IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130128

Docket: 08-5320

Registry:
Victoria

Between:

Jeremy Lutter

Plaintiff

And:

Dallas Parker
Smithson, Vonnie Zimmerman, Glen Mazu,
Tralee Mazu, Leslie Duane Collins, in his capacity as the
Executor of the Estate of Howard Allan Collins, Deceased
and Vernon Taxi Inc.

Defendants

And:

Insurance
Corporation of British Columbia, Glen Mazu, Tralee Mazu,
Leslie Duane Collins, in his capacity as the Executor of the Estate of
Howard Allan Collins, Deceased and Vernon Tax Inc.
and Dallas Parker Smithson

Third
Parties

Before:
The Honourable Mr. Justice Macaulay

Reasons for Judgment

(In
Chambers)

[1]            
In April 2008, Glen Mazu and Tralee Mazu permitted their daughter,
Brianne, to host a Bring Your Own Bottle (“BYOB”) party on their property to
celebrate her 19th birthday. Unfortunately, one of the invited guests, then 18½
year old Dallas Parker Smithson, became very drunk; eventually left the
property; drove away in a vehicle; and shortly afterwards, was involved in a
collision with a taxi, in which the plaintiff, Jeremy Lutter, was a passenger.

[2]            
Lutter claims damages against Smithson and others for his alleged
injuries and losses. The defendant, Vonnie Zimmerman, was the owner of the
vehicle that Smithson was driving at the time of the accident. The claims
against the Mazus are for breaches of alleged duties owed, as “social hosts”,
including permitting Smithson, a minor, to consume alcohol on their property
contrary to the Liquor Control and Licensing Act, R.S.B.C. 1996, c. 267
(the “LCLA”). The matter is currently scheduled for a 20 day trial
commencing in late February 2013.

[3]            
In a related proceeding (the “Collins action”), arising out of the death
of the taxi driver, Howard Allan Collins, Zimmerman and the Insurance
Corporation of British Columbia (“ICBC”) also joined the Mazus as third
parties. Neither the Collins estate nor any plaintiff in the Collins action
took a position on the Mazu applications described below. Counsel did not
provide me with any of the pleadings or orders in the Collins action. I assume
that there is an order in place that both matters be heard at the same time and
further, that counsel in the Collins action can agree as to the terms of any
order that should flow from these reasons in that action. They will have
liberty to speak to the matter if they cannot agree.

[4]            
The Mazus seek summary judgment dismissing all claims against them.
Lutter, Zimmerman and ICBC say that the matters are not suitable for
disposition under Supreme Court Civil Rule 9-7(2) (the “summary judgment
rule”) and, in the alternative, that the evidence demonstrates that the Mazus,
as social hosts, owed a duty of care to users of the road which they breached.

[5]            
The Mazus are understandably motivated to bring their application in the
expectation that a successful outcome will obviate the need for them to
participate in the upcoming potentially lengthy trial. They say that putting
them to a full trial would amount to a travesty of justice in the
circumstances. Although they filed their application on October 31, 2012, it
was not heard until January 10, 2013, barely within the 42 day before trial
requirement set by Rule 9-7(3). Given the nature of the application, it should
not have been left to such a late stage before proceeding with the hearing.

[6]            
The application respondents say that the issues raised are
interconnected with other issues that must proceed to regular trial and, in any
event, the matter is inappropriate for a just determination on affidavit
evidence under the summary judgment rule. For the reasons that follow, I accept
the application respondents’ submissions and dismiss the Mazus’ summary
judgment application.

[7]            
The allegation against the Mazus is that, as social hosts, they owed a
duty of care to users of the road that they breached. The alleged breaches, as
set out in the amended pleadings of Zimmerman and ICBC, are:

a) in
permitting the Defendant Dallas Smithson (“Smithson”) to consume alcoholic
beverages on their property located at 7015 Highway 6, in Vernon, British
Columbia (the “Premises”) when he was not legally of age to do so;

b) in
failing to maintain proper or any control over the amount of alcohol consumed
on the Premises, particularly given that many of the individuals on the
Premises, including Smithson, were minors;

c) in
failing to use reasonable, proper or any care to control the consumption of
alcohol on the Premises particularly given that many of the individuals on the
Premises, including Smithson, were minors;

d) in
serving alcoholic beverages in a reckless, careless and improper manner or
without regard to the safety of Smithson, the Plaintiff or others, particularly
given that many of the individuals on the Premises, including Smithson, were
minors;

e) in
failing to take away the keys of the vehicles which were located on the
Premises so as to ensure the individuals on the Premises, including Smithson,
could not enter into and drive a motor vehicle when their judgment was impaired
by the consumption of alcohol, particularly given that many of the individuals
on the Premises, including Smithson, were minors;

f) in
allowing and/or permitting Smithson to enter into and drive a motor vehicle
when they knew or ought to have known that his judgment was impaired by the
consumption of alcohol;

g) in failing to take
reasonable steps to arrange a safe ride home for Smithson when they knew or
ought to have known that his judgment was impaired by the consumption of
alcohol

[8]            
Lutter, in an amended statement of claim, adds the following allegations
respecting the Mazus:

(c) they
continued to serve alcoholic beverages to the Defendant, “Smithson” even though
he was clearly visibly intoxicated;

(d) even
though the Defendant, “Smithson” was clearly intoxicated they took no or
inadequate steps to get his car keys or offer him an alternate way home;

(e) they had the last clear
chance to prevent the Defendant, “Smithson” from operating his motor vehicle
when he was visibly intoxicated and where it would reasonably be assumed that
he would constitute a danger to other users of the highway in his intoxicated
state.

[9]            
The available evidence includes the affidavits of Tralee Mazu, Glen
Mazu, Brianne Jespersen (their daughter), Brett Jespersen (Brianne’s husband
and boyfriend at the material time), Sara Wallis (guest), Caitlee Lewis
(guest), Dallas Smithson (guest and defendant driver). All of this evidence is
properly admissible on the merits of the summary trial application.

[10]        
As well, extracts from the examination for discovery of Smithson are in
evidence, along with various documents attached as exhibits to the affidavit of
a lawyer acting for Zimmerman and ICBC. Most of the latter is inadmissible on
the merits, although I have relied on it to determine whether the case is
appropriate for disposition under the summary judgment rule. In that regard, I
have reviewed the following:

 1.       Certificate
of Qualified Technician showing Smithson had blood alcohol readings of 150 and
140 milligrams of alcohol in one hundred millilitres of blood taken at 4:15
a.m. and 4:38 a.m., after the accident;

 2.       Hospital
emergency record for Smithson after the accident;

 3.       Brianne’s
statement to the police dated April 20, 2008;

 4.       Police
Occurrence Report dated April 20, 2008;

 5.       Police
Occurrence Report dated April 24, 2008;

 6.       RCMP
Toxicology Report dated June 23, 2008, re Smithson showing blood alcohol
concentration at the time of driving in the range of 165‑189 mg%;

 7.       Extracts
from the examination for discovery of Tralee Mazu; and

 8.       Expert
report regarding Smithson’s alcohol consumption regarding, among other things,
probable minimum alcohol consumption, given the known blood alcohol
concentration levels.

Admissions obtained on examination for discovery are
admissible on a trial of the merits but it is very doubtful that the remainder
of the documents listed immediately above would be. In my view, their content
opens a door to potential cross-examination at trial on issues relevant to
determining the existence of the alleged social host duty and breach.

[11]        
The application respondents complain, in part, that not all the guests
at the party provided affidavits but I do not accept that contention. The
evidence does not reveal the exact number who attended the party, although it
certainly extends well beyond those who provided affidavits. Brianne had
permission to invite 30 to 40 guests and several are identified in the evidence
who have not provided evidence. All parties had ample opportunity to obtain
affidavits from whomever they wished. If the evidence was otherwise sufficient,
the absence of further evidence from guests at the party would not be an
adequate reason to find it unjust to decide the issues.

[12]        
The application respondents also say that the court should be cautious
in deciding a discrete issue in the litigation as I am asked to do here. This
is particularly so because there are allegations of negligence against multiple
parties, including against Lutter.

[13]        
If Lutter is partially at fault, any defendant(s) against whom he ultimately
succeeds will only be liable in proportion to the degree to which each person
is at fault (Negligence Act, R.S.B.C. 1996, c. 333, s. 1). Depending on
the circumstances at the end of trial, the court may even have to consider the
degree to which the fault of a non-party caused damage.

[14]        
This raises the spectre that a finding now that the Mazus are not liable
may embarrass the trial judge if she or he is required to assess individual
fault. Of course, the problem is exacerbated if I were to conclude on this
application that the Mazus owe a duty of care which they breached. The
additional evidence before the trial judge might well support a different
conclusion.

[15]        
As a more general proposition, I am satisfied that the novel question of
liability arising out of the consumption of alcohol by a minor at a party
hosted on a defendant’s property as raised in this case is best addressed after
a full trial. That approach ensures the most complete record possible. In
reaching that conclusion, I take into account the additional costs to the Mazus
associated with the trial process but there is otherwise no prejudice. In Sidhu
v. Hiebert, 2011 BCSC 1364, the summary judgment application judge reached
a similar conclusion.

[16]        
In Sidhu, the plaintiffs were passengers in a vehicle involved in
a collision with a vehicle that Hiebert was driving. The plaintiff alleged that
Hiebert got drunk at a party that the co-defendant, Rattan, hosted. The plaintiffs
alleged fault against Rattan under a theory of social liability.

[17]        
Rattan applied for summary judgment to have all claims against him
dismissed. He relied, as the Mazus do here, on the Supreme Court of Canada
decision in Childs v. Desormeaux, 2006 SCC 18, to demonstrate that a
social host owed no duty to monitor a guest’s alcohol intake while at his house
or to take any steps to protect other users of the highways when the guest
decided to drive away from his house.

[18]        
Justice Johnston concluded in Sidhu that the findings of fact
necessary to determine whether Rattan owed a duty of care should not be made on
affidavits (para. 41). In particular, he observed that evidence relevant
to foreseeability was identified in a statement made by a witness to the police,
although no affidavit was available from the witness. Similarly, as I noted
above, there is evidence before me not admissible at trial that demonstrates
potential avenues for cross-examination.

[19]        
The Mazus contend that Sidhu is distinguishable because the
conflict in the evidence concerned whether Rattan should have known that
Hiebert was intoxicated. Counsel submits there is no such conflict in the
present case partially because, on the uncontradicted evidence, the Mazus did
not supply liquor to any of the guests at the party and because Mrs. Mazu
admits that Smithson was intoxicated. Mrs. Mazu deposes, however, that she had
no reason to expect him to drive. Counsel contends, as a result, that there are
no material disputes on the evidence.

[20]        
The application respondents say that Mrs. Mazu’s assertion that she had
no reason to expect Smithson to drive must be assessed in the context of all
the trial evidence, including cross-examination of individuals who were present
during the party. Having reviewed Childs, I agree.

[21]        
Childs is a very important decision relating to social host
liability. In determining the sufficiency of the affidavit material here and
whether it is just to decide the issues on summary judgment, a review of the principles
that emerge from the case assists.

[22]        
In Childs, the defendant homeowners hosted a party, during the
course of which they served a small quantity of alcohol to adult guests. For
the most part, the event was “BYOB”. The defendants knew that one of the
guests, Desormeaux, was known to be a heavy drinker. As Desormeaux walked to
his car to leave, one of the hosts inquired if he was okay to drive. Desormeaux
responded affirmatively and drove away. The accident ensued.

[23]        
Childs was the first time the Supreme Court considered whether
social, as opposed to commercial, hosts who invite guests to an event where
alcohol is served owe a duty of care to third parties who may be injured by
intoxicated guests (para. 8).

[24]        
The court did not accept that the existence of a duty on the part of
commercial hosts could be extended, by analogy, to the hosts of a private party
(para. 23). Accordingly, the court went on to apply the first stage of the Anns
test (Anns v. Merton London Borough Council, [1978] A.C. 728), and
concluded, for two reasons, that the necessary proximity had not been
established (para. 26):

First, the injury to Ms. Childs
was not reasonably foreseeable on the facts found by the trial judge. Second,
even if foreseeability were established, no duty would arise because the wrong
alleged is a failure to act or nonfeasance in circumstances where there was no
positive duty to act. [Emphasis added.]

[25]        
Of potential significance here, the trial judge in Childs never
found that the hosts knew, or ought to have known, that the guest who was about
to drive was too drunk to do so. For that reason, foreseeability, and
accordingly proximity, were not established. Although there was evidence that
Desormeaux had a high blood alcohol rating, evidence that the hosts knew of his
intoxication was absent (para. 28).

[26]        
At first blush, Mrs. Mazu’s admission that she knew Smithson was drunk
before he left the party appears to fill the foreseeability gap that the
Supreme Court first identified in Childs. That appears to strengthen the
application respondents’ contention that foreseeability may be established
here.

[27]        
As to the second point made in Childs respecting the lack of a
positive duty to act, the hosts and guests were all adults. The court
identified the lack of paternal relationship between host and guest, coupled
with the autonomy of the guest, as factors that militated against imposing a
positive duty to act on the hosts (see paras. 42–45).

[28]        
In the present case, the application respondents point out that s.
33(1)(c) of the LCLA forbids a host permitting a minor to consume liquor
“in or at a place under his or her control.” At the material time, the
uncontradicted evidence is that Smithson was 18 years old and, accordingly, a
minor. I agree with the respondents that this may militate in favour of
imposing a positive duty. The evidence also reveals that other minors were
present at the party, although it may be that most were also close to the age
of majority.

[29]        
To adopt some of the language in Childs, found at para. 45, these
distinctions raise the question whether an adult host is actively implicated in
the creation or enhancement of the risk if she permits an underage person on
her property to consume alcohol to the point of intoxication, perhaps extreme
intoxication. As in Sidhu, that important question is, in my view,
better left to be determined upon the fullest record available after a regular
trial. Accordingly, it would be unjust to decide the issue on a summary
judgment application.

[30]        
There is, in my view, a significant risk of injustice in attempting to
determine the answers to the essential questions that the Mazus raise in this
case on a summary trial. I dismiss the application. It is accordingly not
necessary for me to review the detailed evidence filed on behalf of the Mazus,
including the basis for Mrs. Mazu’s belief that Smithson would not drive and
her reasons for not taking additional steps to reduce the risk that he might do
so.

[31]        
The application respondents should have approached this application
differently and sought a separate determination whether it was appropriate for
determination under the summary judgment rule. I decline
to order any costs in their favour.

               “M.D.
Macaulay, J.”               

The
Honourable Mr. Justice Macaulay