COURT OF
APPEAL FOR BRITISH COLUMBIA

Citation:

British
  Columbia Teachers' Federation v. British Columbia Public School Employers'
  Assn.,

2009 BCCA 39

Date: 20090204

Docket: CA034975; CA034982

Docket: CA034982

Between:

British
Columbia Teachers Federation

Appellant

(
Petitioner
)

And

British
Columbia Public School Employers Association and

Attorney
General of British Columbia

Respondents

(
Respondents
)

And

Business
Council of British Columbia

Intervenor

- and -

Docket: CA034975

Between:

Hospital
Employees Union

Appellant

(
Petitioner
)

And

Health
Employers Association of British Columbia and
Attorney General of British Columbia

Respondents

(
Respondents
)

And

Business
Council of British Columbia

Intervenor

Corrected Judgment:  The text of the
judgment was corrected
at paragraphs [9], [13], [17], and [59] on June 19, 2009

Before:

The Honourable Mr. Justice Mackenzie

The Honourable Madam Justice Levine

The Honourable Mr. Justice Frankel

J. Rogers, Q.C.
and M. Brown

Counsel for the British Columbia Teachers
  Federation

C. Boies Parker

Counsel for the Hospital
Employees Union

K. Murray

Counsel for the British Columbia  Public
  School Employers Association

G.H. Copley, Q.C.
E.W. Hughes and
K. Wolfe

Counsel for the Attorney General of British Columbia

E. Harris, Q.C.

Counsel for the Health Employers Association
  of British Columbia

E.F. Miller

Counsel for the British Columbia Labour
  Relations Board

D. Sartison
and B. Korenkiewicz

Counsel for the Business Council of
  British Columbia

Place and Date of
  Hearing:

Vancouver, British Columbia

12-14 November 2008

Place and Date
  of Judgment:

Vancouver, British Columbia

4 February 2009

Written
  Reasons by
:

The Honourable Mr.
  Justice Mackenzie

Concurred in
  by:

The Honourable Madam
  Justice Levine

The Honourable
  Mr. Justice Frankel

Reasons for
Judgment of the Honourable Mr. Justice Mackenzie:

[1]

The appellants British
Columbia Teachers Federation (BCTF) and Hospital Employees Union (HEU)
challenge the definition of strike in s. 1 of the British Columbia
Labour
Relations Code
, R.S.B.C. 1996, c. 244 (the
Code
) on the ground
that it restricts their ability to engage in political protests and thereby infringes
their rights under s. 2 of the
Canadian Charter of Rights and Freedoms,
Part
I of the
Constitution Act, 1982
, being Schedule B to the
Canada
Act 1982
(U.K.), 1982, c. 11.  The main challenge to the definition of
strike is based on the right to freedom of expression under s. 2(b) of the
Charter
but BCTF also advances submissions under ss. 2(c) and 2(d).

[2]

The BCTF and HEU staged
work stoppages to protest legislation interfering with their conditions of
employment.  The work stoppages went ahead notwithstanding anticipatory
declarations of the Labour Relations Board (the Board) that the intended work
stoppages were strikes that contravened s. 57 of the
Code
.  The
appellants
Charter
challenges followed.  The appellants essentially
define a protest work stoppage as one directed at government action, in these instances
legislation, as distinguished from collective bargaining work stoppages aimed
at their direct public sector employers.  For convenience I will refer to them
as protest strikes and collective bargaining strikes.

[3]

The definition of
strike in s. 1 of the
Code
was amended in 1984 to include all concerted
work stoppages that restrict production or services.  Previously the definition
had been limited to strikes for a collective bargaining purpose.  In short, the
amendment replaced a purpose based definition of strike with an effects
based definition, thereby extending it to include protest strikes.  Section 57
of the
Code
prohibits strikes during the term of a collective agreement,
referred to as mid-contract strikes.

[4]

For the reasons that
follow, I have concluded that the effect of the strike definition infringes the
freedom of expression guaranteed by s. 2(b) of the
Charter
but the
infringement is justified under s. 1.  There is no infringement of s. 2(c) or
s. 2(d).

Adjudicative Facts

[5]

On Friday, 25 January 2002, the
provincial government introduced three bills in the Legislature imposing a
collective agreement on the BCTF and modifying the terms of the HEUs
collective agreement.  The three bills, Bill 27,
Education Services
Collective Agreement Act
, 2nd sess., 37th Parl., British Columbia, 2002 (Bill
27), Bill 28,
Public Education Flexibility and Choice Act
, 2nd sess.
37th Parl., British Columbia, 2002 (Bill 28

), and Bill 29,
Health
and Social Services Delivery Improvement Act
, 2nd sess., 37th Parl.,
British Columbia, 2002 (Bill 29), were passed by the Legislature and became
law on Monday, 28 January 2002.  Bill 27 and Bill 28 designated education
as an essential service and precluded school boards and teachers from
bargaining class sizes as well as overriding other existing contractual
rights.  Bill 29 modified the terms of HEUs existing collective agreement to
allow contracting out of work and restricting bumping and layoff rights.

[6]

The BCTF work stoppage occurred on
28 January 2002, the date Bills 27 and 28 were enacted.  The HEU work stoppage
occurred on the anniversary date one year later, 28 January 2003.  Both one day
stoppages contravened interim orders of the Board enjoining the work stoppages
obtained by the respective employer respondents, the British Columbia Public
School Employers Association (BCPSEA) and the Health Employers Association
of British Columbia (HEABC).

[7]

The circumstances of the BCTF
protest were summarized by Vice-Chair Saunders of the Board in his original
decision on the legality of the work stoppage: BCLRB No. B92/2004 (19 March
2004), at para. 10 (the BCTF Original Decision).  Teachers throughout British
Columbia engaged in a concerted withdrawal of services following a request not
to attend work by the BCTF.  A large majority of teachers chose not to attend
work, leading to widespread disruption of classes.  The large majority of
students in the public school system did not receive instruction that day.
Teachers participated in protest rallies and demonstrations across the Province
but schools were not picketed.  Participation by teachers was voluntary and no
disciplinary action was taken by the BCTF against non-participating teachers.
Teachers who did participate were paid $50 from the BCTF Collective Bargaining
Defence Fund.  The BCTF Original Decision (at para. 185) estimated that
hundreds of thousands of students were likely affected and inferred that
thousands of parents of young children would have had to make alternative
arrangements for supervision.  Vice-Chair Saunders declined to draw any
inference as to the extent of serious parental inconvenience or hardship in the
absence of evidence on that point.

[8]

The work stoppage by the HEU
members one year later was the subject of a separate hearing and decision by
Vice-Chair OBrien: BCLRB No. B64/2004 (24 February 2004) (the HEU Original
Decision).  The parties filed an agreed statement of facts which summarized
the context of the protest and the details of the concerted work stoppage.  At
about 6:00 a.m., without notice, HEU members put up picket lines at
healthcare facilities in the Lower Mainland.  The HEU directed members
reporting for the morning shift into work to provide essential service levels
generally as determined by the Board for a 2001 healthcare dispute.  HEU
members not designated essential were directed not to report for work and they
converged for a protest rally at Vancouvers Plaza of Nations.  There were some
instances of picket line intimidation and at least one instance where a car
driven by a management employee was banged on by fists, as it entered
Childrens & Womens Hospital.  As a result of the work stoppage and picket
lines, elective surgeries were cancelled and services to patients were
disrupted.  Patients, physicians and non-HEU staff had difficulty gaining
access to hospitals and delivery of hospital supplies, including
pharmaceuticals and oxygen, was impeded.  Picket lines came down shortly after
noon and the work stoppage ended by the commencement of the afternoon shift at
4:00 p.m.

The Procedural History

[9]

The Board issued its interim
orders on an expedited basis in advance of the work stoppages, deferring a
hearing on the merits.  The BCTF and the HEU raised the
Charter
challenge to the definition of strike and the Supreme Court directed that the
constitutional issues be addressed first by the Board.  The Board held separate
hearings resulting in the HEU Original Decision and the BCTF Original Decision,
upholding the injunctions.  The BCTF and the HEU applied to the Board for
reconsideration.  The Board granted leave and, following a hearing before a
three member panel, dismissed the applications in a decision indexed at BCLRB
No. 395/2004 (17 December 2004) (the
Reconsideration Decision
)
,
Associate Chair Fleming
dissenting with respect to the BCTF order.

[10]

Both the BCTF and the HEU
petitioned for judicial review of the Boards orders.  The petitions were heard
together by the chambers judge.  They were dismissed with reasons dated 20
March 2007, indexed at 2007 BCSC 372.

[11]

The reasons of the several Board
members and the chambers judge varied on the
Charter
issues.  Both
original decisions characterized the work stoppages and related activity as
political protests that were strikes as defined by the
Code
and, as
mid-contract strikes,
prima facie
prohibited by s. 57.  Both
Vice-Chair OBrien in the HEU Original Decision

and Vice-Chair Saunders
in the BCTF Original Decision concluded that the protests involved expressive
activity within the meaning of s. 2(b) of the
Charter
and the strike
prohibition infringed s. 2(b) rights.  They differed on whether or not the
infringement was justified under s. 1.  Vice-Chair OBrien concluded that the
definition of strike was largely justified but a complete prohibition was
overbroad.  In her view, the
Charter
required an exception for the occasional
day of protest types of political protest strikes that do not undermine the
integrity of the labour relations regime and do not have a significant adverse
impact on the public interest.  However, she also concluded that the picketing
activity by HEU members was inconsistent with the nature of constitutionally
protected political protest strikes and excluded from protection.

[12]

Vice-Chair Saunders in the BCTF
Original Decision concluded that an exception as outlined by Vice-Chair OBrien
was unworkable and the adverse effects of protest strikes justified their
complete prohibition during a collective agreement.

[13]

The reconsideration panel agreed
without further detailed analysis that protest strikes can be distinguished
from collective bargaining strikes and that the work stoppages in issue were
political strikes with a free expression dimension that engaged s. 2(b) of the
Charter
.
They addressed the s. 1 issue  Is a complete prohibition of mid-contract
protest strikes justified under s. 1 of the
Charter
?  The majority
agreed with Vice-Chair Saunders that a complete prohibition was justified, with
Chair Mullin adding the caveat that any exception that might be recognized in
the HEU circumstances of a unilateral drastic legislative modification of an
existing collective agreement was a matter for the courts.
Associate Chair Fleming
dissenting with respect to the BCTF order, agreed
with Vice-Chair OBrien that a day of protest type exemption to a general
prohibition was constitutionally required.

[14]

The chambers judge accepted that
the protest strikes involved expressive activity but, contrary to the Board
consensus, she concluded that it did not engage s.  2(b) protection.  In
the alternative, she concluded that any infringement was justified under s. 1.
Accordingly she dismissed the petitions for judicial review.

[15]

On 8 June 2007, the Supreme Court
of Canada delivered judgment in
Health Services and Support  Facilities
Subsector Bargaining Assn. v. British Columbia,
[2007] 2 S.C.R. 391, 2007
SCC 27 (
Health Services
), declaring that certain sections of Bill 29
infringed health care employees right to a process of collective bargaining
under s. 2(d) of the
Charter
and that the impugned provisions failed the
test of minimal impairment under s. 1.  A similar challenge by the BCTF to
Bills 27 and 28 is at the pre-trial stage of litigation.

The Legislative History

[16]

The issues are raised
against a background of the legislative history of the definition of strike in
British Columbia.  The current definition is the result of an amendment to the
Labour
Relations Code,
R.S.B.C. 1979, c. 212 in 1984.  The definition now reads;

"strike"
includes a cessation of work, a refusal to work
or to continue to work by employees in combination or in concert or in
accordance with a common understanding, or a slowdown or other concerted
activity on the part of employees
that is designed to or does restrict or
limit production or services
, []

[Underlining added]

The
pre-1984 definition limited strikes to work stoppages for the purpose of
compelling employers to agree to terms and conditions of employment.

[17]

The current definition of strike
accords with the definition of strike in the
Canada Labour Code
, R.S.C.
1985, c. L-2, s. 3(1) and the labour relations statutes of six other provinces:
Industrial Relations Act
, R.S.N.B. 1973, c. l-4, s. 1;
Labour
Relations Act
, R.S.N.L. 1990, c. l-1, s. 2(v);
Labour Relations Act
,
S.O. 1995, c. 1, s. 1(1);
Labour Act
, R.S.P.E.I. 1988, c. L-1, s. 7(1)(l);
Labour Code
, R.S.Q. c. C-27, s. 1(g);
Trade Union Act
, R.S.S.
1978, c. T-17, s. 2(k.1).

[18]

Under the earlier definition, a
Board panel chaired by then-Chairman Paul Weiler concluded that a work stoppage
by electrical workers protesting a federal anti-inflation program was not a
strike as then defined because the purpose was not employer related:
BC
Hydro
&
Power Authority v. International Brotherhood of Electrical
Workers Locals 258 & 213, et al.,
[1976] B.C.L.R.B.D. No. 71 (
BC
Hydro
).  The Board noted the definition of strike was of long standing in
British Columbia, and that it contrasted sharply with the Ontario definition
which was expressly directed to the effects of a concerted work stoppage as designed
to restrict or limit output.  The Board concluded that the contrast between a
purpose based and an effects based definition was a matter of legislative
policy and it was not for the Board to stretch the British Columbia wording to
accord with an effects based result.  The Board noted that the purpose
definition was integrated with other provisions of the
Code
that would
have to be revised if an effects based test was substituted, otherwise such
innocuous activity as a small group of mining company employees unilaterally
taking time off work together to go fishing would contravene no-strike
provisions.  The Board recognized that the exclusion of protest strikes not
directed at employers was the primary difference between the BC and Ontario provisions.

[19]

The purpose based definition in
British Columbia can be traced to the federal
Industrial Disputes
Investigation Act,
S.C. 1907, c. 20

made applicable in British Columbia
by the
Industrial Disputes Investigation Act,
S.B.C. 1925, c. 19.  It
was continued in revised labour relations statutes enacted in 1937, 1947, 1954,
and 1973.  In 1983, political protests organized by the Solidarity Coalition in
opposition to a broad package of legislative initiatives culminated in
widespread work stoppages in the education and other public sectors.  The Board
refused to declare the work stoppages to be strikes, relying on its earlier
decision in
BC Hydro
that political protest work stoppages fell outside
the purpose based definition:
Pacific Press

Limited and
Vancouver-New Westminster Newspaper Guild, Local 115 et al
.,

[1985]  B.C.L.R.B.D.
No. 140.  The 1984 amendment followed.

Issues

[20]

The appellants raise the following
issues:

1.         Does
the definition of strike, in conjunction with s. 57 of the
Code
,
infringe the appellants right to freedom of expression under s. 2(b) of the
Charter
?
BCTF also raises the issue of infringement of the rights of freedom of peaceful
assembly and freedom of association under ss. 2(c) and 2(d) of the
Charter
.

2.         If
strike so defined infringes s. 2 rights, is the infringement a reasonable
limit prescribed by law as can be demonstrably justified in a free and
democratic society under s. 1 of the
Charter
?

3.         Does
the engagement by some individual members of the HEU in some acts of
intimidation and violence exclude the entire protest strike from the protection
of s. 2(b)?

The Context of Public Sector Collective Bargaining and
Strikes

[21]

Before addressing the issues
directly, it may be of assistance to reflect briefly on the context of public
sector strikes.  Public sector unionism is a relatively recent development in
the history of collective bargaining, gaining impetus beginning in the 1970s: Paul
Weiler,
Reconcilable Differences
(Toronto: Carswell, 1980) at 61-62.  In
my view, public sector bargaining has a different dynamic than the system prevailing
in the blue-collar private sector which, according to Weiler, had by the end
of the 1970s become relatively mature.  Government is intimately involved in
the delivery of public services by members of public sector unions.  Government
revenues pay for the services and governments are accountable at the ballot box
for the quality and quantity of the services.  Public sector employers are
formally the bargaining agents and the parties to the collective agreements
but, unlike private sector employers, they are substantially constrained by
government determination of available resources and policy.  A public sector
strike has a different
impact

than
a strike in the private sector.  Typically a public sector employer saves money
during a work stoppage.  There may be little or no loss of revenue to the
employer, and it does not have to pay the wages of the striking employees.  The
adverse impact is felt by the public in the interruption of public services;
the union objective is to influence the government to direct or allow the public
sector employer to make concessions.  In that sense a public sector strike is
more a political than an economic weapon.

[22]

The appellants protest strikes
were political in the sense that they were aimed at the government but the
legislation they were protesting changed conditions of employment and overrode
collective bargaining processes.  The protests illustrate the symbiotic
relationship between governments and public sector employers that blurs the
line between bargaining and politics.

Freedom of Expression  Application of the
Irwin Toy
Analysis

[23]

The parties are agreed that the
standard of review of the chambers judges decision and the underlying
decisions of the Board is correctness.

[24]

Section 2(b) of the
Charter
guarantees freedom of expression as a fundamental freedom.  The appropriate
analytical framework is outlined in
Irwin Toy Ltd. v. Qu
é
bec
(Attorney General),
[1989] 1 S.C.R.
927 (
Irwin Toy
).  It sets out a two-stage approach to the issue of
whether a law infringes the right to freedom of expression.  The first stage
addresses the question whether the activity affected by the law is expressive
activity presumptively protected by the s. 2(b) guarantee.

i)

Expressive
Activity

[25]

Any activity is expressive if it
attempts to convey meaning:
Irwin Toy
at 968.  The chambers judge and
the Board all accepted that the conduct in issue was expressive activity, so
defined, and the purpose was political protest directed at an attempt to
influence government rather than their public sector employers.

[26]

The
Code
contains a broad
endorsement of free expression.  Section 8 states:

8
Subject to the regulations, a person has the
freedom to express his or her views on any matter, including matters relating
to an employer, a trade union or the representation of employees by a trade
union, provided that the person does not use intimidation or coercion.

[27]

Free expression in a collective
bargaining context extends to leafleting, non-coercive distribution of
information at secondary sites for the purpose of discouraging purchase of an
employers products during the course of a strike or lockout.
U.F.C.W.,
Local 1518 v. KMart Canada Ltd.,
[1999] 2 S.C.R. 1083

(
KMart
)
held that non-coercive consumer leafleting was protected under s. 2(b) of
the
Charter
and could not be restricted under picketing provisions of
the
Code
.
Allsco Building Products Ltd. v. U.F.C.W., Local 1288P,
[1999]
2 S.C.R. 1136 followed
KMart
and relied on the New Brunswick equivalent of
s. 8 in the interpretation of the New Brunswick
Industrial Relations Act,
R.S.N.B.
1973, c. I-4 to exclude leafleting from picketing restrictions.

[28]

The chambers judge noted that the
BCTF protest strike was peaceful and it was not excluded from s. 2(b)
protection by reason of its method and location.  She concluded that the HEU
protest strike was excluded because of the instances of picket line violence
and intimidation.  The HEU accepts that the picket line activity is not within
the
Charter
guarantee.  It contends that the picket line activity is
severable from the protest strike
per se
and that the strike activity
apart from picketing should not have been excluded.  I will come back to this
issue later in these reasons.

[29]

The respondents and the Attorney
General do not challenge the conclusion that peaceful protest strikes meet the
first stage of the
Irwin Toy
criteria and involve expressive activity
presumptively not excluded from the s. 2(b) guarantee.

[30]

The second stage is whether the
purpose or effect of the law restricts freedom of expression.

ii)

Purpose

[31]

Irwin Toy
, at 971-73, distinguishes between restrictions aimed
at controlling content of expression or form of expression tied to content,
which trenches upon the
Charter
guarantee and restrictions aimed only at
control of the physical consequences of particular conduct not tied to content,
which does not.  The appellants contend that the purpose of the amendment is to
restrict the right of unionized employees to participate in political protest.
The respondents and the Attorney General say that the purpose is to control the
consequences of mid-contract work stoppages, politically protest motivated or
otherwise.  The chambers judge concluded that the purpose is to address the
disruptive consequences of mid-contract work stoppages.

[32]

While the appellants contend that
the prohibition curtails the ability of union members to attend protest rallies,
the restriction only affects their attendance during working hours.  The
content and form of protest rallies is otherwise unconstrained.

[33]

The background to the 1984
redefinition of strike was widespread and escalating politically motivated work
stoppages as part of the Operation Solidarity protests in 1983.  Mid-contract
production and services were disrupted.  The 1984 amendment was a government
response.  The objective apparent on the face of the 1984 definition is the
prohibition of mid-contract strikes that restrict services or production,
irrespective of purpose.  No distinction is made between collective bargaining
strikes and protest strikes.  The emphasis is on the consequences of strike
action and not on the expressive purpose of the strike or the form of
expression tied to its expressive content.

[34]

In
Dunmore v. Ontario (Attorney
General
), [2001] 3 S.C.R. 1016, 2001 SCC 94, Bastarache J. (at para. 33)
stressed the difficulties of assessing legislative intent and discouraged
attempts to go behind the wording of a statute in search of a subjective
legislative intent.  It is generally more appropriate to be guided by the
effects of the impugned provision.  With that caution in mind, I do not read
the statements of the Minister of Labour and the Attorney General in the
Legislature, to which we have been referred, as inconsistent with the objective
of constraining the effects of work stoppages involved in political protests
and not the otherwise free expression of the protest.  That is the purpose of
the redefinition of strike on the face of the wording.  I agree with the
chambers judge that the purpose of the definition of strike does not trench
upon the s. 2(b) guarantee.  I turn to the effects of the strike definition.

iii)

Effect

[35]

The chambers judge in considering
the effects of the mid-contract political strike prohibition emphasized the
contractual nature of the obligation to attend at the workplace during normal
working hours.  She drew an analogy between union members under a collective
agreement and non-union employees under contracts of personal service.  Neither
has a contractual right to unilaterally withdraw services.  She observed that a
right to political expression has never been associated with a right to breach
employment contracts and political messages can be effectively communicated by
other means.

[36]

In my respectful view, the
chambers judges analysis fails to adequately reflect the effects of strike
action as an economic weapon to convey a message, particularly in the context
of the changing face of public sector employment.

[37]

Public sector unions have been
given the right to strike for collective bargaining purposes, apart from
essential services staffing requirements, and the political dimension of such
strikes cannot be ignored.  Unlike the private sector, the primary target of
the strike weapon is the government and public opinion; the strike is in that
sense political.  Theoretically a protest strike could be directed at a
political issue unrelated to employment but the instances where unions mobilize
their strike forces for a purely altruistic objective are likely to be rare.
Certainly it was not the case with the work stoppages at issue here.  I accept
that the objectives were not restricted solely to the economic interests of
union members.  No doubt teachers are genuinely interested in the effects of
class size on the quality of education as well as the personal burden of the
teaching load.  Health care workers are properly concerned about the quality of
patient care as well as their job security and other directly-related
employment conditions.  Motivations are mixed and strike objectives in the
public sector cannot be conveniently divided into political protest and
collective bargaining categories.  In both cases, the strike exerts pressure
directed beyond the formal public sector employers to the governments that are
their masters.  It is a form of effective expression that is curtailed by its
inclusion within the strike definition.  In my view, the effect of the
mid-contract strike prohibition is a restriction on an effective means of
expressive action and for that reason alone, it trenches on the s. 2(b)
guarantee of free expression.

[38]

It is therefore necessary
to address the question of whether the infringement can be justified under s. 1
of the
Charter
.

Infringement of Freedom of Peaceful
Assembly
Charter
s. 2(c)

[39]

The BCTF submission
under this heading is linked to the rallies scheduled by the BCTF to protest
Bills 27 and 28.  The BCTF contends that the strike prohibition infringes the
right of teachers to peacefully assemble at protest rallies.  The chambers
judge agreed with Vice-Chair Saunders that there was no s. 2(c) infringement
because there was no restriction on the right to peacefully assemble away from
the workplace outside of working hours.  In my view, in the context of the BCTF
protest, any s. 2(c) issue of infringement is subsumed under the issues related
to the right of free expression under s. 2(b).  The fact that teachers went to
rallies when they withdrew their services is a means of expression but in this
case the withdrawal of services to engage in free expression is the central
fact rather than the means of expression at rallies or otherwise.  I do not
think that the infringement issues are advanced by characterizing them as
issues of freedom of assembly as an alternative or in addition to infringement
of freedom of expression.

Freedom of Association
Charter
s.
2(d)

[40]

Collective bargaining
rights are included within the right to freedom of association protected by s.
2(b) of the
Charter
.  Strikes are part of the system of collective
bargaining.  In
Health Services
(at para. 75) McLachlin C.J. endorsed
the principle, taken from the dissenting reasons of Dickson C.J. in
Reference
re: Public Service Employee Relations Act (Alta.),
[1987] 1 S.C.R. 313 (the

Alberta Reference
), that the ability to form and organize unions,
even in the public sector, must include freedom to pursue the essential
activities of unions, such as collective bargaining and strikes, subject to
reasonable limits.
Health Services
overruled the opinion of the
Alberta
Reference
majority that the
Charter
guarantee of freedom of
association did not extend to collective bargaining.  McLachlin C.J. did note
at para. 19 of
Health Services
that the issues did not concern the right
to strike.
In the
Alberta Reference
,
McIntyre J. concluded in separate reasons that a right to strike is outside
Charter
guarantees.  He warned of the dangers inherent in attempting to determine the
limits of strike action as a matter of constitutional law (at 416-19).  He
cautioned that the courts are ill-equipped to deal with the political, social
and economic questions that arise frequently in labour disputes.  In his view, judicial
re-engagement in those disputes under a constitutional rubric would be a
retrograde step.  Complicated and sophisticated questions would arise where
there would be no clearly correct answers and for which the courts are
ill-equipped to resolve.

[41]

Strikes remain an
integral feature of systems of collective bargaining in the private sector and they
have also become a feature of public sector bargaining in British Columbia.  In
the light of
Health Services
, it is an open question whether a right to
strike is within the ambit of the freedom of association guarantee.  For the
purposes of these reasons, I assume that a right to strike is included within
the
Charter
guarantee in principle.  The question then is whether the
statutory restriction on the right to strike consequent on the 1984
redefinition is within reasonable limits.

[42]

The BCTF accepts that a
statutory prohibition of mid-contract strikes is a reasonable limitation in the
context of collective bargaining, but it contends that the prohibition ceases
to be a reasonable limit when extended to protest strikes.  As discussed
earlier the boundary between collective bargaining strikes and protest strikes is
blurred.  The BCTF and HEU protests were directed at legislation impacting the
collective bargaining process and part of Bill 29 was struck down because it
unjustifiably infringed
Charter
protection of that process.  A similar
challenge to Bills 27 and 28 by the BCTF is pending.  The appellants contend
that the difference between a collective bargaining strike and a protest strike
is that the former is directed at the employer and the latter at the
government.  The associative dimension of the BCTF protest, as distinct from
its s. 2(b) expressive dimension is directed at an interference with free
collective bargaining, which is properly the subject of the s. 2(d) challenge
to Bills 27 and 28, rather than the strike issue.

[43]

In my view, the BCTF
Charter
challenge before us stands or falls on the issue of justification of the s.
2(b) infringement of freedom of expression.  Infringement issues related to
freedom of association are properly addressed in the proceedings challenging
Bills 27 and 28, which are not part of this appeal.

[44]

I would not give effect
to BCTFs submissions on ss. 2(c) and 2(d) of the
Charter
.  I turn to

the issue of justification of the s. 2(b) infringement of the guarantee of
freedom of expression under s. 1 of the
Charter
.

Justification of Infringement under s. 1 of
the
Charter
 the
Oakes
Analytical Framework

[45]

The chambers

judge
addressed the s. 1 issue, in the event she was in error in her conclusion that
there was no s. 2(b) infringement.

[46]

The analytical
framework for determining whether a law infringing the
Charter
can be
saved under s. 1 as a reasonable limit is outlined in
R. v. Oakes
,
[1986] 1 S.C.R. 103, at 138-39.  The objective of the law must be of pressing
and substantial concern.  The means chosen by the law must be reasonably and
demonstrably justified under a three part test.  The means must be rationally
connected to the objective.  They should impair the right as little as
possible.  Finally, there must be proportionality between the effects of the
chosen measures and the objective.  The government has the onus of establishing
each of the
Oakes
components.

[47]

The BCTF submits that
principles of international law inform the
Charter
scrutiny of the
strike definition.  In
Health Services
, McLachlin C.J. (at para. 20)
observed that collective bargaining is an integral component of freedom of
association in international law.  BCTF and HEU were parties to complaints
concerning Bills 27, 28 and 29 under
Convention (No. 87) Concerning Freedom
of Association and Protection of the Right to Organize
, 68 U.N.T.S. 17 (
Convention
No. 87
).  Report No. 330 of the committee investigating the complaints was
critical of the legislation but the thrust of the criticism was directed to the
adverse effects of the legislative intrusion into the collective bargaining
process: International Labour Office, Committee on Freedom of Association,
Report No. 330, Cases Nos. 2166, 2173, 2180 and 2196, "Complaints against
the Government of Canada concerning the Province of British Columbia",
I.L.O.
Official Bulletin, vol. LXXXVI
, 2003, Series B, No. 1 (Report No. 330).
That was also the focus of
Health Services
which declared much of Bill
29 to be an unjustified infringement of collective bargaining rights protected
by s. 2(d) of the
Charter
.  McLachlin C.J. noted (at para 19) that
Health
Services
was not concerned with the right to strike and Report No. 330
did not comment on the protest strike dimension of the dispute.  While Report
No. 330 and Convention No. 87 inform the collective bargaining rights aspects
of
Charter
guarantees they do not address the strike dimension.

[48]

The issues here are
framed in terms of the prohibition of mid-contract protest strikes generally,
but mid-contract is a controversial designation in the particular
circumstances because the contracts were not the result of normal collective
bargaining.  The terms and conditions were imposed unilaterally by legislative
fiat over strong union opposition.  The several opinions at the Board level
indicate that the Board members were troubled by the heavy handed nature of the
government intervention and understandably sensitive to the override of the
Codes
collective bargaining process.  Neither the Board nor the chambers judge had
the benefit of
Health Services
where the HEU successfully attacked the
validity of much of Bill 29 on the ground that it unjustifiably infringed the
right to freedom of association under s. 2(d) of the
Charter
.  BCTF is challenging
Bills 27 and 28 in similar litigation that is in the pre-trial stage.
Health
Services
decided that there were
Charter
limits to the Legislatures
power to override collective bargaining rights.  That decision highlights the
fact that while the protests here were politically aimed at the government, the
subject of the protests had a central collective bargaining dimension
vulnerable to a
Charter
challenge on other grounds.

i)
Pressing and
Substantial
Objective

[49]

There is broad
agreement that the objective of the prohibition of mid-contract work stoppages
in the context of collective bargaining is to create certainty and stability in
the workplace during the term of a collective agreement.  The appellants accept
the validity of the pre-1984 strike definition that prohibited mid-contract
collective bargaining strikes to prevent workplace disruption.  The prohibition
of mid-contract strikes is balanced by the requirement that every collective
agreement must contain an arbitration provision to resolve mid-contract
disputes.

[50]

In
RWDSU v. Dolphin
Delivery Ltd.,
[1986] 2 S.C.R. 573, McIntyre J. (at para. 23) emphasized
the social costs of industrial conflict:

When
the parties do exercise the right to disagree, picketing and other forms of
industrial conflict are likely to follow.  The social cost is great, man-hours
and wages are lost, production and services will be disrupted, and general
tensions within the community may be heightened.  Such industrial conflict may
be tolerated by society but only as an inevitable corollary to the collective
bargaining process.

[51]

His observations were
made specifically in the context of picketing, which the appellants exclude
from their concept of limited
Charter
protection, but it has equal
application to disruptions caused by strikes apart from picketing.  The
appellants accept that the right to engage in protest strikes is not unlimited.
 From that fair concession it follows that at some point the disruption of
services and production caused by a protest strike must become a pressing and
substantial legislative objective.  The strike definition satisfies the
Oakes
tests objective requirement.

[52]

The appellants note that the
definition of lockout was not amended when the strike definition was amended in
1984.  The lockout purpose definition has been retained, limiting a lockout
to suspension of employment for the purpose of compelling employees to agree to
conditions of employment.  They submit that the lack of symmetry is unfair as
it allows employers to engage in lockouts for non-collective bargaining
purposes.  The hypothetical illustration advanced is an employer led shutdown
of businesses to support or protest the 2010 Olympics in Vancouver.

[53]

The chambers judge considered that
a political protest lockout was without historical precedent and improbable.
The 1984 amendment of the strike definition was a response to work stoppage
activity actual or threatened by employees and unions.  There was no similar
apprehension concerning lockouts and redefining lockout simply to achieve
formal legislative symmetry would serve no practical purpose and could have
added unnecessary complications.  Employers may be required to suspend or
permanently shut down operations and lay off employees for legitimate business
reasons unrelated to collective bargaining, and a broad effects-based
definition of lockout that fails to recognize the range of non-collective
bargaining reasons for lay-offs or terminations would be problematic.

[54]

The appellants also unfavorably
contrast the position of unionized employees, whose right to strike is
restricted, with non-union employees who are not so restrained by legislation.
This submission ignores the collective bargaining rights that unionized
employees are given under the
Code
.  The
quid pro quo
of those
rights is regulation of the right to strike, including prohibition of
mid-contract strikes.  Non-union employees have no
Code
protection and
employers would be free to exercise contractual remedies for breach.  In my
view, there is no merit in the proposition that the prohibition of protest
strikes unfairly prejudices employees subject to a collective agreement in comparison
to non-union employees.

ii)          Rational
Connection

[55]

A prohibition of all
mid-contract strikes is intended to curtail the disruption caused to services
or production caused by such strikes and therefore is rationally connected to
the laws objective.

[56]

The real issues of
justification are whether the complete prohibition of mid-contract strikes can
meet the tests of minimal impairment and proportionality.

iii)         Minimal Impairment and
Proportionality

[57]

The BCTF acknowledges
that employers and the public must be protected against the more severe
effects of protest activities.  Essentially it contends that a complete
mid-contract prohibition is overbroad and the limited work stoppages in issue
were within the limits of
Charter
protection.  The BCTF submits that the
proper limits of legislative intervention are set by the wrongful action
model outlined in
R.W.D.S.U. Local 558 v. Pepsi-Cola Canada Beverages
(West) Ltd.,
[2002] 1 S.C.R. 156
,
2002 SCC 8,

(
Pepsi
).
In
Pepsi
, the Court held that
Charter
values required common law
limits on secondary picketing to be modified to accord with core principles of
collective bargaining.  Secondary picketing is lawful at common law unless it
involves violence, intimidation or other tortious conduct.  The Legislature may
modify the common law balance between free expression and protection of neutral
third parties provided limits on the
Charter
value of free expression
can be justified.  The BCTF contends by analogy with peaceful secondary
picketing incident to a lawful strike that mid-contract protest strikes also
involve core principles that should be
Charter
protected provided they
are peaceful and avoid tortious or criminal conduct.  Notwithstanding
Charter
protection, the BCTF raises the possibility that employers could invoke
grievance and arbitration procedures for breach of the collective agreement.
On this point Vice-Chair Saunders observed:  It seems an odd rationale, to
declare legislation an impermissible infringement of
Charter
rights in
part because those same rights are adequately restricted elsewhere.

[58]

In my view, the
wrongful action model, while appropriate to regulate secondary picketing
ancillary to a lawful strike, fails to provide a practical test for strikes.
Under that model, peaceful protest work stoppages of indefinite scope and
duration could not be restrained in the absence of tortious or criminal
conduct.  Accepting the BCTFs questionable assumption that
Charter
protection would not insulate protest strikes from breach of contract
grievances by employers, arbitral compensation remedies would be ineffective in
the public sector as employers would not typically suffer financial losses and
disciplinary suspensions would be a questionable and perhaps a
counterproductive deterrent.  The harm to the public as third parties would be
outside the arbitral purview.

[59]

The HEU accepts that
political strikes may be curtailed to the extent that they result in undue harm
to the public.  It suggests that notice of job action (absent in this case) and
staffing of essential services would address the risk of harm.  The HEU
supports the opinion of Vice-Chair OBrien in the HEU Original Decision (at
paras. 218 -19) that a general prohibition against mid-contract strikes is
largely justifiable but overbroad to the extent that it prohibits short,
occasional political protest strikes which neither threaten the integrity of
the labour relations system nor have a significant adverse impact on the public
interest.  Vice-Chair OBrien concluded that the disruption of medical
services caused by the one shift HEU work stoppage while undoubtedly causing
hardship to some individuals, did not pose a significant threat to the public
interest.  Associate Chair Fleming on the Reconsideration Panel agreed with
Vice-Chair OBrien that limited mid-contract political work stoppages were
Charter
protected, with the caveat that reasonable notice of the work stoppage be
provided to the employer to permit an application to the Board in opposition.

[60]

Vice-Chair Saunders
rejected a
Charter
-based exception to the strike prohibition on the
ground that it would be too uncertain and unworkable:  BCTF Original Decision at
para. 154.  He addressed those considerations at paras. 135 to 154 of the BCTF
Original Decision.  His view is summarized as follows:

151      My point in citing these examples is not to
be judgemental of this phenomenon one way or another.  But in assessing the
viability of an exception to the strike definition  or, conversely, the
Legislatures need for certainty in respect to it  the reality of the
situation must be taken into account.  Labour disputes (and political strikes,
to the extent that they are part of an ongoing conflict) are a type of economic
and political warfare.  Each side uses various tactics to maximize its leverage
and achieve the best results.  Neither side judges success at the end of the
day by the accuracy or objectivity of its communications during the conflict.  The
purpose of those communications is not to present the most objective depiction
of matters, but to present the depiction most likely to cause relevant
individuals to believe or act in a manner favourable to one side or the other.

152      It is into this impassioned and essentially
political environment that a
Charter
-created exception to the strike
definition would be injected.  The Legislatures compelling need for certainty
in this area is simply not compatible with the application of principled
case-by-case exceptions to the strike definition.  And, as I stated earlier, in
my view a principled exception is the only kind of exception mandated by the
Charter
.

153      In conclusion, an exception for certain
political strikes would create far more uncertainty than the difficulty of
distinguishing between political strikes and collective bargaining ones  which
the Ontario Board found prohibitive in General Motors.  The
objective
of
a strike is typically ascertainable, because it is intended to compel a
reaction of some sort, and is less likely to do so if it is unclear at whom the
strike is directed and why it is taking place.  Where the labour board can
identify what would end the strike, it can determine its objective. (See e.g.,
The
Government of the Province of British Columbia
, BCLRB No. 28/80, [1980] 2
Can LRBR 355;
Ontario Hospital Association
,
supra
.).  This
approach is not available in the abstract balancing of interests that an
exception for certain political strikes would require.

[61]

The chambers judge
reached a similar conclusion at paras. 194 to 205 of her reasons.  Vice-Chair
Brown agreed with the conclusion of Vice-Chair Saunders and emphasized the importance
of clear and practical tests for all those involved in collective bargaining to
provide certainty and stability in the workplace.  In his view, the definition
of strike provided necessary bright line clarity for the benefit of the
participants.  An indeterminate test would require hearings and adjudication in
particular cases, leading to undesirable uncertainty and instability in the
workplace.

[62]

Chair Mullin generally
agreed with Vice-Chairs Saunders and Brown although he considered that the unique
nature of the government rewriting of an existing collective agreement through
Bill 29 might support a
Charter
-based exception to the general
prohibition.  Subsequently,
Health Services
has provided a
Charter
remedy for Bill 29, albeit by a different route.

[63]

The chambers judge considered
the boundary between collective bargaining strikes and protest strikes to be
uncertain.  She quoted extensively from the opinion of the Ontario Labour
Relations Board in
General Motors of Canada Ltd.,
[1996] O.L.R.D. No.
2056 (at para. 199) emphasizing the definitional difficulty and supporting a
blanket prohibition of mid-contract strikes by the Ontario
Labour Relations
Act,
S.O. 1995, c. 1, irrespective of purpose, as a legislative response to
the objective of containing industrial conflict which was not disproportionate
to that goal.

[64]

There is general
agreement that at some point legislative intervention to restrict political
protest work stoppages is justified.  The Legislature has imposed a standard
based on the effects of the work stoppage, one that is designed to or does
restrict or limit production or services.  This can be fairly described as a
bright line test, leaving little ambiguity or discretion in the Board charged
with the supervision of its application.  No distinction is made between
collective bargaining strikes and protest strikes and no question of
characterizing a strike as one or the other arises.  Part 5 of the
Code
permits strikes by public sector unions, subject to certain essential services
staffing obligations, as part of the collective bargaining process with certain
pre-requisites and limits.  Vice-Chair Brown referred to this as the controlled
strike/essential services model.  The prohibition on mid-contract strikes is an
integral part of the labour relations scheme.

[65]

The test supported by Vice-Chair OBrien
and Associate Chair Fleming would protect protest strikes that do not
significantly affect the public interest.  That standard is wide open to
differing conclusions.  Here, the BCTF work stoppage deprived hundreds of
thousands of school children of one days educational instruction and the HEU
stoppage resulted in the cancellation of some elective surgeries and disrupted
some patient care, notwithstanding that the union provided essential service
staffing.  Vice-Chair OBrien recognized that the HEU work stoppage
undoubtedly caus[ed] hardship to some individuals, but did not pose a
significant threat to the public interest.  Associate Chair Fleming was of a
similar view that the BCTF work stoppage did not have a significant adverse
impact on the public interest.  A patient whose elective surgery was cancelled
and parents whose routines were disrupted and whose children lost a days class
instruction likely would disagree.

[66]

The appellants contend that there
was no evidence presented to demonstrate harm caused by protest strikes to
support their prohibition as justified infringement.  The chambers judge
concluded (at para. 198) that harm to school children entitled to a certain
level of educational services and to patients needing a certain level of health
care services could be inferred from the context of the work stoppages.  There
was evidence that school instruction and patient care were disrupted by the
BCTF and HEU protest strikes and I agree that it can be inferred generally that
a collective work stoppage in the public sector will cause an adverse impact on
public services.  An impact is obvious and self-evident.  The variable will be
the degree of harm not harm
per se
.  I do not accede to the appellants
evidentiary submission.

[67]

The leafleting cases protected
expressive conduct that did not involve harm to third parties.  In
KMart
,
Cory J., writing for the court, emphasized (at para. 56) that the consumer
leafleting in issue was not coercive and left consumers free to choose without
being unduly disrupted by the message of the leaflets or the manner in which they
were distributed.  It was not distinguishable from other forms of publicity and
communication of the message and was conduct that could not be restrained under
the common law.  In
Allsco
, following
KMart
, the picketing
provisions of the New Brunswick
Industrial Relations Act
were
interpreted to exclude leafleting on s. 2(b)
Charter
grounds.  Iacobucci
J. observed (at para. 28) that the freedom of expression protected by the
Charter
in leafleting was limited to the extent that those who are engaged in
persuasive expression have respected the right of those receiving the message
not to be coerced or intimidated into undertaking a particular course of
conduct.  Peaceful protest strikes do not directly involve coercion or
intimidation but they nonetheless cause harm to neutral third parties through
the disruption of services.  I do not think that the leafleting cases assist
the appellants position.

[68]

The difficulty is that significant
disruption of the public interest is a vague standard capable of a wide
variation in application.  As Associate Chair Fleming observed, the concerted
withdrawal of services is a powerful and effective way of communicating a
political message.  Its power and effectiveness is reinforced by its economic
weapon, the disruption of public services.  There is an inherent tension
between the effectiveness of the protest strike and the disruptive impact on
the public.  As Associate Chair Fleming summarized his position: If the harm
caused by the expressive activity is sufficient, the freedom of expression can
be overridden under a Section 1 analysis.  Who is to decide how much harm is
sufficient?  Attempting to draw a line at a point of
significant
disruption seeks a balance that is at best elusive.  It tempts a weighing of
the merits of the protest against the harm to the public interest.  The higher
the threshold of significant harm, the more powerful the protest.  In my view,
this type of balancing is primarily a political policy judgment that is incompatible
with the neutral adjudicative function of labour boards and courts.

[69]

A majority of the Board expressed
serious reservations about its capacity to apply an indefinite standard in a
politically charged atmosphere, even with the benefit of the Boards
specialized expertise.  The difficulty is particularly acute when the strike is
said to be a political protest outside collective bargaining norms.  I agree
with the conclusion of Vice-Chairs Saunders and Brown and the chambers judge
that a vague test that leaves a wide discretion to the Board or the courts is
not compatible with
Charter
standards.

[70]

It is not clear from the
appellants submissions whether the jurisdiction to supervise
Charter
protected protest strikes would reside in the courts or with the Board.  Either
way, supervision of protest strikes under a standard requiring case by case
evaluation would be particularly problematic.  The warning by McIntyre J. in
the
Alberta Reference
about judicial re-engagement in the control of
strikes reflects the lessons of past experience.  They reinforce the degree of
deference to be accorded to the Legislature in imposing limits on strike action
that avoid the exercise of judicial or administrative discretion.  In my view,
the effects based definition of strike satisfies the requirements of minimal
impairment.

[71]

Unions and their members are free
to engage in protest activities outside working hours.  The mid-contract strike
prohibition is limited in its restriction of those activities and proportionate
to the disruption of services or production resulting from the prohibited
strike activity.

[72]

As I have concluded that the
impugned definition of strike satisfies the
Oakes
test of justified
infringement under s. 1, it is unnecessary to address the BCTF submission,
relying on
Allsco
, that s. 57 of the
Code
be read down to exclude
protest strikes.

Conclusion

[73]

The pre-1984 definition prohibited
mid-contract collective bargaining strikes; the 1984 amendment extends that
mid-contract prohibition to strikes for any purpose.  The right to strike when
no collective agreement is in force is maintained, subject to
Code
procedural requirements and essential services limits.  The object of the
prohibition is the prevention of disruption of services or production.  That
objective is pressing and substantial; the mid-contract prohibition is
rationally connected to that objective.  The prohibition extends a limit that
is non-controversial in a collective bargaining context to a political protest
context.  Means of free expression other than through work stoppages remain
unimpaired.  The mid-contract prohibition meets the standard of minimal
impairment and is proportionate to the balance between free expression and
harmful impact.  The indeterminate and politically charged dimensions of a
Charter
guarantee of limited protest strike action reinforces the validity of the
Legislatures imposition of a clear standard.

[74]

In the result, I conclude that the
impugned definition of strike, through its effects, infringes the guarantee of
free expression in s. 2(b) of the
Charter
but the infringement is
justified under s. 1.  It follows that the HEU protest strike was properly
enjoined, independent of the picketing activity and the severance issue raised
by the HEU is immaterial.  Accordingly, I would dismiss the appeals.

The Honourable
Mr. Justice Mackenzie

I AGREE:

The Honourable Madam Justice Levine

I AGREE:

The Honourable Mr. Justice Frankel


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