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2003 CCLTMotionF 1466 Page

2003 CCLTMotionF 1466 View Motion Document Collection - 2003 CarsMotionW 1491

Motion Factum

Subject: Civil Practice and Procedure; Torts

Rules of Civil Procedure Rule 13.02 Date: September 11, 2003

Court document related to: Childs v. Desormeaux, 2003 CarswellOnt 3696, 44 C.P.C. (5th) 5 Childs v. Desormeaux, 2004 CarswellOnt 2001, 23 C.C.L.T. (3d) 216

Document appears as reproduced from court files, including any omissions or deficiencies arising from the reproduction process.

*****START OF COURT DOCUMENT*****

M3D222

Court File No: C-38836

Ontario Superior Court of Justice File: 99-0815

COURT OF APPEAL FOR ONTARIO

BETWEEN:

ZOE CHILDS, ANDREW CHILDS, PAULINE CHILDS, HEATHER LEE CHILDS and JENNIE KHRISTINE CHILDS

Plaintiffs/ Appellants

—and—

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DESMOND DESORMEAUX, JULIE ZIMMERMAN, THE DOMINION OF CANADA GENERAL INSURANCE COMPANY and THE GENERAL ACCIDENT ASSURANCE COMPANY OF CANADA and DWIGHT COURRIER

Defendants/ Respondents

WILLIAMS, McENERY Barristers & Solicitors

169 Gilmour Street OTTAWA, Ontario K2P 0N8

ERIC R. WILLIAMS (613) 237-0520 (613) 237-3163 Facsimile Solicitors for the Respondents Zimmerman & Courrier

FACTUM OF JULIE ZIMMERMAN and DWIGHT COURRIER

WILLIAMS, McENERY Barristers & Solicitors 169 Gilmour Street OTTAWA, Ontario K2P 0N8

ERIC R. WILLIAMS (613) 237-0520 (613) 237-3163 Facsimile

Solicitors for the Respondents Zimmerman & Courrier

TO:LERNERS LLP Barristers & Solicitors 130 Adelaide Street West Suite 2400, P.O. Box 95

TORONTO, Ontario M5H 3P5

KIRK F. STEVENS (416) 867-3076 (416) 867-9192 Facsimile

Solicitors for MADD Canada

AND TO:LAUSHWAY LAW OFFICE 214 King Street W., Box 190 PRESCOTT, Ontario K0E 1T0

BARRY D. LAUSHWAY (613) 925-5991 (613) 925-4533 Facsimile

Solicitors for the Plaintiffs/Appellants

AND TO:BELL, BAKER Barristers & Solicitors 500-116 Lisgar Street OTTAWA, Ontario K2P 5H1

HELMUT R. BRODMANN (613) 237-3444 (613) 237-1413 Facsimile

Solicitors for the Defendant, Desormeaux

TABLE OF CONTENTS

PART I—OVERVIEW ...... 1

PART II—FACTS ...... 2

(a) Decision of Chadwick J ...... 2

(b) The Issues ...... 5

PART III—ISSUE AND ARGUMENT ...... 6

SCHEDULE "A" ...... 10

Court File No: C-38836 Ontario Superior Court of Justice File: 99-0815

COURT OF APPEAL FOR ONTARIO

BETWEEN:

ZOE CHILDS, ANDREW CHILDS, PAULINE CHILDS, HEATHER LEE CHILDS and JENNIE KHRISTINE CHILDS Plaintiffs/ Appellants —and— DESMOND DESORMEAUX, JULIE ZIMMERMAN, THE DOMINION OF CANADA GENERAL INSURANCE COMPANY and THE GENERAL ACCIDENT ASSURANCE COMPANY OF CANADA and DWIGHT COURRIER Defendants/ Respondents FACTUM OF THE RESPONDING PARTIES, JULIE ZIMMERMAN AND DWIGHT COURRIER

Part I OVERVIEW

1. MADD Canada brings this motion for leave to intervene in an appeal to this Court from a decision of Chadwick J. given in a private negligence matter involving social host liability. The Appellant seeks to overturn Chadwick J. decision and to have the Respondents found liable on the basis of breach of a duty of care of "social host". The distinction between this motion and other reported intervenor decisions is that MADD has placed its position on the record at traial, having been called as a witness for the Appellant. thus, MADD's position, from an evidentiary perspective, is available to this Court through the transcript evidence. If intervenor status is granted, MADD will be in the highly unusual position of being a witness in, the proceeding and at the appeal, presumably, advocating its own evidence. Further, the "assistance" to the Court sought to be offered by MADD is already being made by the Appellant. It is clear that MADD's "assistance" is entirely aligned with that of the Appellant.

Part II THE FACTS

A) THE DECISION OF CHADWICK J.

2. On January 1, 1999, Zoe Childs was injured in an automobile accident caused by the co-Defendant, Desmond Desormeaux, who was intoxicated at the time. Prior to the accident, Mr. Desormeaux had consumed alcoholic beverages he

had brought to a quiet New Year's Eve party held at the home of the Respondents to this appeal, Julie Zimmerman and Dwight Courrier. 3. Zoe Childs pursued and received compensation from various insurance carriers and, following those settlements, continued her action against the drunk driver, Desmond Desormeaux, and the alleged social hosts, Julie Zimmerman and Dwight Courrier. 4. By agreement between counsel, the trial before Chadwick J. dealt only with the liability of the social hosts. The damages of Zoe Childs have yet to be assessed. 5. At trial, the issue of whether or not there was a duty of care of social host in Canada was squarely raised. Chadwick J. recognized that consistent with the Supreme Court of Canada's decisions in Cooper v Hobart and Hall v Hebert, evidence of public policy might be relevant to any decision he may make. Cooper v Hobart, [2002] 206 D.L.R. (4th) 193 (S.C.C) Hall v Hebert, (1993), 2 S.C.R. 159 Reasons for Judgment of Chadwick J., Tab 1, Moving Party's Supplementary Motion Record, paragraphs 87, 90, and 108 6. The trial judge was aware of the purpose of MADD's evidence. At trial, during Mr. Andrew Murie's testimony (MADD's National Executive Director) the trial judge ruled that MADD's public service announcement and educational videos were receivable. Chadwick J. stated the following:

The Plaintiff seeks to expand the common law to make social host liable for the guest who drink and drive and are involved in accidents. In order to expand the tort the Plaintiff must establish public policy as a second part of the Ans (ph) test. Mr. Murie's evidence is directed towards the second part of the Ans test, namely public policy.

Under the circumstances I find the audios and videos are admissible to support MADD's public policy.

Transcript of Evidence of Andrew Murie, Exhibit "A" to the Affidavit of Jaye Hooper at page 64. 7. At trial, in addition to giving evidence of public policy for the Appellant, MADD was also called upon to address the public policy evidence of the Respondents. For example, knowing that the Respondents intended to lead evidence regarding the LCBO and Ontario Government's promotion of alcohol consumption in social settings, the Appellant led evidence through Mr. Murie of the LCBO and government sponsored programs that address impaired driving. Transcript of Evidence of Andrew Murie, Exhibit "A" to the Affidavit of Jaye Hooper at pages 29-30, 32-33, 40. 8. Thus, the policies and positions of MADD Canada, insofar as it is relevant to this proceeding, are part of the evidence at trial and available for this Court having already been tested by cross-examination. 9. In his reasons, broadly stated, Chadwick J. held that the public policy evidence he accepted mitigated against common law courts promulgating a duty of social host. In so doing, he implicitly rejected the policy evidence of MADD Canada. MADD Canada's policy evidence at trial favoured establishing a tort of social host liability in Canada consistent with their evidence of public "policy". Reasons for Judgment of Chadwick J., Tab 1, Moving Party's Supplementary Motion Record, paragraph 138

B) THE ISSUES

10. The issues in this appeal are: (a) Is social host a novel tort such that a consideration of public policy is necessary? (b) Did the Court below correctly consider public policy? (c) Absent issues of public policy, did the Court below correctly state the duty of care and apply it to the facts at hand? Appellant's Factum, pages 6-26 11. MADD's leave to intervene is sought on two grounds: (a) MADD has a substantial and direct interest in any proceeding that may affect impaired driving in Canada; (b) MADD has significant expertise on alcohol related civil liability. Affidavit of Louise Knox at paragraph 11, Moving Party's Motion Record, TAB 3, page 14, paragraph 21 12. In this motion MADD proposes to speak to all of the issues set out in paragraph 10. In this context they will be directing their submissions in a private litigation to an outcome that is favourable to the Appellant but unfavourable to the Respondent. Transcript of Evidence of Andrew Murie, Exhibit "A" to the Affidavit of Jaye Hooper at pages 66, 68

Part III ISSUE AND ARGUMENT

13. MADD seeks intervenor status as amicus curiae. Amicus curiae is defined as follows:

A friend of the Court. A term applied to a bystander, who without having an interest in the cause, of his own knowledge makes suggestion on a point of law or fact for the information of the presiding judge. Abbott's Dictionary of Word's and Phrases as cited in Krislov, Samuel "The Amicus Brief: From Friendship to Advocacy" Yale Law Journal. 1963, Vol. 72, at 694

14. In this case, MADD has an "interest" in the cause and can not be said to be a bystander possessing the requisite impartiality when making submissions to the Court. Clearly, a witness called by one side, who criticizes the evidence of the other side in a private dispute, could never be said to be impartial in acting as a "friend of the Court".

15. In reality, denying MADD intervenor status causes no injustice. The Appellant in argument, will place MADD's position before the Court. In this context, the proposed intervenor (MADD) has placed its position before the Court on an evidentiary basis, more forcefully than it _could in normal circumtances, by simply making arguments to the appellant court in respect of the evidence at trial.

16. It is submitted that Courts have long held that one cannot be an advocate and a witness in the same proceeding. The rule exists because of the unseemliness of an advocate urging the Court to accept (or perhaps even not accept) his or her own evidence. The role of advocate and witness are separate and in conflict.Strobridge v. Strobridge, [1994] 115 D.L.R. (4th) 489 at 499 (O.C.A.)

17. The "Intervenor Rule", Rule 13.02 is as follows:

13.02 "Any person may, with leave of a judge or at the invitation of the presiding judge or master, and without becoming a party to the proceeding, intervene as a friend of the court for the purpose of rendering assistance to the court by way of

argument." Rule 13.02 of the Rules of Civil Procedure

18. The closing words of Rule 13.02 "rendering assistance to the Court by way of argument" make it clear that the intervenor is an advocate only, and is not (to put the reverse) "rendering assistance to the Court by way of evidence."

19. In granting leave to intervene, this Court has conceptualized a private public continuum within which to frame its discretion to grant leave to intervene, placing a heavier burden on the moving party incases that are closer to the private dispute end of the spectrum. Here, this case is a negligence lawsuit between private individuals and as such, is closer to the private dispute end of the spectrum. In that context this Court has said:

Intervention of third parties into essentially private disputes should be carefully considered as any intervention can add to the costs and complexity of litigation, regardless of an agreement to restrict submissions. Authorson (Litigation Guardian of) v. Canada (Attorney-General), [2001] O.J. No. 2768 (C.A.)(cited to QL at paragraphs 8 and 9)Peixeiro v. Haberman, (1994), 20 O.R. (3d) 666 (Gen. Div.)

20. In private matters, the role of intervenor has been defined as protector of rights or advisor to the Court.Scriven and Muldoon. "Intervention as a Friend of the Court: Rule 13 of the Ontario Rules of Civil Procedure" Advocates' Quarterly, vol. 16, 1985-86. Page 448 at 464

21. Protector of rights does not apply to MADD. This role is meant for parties who may not be able to properly represent themselves for any number of reasons (i.e. the role of Attorney-General in taking on cases, legal aid for the less fortunate, or the appointment of a litigation guardian under the Mental Health Act or some other statute).IBID at page 465

22. Advice to the Court is the most common ground for granting leave to intervene as Amicus Curiae. Simply put, MADD has already advised the Court by way of its evidence below. There is no suggestion that the Appellant will overlook any legal or practical problem and will not assert any legal or practical problem that is somehow unique and only capable of being asserted by MADD.IBID at page 464

23. Finally, MADD is in a conflicted_position. It asserts its right to intervene based on the broad policy knowledge it has concerning the subject matter of the dispute. At the same time, however, it wishes to argue that the social host tort is not "novel" so the Court ought not to have even considered policy issues in the first place.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

September 11, 2003

...... ERIC R. WILLIAMS

COUNSEL FOR THE RESPONDENTS, JULIE ZIMMERMAN AND DWIGHT COURRIER

END OF DOCUMENT

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