Plaintiff T and family brought action against several defendants, after T was seriously injured in car accident. Defendants included driver of car M, who was impaired at time of accident. M and T had left wedding reception, where T claimed that host B and bartender C had overserved both M and T. T did not bring action against C, who was made third party to action. T and family obtained $3.565 million dollars in jury verdict. Insurer S provided underinsured motorist coverage to T. S claimed that T's failure to bring action against C reduced their liability under this policy. S also claimed that they were entitled to judgment against M, B and C under subrogation rights. C sought leave to amend statement of defence, to plead limitation defence to S's claim. B and C's liability remained to be determined, including issues of vicarious liability and joint/several liability. Hearing took place to determine outstanding issues. S could not amend statement of defence. S established right of subrogation, to claim from M, B and C. C was properly seen as independent contractor, with no vicarious liability arising. C was not liable to B as agent. C's insurance was not available to T and family. T was to assign or hold in trust any future accident benefits to which he became entitled. C did not work under employment contract or established employment relationship. C's equipment was supplied by club, not by B. C received small honorarium for services, which he donated to bride and groom as gift. C was independent contractor under all relevant factors. C was not agent of B, either under common law or liquor licensing law. There was no implied contract between C and B that displaced negligence law. B was entitled to contribution and indemnity from C, in third party claim.
Tuffnail, et al v. Meekes et al (2017), 2017 CarswellOnt 14540, 2017 ONSC 4610, H.A. Rady J. (Ont. S.C.J.).