



COURT OF APPEAL FOR
BRITISH COLUMBIA




Citation:



Donaldson v. John
  Doe,









2009 BCCA 38




Date: 20090204

Docket: CA035019

Between:

Derek Blair Donaldson

Appellant

(
Plaintiff
)

And

John Doe, Pacific
Promotions Ltd.,

530077 B.C. Ltd.
carrying on business as the

Commodore Ballroom, and
Pensionfund Properties Ltd,

Christopher George
Briggs

Respondents

(
Defendants
)




Before:



The Honourable Madam
  Justice Rowles





The Honourable Madam
  Justice Prowse





The Honourable Mr. Justice
  Frankel









D.G.
  Cowper, Q.C. and K.A.J. Grist



Counsel for the Appellant





M.K. Skorah and D.R.
  Mackenzie



Counsel for the Respondent

Pacific Promotions Ltd.





J.C. Taylor and K.R. Taylor



Counsel for the Respondent

Commodore Ballroom





Place and Date of Hearing:



Vancouver
, British Columbia






October 15, 2008





Written Submissions
  Received:



October 21 and 27, 2008





Place and Date of Judgment:



Vancouver
, British Columbia






February 4, 2009









Written Reasons by
:





The Honourable Mr. Justice
  Frankel





Concurred in by:





The Honourable Madam
  Justice Rowles
The Honourable Madam Justice Prowse




Reasons for Judgment
of the Honourable Mr. Justice Frankel:

INTRODUCTION

[1]

This appeal concerns the liability
of commercial hosts who serve alcohol when someone is injured by an intoxicated
patron.  This issue arises in the context of an Oktoberfest event at which
souvenir glass beer mugs were distributed to patrons.  After the event ended and
the patrons had left the host premises, one of the patrons was permanently
injured when struck in the eye by a beer mug held by another patron.

[2]

Following a trial, Mr. Justice
Bernard of the Supreme Court of British Columbia, held that neither the
promoter of the event, nor the owner of the venue, owed a duty of care to the
injured party.  As a result, he dismissed the claims against them.  However,
with the agreement of the parties, he fixed damages at $350,000.00:  2007 BCSC
557, 72 B.C.L.R. (4th) 111.

[3]

For the reasons that follow, I
have concluded that both the promoter and the owner owed a duty of care to the
injured party.  However, I would decline to pronounce in detail on the standard
of care because, regardless of what standard of care is appropriate, there are
evidentiary gaps in the injured partys case that make it impossible to affix
either the promoter or owner with liability.  I would, therefore, dismiss the
appeal.

FACTUAL BACKGROUND

[4]

On the evening of Saturday,
November 27, 1999, Pacific Promotions Ltd. held an Oktoberfest event at the
Commodore Ballroom on Granville Mall, in downtown Vancouver, British Columbia. 
Coincidentally, this was the night before the Grey Cup football game was to be
played in Vancouver.

[5]

David Frinton, the sole
shareholder of Pacific Promotions, had organized many Oktoberfests in the
past.  The vast majority of those had been held at the Commodore.  However,
this was the first one held there since the Commodore had closed in the fall of
1996, and re-opened under new management in early November, 1999.  Mr. Frinton
was not aware of anyone having been injured by a glass beer mug at previous
Oktoberfests.  Gordon Knights, the Commodores general manager, testified that
handing out souvenir glassware (e.g., wine glasses, beer mugs) was a standard
marketing tool in the liquor industry.

[6]

Mr. Frinton organized the
event, and contracted with the Commodore for the use of those premises.  The
Commodore was responsible for food and beverage service, and security.  Pacific
Promotions received all of the revenue from ticket and souvenir sales.  The
Commodore received the food and beverage revenue.

[7]

Tickets to the event were sold
both in advance and at the door.  The ticket price included admission, a
souvenir glass beer mug, a mug of beer, and a German sausage in a bun.  The
mugs were handed out upon entry, and were to be taken home by patrons at the
end of the evening.  The mugs displayed an Oktoberfest 99 logo, and the logos
of four companies that had paid sponsorship fees to Pacific Promotions.  Patrons
could have their mugs refilled by purchasing beer from servers who circulated
about the premises.  Other alcoholic beverages were also available.

[8]

Patrons could purchase additional beer
mugs as souvenirs, or acquire them from other patrons.  Some who acquired multiple
mugs hung them from their waist-belts.

[9]

The Commodores licensed capacity is
900 patrons.  The staff on duty for Oktoberfest consisted of the general
manager, two managers, two greeters at the door, ten bartenders, 12 waiters
serving food and drinks, five porters assisting the bartenders, five busers
for clean-up, and five coat checkers.  All of them had taken Serving It Right,
a program that trains staff to be alert for persons who have consumed too much
alcohol.  The Commodore contracted with International Crowd Management, which
provided ten security personnel.

[10]

The Commodores staff was
instructed to monitor the level of intoxication of the patrons, to head-off
problems before they began.  If the security personnel noticed patrons acting
inappropriately, then they would report them to one of the Commodores managers.

[11]

Mr. Knights was not aware of
anyone having been cut-off from bar service that night, although two persons
were asked to leave because of intoxication, and one person was physically
ejected.  Mr. Knights said that it was possible for a patron to drink all night
without coming into direct contact with a server or bartender, if this person
had someone else order his or her drinks.  He described the event as festive,
and the patrons as a well-behaved, and easy-going group.

[12]

Mr. Knights did not know that
every patron was to be given a glass beer mug until the night of the event, when
the first ticket was presented at the door at 7:30 p.m.  He testified that
it never occurred to him that anyone would use a mug as a weapon, or
intentionally break a mug that had been purchased.

[13]

Derek Blair Donaldson and some
friends arrived at the Commodore at about 10:00 p.m.  They left with the
majority of the patrons, when the event ended at 2:00 a.m.  Mr. Donaldson
described himself as intoxicated and pretty relaxed, but not stumbling or
anything at the time he left.

[14]

After Mr. Donaldson had walked a
short distance from the Commodore, he was struck in the face by a glass mug that
Christopher George Briggs was holding in his left hand.  This occurred when Mr.
Briggs suddenly raised his left arm.  Mr. Briggs and Mr. Donaldson did
not know each other.  Whether Mr. Briggs struck Mr. Donald intentionally or
accidentally is not known.  As a result of being struck with the beer mug, Mr.
Donaldson suffered irreparable damage to his right eye, and facial scarring.

[15]

One of Mr. Donaldsons friends took
hold of Mr. Briggs, and there was a brief scuffle until the police arrived. 
Constable Mark Burgess handcuffed Mr. Briggs, who had several glass beer mugs with
the Oktoberfest logo hanging from his belt.  At trial, the officer testified
that Mr. Briggs was intoxicated, but could not recall to what degree.  He
described the level of intoxication of those in the area as moderate to
severe.

[16]

Several police officers described
the crowd on Granville Mall as being larger and more disorderly than is normal
for a Saturday night.  In general, the police found the levels of intoxication
and violence (i.e., fighting) to be higher than that usually found when the
bars and nightclubs in that area close.  Sergeant Mark Joseph Lavallee, a shift
supervisor with the Vancouver Police Department, described the street scene as
a mini-version of the Stanley Cup riot, which occurred in Vancouver in 1994. 
He further stated that the police had not been given advance notice that
Oktoberfest was being held, or that glass beer mugs were being given out.  Had Sergeant
Lavallee been aware of this, then he would have gone to the Commodore and suggested
that beer mugs not be given out that evening.

[17]

Mr. Briggs did not participate at
the trial.  However, Mr. Donaldson read-in a number of answers from Mr.
Briggss examination for discovery.  In these answers Mr. Briggs said that before
going to the Commodore on the night of November 27, 1999, he drank six or seven
beers at home.  He and several friends went to Oktoberfest to socialize and
have fun, arriving between 7:00 p.m. and 8:00 p.m.  While there, Mr. Briggs
drank eight to ten mugs of beer, getting a new mug each time.  He had eight to
ten mugs hung on his belt when he left the event.  Mr. Briggs said that the
number of beers he drank that night was more than he would normally consume at
a party.  He agreed he had got drunk, and that he had a hangover the next
day.

[18]

The practice of giving out glass
beer mugs at Oktoberfest was discontinued after the 1999 event.  Plastic mugs
are now given out.

TRIAL JUDGES REASONS

[19]

The trial judge described the
incident giving rise to Mr. Donaldsons injury as follows:

[36]      The
incident was not part of a general melee occurring on the Mall.  If there were
disturbances or brawls occurring along the Mall, they were in other discrete
locations and had no bearing on the incident which caused injury to Mr.
Donaldson.

[37]

There is no evidence that the alleged inebriation
among the crowd on the mall contributed, in any way, to the incident in
question; moreover, there is a dearth of evidence that the inebriation of
either Mr. Donaldson or his assailant was a factor.  The preponderance of the
evidence establishes that the incident was, in essence, a single, unexpected
blow without precipitating events.  It began and ended within a split second.  It
remains unknown whether it was a deliberate or accidental blow.

[38]

There is no evidence that any other circumstance
peculiar to the outdoors on the night in question contributed to the incident.  For
example, the glass mug did not break against the pavement before it caused
injury, and Mr. Donaldsons assailant did not lose his footing because of icy
conditions, with the mug in his hand.

[20]

The trial judge was satisfied, on
a balance of probabilities, (a) that Mr. Briggs was [Mr. Donaldsons]
assailant; (b) that Mr. Briggs had been a patron of the Oktoberfest held at the
Commodore that night; and (c) that Mr. Briggs struck [Mr. Donaldson] with
a glass mug which Mr. Briggs carried out of the Commodore at the end of the
event:  para. 40.

[21]

The trial judge then turned to the
question of whether Pacific Promotions and the Commodore owed a duty of care to
Mr. Donaldson.  In so doing, he had regard to the leading authorities from the
Supreme Court of Canada:
Childs v. Desormeaux
, [2006] 1 S.C.R. 643, 2006
SCC 18;
Cooper v. Hobart
, [2001] 3 S.C.R. 537, 2001 SCC 79;
Stewart
v. Pettie
, [1995] 1 S.C.R. 131;
Jordan House Ltd. v. Menow
, [1974]
S.C.R. 239.  He also had regard to the decision of the House of Lords in
Anns
v. Merton London Borough Council
, [1978] A.C. 728.

[22]

Citing
Childs
, the trial
judge found that, as commercial hosts, Pacific Promotions and the Commodore
owned a
prima facie
duty of care to persons such as Mr. Donaldson:

[45]      In
the case at bar, the question is whether the proposed duty of care is analogous
to a previously recognized category of cases in which a duty has been
recognized.  The dicta in
Childs
supports the view that commercial hosts
owe a general duty to prevent foreseeable harm caused to third parties by their
guests, and that this proposition is not tied to motorists (as in
Stewart v.
Pettie
); rather, it covers all those who, as a class of persons, may come
into contact with the guest.

[46]      In
discussing commercial hosts in
Childs
, McLachlin C.J.C. states at para.
37:

In
these cases, the defendants offer a service to the general public that includes
attendant responsibilities to act with special care to reduce risk.  Where a
defendant assumes a public role, or benefits from a service to the public at
large, special duties arise.  The duty of a commercial host who serves alcohol
to guests to act to prevent foreseeable harm to third-party users of the
highway
falls into this category
:
Stewart v. Pettie
.

[Emphasis added by trial judge]

[47]      The
phrase falls into this category suggests that
Stewart
is but one
example of the broad proposition in the preceding lines.

[48]      In light of all the
foregoing, I conclude that the relational proximity that has been established
as between the commercial host and third-party users of the highway can be
extended by simple analogy to Mr. Donaldson, as pedestrian on Granville Mall.  The
proposed duty is not novel, and the
Cooper
/
Anns
test need
not be applied.  Specifically, I find that proximity is established and that
there are not sufficient policy reasons that serve to limit the scope of the
prima
facie
duty of care.
The only remaining issue at the duty of care stage,
then, is whether the injury to the plaintiff was reasonably foreseeable.

[Emphasis added]

[23]

Turning to foreseeability, the
trial judge stated the question he had to decide as whether it was reasonably
foreseeable, in all the circumstances, that a pedestrian on Granville Mall
would be injured by Mr. Briggs:  para. 51.  In answering this question no,
the trial judge, after reviewing the evidence with respect to staffing-levels
and what had been done at the Commodore to monitor alcohol consumption, stated:

[60]

In the absence of evidence of:  (a) knowledge of
actual consumption; and/or (b) signs of impairment which ought to have been
observed by the staff but, due to inadequacies in monitoring, were not, there
is an insufficient foundation for imputing knowledge of Mr. Briggs degree of
intoxication (whatever it might have been) to the commercial hosts.

[61]

The absence of actual or constructive knowledge that
Mr. Briggs was drunk is a circumstance which is, in my view, determinative of
the question of reasonable foreseeability of harm.  There can be no reasonably
foreseeable risk of harm to others and no required action on the part of the
commercial hosts in the absence of such knowledge.

[24]

However, the trial judge went on
to hold that even if Mr. Briggs had been over-served, and Pacific Promotions
and the Commodore knew or ought to have known that he was drunk, he would not
have found a duty of care because allowing Oktoberfest patrons to leave with
glass beers mugs did not create a foreseeable risk of harm to persons on
Granville Mall:

[65]
I
n relation to the glass mug, I would not draw a
distinction between it and innumerable other hard and/or sharp objects which
might pose a risk of harm if thrust into a vulnerable part of the human body.  Benign
objects such as ballpoint pens and keys could cause considerable harm if held
in the hand which struck a person in the face.  Glass mugs are not inherently
dangerous objects, even in the hands of persons whom are consuming liquor.  If
this were not so, then one would not expect to see such widespread and widely
accepted usage of glassware for the service of alcoholic beverages in bars,
nightclubs, and restaurants.

[66]

In
Stewart v. Pettie
the court held that a
commercial host has a duty of care to see that an intoxicated patron does not
drive.  As observed by McLachlin C.J.C. in
Childs
, a duty of care is
justified in such circumstances because the risks of impaired driving and
their consequences for motorists and their passengers are well known (at para.
28).  The same cannot be said about the risks and consequences of a drunken man
walking with a glass mug in his hand.

ANALYSIS

Duty of Care

[25]

In their respective submissions on
the duty of care issue, the parties focussed on whether injury from a beer mug
was reasonably foreseeable in the circumstances of this case.  As Mr. Donaldson
put it in his supplemental submissions, the general question is whether it was
reasonably foreseeable that letting patrons, including intoxicated patrons,
carry away unpackaged souvenir glass steins was likely to cause injury.  Not
surprisingly, Mr. Donaldson said the answer to this question is yes,
while Pacific Promotions and the Commodore say the answer is no.

[26]

By focussing on how Mr. Donaldson sustained
his injury, the parties have conflated the concept of foreseeability in a duty
of care analysis, and foreseeability in a standard of care analysis.  A similar
error was committed by the trial judge.  These are two different legal
concepts.  In determining whether A owes a duty of care to B, foreseeability is
a factor with respect to whether
the relationship between them
warrants imposing
such a duty.  The question is whether B falls within a class of persons who
could reasonably be expected to be harmed by As conduct.  If a duty of care is
found to exist, then foreseeability with respect to
the specific risk of harm
is considered in determining whether A was negligent, i.e., whether there has
been a breach of the standard of care.

[27]

The general nature of a duty of
care analysis is evinced in
Stewart
.  In paragraph 32, Mr. Justice Major
stated:

The
question of whether a duty of care exists is a question of the relationship
between the parties, not a question of conduct.  The question of what conduct
is required to satisfy the duty is a question of the appropriate standard of
care.

[28]

In support of this statement,
Major J. quoted with approval a passage from Fleming,
The Law of Torts
,
8th ed. (Sydney:  Law Book Co., 1992), which includes the following:

Duty is more appropriately reserved for the problem of whether the
relation between the parties (like manufacturer and consumer or occupier and
trespasser) warrants the imposition upon one of an obligation of care for the
benefit of the other, and it is more convenient to deal with individual conduct
in terms of the legal standard of what is required to meet that obligation.

[29]

This point is also made
in Osborne,
The Law of Torts
, 3rd. ed. (Toronto:  Irwin Law Inc., 2007)
at 70:

The foreseeability
requirement of a duty of care is more narrowly focused than the similar inquiry
in respect of the standard of care.  The essence of negligent conduct is
foreseeability of some damage.  The essence of a duty of care is foreseeability
of damage
to the

plaintiff
.  Negligence in the common law is a
relational concept.  A duty of care is not owed to the world.
It is owed
only to those whom the defendant might reasonably foresee as being adversely
affected by his failure to take care.
It is not, however, necessary that
the particular individual be foreseen so long as he belongs to a
class
of persons who might foreseeably be harmed if care is not taken.

[Italics in original; underlining added]

[30]

Hill v.
Hamilton-Wentworth Regional Services Board
, [2007] 3 S.C.R. 129, 2007 SCC 41, evinces the
principle that it is the general relationship between the alleged tortfeasor
and the injured party that is central to a duty of care analysis.  That case
involved the issue of whether Canadian law recognizes the tort of negligent
investigation, i.e., whether police owe a duty of care to persons under
investigation.  In finding that such a duty exists, Chief Justice McLachlin considered
foreseeability by examining the relationship between a police officer and his
or her suspect, without regard to the specific facts of that case:  paras. 21 -
27.  Further, although Madam Justice Charron dissented and would not have
recognized the tort of negligent investigation, she also found that the nature
of the relationship between investigator and suspect met the foreseeability
aspect of the duty of care analysis:  para. 118.  More recently, in
Mustapha
v. Culligan of Canada Ltd.
, [2008] 2 S.C.R. 114, 2008 SCC 27, a case in
which Mr. Mustapha sought to recover damages for a psychiatric injury he
suffered as a result of seeing dead flies in a bottle of water supplied by
Culligan, the question of whether Culligan owed a duty of care to Mr. Mustapha
was determined solely on the basis of their manufacturer-consumer relationship: 
paras. 6, 7.  See also:
Simpson v. Baechler
, 2009 BCCA 13 at
para. 29.

[31]

Turning to the case at
bar, in my view, the duty of care question is not whether a commercial host
owes a duty to third-parties to protect them from injuries caused by
intoxicated patrons who leave the hosts premises with souvenir beer mugs but,
rather, whether a commercial host owes a duty to third-parties to protect them from
alcohol-related injuries caused by intoxicated patrons.  Based on what the
Supreme Court of Canada has said about the duties of commercial hosts, the
answer to that question is yes.

[32]

As McLachlin C.J.
indicated in
Childs
(at para. 15), the first step in a duty of care
analysis is to determine whether the duty being claimed is a novel one, or if
it fits within, or is analogous to, a relationship previously recognized as
giving rise to a duty of care.  If the duty claimed fits within, or is
analogous to, a previously recognized one, then a duty of care will have been
established, without the need to apply the two-stage test set out by the House
of Lords in
Anns
.  This approach was reiterated in
Mustapha
,
where, in holding that the defendant (manufacturer) owed a duty of care to the
plaintiff (consumer), the Chief Justice stated:

[4]
The first
question to consider in an action for negligence is whether the defendant owed
the plaintiff a duty of care.
The question focuses on the relationship
between the parties.  It asks whether this relationship is so close that the
one may reasonably be said to owe the other a duty to take care not to injure
the other
:
Donoghue v. Stevenson
, [1932] A.C. 562 (H.L.).  Whether
such a relationship exists depends on foreseeability, moderated by policy
concerns:
Anns v. Merton London Borough Council
, [1978] A.C. 728 (H.L.)
.

[5]        In many cases, the relationship between the plaintiff and
the defendant is of a type which has already been judicially recognized as
giving rise to a duty of care.  In such cases, precedent determines the
question of duty of care and it is unnecessary to undertake a full-fledged duty
of care analysis.
As stated by A. M. Linden and B. Feldthusen,
categories of relationships that have been recognized and relationships
analogous to such pre-established categories need not be tested by the
Anns
formula
:
Canadian Tort Law
(8th ed. 2006), at p. 302;
Cooper v. Hobart
,
[2001] 3 S.C.R. 537, 2001 SCC 79, at paras. 35 - 36.

[6]        The
relationship between the parties in this case does not belong to a novel
category.  It has long been established that the manufacturer of a consumable
good owes a duty of care to the ultimate consumer of that good:
Donoghue v.
Stevenson
.  It follows that Culligan owed Mr. Mustapha a duty of care in
the supplying of bottled water to him.

[Emphasis added]

See also:
Design Services Ltd. v. Canada
, [2008] 1 S.C.R. 737, 2008 SCC 22 at para. 27.

[33]

It is noteworthy that Mr.
Justice Linden and Dean Feldthusen, at page 302 of their book,
Canadian Tort
Law
, state:

It must also be
remembered that not every new fact situation can be considered a new category
of case.
Duty is a general notion describing a class or type of case, not a
particular fact situation.
The minute details of impugned conduct is not the
stuff of duty but the task of the breach analysis.

[Emphasis added]

[34]

In my view, the Supreme
Court of Canada in
Stewart
determined that alcohol-serving commercial
host/third-party
is a category of relationship
that gives rise to a duty
of care.  In that case, a passenger in a motor vehicle was injured when the
driver, who had been drinking alcohol at a dinner theatre, lost control and
drove off the road.  As I read that case, it rests on an acceptance of the
proposition that alcohol-serving establishments owe a duty of care to persons
who may be harmed by intoxicated patrons.  This duty is not restricted to
third-party users of the highways.

[35]

The duty of care
analysis in
Stewart
is based on the neighbourhood principle first articulated
in
Donoghue v. Stevenson
, [1932] A.C. 562 (H.L.).  In
Stewart
,
Major J. reiterated this principle as follows (at para. 25):

[T]hat actors owe a duty of care to those whom they ought reasonably
have in contemplation as being at risk when they act.

[36]

Later, in
Stewart
,
Major J., after referring to
Jordan
House Ltd. v. Menow
, in which it was
held that alcohol-serving establishments owe a duty of care to their
intoxicated patron, said (at para. 28):

It is a logical step to move from finding that a duty
of care is owed to patrons of the bar to finding that a duty is also owed to
third parties who might reasonably be expected to come into contact with the
patron, and to whom the patron may pose some risk.

[37]

That the duty of care
recognized in
Stewart
is not restricted to third-party users of
highways, is evinced in the reasons of McLachlin C.J. in
Childs
:

37
The third situation where a duty of care
may include the need to take positive steps concerns defendants who either
exercise a public function or engage in a commercial enterprise
that
includes implied responsibilities to the public at large
:
Dunn v.
Dominion Atlantic Railway Co.
(1920), 60 S.C.R. 310;
Jordan House Ltd.
v. Menow
, [1974] S.C.R. 239;
Doe v. Metropolitan Toronto (Municipality)
Commissioners of Police
(1998), 39 O.R. (3d) 487 (Gen. Div.).  In these
cases, the defendants offer a service to the general public that includes
attendant responsibilities to act with special care to reduce risk.
Where a
defendant assumes a public role, or benefits from offering a service to the
public at large, special duties arise.  The duty of a commercial host who
serves alcohol to guests to act to prevent foreseeable harm to third-party
users of the highway falls into this category:
Stewart v. Pettie
.

[Emphasis added]

[38]

Like the trial judge in
the case at bar (see para. 22 above), I take Chief Justice McLachlin as having
accepted that commercial hosts who serve alcohol have a responsibility to protect
members of the public from their intoxicated patrons, and that those members of
the public who use the highways are a subset of this category.  However, as
already indicated, I do not agree with the trial judge that foreseeability with
respect to the manner in which a third-party was injured is part of the duty of
care analysis.  The policy rationale for imposing a duty of care on commercial
hosts arises from the profit-making nature of their activities, coupled with
the inherent dangers of intoxicants:
Childs
at paras. 18 - 22.  This reasoning
remains the same regardless of how a specific plaintiff came to be injured by
an intoxicated patron.  I, accordingly, agree with the following statement by
Mr. Justice Somers in
Haughton v. Burden
, [2001] O.J. No. 4704 (QL)
(S.C.J.):

[22]      The
common law imposes a duty on commercial hosts to take steps to see that
intoxicated patrons do not cause injury to themselves or others upon leaving
the premises. The standard of care required will vary depending on the
circumstances,

[39]

In conclusion, I find
that Pacific Promotions and the Commodore did owe a duty of care to protect persons
such as Mr. Donaldson from injury by patrons of Oktoberfest who left that event
intoxicated.

Standard of Care

[40]

As the trial judge
found that neither Pacific Promotions nor the Commodore owed a duty of care to
Mr. Donaldson, he did not find it necessary to pronounce on the standard of
care required of commercial hosts holding a beer-drinking event at which glass
mugs are taken away by patrons, or on whether that standard had been met.  At
the hearing of this appeal, and in their supplemental submissions, the parties
addressed this issue, parsing the trial judges reasons for factual findings to
support their respective positions.

[41]

Mr. Donaldson submits
that, as a matter of common sense, allowing glass beer mugs to be taken away
from a beer-drinking event creates a foreseeable risk that third-parties will
be injured by intoxicated patrons, particularly when patrons leave with several
mugs in their possession.  He further submits that Pacific Promotions and the
Commodore did nothing to manage or minimize that risk.  He says this is a case
of misfeasance, as the monitoring that did take place did not account for the
risks associated with allowing persons to leave with glass mugs, and did
nothing to control the carrying away of multiple beer steins by intoxicated
patrons.  Mr. Donaldson says it is simply a matter of good luck that no
one had been similarly injured at a previous Oktoberfest.

[42]

Pacific Promotions and
the Commodore submit that, unlike the risk of harm associated with drinking and
driving, the risk of injury from a souvenir glass beer mug taken away from an
event at which alcohol is served is not readily apparent. They point to the
lack of any previous incidents as evidence that the injury suffered by
Mr. Donaldson was not foreseeable, at least not in 1999.  They further say
that a glass beer mug is a benign object and that, in any event, there was an
adequate monitoring system in place.  They also rely on the fact that Mr.
Donaldson did not tender any evidence regarding the standard in the industry
with respect to an Oktoberfest-type event.

[43]

In my view, a full standard
of care analysis is unnecessary to the disposition of this appeal.  As I will
explain, as against Pacific Promotions and the Commodore, Mr. Donaldson failed
to adduce evidence with respect to Mr. Briggss drinking and conduct.  This
evidence was necessary to prove both a breach of the standard of care (i.e.,
negligence), and the element of causation.  Even if Pacific Promotions and the
Commodore were negligent in that their actions fell below the required standard
of care, evidence that Mr. Donaldsons injury would not have occurred but for
that negligence is lacking.

Lack of Proof of Breach of the Standard of Care

[44]

I have difficulty
accepting that the mere fact that a person who has been drinking leaves an
alcohol-serving establishment with glassware gives rise to a foreseeable risk
of harm to others.  However, assuming, without deciding, that (a) such a risk
exists, and (b) that the appropriate standard of care requires the
establishment to have a monitoring system in place to reduce that risk, the
establishment will only have failed to meet that standard if that persons
level of intoxication is sufficient to objectively raise concerns that he or
she may act, deliberately or carelessly, in such a way as to injure someone
with the glassware.  If the person was not in fact intoxicated to a level that
objectively raises such concerns, then regardless of what standard of care is
appropriate, a breach of that standard will not have occurred.  To conclude
otherwise would be to hold a commercial host to a standard of perfection, and
make it liable for the acts of its patrons regardless of their actual level of
intoxication.  Perfection, however, is not what the law requires.

[45]

In a commercial-host
case, the plaintiff must prove that the level of intoxication of the patron was
such that, in the circumstances, that person posed a foreseeable risk to
others.  The classic example is, of course, the highly intoxicated patron who
is allowed to get behind the wheel of a motor vehicle and drive away.  In the
case at bar, however, the evidence admissible against Pacific Promotions and
the Commodore is not capable of proving that Mr. Briggs, by reason of his
level of intoxication, posed a foreseeable risk to others when he left the
Commodore carrying a glass beer mug.

[46]

Mr. Briggs was not
called as a witness at trial.  However, as set out in paragraph 17 above, Mr.
Donaldson read-in some of the testimony Mr. Briggs gave at his examination
for discovery.  This as done pursuant to Rule 40(27)(a) of the
Rules of
Court
, B.C. Reg. 221/90, which provides:

If otherwise admissible, the evidence given on an examination for
discovery by a party  may be given in evidence at trial, unless the court
otherwise orders, but the evidence is admissible only against

(i)         the adverse party who was examined.

[47]

On the basis of the
evidence from the witnesses who were called to testify, including the police
officer who said Mr. Briggs was intoxicated to some unknown degree, it would be
reasonable to infer that Mr. Briggs attended Oktoberfest, and drank beer
there.  It would also be reasonable to infer, from the time and place of the
incident involving Mr. Donaldson, that Mr. Briggs left the Commodore at or near
2:00 a.m., when the event ended.  However, I agree with Pacific Promotions
and the Commodore that, by reason of Rule 40(27)(a)(i), the read-in evidence
from Mr. Briggss examination for discovery was only admissible against
Mr. Briggs, and cannot be used by Mr. Donaldson to support his claim against
them.  Because of this, there is no evidence admissible against Pacific
Promotions and the Commodore to establish that Mr. Briggs (a) drank six or
seven beers before he went to the Commodore, (b) arrived at the Commodore at or
near the beginning of the event, (c) drank eight to ten beers while there, or (d)
considered himself to be drunk when he left.

[48]

I am not suggesting
that when a plaintiff injured by an intoxicated patron alleges that a
commercial-host defendant was negligent, that it is necessary for the plaintiff
to show that the defendant had actual knowledge of the patrons level of
intoxication.  It is enough for the plaintiff to establish that the defendant
ought to have known of the patrons level of intoxication.  In this regard, I
agree with the following from
McIntyre v. Grigg
(2006), 274 D.L.R. (4th)
28 (Ont. C.A.) at para. 23:

Commercial vendors of alcohol
have an obligation to monitor a patrons consumption of alcohol and should have
protocols in place to ensure that all reasonable precautions are taken to
prevent such patrons who subsequently drive from becoming intoxicated to the
point where they cannot safely operate a motor vehicle.  Moreover, a commercial
host does not escape liability simply by
not knowing
that the patron
became inebriated before driving; the commercial host is liable if it or its
employees
knew or ought reasonably to have known
in the circumstances
that the patron was in such a condition.

[Italics in original]

[49]

In the context of a non-drinking-and-driving
fact pattern, I would reword the foregoing extract to read:

Commercial vendors of alcohol
have an obligation to monitor a patrons consumption of alcohol and should have
protocols in place to ensure that all reasonable precautions are taken to
prevent such patrons from
becoming intoxicated to the point where they pose
a foreseeable risk to third-parties
.  Moreover, a commercial host does not
escape liability simply by not knowing that the patron became inebriated engaging
in foreseeably dangerous conduct; the commercial host is liable if it or its
employees knew or ought reasonably to have known in the circumstances that the
patron
was in such a condition
.

[Emphasis added]

[50]

I have underlined
portions of the reworded extract to indicate that, to affix a commercial host
with liability, a plaintiff must establish that the patron was intoxicated to
the point where he or she posed a foreseeable danger to others.  If the patron
was not in such a condition, then there is nothing that the commercial host could
know, or ought to have known, that would require the host to take some action.

[51]

In this case, the
evidence adduced at trial, when viewed in a light most favourable to
Mr. Donaldson, is capable of proving only that Mr. Briggs was
intoxicated to some unknown degree when he left the Commodore.  This is not
sufficient to establish a breach of the standard of care by commercial hosts. 
Accordingly, notwithstanding the fact that the trial judge erred in dismissing
Mr. Donaldsons claim against Pacific Promotions and the Commodore on the
basis that they did not owe him a duty of care, that claim was bound to fail in
any event.

Lack of Proof of Causation

[52]

To paraphrase what
Major J. said in
Stewart
(at para. 59), an equally compelling reason to
dismiss this appeal flows from the absence of proof of causation.

[53]

A plaintiff must prove,
on a balance of probabilities, that the defendants impugned conduct actually
caused the loss complained off:
Stewart
at para. 60.  To do that, the
plaintiff bears the burden of showing that but for the negligent act or
omission of each defendant, the injury would not have occurred:
Resurfice
Corp. v. Hanke
, [2007] 1 S.C.R. 333, 2007 SCC 7 at para. 21; see also:
Bohun
v. Segal
, 2008 BCCA 23, 77 B.C.L.R. (4th) 85 at para. 53.

[54]

In the present case,
the evidence admissible against Pacific Promotions and the Commodore is capable
of proving only that Mr. Briggs drank some beer at Oktoberfest, left the event
carrying a glass beer mug and, for some unknown reason, raised his arm,
injuring Mr. Donaldson with that mug.  This, in my view, is not sufficient to
satisfy the but for causation test, as it would be speculation to infer that
alcohol was a factor in Mr. Briggss actions.  In other words, even assuming that
the monitoring system at the Commodore was inadequate, the evidence is not
capable of proving, on a balance of probabilities, that Mr. Donaldson would not
have been injured had a proper system been in place.

CONCLUSION

[55]

I would dismiss this
appeal.

The Honourable
Mr. Justice Frankel

I AGREE:

The Honourable Madam Justice Rowles

I AGREE:

The
Honourable Madam Justice Prowse


