IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20111013

Docket: M082472

Registry:
Vancouver

Between:

Arshdeep Singh
Sidhu,
an infant by his litigation guardian Kuljivan Singh Dhaliwal

Plaintiff

And:

Jan Abram Hiebert,
Balwinder Kaur Sidhu,
Rajvinder Singh Sidhu, and Surinder Singh Rattan

Defendants

And:

Insurance
Corporation of British Columbia, Jan Abram Hiebert,
Balwinder Kaur Sidhu, Rajvinder Singh Sidhu,
Surinder Singh Rattan and Rudolph Werner Braun

Third
Parties

– And –

Docket: M083848

Registry:
Vancouver

Between:

Balraj Singh Sidhu,
an infant by his litigation guardian Tejpaul Mann

Plaintiff

And:

Jan
Abram Hiebert, Balwinder Kaur Sidhu,
Rajvinder Singh Sidhu, and Surinder Singh Rattan

Defendants

And:

Surinder Singh
Rattan, Jan Abram Hiebert, Balwinder Kaur Sidhu,
Rajvinder Singh Sidhu, Insurance Corporation of British Columbia
and Rudolph Werner Braun

Third
Parties

– And –

Docket: M083325

Registry:
Vancouver

Between:

Balkran Singh Gill,
an infant by his litigation guardian Inderjeet Dhaliwal

Plaintiff

And:

Jan
Abram Hiebert, Balwinder Kaur Sidhu,
Rajvinder Singh Sidhu, and Surinder Singh Rattan

Defendants

And:

Insurance
Corporation of British Columbia, Jan Abram Hiebert,
Balwinder Kaur Sidhu, Rajvinder Singh Sidhu, Surinder Singh Rattan
and Rudolph Werner Braun

Third
Parties

Before:
The Honourable Mr. Justice Johnston

Reasons for Judgment

(In
Chambers)

[1]            
There are three actions, brought on behalf of
three infant plaintiffs, all arising out of a motor vehicle accident. Arshdeep
Singh Sidhu, the most seriously injured of the plaintiffs, claims damages
against his parents Balwinder Kaur Sidhu and Rajvinder Singh Sidhu, the driver
and owner, respectively, of the vehicle in which he rode as a passenger;
against Mr. Hiebert, the driver of the vehicle that collided with his
parents’ vehicle; and against Mr. Rattan, who is alleged to have hosted a party
at which Mr. Hiebert became drunk just before the accident.

[2]            
The plaintiffs in the other two actions were
also passengers in the Sidhu vehicle, and each claims against the same
defendants based on similar allegations of negligence.

[3]            
Mr. Rattan alleges contributory negligence against
the infant plaintiff. As well, Mr. Rattan has issued a third party notice
claiming contribution and indemnity against Mr. Braun, who was a passenger in
Mr. Hiebert’s vehicle. Mr. Rattan asserts that if he, Rattan, can owe a
duty to third party users of the highway such as the plaintiff, then so too can
Mr. Braun.

[4]            
The Sidhu defendants and Mr. Hiebert have issued
third party notices claiming contribution and indemnity from Mr. Rattan.

[5]            
The defendant Rattan applies by way of summary
trial to have the plaintiffs’ claims, along with any third party claims against
him, dismissed, with costs.

[6]            
The third party Braun applies by way of summary
trial to have the defendant Rattan’s third party claims against him dismissed,
with costs.

[7]            
Mr. Rattan argues that his liability to the
plaintiff, if any, would arise from his status as what is called a “social host,”
and as a matter of law he owed no duty of care to public users of the highway
who might be injured by an intoxicated guest. He says further that the claims
by various co-defendants who seek contribution or indemnity from him by way of
third party notices should be dismissed for the same reason.

[8]            
Similarly, Mr. Braun seeks the dismissal of the
third party notice issued against him on the basis that he owed no duty of care
to the plaintiff.

BACKGROUND

[9]            
The defendant Rattan, the defendant Hiebert and
the third party Braun were school friends when they were younger, but they had
drifted apart as they got older.

[10]        
When Mr. Rattan was about to turn 50, his family
decided to have a party to celebrate. Mr. Hiebert and Mr. Braun were invited,
and attended together, arriving some hours after the celebration had started.

[11]        
The evidence conflicts on how much, and what
kind, of alcoholic beverage Mr. Hiebert consumed at the Rattan home; in whose
presence he consumed it; and who knew of his resulting condition.

[12]        
Mr. Hiebert left the gathering with Mr. Braun.
Mr. Hiebert drove his truck and Mr. Braun rode as a passenger.

[13]        
Shortly after leaving the Rattan home, Mr.
Hiebert drove through a stop sign and hit the vehicle in which the three infant
plaintiffs were riding as passengers. The defendant Balwinder Kaur Sidhu was
driving that vehicle, which was owned by the defendant Rajvinder Singh Sidhu.

[14]        
Mr. Hiebert’s blood alcohol content has been
analyzed and extrapolated back to the time of the collision to be more than
three times the legal limit for driving. An expert has opined that Mr. Hiebert
would have had to drink between 20 and 26 ounces of hard liquor to produce such
a result.

[15]        
The infant plaintiff Arshdeep Singh Sidhu is
disastrously injured as a result, as his spinal cord was severed in the high
cervical area. The plaintiffs in the other two actions allege lesser injuries.

[16]        
The plaintiff’s trial on issues of liability and
damages is set for 15 days in October 2012.

POSITIONS OF THE PARTIES

[17]        
Mr. Rattan’s position is that he owed no duty to
the infant plaintiffs arising out of the fact that Mr. Hiebert had consumed
alcohol at his home. He relies on the decision of the Supreme Court of Canada
in Childs v. Desormeaux, 2006 SCC 18. Mr. Rattan says that the effect of
Childs is that he owed no duty to monitor Mr. Hiebert’s alcohol
intake while at his house, or to take any steps to protect other users of the
highways when Mr. Hiebert proposed to drive away from his house.

[18]        
He argues further that the issue of any
liability that might attach to him as a “social host” is sufficiently discrete
from the issues among the parties to the motor vehicle accident litigation that
it would be just and convenient to decide his liability separately on this
summary trial application.

[19]        
The plaintiff Arshdeep Singh Sidhu, supported by
Mr. Rattan’s co-defendants Balwinder and Rajvinder Sidhu, and the third party Insurance
Corporation of British Columbia (“ICBC”), argue that this issue is not suitable
for disposition on summary trial. The plaintiffs in the other actions delivered
responses adopting the position taken by Arshdeep Singh Sidhu, but did not
appear on the application.

[20]        
The plaintiff argues that there are
controversial aspects of the evidence that make summary determination
inappropriate, including:

 1.       Mr. Hiebert’s condition when he arrived at the
Rattan home, and Mr. Rattan’s knowledge of that condition;

 2.       The amount of alcohol that was available or
served to Mr. Hiebert at the Rattan home;

 3.       Mr. Hiebert’s condition when he left the Rattan
home, and Mr. Rattan’s knowledge of that condition; and

 4.       Whether Mr. Rattan offered to call Mr. Hiebert a
taxi, or offered to drive him home himself.

[21]        
The defendant Rattan argues:

 1.       Mr. Hiebert’s condition when he arrived at the
party is moot because the law does not require him to have either monitored Mr.
Hiebert’s drinking or intervened to prevent or discourage him from driving;

 2.       As he has no duty of care as a social host, the
amount of Mr. Rattan’s liquor Mr. Hiebert chose to drink at his home is moot;

 3.       As there is no duty to intervene to prevent or
discourage Mr. Hiebert from driving, his condition when he left the Rattan home
is moot; and

 4.       In any event, Mr. Rattan offered to call a taxi
one or more times, and had no legal obligation to do more.

[22]        
The plaintiff submits that Childs did not
go so far as to eliminate all possibility that a duty of care might arise out
of social hosting circumstances. He argues that there are many conflicts in the
evidence, which, if resolved in favour of the plaintiff, are capable of
satisfying the Anns test (Anns v. Merton London Borough Council, [1978]
A.C. 728 (H.L.)), and from which a duty of care might arise. The plaintiff
submits that there is a significant risk that a just and fair result will not
be achieved if the findings of credibility and fact that are critical to the
analysis required by Anns were to be made on a summary, as opposed to a
full, trial.

THE LAW

[23]        
Childs arose out
of a New Year’s party hosted by two defendants to which their co-defendant
Desormeaux was invited. The invitees were expected to bring their own
refreshments, and the hosts provided a small amount of champagne to each guest
to toast the New Year.

[24]        
The hosts knew that Mr. Desormeaux had in the
past driven after becoming drunk. On this occasion, Mr. Desormeaux got drunk,
drove, and caused a serious car accident. The trial judge did not find that the
hosts knew, or ought to have known, that Mr. Desormeaux was impaired when he
left their party. The trial judge concluded that the hosts nevertheless owed a prima
facie duty of care to the injured plaintiff, but found that this duty was
negatived on grounds of public policy and dismissed the action.

[25]        
On appeal, the Ontario Court of Appeal
determined that no prima facie duty of care had arisen and dismissed the
appeal. The case went to the Supreme Court of Canada where the issue was the
existence of a duty of care on the part of the defendant social hosts.

[26]        
The Court reviewed the analytical framework for
whether or not a duty of care arises in light of the two-part test established
in the House of Lords decision in Anns. Those two parts are first,
whether there is a sufficiently close or “proximate” relationship between
plaintiff and defendant to give rise to a duty of care, and second, if the
relationship is sufficiently close, whether there are policy reasons to negate
a duty of care.

[27]        
The Court then applied its reasoning from
Odhavji Estate v. Woodhouse, 2003 SCC 69, where the question of
proximity was divided into two elements, foreseeability and proximity. It said
that the test for proximity will not always be satisfied by reasonable
foreseeability.

[28]        
The plaintiff bears the burden of satisfying the
first, or proximity, stage of the analysis. The first stage of the Anns
test may be avoided where the relationship between the parties is such that a prima
facie duty of care has been imposed in previous decisions involving parties
in similar relationships. If, however, the relationship upon which the duty is
alleged to arise is a novel one, in the sense that precedent has not
established the categorical existence of a duty of care, then the plaintiff
must satisfy the first stage of the Anns test.

[29]        
The plaintiff who succeeds in establishing
proximity raises a prima facie duty of care that shifts an evidentiary
burden to the defendant to establish a policy reason for not imposing the duty
raised in a prima facie way upon him or her.

[30]        
The Court in Childs concluded that the
first part of the Anns test could not be avoided on the basis that the
social host case before it was sufficiently similar to cases already decided
where the existence of a duty had become established – the nearest
analogy being commercial hosts, such as bars. The court did not deny
similarities between commercial and social hosts. It simply said that “the
possibility of a duty of care on commercial hosts does not automatically
translate into a duty of care for social hosts” (para. 17).

[31]        
The Court instead determined that it had to
decide whether the plaintiff had raised a prima facie duty of care.

[32]        
Whether a duty had been established on the face of
it depended on the answer to this question: “What, if anything, links party
hosts to third-party users of the highway?” (Childs, para. 24).

[33]        
The Supreme Court of Canada’s answer was that
injury to the plaintiff Childs was not reasonably foreseeable on the facts
found by the trial judge and, even if foreseeability had been
established, no duty would arise because the wrong alleged was a failure to
act, or nonfeasance, in circumstances where there was no positive duty to act.

[34]        
There are two aspects of the Court’s answer that
require examination in light of the issues raised in this case: first, the
conclusion that the plaintiff’s injuries in Childs were not reasonably
foreseeable on the facts as found in that case; second, that failure to act
could not give rise to liability in circumstances where there was no duty to
act.

[35]        
On the first, the Court pointed out that the
trial judge had not found as a fact that the hosts knew, or ought reasonably to
have known, that their guest Desormeaux was too drunk to drive when he left
their party.

[36]        
In the case before me, there is a great deal of
conflicting evidence on what Mr. Rattan knew or ought to have known about Mr.
Hiebert’s state of sobriety when he drove away from the party. That evidence
includes: Mr. Rattan’s statement to police that Mr. Hiebert was “pretty drunk,”
his discovery evidence that Mr. Hiebert “seemed okay” but “nobody should drive
even after one drink.” Mr. Hiebert’s evidence on discovery that he had no difficulty
walking and was not slurring his speech; Mr. Rattan’s brother’s affidavit
saying Mr. Hiebert did not appear to be intoxicated when he shook his hand as Mr.
Hiebert was leaving; and Mr. Rattan’s adult children’s affidavits in which they
agreed that Mr. Hiebert did not appear intoxicated around the time he left the
party.

[37]        
The plaintiff refers to a statement given to
police by Baljinder Rattan, a niece of the defendant host. Baljinder Rattan,
who now lives in Ontario, has refused to give an affidavit. Her statement to
the police is not admissible on summary trial for the truth of its contents.
The question is whether it is admissible as evidence that it was made, and if
so, how far that may be taken.

[38]        
I conclude that I can accept the statement as
proving that it was made, in order to determine whether, if the application is
dismissed, there is a realistic possibility that facts might be found by a
trial judge capable of supporting a conclusion that Mr. Rattan ought reasonably
to have foreseen that these plaintiffs or other users of the roads might be
injured by Mr. Hiebert’s driving.

[39]        
There is a very real possibility that Baljinder
Rattan’s evidence might be available at a trial, through operation of the Subpoena
(Interprovincial) Act, R.S.B.C. 1996, c. 442, or Rules allowing for
taking evidence outside British Columbia.

[40]        
There is, furthermore, other, conflicting
evidence admissible on this summary trial touching on what Mr. Rattan knew or
ought to have known about Mr. Hiebert’s condition when leaving the Rattan home.
On one hand, Mr. Rattan has produced affidavits from his brother, his son and
his daughter, each of whom describes Mr. Hiebert’s apparent condition when
he left the party in terms that would argue strongly against imposing a duty of
care upon Mr. Rattan. On the other hand, there is the opinion of Ms. Kirkwood,
based on the analysis of a sample of Mr. Hiebert’s blood, that at the time of
the accident, Mr. Hiebert’s blood alcohol concentration was 284 mg. of alcohol
in 100 ml. of blood, and that she would expect 90 to 95% of the population
having that level of alcohol in their blood to “exhibit symptoms of impairment
that would be apparent to a casual observer.”

[41]        
This is a case where findings of fact necessary
to determine if a duty of care arose in the circumstances should not be made on
affidavits, but rather should be made by a trier of fact who has had the
advantage of observing and weighing the evidence of the witnesses in direct as
well as cross-examination. That distinguishes the foreseeability aspect of this
case from Childs, in my view.

[42]        
There is a second aspect of the Supreme Court of
Canada’s answer to the question of linkages between social hosts and third party
users of the highway. This second aspect deals with nonfeasance or omission,
and whether there was a duty to act.

[43]        
The court says at para. 31:

…However, where
the conduct alleged against the defendant is a failure to act,
foreseeability alone may not establish a duty of care. In the absence of an
overt act on the part of the defendant, the nature of the relationship must be
examined to determine whether there is a nexus between the parties. Although
there is no doubt that an omission may be negligent, as a general principle,
the common law is a jealous guardian of individual autonomy. Duties to take
positive action in the face of risk or danger are not free-standing. Generally,
the mere fact that a person faces danger, or has become a danger to others, does
not itself impose any kind of duty on those in a position to become involved.
[Emphasis in original.]

[44]        
I take from this passage that this aspect is
also evidence-driven, in that whether there is a nexus between the parties will
depend on the nature of any relationship revealed by the evidence. The passage
also suggests that if there is more than a “mere fact that a person faces
danger,” again revealed in the evidence, the general statement may not apply.

[45]        
The court in Childs summarized three
situations where courts have in the past imposed positive duties to act: where
a defendant has intentionally attracted and invited third parties to inherent
and obvious risks created or controlled by the defendant; where there is a
paternalistic, supervisory or controlling relationship between defendant and
plaintiff; and where the defendant is engaged in a public function or
commercial enterprise that implies responsibility to the public.

[46]        
I agree with counsel for Mr. Rattan that this
case does not fit comfortably within any one of these three situations, but I
also note that the Court in Childs at para. 34 said these were not
strict legal categories, but serve to elucidate factors that can lead to
positive duties to act.

[47]        
After pointing out that the three situations
have in common the defendants’ “material implication in the creation of the
risk or his or her control of a risk to which others have been invited,” and
the reluctance of the law to infringe on the personal autonomy of someone in
Mr. Hiebert’s position without good reason, the Court at para. 39 points out
that someone in Mr. Rattan’s position might be expected or required by law to
impinge on Mr. Hiebert’s autonomy only when he has a special relationship to
the person in danger (not apparent here), or “… a material role in the creation
or management of the risk.”

[48]        
The evidence of Mr. Hiebert’s condition on
arrival at the party, or the possibility of Baljinder Rattan’s evidence
becoming available, coupled with the evidence in existence or possibly
available concerning the contribution to Mr. Hiebert’s intoxication from
the alcohol Mr. Rattan supplied, could, if developed at a trial, arguably
support an argument that Mr. Rattan had a material role in the creation of the
risk posed by Mr. Hiebert.

[49]        
A third possible ground on which this case may
be distinguishable from Childs is on the question of reasonable
reliance. The Court in Childs said at para. 40 that “reasonable
reliance” unites its examples in the three situations that it had earlier said
were not strict categories but were to elucidate factors that can lead to
positive duties to act.

[50]        
At para. 46 of Childs, the Court pointed
out that there was no evidence in that case that anyone relied on the hosts to
monitor guests’ alcohol intake or to prevent intoxicated guests from driving.
The Court said that this distinguished the social host from the commercial or
public host: a commercial host warrants a duty of care because regulations
govern the sale of alcohol, and the public by right relies on the commercial
host to refrain from over-serving a guest, or to take reasonable steps to keep
a guest, who has drunk too much, from driving.

[51]        
Even this factor admits of a different result
depending on evidence.

[52]        
The Court indicates at para. 44 that it did not
intend to close the door completely on the possibility of social host liability
to third party users of the highways:

More is required
to establish a danger or risk that requires positive action. It might be argued
that a host who continues to serve alcohol to a visibly inebriated person
knowing that he or she will be driving home has become implicated in the
creation or enhancement of a risk sufficient to give rise to a prima facie duty
of care to third parties, which would be subject to contrary policy
considerations at the second stage of the Anns test.

And at para.
45:

As discussed,
the implication of a duty of care depends on the relationships involved. The
relationship between social host and guest at a house party is part of this
equation. A person who accepts an invitation to attend a private party does not
park his autonomy at the door. The guest remains responsible for his or her
conduct. Short of active implication in the creation or enhancement of the
risk, a host is entitled to respect the autonomy of a guest.

[53]        
Supreme Court Civil Rule 9-7(15)(a) permits the
Court to determine a summary trial application as follows:

(15) On the hearing of a
summary trial application, the court may

 (a)        grant
judgment in favour of any party, either on an issue or generally, unless

 (i)         the
court is unable, on the whole of the evidence before the court on the
application, to find the facts necessary to decide the issues of fact or law,
or

 (ii)        the
court is of the opinion that it would be unjust to decide the issues on the
application,

[54]        
In my view, this is a circumstance where both
subsections (i) and (ii) apply. I have already alluded to some of the conflicts
in the evidence bearing on the possible imposition of a duty of care, and in my
view it would be unjust to decide the duty issue on a summary trial.

[55]        
Adverting to the considerations that have been
developed since the decision in Inspiration Management Ltd. v. McDermid St.
Lawrence Ltd. (1989), 36 B.C.L.R. (2d) 202 at 214 (C.A.), I note as well
that there is a great deal at stake in the Arshdeep Singh Sidhu action, both in
terms of money and the quality of care the infant plaintiff will hope to have
if he succeeds, that this matter does not appear urgent, a trial is scheduled
for October 2012, there is no prejudice likely to arise from delay beyond
continuing costs to Mr. Rattan to defend the actions against him, and the cost
of allowing the matter to proceed is not substantial given the amount at stake.

[56]        
Because I am persuaded that this case should be
decided on a full record of evidence at trial, I conclude that I should leave
to trial the question of whether motorists can reasonably rely on a social host
to not exacerbate an obvious risk by continuing to supply alcohol to an
apparently impaired guest who the host knows will drive away from the party. It
seems to me that justice requires that I allow the parties to develop the
evidence and argument on a full trial.

[57]        
Mr. Rattan’s application is dismissed with costs
in the cause.

BRAUN
APPLICATION

[58]        
I turn then to Mr. Braun’s application, seeking
the dismissal of the third party notice filed against him by Mr. Rattan.

[59]        
Mr. Braun argues that any relationship he might
have with the occupants of the Sidhu vehicle does not fall within one of the
situations recognized in the authorities as giving rise to a duty of care, and
that proximity cannot be established on application of the Anns test. He
says in the alternative, if he might owe a prima facie duty to the
plaintiffs, as users of the highway, under the Anns test, that duty
would be negatived on policy considerations.

[60]        
Mr. Rattan responds that there is no material
difference between him and Mr. Braun sufficient to cause his claim against
Mr. Braun to be dismissed while the claims against him are allowed to proceed.

[61]        
Mr. Braun can be described as a companion or
fellow traveler of the alleged main tortfeasor, Mr. Hiebert. The evidence
suggests that Mr. Braun brought some beer with him when he went to Mr.
Hiebert’s home on the way to Mr. Rattan’s birthday party, and that he may have
had one beer to drink at Mr. Hiebert’s before the two left in Mr. Hiebert’s
vehicle to go to the party.

[62]        
The evidence does not suggest that Mr. Braun
supplied any alcoholic beverage to Mr. Hiebert at the Rattan home, or that he
encouraged Mr. Hiebert to consume any alcohol that was there.

[63]        
There is some evidence of marihuana consumption
at the party, but, again, the evidence does not suggest that Mr. Braun supplied
the drug or encouraged Mr. Hiebert to take it.

[64]        
Baljinder Rattan’s statement to police is also
relevant here. She tended to treat Mr. Hiebert and Mr. Braun together, by
describing their condition on arrival and on leaving the party in joint terms,
that is, “they” were obviously intoxicated, drank a lot, and the like. Again,
this is not admissible to prove the truth, but can be considered as evidence
that might be available if Mr. Rattan’s claims against Mr. Braun proceed
to trial.

[65]        
If I assume for the purposes of this application
that the evidence showed that Mr. Braun and Mr. Hiebert arrived together at the
party in an intoxicated condition, both continued to drink Mr. Rattan’s alcohol
to excess at the party, and both left together at the end, in a more
intoxicated condition than when they arrived – with Mr. Hiebert driving
and Mr. Braun as his passenger – is there a possibility that the first branch
of the Anns test might be satisfied? My answer is no.

[66]        
The language in Childs that might allow a
court to conclude that a social host owes a duty of care to highway users
injured by a driver who becomes impaired as a guest of the host does not go so
far as to admit the possibility of a duty on a companion or fellow traveler who
does no more than observe the risky behavior of the drinking guest, and perhaps
acquiesce to an extent in the risk by drinking with and then accepting a ride
home from the party with the drunken guest.

[67]        
If the categories of negligence are not closed,
then neither are the possibilities that someone might be found to owe a duty of
care to another on the basis that he or she somehow assisted in the creation of
the circumstances giving rise to a duty of care, or encouraged a principal
tortfeasor to engage in conduct that would give rise to a duty of care.

[68]        
I have examined the evidence for something that
would support an argument that such a duty could arise here, without success.

[69]        
The defendant Rattan seeks to sustain his claims
against Mr. Braun by arguing that if he had a duty to monitor Mr. Hiebert’s
alcohol intake at the party, or to intervene to prevent Mr. Hiebert from
driving drunk, then so too did Mr. Braun. That argument seems to me to go more
to the standard of care if duty were established, and not to the existence of
the duty.

[70]        
On the evidence presented, I can see no basis on
which a duty of care can be imposed on Mr. Braun. Allowing for evidence that
might be available at trial, but not on summary trial (the evidence of
Baljinder Rattan), I see no basis on which a duty of care can be imposed on Mr.
Braun.

[71]        
The considerations flowing from Inspiration
Management do not lead to the same result in this application as was found
in the Rattan application. The plaintiffs have not sought damages from Mr.
Braun; rather, Mr. Rattan seeks contribution or indemnity in the event he is
found to have owed a duty of care to the plaintiffs, and to have breached it.
The amount at stake in Mr. Rattan’s third party proceedings is not the same as
in the plaintiffs’ claims against Mr. Rattan, particularly if Mr. Rattan succeeds
in his plea of contributory negligence against the infant plaintiff Arshdeep
Singh Sidhu, making liability several, not joint. Mr. Rattan’s potential several
liability to the plaintiff must be compared to that of the driver, Mr. Hiebert.
Counsel have conducted discoveries, and the further costs of continuing to
trial are not insignificant. I must contrast these costs with the likelihood
that a duty of care will be imposed on Mr. Braun, and with the size of his
potential contribution to overall damages should he be found to have owed a
duty and to have breached it, in a case where Mr. Rattan might succeed in
limiting his own liability to several, rather than joint.

[72]        
In the circumstances it is fair and just to
determine the third party claims against Mr. Braun on summary trial.

[73]        
The third party notice brought by Mr. Rattan
against Mr. Braun is dismissed with costs to Mr. Braun.

                “R.T.C.
Johnston, J.”            

The
Honourable Mr. Justice Johnston