to be applied to the facts as found by them was too difficult to explain to them.
In my opinion, he erred in this regard. It was his duty to determine the legal principles to be applied in the case and to instruct the jury with respect to those principles.
[73] Finally, it bears repeating that the right to trial by jury is a substantial right and one which is not to be taken away lightly. The onus is upon a party moving to discharge a jury and that onus must also be substantial. The arguments of counsel on the motion are fully recorded, as are the reasons of the trial judge. With respect, none of these reflect any substantial reason for discharging the jury.
[74] The motion to discharge the jury was brought on two bases – complexity and public commentary. With regard to the latter, the affidavit of Robert M. Durante, one of the plaintiffs’ counsel, sworn October 17, 2000 was filed. The affidavit indicates that there had been extensive media coverage of the trial from the outset, that it was one-sided and prejudicial, that Hunt was aware of the coverage and concerned about getting a fair trial, that she had been subjected to rude comments from the public by way of telephone calls and e-mail messages from persons unknown, that there had been letters to the editor criticizing her lawsuit and negative comments on radio talk shows, and her claim had been ridiculed on a television program called The Royal Canadian Air Farce.
[75] As indicated earlier in these reasons, the trial judge had occasion at the outset of the trial to instruct the jury in this regard. At counsel’s request another admonition was delivered during the course of the trial. There is no suggestion in the record, however, of discharging the jury because of publicity, until the motion at the end of the trial.
[76] The motion was supported by the oral submissions of counsel, who in the course of his argument handed up an editorial from a newspaper, the Barrie “Examiner”, of the day before. The editorial is not part of the record in this court but the following excerpts appear in the transcript:
Ontario courtrooms are often chilly places, none more so than one in Barrie being watched by people in almost every workplace.
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Hunt’s trial is sending a chill through many a corporate office and the directives are already coming down about no Christmas parties or at least none linked to the company. This is happening, despite some seemingly one sided evidence at the trial.
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This may seem like a cut and dry case. Hunt got drunk, so isn’t she and she alone responsible for her actions?
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What happens, for example, if an employee has too much to drink at the office Christmas party, takes a taxi home and falls down a flight of stairs there?”
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Linda Hunt’s lawsuit is making things chilly weeks before the snow flies in Ontario.
[77] In addition the editorial says “Linda Hunt wants two million dollars”.
[78] In his submissions counsel for Hunt said:
We do not, for a minute, suggest that this alone should justify the discharge of the jury in this case, merely that its a factor that Your Honour should consider.
[79] The six exhibits to Durante’s affidavit go from “straight” reporting “Drunk driver sues boss”, to “Boss tells jury he kept eye on drinking employee”, to “Driver over legal limit, court told”, to letters to the editor “Hunt responsible for her actions”, “The answer - don’t drink, think” to an e-mail to Hunt “Drinking and driving is not an accident, it’s a choice, and YOU made it”.
[80] Counsel for Sutton resisted the motion to discharge the jury on the ground of adverse publicity and pointed out that there was no evidence or suggestion that any of the jurors had any knowledge of the matters complained of and that there was no evidence or suggestion of contamination.
[81] The trial judge concluded his ruling on the discharge motion as follows:
Because of the aforementioned complexities submitted by the plaintiff and reproduced above, I have come to the conclusion that it would be inappropriate in this instance for this court to continue to proceed with the jury, and in the circumstances, I have discharged same.
In the light of my aforementioned ruling, the question as to whether I would have discharged the jury on the secondary grounds, namely, that the adverse publicity in the local media is such that it would be unreasonable to believe that the jury would be absolutely ignorant thereof, and would be unprejudiced by it, has now become moot. However, I do accept as a fact, the undisputed evidence of the affiant, Robert M. Durante, an associate of the plaintiff law firm, that the media has covered this action extensively from the outset and continues to cover it and report it in several newspapers and radio. It has even been featured briefly on a television airing of the Royal Canadian Air Farce on October 13th and 16th. I accept that generally, the editorial comments and the letters to the editor are very negative and could possibly have the effect adversely prejudicing the jurors if brought to their attention. On that ground alone, I would not however, have discharged a jury, but added to the aforementioned grounds, it supports my decision.
[82] Assuming, without deciding, that the disposition of the motion respecting publicity adds to the weight of the argument in favour of discharging the jury, in the absence of any evidence that any member of the jury had seen or heard of any of the publicity in question, the trial judge erred in giving any weight whatever to this consideration. Had there been any concern whatever, the jurors could and should have been asked whether any of them had seen or heard of the material in question.
CONCLUSIONS
[83] To summarize, I would give no effect to the grounds of appeal respecting the evidence of McColman and Sutherland and the issue of causation. As to the discharge of the jury, I find the trial judge erred in considering the length of time it would take to prepare to charge the jury, in failing to consider splitting the trial, and in giving weight to the difficulty he would have in instructing the jury as to matters of law. These are errors of law. I would allow the appeal and direct a new trial on both liability and damages. The costs of this appeal I would leave for disposition by the judge at the new trial.
“Austin J.A.”
“I agree Janet M. Simmons J.A.”
“I agree E. E. Gillese J.A.”