McHugh v. 2209664 Ontario Inc. et al

CITATION: McHugh v. 2209664 Ontario Inc. et al, 2022 ONSC 3729

COURT FILE NO.: CV-19-819-A1

DATE: 2022/06/22

SUPERIOR COURT OF JUSTICE - ONTARIO

RE:

JOSHUA JAMES McHUGH, Plaintiff

AND:

2209664 ONTARIO INC. operating as KNIGHTS INN LONDON and

EDWARD BUTLER operating as ED’S SNOW PLOWING, Defendants

AND:

BEEF BARON TAVERN INC., Third Party

Justice I.F. Leach

BEFORE:

COUNSEL: M. Peres-Toledo, for the Plaintiff

Ayron Brown, for the Defendant 2209664 Ontario Inc., operating as Knights Inn

London

No one appearing on behalf of the Defendant Edward Butler, operating as Ed’s

Snow Plowing

Talaal Bond, for the Third Party

January 22, 2021

HEARD:

ENDORSEMENT

[1]

Before me is a motion by the third party in this action, pursuant to Rule 21.01(1)(b) of the

Rules of Civil Procedure, for an order dismissing the third party claim brought against it

by one of the named co-defendants to the proceeding, on the suggested ground that the

third party claim fails to disclose a reasonable cause of action.

Background

[2] By way of further background:

a. This litigation stems from an alleged slip and fall accident that is said to have taken

place on the evening of January 9, 2018, here in the city of London. In particular,

the plaintiff Joshua James McHugh, (“the Plaintiff”), is said to have slipped and

fallen on an ice-covered concrete walkway located on premises owned by the

defendant 2209664 Ontario Inc. operating as Knight’s Inn London, (“the Motel”),

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which were being maintained by the defendant Edward Butler operating as Ed’s

Snow Plowing, (“the Maintainer”), pursuant to a contract with the Motel.

b. The statement of claim herein was issued on April 23, 2019, naming the Motel and

Maintainer as co-defendants. Among the allegations pleaded therein, it was said:

i. that each defendant was an occupier of the relevant premises, within the

meaning of the Occupiers’ Liability Act, R.S.O. 1990, c.0.2, as amended,

making each defendant responsible for the relevant walkway in various

ways, including snow removal, salting and “de-icing”;

ii. that each defendant accordingly owed a duty of care to the Plaintiff in that

regard;

iii. that each defendant breached that duty by allowing the relevant concrete

walkway to become slick with ice on the evening in question;

iv. that the Plaintiff slipped on the ice-covered concrete walkway after

checking-in at the Motel’s main office, while walking to the room assigned

to him;

v. that the Plaintiff fell backwards onto the ground, sustaining physical injuries

that included a fractured right ankle that required surgical intervention and

internal fixation, and further damages including economic loss; and

vi. that each defendant was liable to the Plaintiff for his alleged damages

resulting from the slip and fall, pursuant to the provisions of the Negligence

Act, R.S.O. 1990, c.N.1 as amended.

c. On June 7, 2019, the defendant Motel delivered a statement of defence and

crossclaim.¹Among the allegations pleaded therein, the Motel:

i. specifically denied that the alleged incident was caused or contributed to by

any breach of duty on its part;

ii. asserted that it had complied with all of its obligations under the Occupier’s

Liability Act, supra, by methods that included contracting with the

Maintainer as a competent contractor to ensure that snow and ice

maintenance of the premises was done properly;

¹I note in passing that the material filed in relation to the third party’s motion includes no indication as to whether or

not the Maintainer has delivered a pleading, (e.g., a statement of defence, a statement of defence and crossclaim, a

defence to crossclaim, or a third party claim), and that information is not available to me on the relevant One Drive

folder for this matter.

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iii. denied that the Plaintiff had sustained the injuries and damages alleged, and

asserted that any such injuries and damages resulted from conditions which

had no cause or connection with the alleged slip and fall incident;

iv. asserted that any such injuries and damages resulted from the negligence of

the Plaintiff, (i.e., the contributory negligence of the Plaintiff), the

particulars of which included an assertion, at sub-paragraph 5(f) of the

pleading, that the Plaintiff “consumed alcohol … which interfered with his

ability to proceed in a safe manner”;

v. adopted the allegations in the Plaintiff’s statement of claim vis-à-vis the

Maintainer, and claimed contribution and/or indemnity from the Maintainer

for any damages, interest or costs for which the Motel may be found liable

to the Plaintiff; and

vi. expressly asserted its rights via the Negligence Act, supra; e.g., in relation

to its allegations regarding the Plaintiff’s contributory negligence and its

crossclaim for contribution and indemnity from the Maintainer.

d. On August 27, 2019, the Motel delivered a third party claim against Beef Baron

Tavern Inc., (“the Tavern”); a pleading which claims, inter alia, “contribution and

indemnity for such amount as [the Motel] is liable to the Plaintiff by reason of any

judgment, interest or costs and may be ordered to pay to the Plaintiff”. Among the

other allegations pleaded therein, the Motel:

i. pled and relied upon the allegations in its statement of defence;

ii. denied that there was any negligence or other breach of duty on its part

which either caused or contributed to the alleged damages being claimed by

the Plaintiff;

iii. asserted that the Plaintiff was present in and a patron of the Tavern, where

he was served and consumed a number of alcohol beverages, prior to his

alleged slip and fall;

iv. asserted that the Plaintiff’s alleged slip and fall was caused or contributed

to by the negligence and/or breach of duty of the Tavern, including a breach

of its statutory duty under the Liquor Licence Act, R.S.O. 1990, in respect

of its service of alcohol beverages to the Plaintiff prior to his alleged slip

and fall, and particularized its allegations in that regard with assertions that

the Tavern, inter alia:

1. served the Plaintiff with alcohol beverages “to the point of

intoxication and beyond”;

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2. served alcohol to the Plaintiff after it knew or should have known

that the Plaintiff was intoxicated and was in danger of causing injury

to himself;

3. failed to take any reasonable precautions to ensure the Plaintiff did

not become intoxicated;

4. encouraged the Plaintiff to consume alcohol beverages;

5. failed to have a system in place to monitor the consumption of

alcohol by persons on its premises or, in the alternative, failed to

implement and enforce such a system;

6. failed to hire or train competent employees, servants or agents;

7. failed to employ Smart Serve certified bartenders and/or wait staff;

8. failed to adequately supervise its employees, servants or agents;

9. failed to adequately supervise its employees, servants or agents or,

in the alternative, failed to fully and properly implement and enforce

such a system; and/or

10. breached the provisions of the Liquor Licence Act, supra; and

v. expressly asserted its rights via the Negligence Act, supra; e.g., in relation

to its assertion of its pleaded entitlement “to be indemnified by [the Tavern]

for any such amounts [the Motel] is liable to the Plaintiff, including costs in

defending the action brought by the Plaintiff, as well as costs in the Third

Party proceedings”.

e. The Tavern served its motion record herein on all other parties, (via their respective

counsel), or about January 4, 2021, making the motion returnable in regular motions

court on January 22, 2021. Consistent with the provisions of Rule 21.01(2)(b) of

the Rules of Civil Procedure, the motion record contains no evidence; i.e., it

includes only the Tavern’s notice of motion, the Plaintiff’s statement of claim, the

Motel’s statement of defence and crossclaim, and the Motel’s third party claim

against the Tavern. The motion record nevertheless was supported by a factum and

book of authorities.

f. On January 18, 2021, the Motel delivered material responding to the Tavern’s

motion; i.e., a factum and book of authorities. Neither the Plaintiff nor the

Maintainer defendant delivered any responding material.

g. On January 21, 2021, the Tavern delivered a further factum, replying to the factum

and book of authorities delivered by the Motel.

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h. When the matter came before me in regular motions court on January 22, 2022:

i. Counsel appeared on behalf of the Plaintiff, simply to indicate that the

Plaintiff was taking no position in relation to the Tavern’s motion.

ii. No one appeared on behalf of the defendant Maintainer, but I was advised

by counsel for the Tavern of his understanding that the Maintainer also was

taking no position in relation to the Tavern’s motion.

iii. The motion then was fully argued by counsel for the Tavern and counsel for

the Motel, following which I reserved my decision.²

Party positions

[3]

I have reviewed and reflected on the detailed written and oral submissions made by counsel

for the Tavern and counsel for the Motel, and the following overview of their respective

positions and arguments should not suggest otherwise.³

[4]

However, by way of broad summary, submissions advanced on behalf of the Tavern

included the following:

a. that a defendant cannot claim contribution and indemnity from a third party with

respect to damages for which that defendant will never be liable;

b. that the defendant Motel in this case, in its statement of defence and counterclaim,

has made allegations of contributory negligence on the part of the Plaintiff that

should and will reduce the Motel’s liability for damages to the Plaintiff in relation

to all “alcohol related negligence” pursuant to section 3 of the Negligence Act,

supra;

c. that the defendant Motel, by pleading and relying upon such contributory

negligence on the part of the Plaintiff, already had “severed” any possibility of the

Motel being made responsible for damages stemming from any “alcohol related

negligence” and the plaintiff’s consumption of alcohol, and/or had “severed” the

possibility of the Motel being held responsible for payment of any such damages,

prior to the Motel’s issuance of any third party claim; i.e., leaving the Motel with

“nothing to claim over for” vis-à-vis the Tavern in relation to damages for “alcohol

2

A few weeks after the hearing, I sustained an injury which unfortunately prevented continuation with any judicial

work for an extended period during the course of my recovery, and permitted only slow but gradually increasing

progress thereafter. While every effort was made to return to that work as soon as possible, completion of these

reasons regrettably was delayed until now.

³To ensure that the force of oral submissions was not diminished by the passage of time, I supplemented a review of

my handwritten notes by the ordering of a transcript of the motion’s hearing before me, which I reviewed while

listening to the relevant DRD recording of the proceedings.

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related negligence”, (the only type of negligence pleaded against the Tavern in the

Motel’s third party claim), pursuant to section 5 of the Negligence Act, supra;

d. that the third party claim by the Motel nevertheless attempts to claim contribution

and indemnity from the Tavern in relation to “precisely the same” damages for

“alcohol related negligence” which already have been “severed” from the damages

for which the Motel might possibly be held liable to the Plaintiff;

e. that the law does not permit such third party claims by a defendant, which

improperly try to “double dip” on legislated mechanisms, (i.e., apportionment of

liability to Plaintiffs for contributory negligence and apportionment of

responsibility for damages to third parties through claims for contribution and

indemnity), capable of reducing the percentage of a Plaintiff’s damages for which

a defendant ultimately may be held responsible;

f. that the Motel’s third party claim accordingly discloses no reasonable cause of

action against the Tavern and should be dismissed.

[5]

By way of a similarly broad summary, responding submissions advanced on behalf of the

Motel included the following:

a. that the Motel readily acknowledges:

i. that a defendant may not seek contribution and indemnity in relation to

damages for which that defendant will not be held liable;

ii. that, insofar as a plaintiff’s claim for damages from a defendant is reduced

because of the plaintiff’s own contributory negligence, that defendant will

not have to pay such damages, and accordingly does not have a claim for

contribution and indemnity from a third party in relation to such damages;

and

iii. that any attempt by a defendant to “double dip” on reduction of its

responsibility to pay a percentage of the plaintiff’s damages, (i.e., by

alleging that a portion of such damages were caused by the plaintiff’s

contributory negligence, and then advancing a third party claim for

contribution and indemnity in relation to that same portion of damages in

respect of which contributory negligence was claimed), is impermissible;

b. that the Motel’s third party claim for contribution and indemnity from the Tavern

nevertheless does not offend those well-established principles because:

i. contrary to characterizations made on behalf of the Tavern, the contributory

negligence attributed to the Plaintiff via the Motel’s allegations in its

statement of defence and crossclaim is of a fundamentally different and

distinct character than the negligence attributed to the Tavern via the

Motel’s allegations in its third party claim;

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ii. in particular, the contributory negligence alleged by the Motel in its

statement of defence and crossclaim is expressly focused on the fault that

should be attributed to the Plaintiff for negligently consuming too much

alcohol, whereas the Motel’s third party claim is expressly focused on the

fault that should be attributed to the Tavern for negligently serving the

Plaintiff too much alcohol;

iii. the provisions of the Negligence Act, supra, allow for apportionment of

responsibility for a plaintiff’s damages between all those who have caused

or contributed to those damages based on respective degrees of fault,

including:

1. allocation of a percentage of that responsibility to the Plaintiff for

his consumption of alcohol, thereby impairing his ability to take

reasonable care for his own safety; and

2. allocation of a separate, distinct and non-overlapping percentage of

that responsibility to the Tavern for its serving of alcohol in a

manner that breached its separate and distinct duties of care owed

by commercial hosts to their patrons, (at common law and by

statute), which include obligations on such commercial hosts to

ensure they do not serve patrons alcohol to the point of intoxication

and beyond, and to take positive steps to protect patrons from the

dangers of intoxication;

iv. the allegations of contributory negligence advanced in the Motel’s

statement of defence and counterclaim in this case are intended to ensure

that the defendant is not held liable for the percentage of the Plaintiff’s

damages that should be apportioned to the Plaintiff himself, owing to his

contributory negligence for consuming alcohol; and

v. the allegations of negligence advanced in the third party claim, and

corresponding claim for contribution and indemnity from the Tavern, are

intended to ensure that the Tavern does not escape responsibility for

contributing to the remainder of the Plaintiff’s damages, (i.e., those

damages remaining after the percentage of damages attributable to

contributory negligence have been taken into account), which will include

the percentage of the Plaintiff’s remaining damages that should be

apportioned to the Tavern owing to its negligent breach of the common law

and statutory duties owed by a commercial host, and responsibility for

which will fall entirely on the named defendants, (including the Motel), in

the absence of the Motel’s third party claim;

c. that the Motel’s third party claim against the Tavern for breach of its duties as a

commercial host, causing or contributing to the Plaintiff’s damages, raises a

separate, distinct and well recognized claim that for negligence not attributable to

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the Plaintiff, and which could not be raised against the Plaintiff by way of a

contributory negligence defence; and

d. that the high threshold for striking a pleading pursuant to Rule 21.01(b) of the Rules

of Civil Procedure accordingly has not been met in this case.

[6]

By way of reply, submissions by counsel for the Tavern included the following assertions:

a. that it was impossible to separate the Tavern’s alleged liability for over-serving

alcohol to the Plaintiff from the Plaintiff’s alleged contributory negligence for

consuming alcohol, as both necessarily involved, depended upon and therefore

stemmed from the Plaintiff’s consumption of alcohol;

b. that the Plaintiff “must accept an apportionment for moral blameworthiness of

alcohol related negligence or seek to claim it from an additional party”, and the

Plaintiff chose not to do the latter in this case; and

c. that the Motel’s pleading of contributory negligence in this case “deflects whatever

moral blameworthiness [may be] associated with alcohol consumption back to the

plaintiff”, such that the Motel “is thereby insulated from any apportionment of

damages attributed to it”; i.e., in relation to such alcohol consumption.

General principles

[7]

Before assessing such arguments in the course of my analysis below, I pause to note a

number of general principles applicable to such matters.

[8]

In that regard, the general rules and principles concerning motions of this nature were not

disputed. In my view, they include the following:

a. Rule 21.01(1)(b) of the Rules of Civil Procedure permits a party to move before a

judge “to strike out a pleading on the ground that it discloses no reasonable cause

of action”, and the judge “may make an order or grant judgment accordingly”.

b. Rule 21.01(2)(b) of the Rules of Civil Procedure indicates that “no evidence is

admissible” on a motion brought under Rule 21.01(1)(b); i.e., to determine whether

the targeted/impugned pleading “discloses no reasonable cause of action”.

c. The primary focus in this context accordingly is on the targeted/impugned pleading,

and a judge hearing a motion brought under Rule 21.01(1)(b) must accept the facts

alleged in that targeted/impugned pleading as proven unless they are patently

ridiculous or manifestly incapable of being proven. The court should not look

beyond the pleadings to determine whether a claim has any chance of success; to

do otherwise is to effectively conduct a summary judgment proceeding under Rule

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20 of the Rules of Civil Procedure, without having the sworn evidence of the parties

as a basis for determining whether there is a genuine issue for trial.⁴

d. The governing test is to ask whether, (assuming that the facts as stated in the

targeted/impugned pleading can be proved), is it “plain and obvious”, and beyond

reasonable doubt, that the pleading discloses no reasonable cause of action and has

no reasonable prospect of success.⁵

e. In applying the required test, the targeted/impugned pleading should be read

generously, to accommodate drafting deficiencies.⁶

f. Novelty of a pleaded claim is not, by itself, a concern or sufficient reason to find

“no reasonable cause of action”. A novel claim should be struck at the pleadings

stage only where it is clearly unsustainable. The fact that the law has not yet

recognized a particular cause of action also is not determinative. Nor should the

court, at an early stage of the pleadings, dispose of matters that are not fully settled

in the jurisprudence.⁷

g. The purpose of the rule is to eliminate hopeless claims and should be used with

care. In that regard, it should be remembered that the law imposes a very low

standard for the demonstration of a cause of action; i.e., the threshold for sustaining

a pleading under Rule 21.01(1)(b) of the Rules of Civil Procedure is not a high one.

In particular, the court will not strike a claim where there is at least a germ or

scintilla of a cause of action, and some chance of success.⁸

⁴See, for example: Prete v. Ontario (1993), 16 O.R. (3d) 161 (C.A.), leave to appeal refused (1994), 17 O.R. (3d) xvii

(note) (S.C.C.); Nash v. Ontario (1995), 27 O.R. (3d) 1 (C.A.); Trillium Power Wind Corp. v. Ontario (Ministry of

Natural Resources) (2013) 117 O.R. (3d) 721 (C.A.); and Paton Estate v. Ontario Lottery and Gaming Corp. (2016),

131 O.R. (3d) 273 (C.A.).

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See, for example: Hunt v. T&N plc, [1990] 2 S.C.R. 959; R.D. Belanger & Associates Ltd. v. Stadium Corp. of

Ontario Ltd. (1991), 5 O.R. (3d) 778 (C.A.); Knight v. Imperial Tobacco Company Ltd., [2011] 3 S.C.R. 45; Paton

Estate v. Ontario Lottery and Gaming Corp., supra; Trillium Power Wind Corp. v. Ontario (Ministry of Natural

Resources), supra; Apotex Inc. v. Eli Lilly and Co. (2012), 111 O.R. (d) 683 (S.C.J.), reversed 2013 ONSC 5937

(Div.Ct.), affirmed (2015), 125 O.R. (3d) 561 (C.A.), leave to appeal refused (January 14, 2016) Doc. 36538, 2016

CarswellOnt 465 and 2016 CarswellOnt 466 (S.C.C.); and Trillium Power Wind Corp. v. Ontario (Ministry of Natural

Resources), supra.

⁶See, for example: Doe v. Metropolitan Toronto (Municipality) (Commissioners of Police) (1990), 74 O.R. (2d) 225

(Div.Ct.); and Trillium Power Wind Corp. v. Ontario (Ministry of Natural Resources), supra.

⁷See, for example: Doe v. Metropolitan Toronto (Municipality) (Commissioners of Police), supra; Hanson v. Bank of

Nova Scotia (1994), 19 O.R. (3d) 142 (C.A.); Nash v. Ontario, supra; Choc v. Hudbay Minerals Inc. (2013), 116 O.R.

(3d) 674 (S.C.J.); Trillium Power Wind Corp. v. Ontario (Ministry of Natural Resources), supra; and Apotex Inc. v.

Eli Lilly and Co., supra.

⁸See, for example: Hanson v. Bank of Nova Scotia, supra; Millwright Regional Counsel of Ontario v. Celestica Inc.

(2012), 113 O.R. (3d) 264 (S.C.J.), affirmed (2014), 118 O.R. (3d) 641 (C.A.), additional reasons 2014 ONCA 344,

10

[9]

As for whether the specific targeted/impugned pleading in this case discloses no reasonable

cause of action, (i.e., whether it is plain and obvious that the third party claim asserted by

the Motel against the Tavern has no reasonable prospect of success), I will have more to

say about relevant principles and their application during the course of my analysis.

[10] However, as the required determination in this case requires an understanding of the

manner in which the law of Ontario allows for the apportionment of responsibility for

damages sustained by a plaintiff injured by negligence, I think it helpful to outline, at the

outset of my analysis, some further general rules and principles in that regard. In my view,

they include the following:

a. At common law, our early courts developed certain rules and principles of

negligence law that later courts and modern legislatures increasingly viewed as

anachronistic and unfair when it came to restrictions on the ability of triers to

apportion responsibility for a plaintiff’s damages among all parties who may have

caused or contributed to those damages. Of particular concern were rules or

“doctrines” developed by the common law, (and which many modern legislatures

have sought to eliminate and correct), whereby:

i. any established contributory negligence on the part of a plaintiff operated

as a complete bar to the plaintiff recovering any damages; and

ii. in situations where a plaintiff’s damages had been caused by the negligence

of two or more concurrent tortfeasors,⁹a concurrent tortfeasor was denied

any right to recover, from his or her “co-offender” or “co-offenders”, any

part of the damages he or she had been obliged to pay to the plaintiff.¹⁰

b. In its current form, the response of the Ontario Legislature to such concerns is found

in the Negligence Act, supra, the full text of which is attached to these reasons as

Appendix “A”, for ease of reference. The primary purpose of the legislation is to

enable apportionment of responsibility for damages when the fault of two or more

persons causes or contributes to those damages; i.e., when there is concurrent

negligence of two or more persons. In particular, once it has been established that

damages were caused by the negligence of two or more persons, the job of the trier

affirmed [2015] 3 S.C.R. 801; Paton Estate v. Ontario Lottery and Gaming Corp., supra; Trillium Power Wind Corp.

v. Ontario (Ministry of Natural Resources), supra; and Golden Oaks Enterprise Inc. v. Lalonde (2016), 113 O.R. (3d)

513 (S.C.J.), appeal quashed Salewski v. Lalonde (2017), 137 O.R. (3d) 762 (C.A.).

⁹In these reasons, I use the term “concurrent tortfeasors” in the same manner as that used by Justice Strathy, (as he

then was), in Sale v. O’Grady’s Restaurant, 2011 ONSC 2437, at paragraph 32; i.e., to describe several tortfeasors

whose acts combine to produce the same damage. Such acts need not be concurrent in time.

¹⁰See V.C. Macdonald, “The Negligence Action and the Legislature” (1935), 8 C.B.R. 535, at pp.541-542 and pp.548-

549; and Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd., [1997] 3 S.C.R. 1210, at paragraphs 90,

96-97, and 101-102. The “last clear chance” doctrine, (now generally considered to have been abolished in Canada),

was a judicial attempt to ameliorate perceived injustice caused by the first of those two rules.

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is to apportion ultimate responsibility for those damages based on the degree of

fault of those persons, (i.e., based on the degree or percentage of their respective

“moral blameworthiness”), rather than any attempt to divide joint causation.¹¹In

that regard:

i. Section 1 of the Negligence Act, supra, provides that, where damages have

been caused or contributed to by the fault or neglect of two or more persons,

each is jointly and severally liable to the plaintiff who has suffered those

damages, but as between themselves, “each is liable to make contribution

and indemnify each other in the degree in which they are respectively found

to be at fault or negligent”.¹²

ii. Section 2 of the Negligence Act, supra, permits a defendant who has settled

with the plaintiff for more than its proportionate share of the plaintiff’s

damages to make a claim for contribution and indemnity against another

person “who is, or would if sued have been, liable” for those damages.¹³

iii. Section 5 of the Negligence Act, supra, contemplates the situation where a

defendant has been sued but believes there is another wrongdoer who

caused or contributed to the plaintiff’s injury and has not yet been sued. It

allows a defendant to pursue a right of contribution and indemnity against

that person by third party claim, according to the rules of court for adding

third parties.¹⁴Such a third party claim, based on the contribution and

indemnity provisions of the Negligence Act, supra, does not require that the

third party owe a duty of care to the defendant. It is sufficient that the third

party owe a duty of care to the plaintiff, making the third party someone

who, if sued by the plaintiff, would have been liable in respect of damages

suffered by the plaintiff.¹⁵

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See Allen M. Linden et al., Canadian Tort Law, 11^thed. (LexisNexis Canada, Toronto, 2018), at p.469. As to

whether a particular person or party concurrently has “caused or contributed” to damages, such questions fall to be

determined by the general “but for” and exceptional “material contribution” tests for causation which have been

established, confirmed and/or clarified by the Supreme Court of Canada in cases such as Athey v. Leonati, [1996] 3

S.C.R. 458, and Hanke v. Resurfice Corp., [2007] 1 S.C.R. 333.

¹²See Hengeveld v. The Personal Insurance Company (2019), 146 O.R. (3d) 182 (C.A.), at paragraph 20.

¹³Ibid, at paragraph 20.

¹⁴Ibid, at paragraph 20. In Ontario, commencement of third party claims is governed by Rule 29 of the Rules of Civil

Procedure.

¹⁵See 478649 Ontario Ltd. v. Corcoran (1994), 20 O.R. (3d) 28 (C.A.), at pp.35-36, and Hengeveld v. The Personal

Insurance Company, supra, at paragraph 21.

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iv. The aforesaid contribution and indemnity provisions of the Negligence Act,

supra, must be understood in light of the purpose they serve. In particular:

1. as a general rule, a wrongdoer who caused or contributed to a

plaintiff’s injury is liable to compensate that plaintiff in full, even if

another wrongdoer caused or contributed to the plaintiff’s injury;

2. the contribution and indemnity provisions nevertheless allow a

wrongdoer who is not solely at fault, but at risk of being held liable

for 100% of the plaintiff’s damages, to claim indemnity from

another wrongdoer to the extent of the latter wrongdoer’s relative

degree of fault; and

3. if the defendant’s claim for contribution and indemnity is successful,

(i.e., resulting in a finding that the third party’s fault or negligence

caused or contributed to the plaintiff’s damages), the defendant will

remain 100% liable to the plaintiff, but may obtain indemnity from

the third party according to the third party’s relative degree of

fault.¹⁶

v. However, pursuant to section 3 of the Negligence Act, supra, a plaintiff’s

own contributory negligence will reduce his or her claim for damages

against a defendant. In particular:

1. a defendant to a negligence claim accordingly may raise, as a

defence, fault or negligence on the part of the plaintiff that caused

or contributed to the plaintiff’s damages; and

2. if that defence is successful, (i.e., resulting in a finding of fault or

negligence on the part of the plaintiff that contributed to his or her

damages), the plaintiff’s claim for damages against the defendant

will be reduced according to the plaintiff’s relative degree of fault.¹⁷

vi. Section 4 of the Negligence Act, supra, is intended to apply only when it is

fair to apportion responsibility equally, in situations where it is “not

practicable to determine the respective degree of fault or negligence as

between any parties to an action”. Where the wrongdoing by one party is

recognized as greater, either in magnitude or because that party engaged in

16

See: Athey v. Leonati, supra, at paragraph 22; Endean v. St Joseph’s General Hospital, 2019 ONCA 181; and

Hengeveld v. The Personal Insurance Company, supra, at paragraphs 22 and 24.

¹⁷See Hengeveld v. The Personal Insurance Company, supra, at paragraphs 23 and 24.

13

different kinds of contributing negligence, it is the duty of the trier to assign

a larger proportion of fault to that party.¹⁸

c. In applying the aforesaid provisions of the Negligence Act, supra, it must be

remembered that contribution rights arise only where a defendant is required to pay

more than its proportionate share of damages; i.e., that the purpose of claims for

contribution and indemnity is to allow a defendant wrongdoer to obtain indemnity

for payment of damages to the plaintiff that exceed that wrongdoer’s relative degree

of fault. A defendant’s exposure in that regard, (and corresponding potential claims

for contribution and indemnity), therefore effectively may be eliminated or reduced

where there is a voluntary or circumstantial reduction in the plaintiff’s claim against

that defendant. For example:

i. In his or her statement of claim, a plaintiff might voluntarily and specifically

limit his or her claims against a sole named defendant to that defendant’s

proportionate share of fault, (i.e., to losses attributable to that defendant’s

negligence), instead of claiming, from the named defendant, 100% of all the

plaintiff’s damages jointly caused by the defendant and concurrent

tortfeasors. In such circumstances, the named defendant is only at risk of

being held liable for the portion of damages attributable to the defendant’s

negligent conduct, there is no risk of the defendant having to pay damages

to the plaintiff that exceed that wrongdoer’s relative degree of fault, and

there accordingly is no need or basis for the defendant to claim contribution

and indemnity from other concurrent tortfeasors by way of a third party

claim.¹⁹

ii. Alternatively, it may be that the plaintiff’s claims for damages against a

defendant are reduced by a finding of contributory negligence on the part of

the plaintiff, and a corresponding apportionment of damages to the plaintiff

according to the degree of his or her fault pursuant to section 3 of the

Negligence Act, supra. Such an attribution of negligence to the plaintiff

reduces the plaintiff’s claim against a defendant, “so that the defendant is

only at risk of being held liable for the portion of the plaintiff’s damages

attributable to the defendant’s negligent conduct and to the distinct

negligent conduct of other parties; i.e., negligent conduct that is distinct

from the plaintiff’s negligent conduct”.²⁰[Emphasis added.]

¹⁸See Martin v. Listowel Memorial Hospital (2000), 51 O.R. (3d) 384 (C.A.), at paragraphs 22-24.

¹⁹See Taylor v. Canada (Attorney General), 2009 ONCA 487, at paragraph 30; Johnston v. Sheila Morrison Schools,

[2012] O.J. No. 915 (Div.Ct.), at paragraph 13; Allianz Global Risks US Insurance Company v. Nalco Chemical

Company, 2014 ONSC 4302, at paragraphs 23-28; and Hengeveld v. The Personal Insurance Company, supra, at

paragraphs 25-26.

²⁰See Hengeveld v. The Personal Insurance Company, supra, at paragraph 28.

14

d. A defendant may not “double dip” into or effectively benefit twice from the

mechanisms of the Negligence Act, supra, (i.e., avoidance of responsibility for

payment of any portion of the plaintiff’s damages attributable to the plaintiff’s

contributory negligence via section 3 of the Act, and avoidance of responsibility

for ultimate payment of any portions of damages attributable to concurrent

tortfeasors via sections 1, 2 and 5 of the Act), so as to reduce that defendant’s

liability below the apportionment of damages for which that defendant properly

should be held responsible according to that defendant’s degree of responsibility.

That would be the result in situations where negligence identified in a third party

claim for contribution and indemnity actually is negligence attributable to the

plaintiff, in respect of which the defendant’s exposure already will be reduced by a

contributory negligence defence. For such reasons:

i. whether a claim by a defendant seeking contribution and indemnity from a

third party for alleged negligence that caused or contributed to the plaintiff’s

damages discloses a reasonable cause of action is a function of whether that

negligence is attributable to the plaintiff; and

ii. if the negligence alleged in the third party claim is attributable to the

plaintiff, the defendant has no cause of action against the third party.²¹

e. A third party claim accordingly will not lie against another person with respect to

an obligation belonging to the plaintiff, (i.e., the plaintiff’s obligation to accept

responsibility for a portion of his or damages caused or contributed to by his or her

own contributory negligence), which the defendant can raise directly against the

plaintiff by way of defence. In particular, where the only negligence alleged against

the third party is attributable to the plaintiff, there is no need for third party

proceedings since the defendant has his or her full remedy against the plaintiff. On

the other hand, “where the pleadings and the alleged facts raise the possibility of a

claim against the third party for which the plaintiff may not be responsible, the

third party claim should be allowed to stand”.²²

²¹Ibid, at paragraphs 22-29.

22

See Adams v. Thompson, Berwick, Pratt & Partners (1987), 15 B.C.L.R. (2d) 51 (C.A.), at pp.55-56, expressly

cited, quoted and applied in Cameron v. Equinox Technologies Ltd., 2009 BCSC 221 (S.C.), at paragraphs 10 and 12,

and expressly cited, quoted with approval and applied in Hengeveld v. The Personal Insurance Company, supra, at

paragraph 31. [Emphasis added.] See also Davy Estate v. CIBC World Markets Inc., [2009] O.J. No. 4554 (C.A.), at

paragraphs 22-23, and Basile v. Home Depot Canada GP ULC, 2017 ONSC 728 (S.C.J.), at paragraph 17. As

emphasized by counsel for the Tavern in his reply factum, the Basile case did not involve a motion brought pursuant

to Rule 21.01(b), but a motion for summary judgment brought pursuant to Rule 20.01(3) and 20.09 of the Rules of

Civil Procedure. That notwithstanding, the court in Basile accepted the basic proposition that if negligence of a third

party is attributable to the plaintiff, there is no need for a third party claim because such negligence “would stand as a

defence”; i.e., could be pleaded as a contributory negligence defence. That in turn suggests acceptance of the converse

proposition; i.e., that if pleaded negligence of a third party is not attributable to the plaintiff, the third party claim is

needed and discloses a reasonable cause of action.

15

[11] With the above background, party positions and principles in mind, I turned to my

consideration of whether the relief sought by the Tavern’s motion should be granted or

denied; i.e., to a determination of whether the Motel’s third party claim against the Tavern

in this particular case discloses no reasonable cause of action.

Analysis

[12] For the reasons that follow, I accept and agree with the arguments and position of the Motel,

as outlined and summarized above.

[13] In my view, there was no real dispute between the Tavern and the Motel that a defendant

should not be permitted to seek contribution and indemnity from a third party in relation to

damages caused by negligence which a defendant attributes or could attribute to the

plaintiff by pleading a defence of contributory negligence.

[14] Nor do I think there could there be any legitimate dispute in that regard, given the general

principles and authorities noted above.

[15] In my view, the present dispute between the Tavern and the Motel, in relation to the

propriety of the latter’s third party claim, stems from:

a. the Tavern incorrectly approaching alcohol-related negligence and damages as if

they were homogenous and indivisible monoliths, incapable of being separately

apportioned; and

b. the Tavern’s inaccurate characterization, in fact and law, of what the Motel actually

has asserted by its contributory negligence defence pleaded vis-à-vis the Plaintiff,

and by its third party claim seeking contribution and indemnity from the Tavern.

[16] In relation to the first point, the written material and oral submissions tendered on behalf

of the Tavern repeatedly referred to “alcohol-related negligence” without qualification or

differentiation, (i.e., as if any and all negligence related to alcohol necessarily refers to

precisely the same fault or delict, to which all damages caused by any alcohol-related

negligence should be apportioned), and/or referred to negligence relating to a plaintiff’s

consumption of alcohol and negligence relating to a tavern’s service of alcohol as if they

were the same thing. In particular:

a. In its notice of motion, the Tavern asserted:

i. that the Motel “claims contributory negligence from the Plaintiff for any

damages that may be attributed to alcohol related negligence”;

16

ii. that the Motel, through its third party claim for contribution and indemnity

from the Tavern, “seeks several liability from [the Tavern] as it pertains to

allegations of alcohol related negligence”; and

iii. that by “claiming contributory negligence against the Plaintiff for alcohol

related negligence prior to issuing the Third Party Claim, [the Motel] has

already severed any damages caused by alcohol related negligence from

any amounts it may be liable”.²³

b. In his factum, counsel for the Tavern acknowledged that the Motel had pleaded a

defence of contributory negligence in relation to the plaintiff’s consumption of

alcohol,²⁴and that the Motel’s third party claim sought contribution and indemnity

from the Tavern in relation to the Tavern’s service of alcohol,²⁵but then proceeded

to argue as if there was no distinction whatsoever between the two; i.e., as if they

were references to precisely the same negligence. In particular, after expressly

noting that the Motel’s defence pleading of contributory negligence relates to the

plaintiff’s consumption of alcohol, whereas the Motel’s third party claim for

contribution and indemnity refers to the Tavern’s negligent service of alcohol,

counsel for the Tavern then asserted:

i. that “the only allegations of negligence made by the [Motel] against the

third party [Tavern] relate to the service and plaintiff’s consumption of

alcohol”;²⁶and

ii. that the Motel “seeks contribution and indemnity from the third party in

respect of the plaintiff’s consumption of alcohol” but “claimed this

negligence is attributable to the plaintiff in its Statement of Defence”.²⁷

c. In his oral submissions, counsel for the Tavern repeatedly made similar broad and

unqualified references to “alcohol-related negligence”, as well as assertions that the

alcohol-related negligence addressed by the Motel’s pleading of contributory

negligence on the part of the Plaintiff in consuming alcohol and the alcohol-related

negligence alleged in the third party claim against the Tavern relating to its service

of alcohol were the same thing. For example, it was said:

²³See the Tavern’s notice of motion herein, at paragraphs 5, 6 and 7 respectively. The underlined emphasis is found

in the Tavern’s notice of motion. I have added the italicized emphasis.

²⁴See the Tavern’s factum herein, at paragraphs 3, 7 and 10.

²⁵See the Tavern’s factum herein, at paragraph 4.

²⁶See the Tavern’s factum herein, at paragraph 5. Emphasis added.

²⁷See the Tavern’s factum herein, at paragraph 21. Emphasis added.

17

i. that the Motel, in its statement of defence, had claimed “contributory

negligence from the plaintiff in respect of alcohol-related negligence”, such

that any damages “that may be attributed to the plaintiff’s intoxication and

subsequent impairment” would be apportioned to the Plaintiff;

ii. that the Motel, by its pleading of contributory negligence, had “carved out

the plaintiff’s alcohol related negligence and then issued a third party claim

for contribution and indemnity for the same negligence”;

iii. that “the alcohol-related negligence, if any, has already been severed off to

the plaintiff”, such that the Motel “can’t claim over again for alcohol-related

negligence because that’s been passed out”;

iv. that, having regard to the Motel’s defence pleading of contributory

negligence, “it must be assumed that it’s true that the plaintiff was negligent

for his own intoxication and whatever impairment that brought about giving

rise to damages”, such that “the plaintiff is going to assume the risk for any

negligence associated with alcohol related negligence”;

v. that the defendant Motel, by its pleading of contributory negligence,

“deflects all alcohol related negligence” and “will never be held liable for

any alcohol related damages”;

vi. that the defendant Motel’s third party claim against the Tavern is “limited

to the service of alcohol, which has already been claimed over” via the

Motel’s defence pleading of contributory negligence; and

vii. that the defendant Motel, through its pleading of contributory negligence,

was “actually saying” that “it’s the plaintiff’s fault for alcohol”, and “some

other party can’t be responsible for something that’s been alleged against

the plaintiff”.

[17] When pressed about such comments, counsel for the Tavern provided responses indicating

that the failure to make any distinction between alcohol-related contributory negligence of

the Plaintiff alleged in the Motel’s statement of defence, and the alcohol-related negligence

of the Tavern alleged in the Motel’s third party claim, was quite deliberate. As he put it:

“I mean, realistically, you can’t have negligence against a bar without somebody

consuming alcohol. You can’t.” In reply, he added: “The nexus of all alcohol related

claims is consumption. … It is impossible to intoxicate anyone without consumption. We

can’t have intoxication without consumption.”

[18] I fundamentally disagree with the approach taken by the Tavern and its counsel in that

regard, for reasons that include the following:

a. I think it well settled that our law actually recognizes various and distinct types of

“alcohol-related negligence”, attributable to different types of actors, all of which

18

concurrently may cause or contribute to a plaintiff’s damages. Such distinct types

of “alcohol-related negligence” include the following:

i. Contributory negligence attributable to a plaintiff, for his or her fault in

consuming alcohol to an extent that impaired his or her ability to take

reasonable care of himself or herself, in circumstances where that want of

care caused or contributed to the plaintiff’s injuries.²⁸

ii. Negligence attributable to an alcohol-supplying commercial host, (e.g.,

taverns, bars, restaurants and other establishments where alcohol is served

to patrons in exchange for payment/consideration), based on a breach of its

²⁸Such contributory negligence does not depend on a duty of care owed by one person to another, but on foreseeability;

i.e., foreseeability of harm to oneself. “A person is guilty of contributory negligence if he ought reasonably to have

foreseen that, if he did not act as a reasonable, prudent person, he might be hurt himself, and in his reckonings, he

must take into account the possibility of others being careless.” See Jones v. Livox Quarries, [1952] 2 Q.B. 608

(Eng.C.A.), cited and quoted with approval in Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd.,

supra, at paragraph 76. For some examples of such alcohol-related contributory negligence, see the following cases:

a. Menow v. Honsberger, [1974] S.C.R. 239, where the plaintiff drank to excess at a tavern before being ejected,

(because he was being objectionable to several patrons), and while walking home wandered onto the travelled

portion of a highway where he was struck by an automobile. The plaintiff “had a tendency to drink to excess

and then act recklessly”, had been “drinking to excess”, “had become intoxicated”, and thereby “created a

risk of injury to himself by excessive drinking on the night in question”. In the result, one third of his resulting

damages were apportioned to his contributory negligence in that regard. (See paragraphs 2, 4-5, 14 and 20

of the decision.)

b. Crocker v. Sundance, [1988] 1 S.C.R. 1186, where the plaintiff drank large quantities of his own alcoholic

beverages, attended a ski resort to enter its promotional “tubing competition”, drank further quantities of

alcohol provided by the resort before and between “heats” of the competition, (while wearing a “bib”

identifying him as a tubing competitor), and was rendered a quadriplegic after injuring his neck when flipped

out of his inner tube upon hitting a mogul. The plaintiff had “contribute[d] to his injuries by his own want

of care in deliberately getting drunk and participating in the races”. In the result, 25% of his resulting

damages were apportioned to his contributory negligence in that regard. (See paragraphs 11 and 37 of the

decision.)

c. Gouge v. Three Top Investment Holdings Inc., [1994] O.J. No. 751 (Gen.Div.), where the plaintiff drank

alcohol at home before proceeding on his motorcycle to a hotel, where he “continuously” consumed more

and more alcohol despite his becoming visibly intoxicated. Minutes after refusing a proffered ride home and

leaving the hotel on his motorcycle, the plaintiff had an accident while riding home and was injured. The

court noted that it was “difficult to feel much sympathy for the plaintiff because he [was] so substantially the

author of his own misfortune”, and 95% of his resulting damages were apportioned to his contributory

negligence in that regard. (See paragraphs 51 and 70 of the decision.)

d. Whitlow v. 572008 Ontario Ltd., [1995] O.J. No. 77 (S.C.J.), where the plaintiffs’ husband and father was

killed after falling down a tavern stairwell while inebriated by alcohol. The court found held that his death

was caused in part by his own contributory negligence in that regard; i.e., “by drinking to a state of extreme

intoxication, Mr Whitlow … contributed to his own demise”. In the result, 80% of the damages resulting

from his death were apportioned to that contributory negligence. (See paragraphs 23, 31 and 73 of the

decision.)

19

duties owed pursuant to common law and/or liquor licencing legislation, (in

circumstances where resulting damages were reasonably foreseeable), such

as:

1. failing to ensure that alcohol is not served to patrons in a manner

that would intoxicate them or increase their intoxication; and/or

2. failing to take positive steps to protect patrons and others from the

foreseeable dangers created by intoxication of patrons, including

dangers to the intoxicated patrons themselves.²⁹

iii. Negligence attributable to others who, standing in a “special relationship”

with a person intoxicated by alcohol, and knowing of a person’s alcohol-

related intoxication, nevertheless fail to take positive action to protect that

person; e.g., by placing him or her in a position where it is foreseeable that

the intoxicated person could suffer injury from “inability to handle the

situation in which he or she has been placed”.³⁰

b. I also think it well settled that our law now clearly accepts that the existence of a

plaintiff’s alcohol-related contributory negligence should not and does not negate

the possible co-existence of separate and distinct alcohol-related negligence of

commercial hosts and others for which a plaintiff should not be held responsible;

i.e., negligence of those who breach a recognized duty of care to a plaintiff who

consumes alcohol, and thereby cause or contribute to that plaintiff’s injuries and

damages. Such recognition of separate and co-existing alcohol-related liabilities

reflects not only the enactment of apportionment legislation such as the Negligence

29

See Menow v. Honsberger, supra, at paragraphs 14-17 and 22-23; Gouge v. Three Top Investment Holdings Inc.,

supra, at paragraphs 44, 49 and 51-52; Stewart v. Petrie, [1995] 1 S.C.R. 131, at paragraphs 28, 33, 47 and 56; and

Whitlow v. 572008 Ontario Ltd., supra, at paragraphs 47-52 and 58-59.

³⁰See Crocker v. Sundance, supra, (whose underlying facts are described above), at paragraphs 20-23. For additional

examples, see:

a. Dunn v. Dominion Atlantic Railway Co. (1920), 60 S.C.R. 310, where a railway company removed a drunken

passenger from one of its trains, leaving him in the night at a closed and unlighted station, where he was then

killed when hit by another train;

b. Hempler v. Todd (1970), 14 D.L.R. (3d) 637 (Man.Q.B.), where a car owner permitted or instructed an

impaired person to drive his car, and the impaired person then suffered fatal injuries when he drove the

vehicle off the road and into a ditch; and

c. Jacobsen v. Nike Canada Ltd., [1996] B.C.J. No. 363 (S.C.), where an employer, (who had instructed the

plaintiff employee to bring his car to work, and who then provided the plaintiff and other members of a work

crew with large amounts of beer in a hot working environment, over the course of a work day extending from

7:30am to 11:30pm.), allowed the intoxicated plaintiff to drive his car away from the workplace, after which

the plaintiff fell asleep at the wheel, drove his car into a ditch, and was rendered an incomplete quadriplegic.

20

Act, supra, emphasizing that all tortfeasors concurrently causing and contributing

to a plaintiff’s loss should be held responsible for that loss, (even if such

responsibility may be diminished by a degree of contributory negligence on the part

of a plaintiff), but also a recognition that an intoxicated person is a vulnerable

person, with an impaired ability to make sensible self-protective decisions, thereby

negating any proper or valid voluntary assumption of risk by that person. In

particular:

i. the ability of patrons and/or guests imbibing alcohol to fully appreciate and

accept the risks of injury, (e.g., risks of injury flowing from a breach of duty

by their commercial or social hosts), is correspondingly diminished;³¹and

ii. more generally, it is wrong in principle to dissolve a duty of care that arises

on the facts of a case merely because the person to whom the duty is owed

knows that he or she may be exposing himself or herself to some danger,

and especially so when there is applicable apportionment legislation.³²

c. For such reasons, our law now regards each form of alcohol-related misconduct as

separate and distinct “fault or negligence” capable of concurrently causing or

contributing to a plaintiff’s injuries and damages, in turn giving rise to a claim for

attribution of apportioned responsibility for such damages pursuant to the

Negligence Act, supra. Were it otherwise, our courts would not routinely make

such attributions, clearly differentiating between a plaintiff’s alcohol-related

contributory negligence and the alcohol-related negligence of others, (including

commercial hosts such as the Tavern in this case), when granting judgments

apportioning responsibility for a plaintiff’s damages.³³

31

See Menow v. Honsberger, supra, at paragraph 18; and Whitlow v. 572008 Ontario Ltd., supra, at paragraph 31.

See also Crocker v. Sundance, supra, at paragraph 28, where the Supreme Court of Canada noted that a patron’s

irresponsible voluntary intoxication is the “very reason” why those engaged in commercial operations for profit are

legally obliged to take all reasonable steps to prevent such an obviously incapacitated patron from exposure to harm.

³²See Mitchell v. C.N.R. (1974), 46 D.L.R. (3d) 363 (S.C.C.), at page 380.

³³See, for example:

a. Hempler v. Todd, supra, where the court apportioned the plaintiffs’ damages equally between the alcohol-

related contributory negligence of the plaintiffs’ fatally injured husband/father (50%), and the alcohol-related

negligence of the friend who placed that father/husband in a position of danger by allowing him to drive the

friend’s car while visibly intoxicated (50%);

b. Menow v. Honsberger, supra, where the Supreme Court of Canada upheld the judgment granted at trial

apportioning the plaintiff’s damages equally between the alcohol-related contributory negligence of the

plaintiff (one third), the alcohol-related commercial host negligence of the tavern (one third), and the driving

negligence of the defendant motorist (one third);

21

d. In this case, it therefore is entirely possible for the trier in this case to make findings

whereby the plaintiff Mr McHugh’s damages were caused or contributed to by a

number of concurrent causes, (each satisfying the applicable “but for” or “material

contribution” test for causation), including not only the alcohol-related contributory

negligence of the Plaintiff and the occupier-related negligence of the Motel and the

Maintainer, but also the concurrent yet notionally separate and distinct alcohol-

related commercial host negligence of the Tavern; negligence for which the Tavern

should then bear ultimate responsibility for a portion of the plaintiff’s damages

commensurate with the Tavern’s determined degree of fault or negligence, pursuant

to the Negligence Act, supra.³⁴

e. In such circumstances, if the Motel is not permitted to seek contribution and

indemnity from the Tavern pursuant to its third party claim, (despite the Tavern’s

fault or negligence having been a concurrent cause of the plaintiff’s damages)³⁵, the

Motel unfairly will be placed at risk of having to assume responsibility for ultimate

payment of more damages than it would have had to pay if all those actually

responsible for the plaintiff’s damages were before the court; i.e., a situation of

injustice which the Negligence Act, supra, was intended to prevent. By way of a

sustained hypothetical example, with variation, to illustrate the point:

i. If the plaintiff and all alleged tortfeasors (the Motel, the Maintainer and the

Tavern) are before the court, it is entirely possible that the trier might find

c. Crocker v. Sundance, supra, where the judgment granted at trial, upheld/reinstated by the Supreme Court of

Canada, apportioned the plaintiff’s damages to alcohol-related contributory negligence of the plaintiff (25%),

and the alcohol-related negligence of the ski resort which supplied the plaintiff with alcohol and allowed him

to participate in a dangerous competition while visibly intoxicated (75%);

d. Gouge v. Three Top Investment Holdings Inc., supra, where the court granted judgment apportioning the

plaintiff’s damages to alcohol-related contributory negligence of the plaintiff, (95%), and alcohol-related

commercial host negligence of a hotel (5%);

e. Whitlow v. 572008 Ontario Ltd., supra, where the court granted judgment apportioning the plaintiffs’

damages to alcohol-related contributory negligence of the plaintiffs’ husband/father (80%), alcohol-related

commercial host negligence of a Legion Branch (5%), and alcohol-related commercial host negligence of a

tavern (15%); and

f. Jacobsen v. Nike Canada Ltd., supra, where the court granted judgment apportioning the plaintiffs’ damages

to alcohol-related contributory negligence of the plaintiff (25%), and alcohol-related negligence of the

employer (75%).

34

Indeed, as the allegations in the Motel’s third party claim against the Tavern are not demonstrably incapable of

proof, (in my view), and must be taken as proven/true for the purposes of determining this Rule 21.01(1)(b) motion,

the motion must be approached on the basis that the Tavern has negligently breached its commercial host duties owed

to the Plaintiff, in all of the ways particularized in the impugned/targeted pleading, thereby causing or contributing to

the resulting foreseeable damages sustained by the Plaintiff.

³⁵Again, this assumes the allegations in the Motel’s third party claim against the Tavern to be true, for purposes of

the Tavern’s motion.

22

that the plaintiff Mr McHugh’s alleged slip and fall damages would not have

occurred “but for” each of the following factors being simultaneously at

work at the time of the alleged accident:

1. the contributory alcohol-related negligence of Mr McHugh in

consuming alcohol to excess, impairing and diminishing his ability,

(e.g., by paying more attention to ice-covered surfaces on which he

was walking, and/or by having a greater capacity to maintain his

balance if he slipped on an ice-covered surface), to take reasonable

care of himself;

2. the negligence of the Motel and/or Maintainer in failing to ensure

that the relevant walkway was reasonably safe, (e.g., not covered in

slippery ice), for its intended pedestrian use by guests staying at the

hotel; and

3. the alcohol-related negligence of the Tavern for any or all of the

reasons alleged in paragraph 5 of the Motel’s third party claim,

including but not limited to serving Mr McHugh alcohol to the point

of intoxication and beyond, serving alcohol to Mr McHugh after the

Tavern knew or should have known that Mr McHugh was

intoxicated and in danger of causing harm to himself, and breaching

the provisions of the Liquor Licence Act, R.S.O. 1990, c.L.19.

ii. Pursuant to the provisions of the Negligence Act, supra, in those

circumstances the trier then would be obliged to apportion responsibility for

Mr McHugh’s damages between Mr McHugh, the Motel, the Maintainer

and the Tavern in various percentages, commensurate with the degree to

which each was respectively found to be at fault or negligent; for example,

(and merely for purposes of this sustained example), apportioning

responsibility to Mr McHugh at 60%, to the Motel at 15%, to the Maintainer

at 15%, and to the Tavern at 10%.³⁶

³⁶Perhaps it would go without saying, but I have assigned these percentages on an entirely arbitrary basis, solely for

the purpose of providing a numerical example of one of the myriad ways in which overall responsibility for the

plaintiff’s damages might be apportioned in such a scenario, and have done so without meaning to indicate, in any

way, (and in the complete absence of any substantive evidence on which such degrees of respective fault or negligence

actually might be determined), how responsibility for Mr McHugh’s damages might be allocated. It obviously is

entirely possible for the trier to find that the degree of respective fault or negligence of Mr McHugh, or the Motel, or

the Maintainer, or the Tavern, for Mr McHugh’s accident and resulting damages, is anywhere from zero to 100 percent

– provided the total of all allocated percentages of several responsibility for the plaintiff’s damages adds up to 100.

As outlined in more detail below, our Court of Appeal has emphasized, in Martin v. Listowel Memorial Hospital,

supra, that responsibility for a plaintiff’s damages must be completely apportioned among those who are parties to

the litigation in some capacity; i.e., leaving no percentage of such responsibility apportioned to a non-party or to non-

parties. See also Endean v. St Joseph’s Hospital, supra, wherein the Court of Appeal reiterated that a non-party’s

fault should not be considered in apportioning liability pursuant to the provisions of the Negligence Act, supra.

23

iii. In that sustained example, the defendants then each would be jointly and

severally liable to Mr McHugh for 40% of his proven damages; i.e., his

damages remaining after a 60% deduction was made to reflect the damages

apportioned to Mr McHugh’s alcohol-related contributory negligence. By

virtue of its joint liability to Mr McHugh, the Motel might then be obliged

to initially pay Mr McHugh the entire 40% of such damages. However,

pursuant to the Negligence Act, supra, its crossclaim against the Maintainer,

and its third party claim against the Tavern, the Motel then could claim

contribution and indemnity from the Maintainer and Tavern to the extent of

their several liability, leaving the Motel ultimately responsible only for

payment of 15% of the plaintiff’s damages; i.e., reflecting the Motel’s

allocated degree of concurrent fault or negligence causing or contributing

to Mr McHugh’s damages.

iv. However, in the same example, if the Tavern and its separate and distinct

alcohol-related contributory negligence are not before the trier for

apportionment consideration pursuant to the Negligence Act, supra, (e.g.,

because the Motel is not permitted to advance its third party claim against

the Tavern for contribution and indemnity), and the trier remains consistent

with its 60% determination regarding the degree of Mr McHugh’s

contributory negligence, the remaining 40% of Mr McHugh’s damages

must be allocated, pursuant to the Negligence Act, supra, among the

concurrent tortfeasors, before the court as parties to the litigation, who

caused or contributed to those damages. If the trier similarly remains

consistent with its determination that the respective degree of fault or

negligence of the Motel and the Maintainer should be the same, each would

be apportioned ultimate responsibility for 20% of Mr McHugh’s damages.

By virtue of its joint liability to Mr McHugh, the Motel might still then be

obliged to initially pay Mr McHugh the entire 40% of such damages.

Pursuant to the Negligence Act, supra, and its crossclaim against the

defendant Maintainer, the Motel could then claim contribution and

indemnity from the Maintainer to the extent of its several liability.

However, because the Tavern is not before the court as a concurrent

tortfeasor made a party to the litigation, the Motel can only recover 20% of

the damages from the Maintainer, leaving the Motel ultimately responsible

for 20% of the plaintiff’s damages. Compared with the scenario and

outcome described in the previous sub-paragraph, the Motel would be

obliged to absorb ultimate responsibility for a greater share of the plaintiff’s

damages; i.e., because it was not permitted to bring the Tavern and

concurrent alcohol-related negligence as a commercial host before the court

via a third party claim, even though that particular alcohol-related

negligence, (separate and distinct from the plaintiff’s alcohol-related

contributory negligence already taken into account), concurrently caused or

contributed to the plaintiff’s damages.

24

v. As shown by this example, in my view it is important not to lose sight of

how responsibility for a portion of the damages caused by a concurrent

tortfeasor, not before the court by way of a third party claim, may be passed

onto a concurrent defendant tortfeasor through operation of the Negligence

Act, supra, even though the defendant tortfeasor was held liable for a form

of negligence entirely different from the type of negligence committed by

the concurrent tortfeasor not before the court by way of an appropriate third

party claim. In particular, I think it no answer for such a third party to say,

(as counsel for the Tavern repeatedly emphasized in this case), that a third

party claim for contribution and indemnity should not be permitted because

there is no risk of the relevant defendant, (who seeks to advance the third

party claim), being held responsible for the type of liability alleged against

the targeted third party. For example, in this case, there is no allegation that

the Motel provided any form of alcohol to the plaintiff, and therefore no

realistic possibility of the Motel being found liable for alcohol-related

liability of a commercial host. However, that does not negate the very real

possibility of the defendant Motel being made ultimately responsible for

payment of a portion of the plaintiff’s damages that properly and fairly

might be apportioned to the Tavern for its alcohol-related commercial host

negligence, if the Tavern, (assumed to be a concurrent tortfeasor for

purposes of this motion), is not before the court via an appropriate third

party claim. The point repeatedly made by counsel for the Tavern regarding

different types of liability of concurrent tortfeasors is simply not relevant to

the unfairness which the Negligence Act sought to address; i.e., by enabling

triers to apportion responsibility for a plaintiff’s damages between

concurrent tortfeasors, however they came to have that status.

[19] In short: while no one can argue with the proposition that damages attributable to the

contributory negligence of a plaintiff cannot be the subject of a claim for contribution and

indemnity from a third party, the arguments made by the Tavern in support of its motion

are premised on false equivalency. In particular:

a. Alcohol-related contributory negligence of a plaintiff and alcohol-related

negligence of a commercial host are simply not the same thing; i.e., the alcohol-

related commercial host negligence is a separate and distinct form of negligence

that is not attributable to an intoxicated plaintiff.

b. Damages apportionable to the alcohol-related contributory negligence of a plaintiff

are simply not the same as damages apportionable to the alcohol-related negligence

of a commercial host.

[20] Moreover, in a case where alcohol-related contributory negligence of a plaintiff, the

separate and distinct alcohol-related commercial host negligence of a tavern, and the

separate and distinct non-alcohol-related negligence of another tortfeasor all concurrently

caused or contributed to a plaintiff’s damages, (i.e., applying the mandated legal test for

causation to the negligence of each tortfeasor), it is entirely possible that the concurrent

25

tortfeasor guilty of non-alcohol-related negligence, and named as a defendant, unfairly will

bear responsibility for payment of a greater apportioned share of the plaintiff’s damages if

the negligent commercial host concurrently causing or contributing to the plaintiff’s

damages is not before the court; i.e., if the negligent commercial host is not named as a

defendant, and the concurrent tortfeasor guilty of non-alcohol-related negligence and

named as a defendant is not permitted to bring a third party claim for contribution and

indemnity, pursuant to section 5 of the Negligence Act, supra.

[21] As noted above, (in paragraph 15 of these reasons), the Tavern’s failure to properly

distinguish between a plaintiff’s alcohol-related contributory negligence and the alcohol-

related negligence of a commercial cost is compounded in this case by the Tavern’s

inaccurate characterization of what the Motel actually has asserted by its contributory

negligence defence pleaded vis-à-vis the Plaintiff, and by its third party claim seeking

contribution and indemnity from the Tavern. In that regard:

a. As emphasized by counsel for the Motel, the Tavern’s characterization in that

regard is wrong in fact. In particular:

i. As noted above, in paragraph 2(c)(iv) herein, in paragraph 5 of its statement

of defence and crossclaim, the Motel pleaded “that if the Plaintiff has

sustained the injuries and damages as pleaded, … they were caused as a

result of the negligence of the Plaintiff, the particulars of which include, but

are not limited to, the following: … He consumed alcohol … which

interfered with this ability to proceed in a safe manner.” [Emphasis added.]

ii. Read properly and fairly, the Motel’s pleaded contributory negligence

defence is focused entirely on the alleged negligence of the Plaintiff in

consuming alcohol to the point of impairment, and the damages caused by

that negligence. In my view, it is therefore both inaccurate and unfair to

repeatedly suggest, as counsel for the Tavern does, that the contributory

negligence defence pleaded by the Motel seeks to attribute all forms of

“alcohol-related negligence”, all “liability that may be attributed to the

plaintiff’s intoxication and subsequent impairment”, and/or all damages

caused by “alcohol-related negligence” or the “plaintiff’s intoxication and

subsequent impairment” to the Plaintiff.

iii. As noted above, the Motel, in paragraphs 4 and 5 of its Third Party Claim,

pleaded “that the … slip and fall was caused or contributed to by the

negligence and/or breach of the Third Party”, in that “prior to the … slip

and fall, the Plaintiff was present in and patrons (sic) of the [Tavern]”, and

“the Third Party … was negligent and/or in breach of its statutory duty

under the Liquor Licence Act in respect of its service of alcohol beverages

to the Plaintiff”; alleged negligence and breaches which are then

particularized in ten sub-paragraphs indicating what “It”, (i.e., the Tavern),

is said to have done in that regard.

26

iv. Read properly and fairly, the Motel’s third party claim is focused on the

alleged negligence and breach of statutory duty of the third party Tavern in

its service of alcohol to the Plaintiff, and the damages caused by that

negligence and breach of statutory duty. In my view, it accordingly is

inaccurate and unfair to repeatedly suggest, as counsel for the Tavern does,

that the Motel’s pleaded third party claim seeks contribution and indemnity

in relation “to the precise same” liability and damages attributed to the

Plaintiff in the Motel’s pleaded contributory negligence defence.

v. In my view, the above findings are warranted by a review of the Motel’s

pleadings on their face. However, to the extent necessary, I think the above

finding in relation to the Motel’s third party claim is buttressed by reading

that targeted/impugned pleading generously, to accommodate any drafting

deficiencies in that regard – as one must do when determining a motion

brought pursuant to Rule 21(1)(b) of the Rules of Civil Procedure.³⁷

b. In my view, the Tavern’s inaccurate characterization of the Motel’s pleading are

not only wrong in fact, but also wrong in law. In particular:

i. Regardless of party pleadings, a plaintiff cannot be held responsible in law

for the independent alcohol-related negligence of a commercial host not

acting as the plaintiff’s agent, and a third party commercial host cannot be

held responsible in law for a plaintiff’s independent contributory

negligence. In other words, even if the Motel’s pleadings were construed

in a manner consistent with the submissions of counsel for the Tavern, they

could not and would not have the outcome and effect suggested by counsel

for the Tavern.

ii. By operation of law, the Plaintiff’s alcohol-related contributory negligence

and corresponding apportioned share of responsibility for his damages

therefore would not overlap with, let alone coincide completely with, the

Tavern’s alcohol-related negligence as a commercial host and its

corresponding apportioned share of responsibility for the Plaintiff’s

damages.

iii. In my view, such legal realities are reflected in and reinforced by the

condensed but effective test for determining the propriety of a third party

claim for contribution and indemnity highlighted by our Court of Appeal in

Hengeveld v. The Personal Insurance Company, supra, wherein it was

emphasized that whether a third party claim for contribution and indemnity

discloses a reasonable cause of action is a function of whether the

37

Again, see paragraph 8(e) herein. To be clear, I am not assuming that the allegations in the Motel’s statement of

defence and crossclaim are true/proven for purposes of this motion, or that it must be read generously to allow for

drafting deficiencies. Those principles are applied only to the targeted/impugned pleading, which in this case is the

Motel’s third party claim against the Tavern.

27

negligence alleged in the particular third party claim is attributable to the

plaintiff. In this particular case:

1. The negligence and breach of statutory duty alleged against the

Tavern in the Motel’s third party claim is not something attributable

to the Plaintiff. It is fault or negligence which our law attributes to

the Tavern as a commercial host.

2. The Motel’s third party claim for contribution and indemnity from

the Tavern therefore discloses a reasonable cause of action.

3. It therefore self-evidently is not “plain and obvious” that the Motel’s

third party claim discloses no reasonable cause of action, and the

Tavern’s Rule 21.01(1)(b) motion herein must be dismissed

accordingly.³⁸

[22] In reaching that conclusion, I have considered and reflected upon all arguments and

submissions of counsel for the Tavern, (some of which I already have noted and addressed),

but was not persuaded by them.

[23] For example, as noted above, in the course of his submissions, counsel for the Tavern

suggested that a defendant tortfeasor, facing claims by a plaintiff who was intoxicated at

the time of his or her injuries, is unable to advance third party claims based on alleged

concurrent alcohol-related liability of a commercial host in situations where the plaintiff

has chosen not to advance such claims directly, and the defendant already has put the

plaintiff’s intoxication in issue by pleading alcohol-related contributory negligence. In that

regard, it was said that the alcohol-related liability of a commercial host could not be

“separated” into a distinct cause of action, (i.e., separate and apart from the alcohol-related

liability of the Plaintiff), as any such claims necessarily would on the same/common

underlying factual “nexus” of the Plaintiff’s intoxication, already being addressed in the

litigation by the Plaintiff’s alleged contributory negligence in that regard. I reject that

submission in its entirety, for reasons that include the following:

a. A plaintiff’s assertion of alcohol-related commercial host liability for a plaintiff’s

damages and a defendant’s assertion of alcohol-related contributory negligence on

the part of the plaintiff also both depend on the same/common underlying “nexus”

of the plaintiff’s intoxication, yet that obviously now presents no bar to a plaintiff

asserting a claim for the separate and distinct fault or neglect of a commercial host

which caused or contributed to his or her injuries, and a judgment apportioning a

degree of responsibility for that plaintiff’s damages to the negligent commercial

³⁸That is the determination literally required by Rule 21.01(1)(b) of the Rules of Civil Procedure. In the more fulsome

words of the governing test noted in paragraph 8(e) of these reasons, assuming that the facts as stated in the Motel’s

third party claim can be proved, in my view it is not “plain and obvious”, and beyond reasonable doubt, that the

Motel’s third party claim against the Tavern discloses no reasonable cause of action and has no reasonable prospect

of success.

28

host.³⁹There is no merger of the plaintiff’s alcohol-related contributory negligence

and the commercial host’s alcohol-related negligence in that regard. Were the

situation otherwise, the Negligence Act, supra, would have failed to accomplish

one of its principal objectives; i.e., changing the position at common law, so as to

enable apportionment of responsibility to all those whose negligence demonstrably

has caused or contributed to a plaintiff’s injuries, despite a plaintiff’s own

contributory negligence in that regard.

b. I see no reason in logic or policy for differentiating between the direct claims of a

plaintiff responsible for some degree of alcohol-related contributory negligence

against a commercial host whose alcohol-related negligence has caused or

contributed to a plaintiff’s injuries, and a third party claim for contribution and

indemnity brought by a concurrent tortfeasor defendant against a commercial host

for the same reason. Without limiting the generality of the foregoing:

i. Again, both claims stem from the common factual “nexus” of the plaintiff’s

intoxication, yet claims against a commercial host for its alcohol-related

negligence, brought directly by a plaintiff responsible for some degree of

contributory negligence, are clearly permissible. As a matter of logic, the

fact that a defendant’s third party claim for contribution and indemnity and

a plaintiff’s contributory negligence both stem from the plaintiff’s

intoxication cannot, by itself, be a disqualifying consideration.

ii. In my view, acceptance of the tavern’s submission would undermine a

central legislative purpose of the Negligence Act, supra; i.e., to change the

position prevailing at common law, and enable apportionment of

responsibility to all those whose concurrent negligence demonstrably has

caused or contributed to a plaintiff’s injuries. Without limiting the

generality of the foregoing:

1. As noted above, legislation such as Ontario’s Negligence Act, supra,

was an intended remedial response to the perception of modern

courts and legislatures that the pre-legislation outcomes dictated by

the common law governing such matters was anachronistic and

unfair, insofar as it prohibited triers from allocating responsibility

for a plaintiff’s damages amongst all those whose concurrent

negligence had caused or contributed to those damages.

2. I see no reason why a commercial host who committed concurrent

alcohol-related negligence causing or contributing to a plaintiff’s

injuries and damages should escape responsibility for a portion of

³⁹See, again, authorities such as those noted and described in paragraph 33 herein.

29

those damages simply because the plaintiff failed to name the

commercial host as a defendant in the plaintiff’s statement of claim.

3. In that regard, I think it should be recognized that there are inherent

underlying litigation dynamics which may increase the prospect of

plaintiffs failing to name a negligent commercial host as a co-

defendant in their pleadings. In particular:

a. In situations where a plaintiff consumed alcohol prior to his

or her accident and resulting injuries, the plaintiff and his or

her supportive witnesses inherently have an incentive to

avoid or downplay that fact as much as possible; i.e., because

doing otherwise may provide support for defence assertions

of contributory negligence on the part of the plaintiff, in turn

reducing the damages the plaintiff is likely to recover.⁴⁰

b. A plaintiff has a similar incentive to avoid suing a

commercial host for serving the plaintiff alcohol to the point

of intoxication and beyond, (thereby highlighting the

plaintiff’s significant pre-accident intoxication and

corresponding contributory negligence), in situations where

the plaintiff perceives that he or she has a meritorious claim

against another concurrent tortfeasor capable of being

named as a defendant who also caused or contributed to the

plaintiff’s injuries, and who also has the ability, through

personal assets or liability insurance, to pay 100% of the

plaintiff’s damages. In that situation, (i.e., where neither the

plaintiff nor the negligent commercial host has any incentive

or desire to have the commercial host named as a co-

defendant to the litigation, and the plaintiff fails to name the

negligent commercial host as a co-defendant in the

plaintiff’s statement of claim), the concurrent tortfeasor who

has been named as a defendant in the statement of claim

faces the prospect, (without a permissible third party claim

for contribution and indemnity against the negligent

commercial host whom the plaintiff has not made a party to

the litigation), of ultimately having to pay more damages

than he or she would have to pay if all concurrent tortfeasors

causing or contributing to the plaintiff’s damages had been

made parties to the litigation. Such unfairness is precisely

⁴⁰That reality has been noted and highlighted in cases such as Whitlow v. 572008 Ontario Ltd., supra, at paragraph

18.

30

the sort of injustice the Legislature sought to avoid through

passage of the Negligence Act, supra.

4. Moreover, in my view, the wording of the Negligence Act, supra,

(and section 5 thereof in particular), makes it quite clear that the

Legislature did not intend to leave such named defendants at the

mercy of a plaintiff’s pleading decisions; i.e., when it came to

ensuring that all concurrent tortfeasors causing or contributing to a

plaintiff’s damages could be brought before the court to enable a just

apportionment of responsibility for those damages. Pursuant to

section 5 of the Negligence Act, supra, “Wherever it appears that a

person not already a party to an action is or may be wholly or partly

responsible for the damages claimed, such person … may be made

a third party to the action in the manner prescribed by the rules of

court for adding third parties”.

[24] In the course of his submissions, counsel for the Tavern also argued that the Court of

Appeal’s decision in Hengeveld v. The Personal Insurance Company, supra, where the

Court of Appeal affirmed the decision of the motions judge striking out the defendants’

third party claim, was “directly on point”. I disagree. In particular:

a. In that decision, the Court of Appeal did not indicate or suggest that a defendant’s

pleading of any contributory negligence on the part of the plaintiff immediately

forecloses the possibility of that defendant asserting claims for contribution and

indemnity from third parties pursuant to the Negligence Act, supra.

b. To the contrary, as noted above, the Court of Appeal’s decision in the Hengeveld

case emphasized a more nuanced approach, whereby the court is required to look

closely at the particular negligence alleged in the relevant third party claim, and

determine whether that particular alleged negligence is negligence attributable to

the plaintiff. If the negligence pleaded in the third party claim is negligence

attributable to the plaintiff, and therefore capable of being fully defended and

deflected by the defendant pursuant to a pleaded defence of contributory

negligence, the defendant has no need or right to seek contribution and indemnity

from a third party in relation to that negligence, and a third party claim in that regard

should be struck out. However, where the particular negligence alleged in the third

party claim is not negligence attributable to the plaintiff, (i.e., because it alleges a

form of negligent conduct by the third party that is distinct from the plaintiff’s

negligent conduct), the third party claim should be allowed to stand.

c. In the Hengeveld case, the plaintiffs sued their insurance company, alleging that the

insurance company negligently failed to preserve evidence. The insurance

company brought a third party claim seeking contribution and indemnity from the

plaintiffs’ lawyers, (in relation to any amounts the insurance company was obliged

to pay the plaintiffs), alleging that the failure to preserve evidence was caused by

negligent acts and omissions of the plaintiffs’ lawyers. The motions judge held,

31

and the Court of Appeal agreed, that the negligence asserted by the third party claim

was actually negligence attributable to the plaintiffs themselves; i.e., insofar as the

alleged negligent acts and omissions pleaded against the plaintiffs’ lawyers all fell

within the scope of their agency retainer, when the lawyers were acting on the

plaintiffs’ behalf. The third party claim in that case accordingly sought contribution

and indemnity for negligence attributable to the plaintiffs; i.e., negligence which

the defendant insurance company had the ability to address and defend fully

through a pleading of contributory negligence. The ability of the defendant

insurance company to bring its intended third party claim accordingly was

foreclosed under “fully established legal principles”.

d. That is not the situation in the case before me. The Motel’s pleaded defence of

contributory negligence focuses on negligent conduct of the Plaintiff; i.e., his

consumption of alcohol in a manner that interfered with his ability to proceed along

the relevant walkway in a safe manner. In my view, (stated again at the risk of

repetition), the particular negligence alleged against the Tavern in the Motel’s third

party claim focuses on a separate and distinct form of negligence not attributable to

the plaintiff himself; i.e., the Tavern serving the plaintiff alcohol in a manner that

breached its common law and statutory duties the Tavern owed to patrons such as

the Plaintiff as a commercial host, thereby causing or contributing to the Plaintiff’s

injuries and damages. The alleged negligent acts and omissions of the Tavern in

that regard, (which I must assume to be true for purposes of this motion), are not

failings which the defendant Motel could raise against the Plaintiff via its pleaded

defence of contributory negligence. They instead represent concurrent negligence

of the Tavern which caused or contributed to the Plaintiff’s damages; i.e.,

negligence on the part of a wrongdoer who is not a party to the action without the

third party claim, and from which the Motel is entitled to claim contribution and

indemnity pursuant to the provisions of sections 1, 2 and 5 of the Negligence Act,

supra.

[25] In the course of his submissions, counsel for the Tavern also asserted that the decision to

sue or not sue the Tavern for alleged alcohol-related negligence was “entirely up to the

Plaintiff to make”; that the Plaintiff chose not to sue the Tavern; that the Plaintiff thereby

chose “to accept all the risk associated with what the defendant says about him being drunk

and falling down and hurting himself”; and that the defendant Motel effectively was bound

by the plaintiff’s decision in that regard. In support of those propositions:

a. It was said that section 1 of the Negligence Act, supra, (allowing for apportionment

of liability and creating joint and several liability), applies only to defendants, and

that section 5 of the Negligence Act, supra, affords the Motel no relief in that regard,

as it contemplates a defendant making someone a third party to the litigation, but

such third party claims are permissible only where a duty is owed by the third party

to the defendant, rather than the plaintiff; and

32

b. Reliance was placed on comments by our Court of Appeal in Martin v. Listowel

Memorial Hospital, supra, at paragraph 48, and on comments by Justice Rady in

her decision in Tuffnail v. Meekes, 2019 ONSC 525, affirmed 2020 ONCA 340.

[26] I disagree with and reject those submissions for numerous reasons, including those which

follow.

[27] In relation to Martin v. Listowel Memorial Hospital, supra, counsel for the Tavern relied

in particular on the following comments made by the panel in paragraph 48 of the Court of

Appeal’s decision:

In our view, the effect of s.1 of the Act is to define the legal effect of a finding

of fault by concurrent wrongdoers. The effect is to change the common law,

and impose on concurrent wrongdoers joint and several liability to the

plaintiff. It is the only section of the Act which imposes liability, as opposed

to apportioning fault. The section is substantive, not procedural. Therefore,

when applying the section to any specific action, it is understood that joint

and several liability to the plaintiff can and will attach only to a party

defendant, although others who may also have been at fault could potentially

have been found jointly and severally liable had they been sued by the

plaintiff. Because procedurally the section only affects defendants, under this

section the court is to apportion degrees of fault only to defendants.

[Emphasis added.]

[28] Insofar as counsel for the Tavern construed the emphasized portions of those remarks as

authority for the proposition that a third party cannot be held responsible for its negligence

causing or contributing to a plaintiff’s damages, if the plaintiff has chosen to not name the

third party as a defendant in the plaintiff’s statement of claim, I respectfully think that the

remarks in question have been taken out of context. Without limiting the generality of the

foregoing:

a. In the Martin case, an infant plaintiff had suffered brain damage during his birth at

a hospital, owing to the negligence of two doctors, a nurse, and ambulance

attendants. The plaintiff reached a settlement with the two doctors, and proceeded

with an action before a trial judge wherein only the hospital and ambulance

attendants were named as defendants; i.e., with the hospital being sued for its

alleged negligent training of the relevant nurse and ambulance attendants, and on

the basis that it was vicariously liable for the negligence of the nurse. The nurse

herself was not named as a defendant. Nor did any of the named defendants seek

contribution and indemnity from the nurse by way of a third party claim. (There

apparently were no third party claims brought in the litigation.) The nurse

accordingly was not a party to the action, either as a defendant or a third party.

b. Even though the trial judge had found the nurse guilty of negligence causing or

contributing to the infant plaintiff’s damages, he declined to determine her degree

of fault or negligence pursuant to section 1 of the Negligence Act, supra, and

33

apportion ultimate responsibility for a degree of damages to her, because the nurse

was not a party to the action. On appeal, it was argued that the trial judge should

have made such a determination in relation to the nurse, as well as the named

defendants to the action, as the literal wording of section 1 of the Negligence Act,

supra, refers to “persons” and not “parties”.

c. In my view, a full reading of the Martin decision makes it quite clear that the Court

of Appeal, when making its remarks in paragraph 48 of the panel’s decision, was

focused on the specific legal issue of whether section 1 of the Negligence Act,

supra, required the trial judge to determine the degree of fault of non-parties as

well as parties to the litigation.⁴¹

d. In the result, the Court of Appeal found that, notwithstanding the literal wording of

section 1 of the Negligence Act, supra, its provisions required a trier to apportion

fault or negligence, and corresponding responsibility for damages, only among the

“parties” or “persons sued” in the litigation, and did not extend to any “non-party”

or “absent concurrent wrongdoer”. As the Court of Appeal noted, in the course of

outlining its reasons for that conclusion, any other approach would make the

provisions of the Negligence Act “virtually unworkable”; e.g., insofar as it would

require the trier to make assessments of liability in relation to persons not usually

present or represented at trial, (e.g., to give explanations in relation to the

underlying accident), and leave defendants to the litigation at risk of being obliged

to pay all damages owed to the plaintiff without the possibility of full contribution

and indemnity beyond their several liability, depending on the party from whom

the plaintiff initially chose to demand payment.⁴²

e. In my view, a proper reading of Martin v. Listowel Memorial Hospital, supra, in

its entirety, makes it clear that the Court of Appeal never intended to suggest that

the apportionment provisions of the Negligence Act had no application to persons

who were parties to litigation, (including those made parties to litigation by virtue

of a third party claim advanced pursuant to section 5 of the Negligence Act, supra),

and/or that such a third party claim could not be advanced by a named defendant

against another concurrent tortfeasor simply because the plaintiff failed to name

that additional concurrent tortfeasor as a defendant in the plaintiff’s statement of

claim. Without limiting the generality of the foregoing:

i. As the case before it involved only plaintiffs and defendants, and no third

party claims, the initial final comments of the Court of Appeal not

41

That specific issue and context, focusing on whether section 1 of the Negligence Act extends to “non-parties” as

well as “parties” or “persons sued”, requiring apportionment of damages between non-parties as well as parties, are

referred to repeatedly by the panel throughout its analysis leading up to the noted comments in paragraph 48 of the

Martin decision. See, for example, Martin v. Listowel Memorial Hospital, supra, at paragraphs 30, 31, 32, 33, 36, 37,

38, 39, 41, 43, 44, 45, 46 and 47.

⁴²See Martin v. Listowel Memorial Hospital, supra, at paragraphs 30-48, and paragraph 41 in particular.

34

surprisingly focused on the joint and several liability attaching to party

defendants named by the plaintiff. However, as noted above, the reasons of

the panel focus repeatedly on the distinction between parties and non-parties

when it comes to apportionment of responsibility for damages; e.g., rather

than on distinctions between those who are parties to the litigation as named

defendants, and those who are made parties to the litigation as third parties.

ii. Other comments by the panel make it clear that the Court of Appeal

accepted that apportionment of responsibility and damages to other

concurrent tortfeasors, (i.e., other wrongdoers who also caused or

contributed to a plaintiff’s damages, but were not named by the plaintiff as

defendants to the litigation), can and should be achieved via third party

claims for contribution and indemnity. For example:

1. At paragraph 37 of the decision, the panel said this: “Because it is

in the interests of the parties to ensure that everyone potentially

liable is joined in the action, in practice, it is therefore most unlikely

that any solvent, known person with the potential to be found at

fault, would not be joined in the action as a party in some capacity.

Section 5 of the Act makes special provision for adding parties,

again to ensure that all parties who should be contributing to

compensate the plaintiff for the loss are joined in the action which

fixes everyone’s responsibility”. [Emphasis added.]

2. At paragraph 39 of the decision, the panel, when discussing the case

of Batchelor v. Brown (1980), 28 O.R. (2d) 590 (H.C.J.), which did

involve a third party claim, refers approvingly to Negligence Act

allocations of responsibility for damages affecting “the contribution

inter se of the defendants and third party for the damages, suffered

by the plaintiffs, for which the defendants were found liable”.

[Emphasis added.]

3. In the concluding remarks of paragraph 48 of the decision, the panel

says this: “The court must also apportion fault to other parties, the

plaintiff and third parties, not under s.1 of the Act but rather

pursuant to ss.3 and 4 (sic)⁴³of the Act, and in accordance with the

requirement of the pleadings”. [Emphasis added.]

43

It may be wondered whether this was intended to be a reference to section 5 of the Negligence Act, supra, rather

than section 4. As noted above, section 3 of the Act makes reference to the contributory negligence of plaintiffs, and

section 5 of the Act makes reference to the addition of third parties who are wholly or partly responsible for a plaintiff’s

damages. It therefore would make sense for the Court of Appeal to make reference to apportionment of fault to the

plaintiff and third parties pursuant to ss. 3 and 5 of the Act, respectively, in order to complete the symmetry of the

sentence references. (As noted above, section 4 deals with situations where it is not practicable to determine the

respective degree of fault or negligence between parties to an action, making it appropriate to deem them equally at

35

iii. In its later jurisprudence, the Court of Appeal has made clear its view that

section 5 of the Negligence Act “contemplates the situation where a

defendant has been sued but believes there is another wrongdoer who

caused or contributed to the plaintiff’s injury and has not yet been sued; in

which case section 5 “allows a defendant to pursue a right of contribution

and indemnity against that person by third party claim, according to the

rules of court for adding third parties”.⁴⁴[Emphasis added.]

[29] In relation to Tuffnail v. Meekes, supra, counsel for the Tavern relied in particular on the

following comments made by Justice Rady in paragraph 28 of her decision: “It is

noteworthy that the Rule”, [i.e., Rule 29.01 of Ontario’s Rules of Civil Procedure,

governing the commencement of “a third party claim against any person who is not a party

to the action”], “speaks to a third party’s liability to the defendant for all or part of the

plaintiff’s damages. It does not say liability for all or part of the plaintiff’s damages”.

[Original underlined emphasis.]

[30] In his factum and oral submissions, counsel for the Tavern interpreted those comments as

an indication that “Third Party Claims are limited to liability owed by the third party to the

defendant”.⁴⁵Based on that interpretation:

a. it was suggested by counsel for the Tavern that third party claims must be based on

a duty owed by the third party to the defendant, and should not be permitted in

circumstances where the third party claim focuses on a duty owed by the proposed

third party to the plaintiff but not to the defendant; and

b. counsel for the Tavern emphasized that, in this case, the Motel’s third party claim

focused on common law and statutory commercial host duties owed by the Tavern

to the Plaintiff, (who chose not to sue the Tavern by naming it as a defendant in his

statement of claim), and not to any duties owed by the Tavern to the defendant

Motel.

[31] I reject those submissions for numerous reasons, but foremost among them is this: they

suggest precisely the opposite of what our Court of Appeal has emphasized expressly and

repeatedly in its jurisprudence decided before and after Justice Rady’s decision; i.e., “A

third party claim based on the contribution and indemnity provisions of the Negligence Act

does not require that the third party owe a duty of care to the defendant. It is sufficient that

the third party owe a duty of care to the plaintiff, making the third party someone who, if

fault. It contains no express reference to third parties, and no indirect reference to apportioning fault to third parties

except in the rare circumstance where determining the degree of fault or negligence of parties is not practicable.)

⁴⁴Again, see Hengeveld v. The Personal Insurance Company, supra, at paragraph 20.

⁴⁵See paragraph 13 of the factum filed by counsel for the Tavern.

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sued by the plaintiff, would have been liable in respect of the damage the plaintiff

suffered”.⁴⁶[Emphasis added.]

[32] Again, the purpose of the Negligence Act, supra, was to facilitate a fair and just

apportionment of responsibility for a plaintiff’s damages between all those whose

concurrent negligence caused or contributed to those damages – including concurrent

tortfeasors who may not have been named as defendants by the plaintiff, and therefore need

to be brought into the litigation as third parties.

[33] Moreover, in my view the passages from the Court of Appeal’s decision in Tuffnail v.

Meekes, supra, relied upon by counsel for the Tavern, have little or no bearing on the

determination I have to make. In that regard:

a. The facts underlying the Tuffnail litigation involved a situation where, (according

to later jury findings), the plaintiff was an automobile passenger who sustained

damages in a single vehicle accident that were caused or contributed to by the

contributory negligence of the plaintiff (3.85%, the concurrent negligence of the

plaintiff’s intoxicated driver (65%), the concurrent negligence of the host who

arranged the party at which the plaintiff’s driver was served alcohol (20.03%), and

the concurrent negligence of the particular bartender who had served the plaintiff’s

driver (11.12%).

b. In his statement of claim, the plaintiff had sued his driver and his host, as well as

his own automobile insurer pursuant to the underinsured motorist coverage the

insurer had issued pursuant to a standard OPCF44 endorsement. The plaintiff did

not sue the relevant bartender directly; i.e., by including the bartender among the

defendants named in the plaintiff’s statement of claim. However, the host and the

insurer each brought a third party claim against the bartender seeking contribution

and indemnity.

c. After trial, the plaintiff and the host entered into minutes of settlement whereby,

inter alia, the host assigned, to the plaintiff, the host’s third party claim for

contribution and indemnity from the bartender.

d. The comments of the Court of Appeal, highlighted and relied upon by counsel for

the Tavern, were expressly focused on the question of what sum the plaintiff could

recover from the bartender pursuant to that assigned third party claim.⁴⁷In that

regard, it had to be determined, in particular, whether:

46

See Hengeveld v. The Personal Insurance Company, supra, at paragraph 21. See also 478649 Ontario Ltd. v.

Corcoran, supra, at pp.35-36.

⁴⁷See the Court of Appeal’s decision in Tuffnail v. Meekes, supra, at paragraph 77.

37

i. recovery pursuant to that third party claim by the host against the bartender

was limited to a proportion of the total judgment equal to the 11.2% degree

of fault assigned to the bartender; or

ii. the plaintiff could recover, from the bartender, the full amount of damages

awarded by the jury; i.e., as if the bartender had been sued directly by the

plaintiff as a defendant.

e. The Court of Appeal upheld Justice Rady’s conclusion that the bartender’s liability

via the assigned third party claim was limited to his apportioned 11.12% degree of

fault or negligence. The facts did not make the bartender jointly liable to the

plaintiff for all of the plaintiff’s damages, which would have been the case had the

plaintiff sued the bartender directly as a named defendant.

f. In my view, nothing in the comments or analysis of Justice Rady or the Court of

Appeal relied upon by counsel for the Tavern, (including the finding that a

concurrently negligent third party owes no direct joint liability for all of a plaintiff’s

damages to a plaintiff who failed to sue that party directly as a defendant), has any

bearing on the ability of a defendant tortfeasor to bring a third party claim seeking

contribution and indemnity from another concurrent tortfeasor who was not named

as a defendant but nevertheless also caused or contributed to a plaintiff’s damages;

i.e., the determination I am required to make. Without limiting the generality of the

foregoing, in the Tuffnail litigation, the propriety of the relevant third party claim

by the host against the bartender, (assigned to the plaintiff), was not in dispute.

Nor, in my view, did any of the comments made by Justice Rady or the Court of

Appeal suggest that direct joint liability of a third party to the plaintiff pursuant to

the third party claim, (as opposed to the third party being a concurrent tortfeasor

who caused or contributed to the plaintiff’s damages by breaching a duty owed by

the third party to the plaintiff), was any form of prerequisite to the bringing of such

a third party claim. It bears emphasizing that the third party claim for contribution

and indemnity brought by the defendant host in that case, against the third party

bartender, was not only brought but succeeded.

Conclusion

[34] For the reasons outlined above, I find that it is not plain and obvious that the third party

claim advanced by the Motel against the Tavern discloses no reasonable cause of action,

and the Tavern’s motion to strike the third party claim on that basis, pursuant to Rule

21.01(b) of the Rules of Civil Procedure, therefore must be dismissed.

[35] An order dismissing the Tavern’s motion shall go accordingly.

Costs

[36] My preliminary view, subject to hearing from the parties, is that the Motel should receive

its costs of the motion from the Tavern on a partial indemnity basis.

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[37] However, because my decision was reserved, the parties were unable to make any

submissions regarding costs of the Tavern’s motion. If the parties are unable to reach an

agreement on costs in that regard:

a. the Motel may serve and file written cost submissions, not to exceed five pages in

length, (not including any bill of costs), within two weeks of the release of this

decision;

b. the Tavern then may serve and file responding written cost submissions, also not to

exceed five pages in length, within two weeks of service of the Motel’s written cost

submissions or the deadline for delivery of those submissions, whichever comes

first; and

c. the Motel then may serve and file, within one week of receiving any responding

cost submissions from the Tavern, reply cost submissions not exceeding two pages

in length.⁴⁸

[38] If no written cost submissions are received within four weeks of the release of this decision,

there shall be no costs of the motion.

Justice I.F. Leach

Date: June 22, 2022

⁴⁸This timetable for the receipt of written cost submissions obviously assumes that no costs will be sought from the

Plaintiff or the defendant Maintainer, and that neither of those parties will seek costs; assumptions which seem

reasonable based on the effective non-participation of those parties in relation to the Tavern’s motion, apart from the

“watching brief” adopted by counsel for the Plaintiff. If for some reason costs are sought against or by the Plaintiff

and/or defendant Maintainer, those parties are hereby granted leave, pursuant to Rule 1.09(b) of the Rules of Civil

Procedure, to communicate a request to me in writing sent via the London judicial secretaries, and copied to counsel

for all other parties, for an appropriate revision or revisions to this timetable.

39

Appendix “A”

Negligence Act R.S.O. 1990, CHAPTER N.1

Extent of liability, remedy over

1. Where damages have been caused or contributed to by the fault or neglect of two or more

persons, the court shall determine the degree in which each of such persons is at fault or

negligent, and, where two or more persons are found at fault or negligent, they are jointly

and severally liable to the person suffering loss or damage for such fault or negligence, but

as between themselves, in the absence of any contract express or implied, each is liable to

make contribution and indemnify each other in the degree in which they are respectively

found to be at fault or negligent. R.S.O. 1990, c. N.1, s. 1.

Recovery as between tortfeasors

2. A tortfeasor may recover contribution or indemnity from any other tortfeasor who is, or

would if sued have been, liable in respect of the damage to any person suffering damage

as a result of a tort by settling with the person suffering such damage, and thereafter

commencing or continuing action against such other tortfeasor, in which event the

tortfeasor settling the damage shall satisfy the court that the amount of the settlement was

reasonable, and in the event that the court finds the amount of the settlement was excessive

it may fix the amount at which the claim should have been settled. R.S.O. 1990, c. N.1, s.

2.

Plaintiff guilty of contributory negligence

3. In any action for damages that is founded upon the fault or negligence of the defendant if

fault or negligence is found on the part of the plaintiff that contributed to the damages, the

court shall apportion the damages in proportion to the degree of fault or negligence found

against the parties respectively. R.S.O. 1990, c. N.1, s. 3.

Where parties to be deemed equally at fault

4. If it is not practicable to determine the respective degree of fault or negligence as between

any parties to an action, such parties shall be deemed to be equally at fault or negligent.

R.S.O. 1990, c. N.1, s. 4.

Adding parties

5. Wherever it appears that a person not already a party to an action is or may be wholly or

partly responsible for the damages claimed, such person may be added as a party defendant

to the action upon such terms as are considered just or may be made a third party to the

40

action in the manner prescribed by the rules of court for adding third parties. R.S.O. 1990,

c. N.1, s. 5.

Jury to determine degrees of negligence of parties

6. In any action tried with a jury, the degree of fault or negligence of the respective parties is

a question of fact for the jury. R.S.O. 1990, c. N.1, s. 6.

When plaintiff may be liable for costs

7. Where the damages are occasioned by the fault or negligence of more than one party, the

court has power to direct that the plaintiff shall bear some portion of the costs if the

circumstances render this just. R.S.O. 1990, c. N.1, s. 7.

8. REPEALED: 2002, c.24, Sched. B, s.25.