IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140529

Docket: S103330

Registry:
Vancouver

Between:

Marinko Stipan
Maras

Plaintiff

And

Seemore
Entertainment Ltd., Sea to Sky Hospitality Inc.,
Joseph Mario Ghattas, Constantino Stefanopoulos, Wayne Litz,
Maxwell Yip and Christopher Childs

Defendants

Before:
The Honourable Mr. Justice Abrioux

Oral Decision Regarding Jury Instructions

I: INTRODUCTION

[1]            
This action arises out of an incident that is alleged to have occurred
at or near the Au Bar nightclub, located at 674 Seymour Street in Vancouver,
B.C., on April 4, 2009 (the “Incident”). The trial with a jury commenced on
April 7, 2014.

[2]            
The jury rendered its verdict on June 9, 2014. Accordingly, I am now
releasing this ruling.

[3]            
I have provided counsel with a draft of my instructions to the jury (the
“Draft”). As I indicated to them during the course of the trial, I included in
the Draft instructions relating to certain issues on which I appreciated there
was no agreement between counsel.

[4]            
I received submissions on May 27 and 28, 2014. I advised counsel of what
would be contained in my final instructions prior to their submissions to the
jury, which are scheduled to take place today, May 29, 2014.

II: ISSUES

[5]            
The principal issues are whether there should be an instruction to the
jury with respect to:

(a)           
mitigation;

(b)           
contributory negligence;

(c)           
provocation in relation to the intentional act/assault allegation;

(d)           
in the event liability is found against one or more of the defendants,
whether the jury should apportion liability as between that/those defendant(s)
absent a finding of contributory negligence;

(e)           
the Occupier’s Liability Act, R.S.B.C. 1996, c. 337 [OLA];

(f)             
the effect in law of the plaintiff’s subsequent concussion in March 2010
on the injuries sustained by the plaintiff arising from the Incident; and

(g)           
the rough upper limit pertaining to non-pecuniary damages.

[6]            
As well, some other issues arose during submissions. I will comment on
them below.

[7]            
By the conclusion of submissions, counsel for the defendants advised
that the defence was no longer seeking an instruction with respect to the
plaintiff’s alleged failure to mitigate his damages. Counsel for both parties agreed
that this issue should not be before the jury.

[8]            
The defence also agreed that the injuries arising from the Incident made
the plaintiff more vulnerable to the effects of a further brain injury, i.e. the
concussion he sustained in March 2010. The defendants agree that since this concussion
constitutes a non-tortious subsequent event, to the extent any of the
defendants are found liable for the Incident, then it/he/they will be
responsible for those damages arising from the aggravation of the plaintiff’s injuries
caused by the March 2010 concussion.

[9]            
Accordingly, I will provide an instruction to this effect to the jury.

[10]        
Counsel for the defendants also stated that he would be able to advise
the court later today of the defence position with respect to the apportionment
of liability as amongst any defendant(s) found liable, absent a finding of
contributory negligence on the plaintiff’s part by the jury. Counsel for both parties
agreed that they did not need to be advised as to whether there would be an
instruction on this issue prior to making their closing submissions to the
jury.

III: CONTRIBUTORY NEGLIGENCE AND PROVOCATION

[11]        
Insofar as contributory negligence and provocation are concerned, I have
considered counsel’s submissions within the context of the following
principles:

(a)           
my task is to determine whether there is any evidence on which the jury,
properly instructed and acting reasonably, could find for the plaintiff as
against the defendants on the issues in question;

(b)           
if there is direct evidence on an issue, I am not to weigh the evidence,
but only to consider whether it meets the threshold of reasonableness such that
the jury, properly instructed, could make the requisite finding;

(c)           
in the case of elements of a cause of action supported solely by
circumstantial evidence, I should engage in a limited weighing of the evidence
to ensure that it is reasonably capable of bridging the inferential gap between
the evidence proffered and the element to be proved;

(d)           
the judge does not decide whether the jury will accept the evidence, but
rather whether the inference that the party seeks in its favour could be drawn
from the evidence adduced, if the jury chose to accept it;

(e)           
it is for the judge to determine whether there is some evidence on each
element of the cause of action required to be proved by the party; it is for
the jury to determine whether that evidence is sufficient to justify a verdict
for the party on that issue;

(f)             
“mere speculation” does not constitute evidence which meets the standard
of reasonableness; and

(g)           
the test in terms of the threshold is a low one.

See Roberge v. Huberman, 1999 BCCA 196 at paras. 31-36,
cited in Stuart v. Hugh, 2011 BCSC 427 at paras. 4-10, and Latkin v.
Vancouver (City), 2013 BCSC 2270 at paras. 4-7.

[12]        
When I apply these principles to the circumstances of this case, I conclude
that there should be instructions to the jury with respect to both contributory
negligence and provocation.

IV: THE OCCUPIER’S LIABILITY ACT

[13]        
Insofar as the OLA is concerned, my inclusion of an instruction
in the Draft was made without the benefit of submissions, and was not intended
to be determinative. Rather, it was to “set the stage” in the event I
concluded, following submissions, that such an instruction was appropriate and should
be given to the jury.

[14]        
The plaintiff’s position is that the defendants may be liable for a
breach of the duty of care under both the common law of negligence and the OLA.

[15]        
He submits that pursuant to s. 3 of the OLA, occupiers of
nightclubs have a duty to take reasonable steps to protect their patrons from
injuries. On the facts of this case, he says that the definition of “premises”
in the OLA extends to the stanchions and roped off areas put in place by
Seemore Entertainment Ltd. (“Seemore”). He argues that the nightclub knew the
lineups could extend some distance on Seymour Street. Further, the roped off
areas in question were in place not only to provide an orderly method for
patrons to gain entrance to the nightclub, but also for the public to safely
walk by the lineups.

[16]        
He also submits that Seemore’s contractual obligations under its lease,
which relate in part to lineups, substantiate his position on this issue.

[17]        
Seemore’s position is that it is not an “occupier” as defined in s. 1 of
the OLA in relation to the portions of the sidewalk where the stanchions
and roped off areas were located.

[18]        
Seemore submits that the only area to which the OLA applies
beyond the body of the nightclub itself is the immediate area outside the front
doors, where the doormen were located. This is depicted in Exhibits 6 and 7 as
the area extending from the front doors to the property line, but not beyond.

[19]        
It also submits that, on the facts of this case, any instruction
pursuant to the OLA is unnecessary. That is because, even if there was a
duty on it pursuant to the OLA, the same duty also exists under the common
law of negligence.

[20]        
I was referred by counsel to many authorities on this issue. In my view,
none of them are analogous to the circumstances of this case.

[21]        
This is not a situation, for example, like that in Lysack v. Burrard
Motor Inn (1991), 58 B.C.L.R. (2d) 33 (C.A.), relied on by the plaintiff. The
plaintiff in that case was injured when he tripped and fell on public property due
a trip hazard adjacent to a “decorative area” in front of the defendant Inn,
which was delineated by three planters. The planters made it impossible for the
plaintiff pedestrian to continue straight to the corner. Instead, he was
required to veer or move to the right towards the trip hazard, which the Inn
knew existed.

[22]        
In this case, the stanchions and rope that linked them were not
permanent in nature. Nor were members of the public steered towards them in any
way. There was also no bylaw or other law or regulation in place governing the
use of the stanchions.

[23]        
In reaching a conclusion on this issue, I am assisted by the reasoning of
Madam Justice Baker in Gardner v. Unimet Investments Ltd. (1995), 4
B.C.L.R. (3d) 375, aff’d (1996), 19 B.C.L.R. (3d) 196. In Gardner, Baker
J. considered whether the alleged occupier was in physical possession of the
city sidewalk. She concluded that the defendant was not responsible for and did
not have control over the sidewalk. Accordingly, it was not an “occupier” under
the OLA.

[24]        
I have reached the same conclusion on the facts of this case. As a result,
I conclude that Seemore was not an occupier of the sidewalk on Seymour Street
beyond the property line of the premises it leased.

[25]        
In the alternative, if I am in error in reaching this conclusion, I
accept Seemore’s submission that any duty owed by it to its patrons or, for
that matter, ex-patrons (i.e. the situation in which the plaintiff found
himself at the time of the Incident), is encompassed in its common law duty of
care. To provide a separate instruction to the jury on the OLA would be superfluous
and may lead to confusion on its part. Accordingly, I will not be providing an
instruction to the jury with respect to Seemore’s potential liability pursuant
to the provisions of the OLA.

V: THE ROUGH UPPER LIMIT FOR NON-PECUNIARY DAMAGES

[26]        
I now turn to the issue of whether there should be an instruction on the
upper limit for non-pecuniary damages.

[27]        
In appropriate cases, the trial judge may advise the jury that, as a
matter of law and policy, there is an upper limit for an award of non-pecuniary
damages: ter Neuzen v. Korn, [1995] 3 S.C.R. 674 at para. 111. One of
the reasons for doing so is to prevent the jury from falling into error with
respect to its assessment of damages.

[28]        
Non-pecuniary damage awards are not solely dependent on the gravity of the
injury. The assessment of this award is made using a functional approach. As
stated by Mr. Justice Groves in Aberdeen v. Township of Langley, Zanatta,
Cassels, 2007 BCSC 993 at para. 184, var’d on other grounds 2008 BCCA 420:

[184]    … The B.C. Court of
Appeal has made it clear that in cases of “severe personal injuries” there is
no basis for making fine distinctions between different types of severe
injuries. Any case with devastating injuries qualifies for the upper limit of
non-pecuniary damages, notwithstanding that there may be even more severe cases
receiving the same damages.

[29]        
The plaintiff’s position is that there is a considerable body of
evidence in this case from which the jury could conclude that the injuries
sustained by him were devastating or severe. Although he has no ongoing
physical difficulties resulting from the Incident, the psychological and
psychiatric injuries, if the jury accepts his theory of the case, justify this
instruction.

[30]        
The defendants’ position is that that the plaintiff’s injuries could not
possibly result in an award anywhere close to the upper limit. Accordingly, to
provide this instruction runs the risk of the jury awarding a higher amount
under this head of damages than it otherwise would have had the instruction not
been given. They rely on the following statement from Moskaleva v. Laurie,
2009 BCCA 260 at para. 94:

[94]      … A jury should be
instructed on the rough upper limit only if the non-pecuniary award is
anticipated to exceed that limit. In all other cases the jury assesses
non-pecuniary damages in this Province without reference to the rough upper
limit: [citations omitted].

[31]        
I agree with the plaintiff’s submission. If the jury accepts his theory
of the case, insofar as the devastating or serious consequences of the injuries
he sustained in the Incident are concerned, then there is a real risk that its
award under this head of damages could exceed the rough upper limit. In other
words, I conclude that if the plaintiff’s submissions with respect to
non-pecuniary damages are accepted or largely accepted by the jury, then it is reasonably
anticipated that its award could exceed the rough upper limit.

[32]        
I note that much of the lay evidence led by the plaintiff through his
mother and brother, amongst others, as to the consequences of his injuries was
not tested on cross-examination.

[33]        
Accordingly, I will instruct the jury on the rough upper limit.

VI: OTHER ISSUES

[34]        
The plaintiff also submits that I should instruct the jury that as a
general principle, relatives should not be expected to provide gratuitous help
to an injured person without compensation. Furthermore, the law does not permit
the defendants to “pass off” their responsibility to provide appropriate future
care by suggesting that the plaintiff can and should rely on his family to take
care of him: Cojocaru (Guardian Ad Litem) v. British Columbia Women’s
Hospital, 2009 BCSC 494 at para. 306.

[35]        
There is a CIVJI instruction on this issue; however, its wording is not
entirely appropriate in the circumstances of this case. I will provide an
instruction to the jury which, in my view, is applicable here.

[36]        
I now turn to the proposed instruction relating to the claim for past
loss of earning capacity. The paragraphs included in the Draft are somewhat
different than those found in CIVJI.

[37]        
I will charge the jury in accordance with what is set out in the Draft. These
words are taken virtually verbatim from the decision of the Court of Appeal in Rowe
v. Bobell Express Ltd., 2005 BCCA 141 at paras. 30-31.

VII: QUESTIONS FOR THE JURY

[38]        
I will now turn to the submissions on the draft questions for the jury.
I will defer the question pertaining to an apportionment of liability as
amongst the defendants until the defence has finalized its position with
respect to contributory negligence.

[39]        
The plaintiff submits that in both the negligence and intentional act
questions, the jury should be provided with the opportunity to find liability
against “unidentified employees of Seemore Entertainment Ltd.”, in addition to
the named defendants.

[40]        
They rely on Reimer v. Rooster’s Country Cabaret Ltd., 2013 BCSC
2211. There, Mr. Justice Jenkins found liability vis-à-vis unidentified
security personnel who were involved in an assault. He stated that the “evidence
is not clear as to which of the other security personnel were also involved in
the assault” (para. 45). He found the defendant Cabaret vicariously liable “for
the negligence of their staff and, as they admitted at trial, for the assault
and battery inflicted by Mr. Turnau and the other security staff” (para.
67). I emphasize the words “the other security staff”.

[41]        
In this case, however, there is no evidence that any of the other doormen
apart from Messrs. Ghattas, Stefanopoulos, Litz or Yip, were allegedly
negligent or committed an assault on the plaintiff outside the nightclub. To
refer to “unidentified employees” of the defendant Seemore on the question
sheet would be unnecessary and, in my view, may confuse the jury.

[42]        
Finally, the defendants submit that there should not be a separate
question pertaining to the alleged vicarious liability of the defendant
Seemore.

[43]        
I disagree. Reimer at para. 67 is authority for the proposition
that the issue of vicarious liability is one which should properly be before
the jury in this case:

[67]      … The security personnel were doing the type of
task they were hired to do and with instructions from [the assistant manager].
The security staff were clearly working in the course of their employment of
Rooster’s and the assault was sufficiently connected to the job description of
the security staff so as to find Rooster’s liable under the tests set out in [K.B.L.
v. British Columbia, 2003 SCC 51].

[44]        
This concludes my decision with respect to the instructions I will
provide to the jury and the question sheet they will be asked to answer.

[45]        
There is only one additional issue that remains outstanding at this time,
being the specific instructions on contributory negligence/apportionment of
liability as identified above. Defence counsel will advise me of his position with
respect to this issue later today.

“Abrioux
J.”