Vancouver

29-Mar-19
No. S176219
VANCOUVER REGISTRY

IN THE SUPREME COURT OF BRITISH COLUMBIA

BETWEEN

CHRISTINE SANDHU

PLAINTIFF

AND
CAMERON HENNESSY, SAMUEL MURPHY, AND
THE THREE BRITS ENTERPRISES LTD.

DEFENDANTS

NOTICE OF APPLICATION

Names of Applicants: Samuel Murphy and the Three Brits Enterprises Ltd.

To: The Plaintiff, Christine Sandhu

And to: Her Solicitor

And to: The Defendant, Cameron Hennessy

And to: His Solicitor

TAKE NOTICE that an application will be made by the Applicants to the presiding
judge at the courthouse at 800 Smithe Street, Vancouver, British Columbia, on April
18, 2019 at 9:45 am for the order(s) set out in Part 1 below.

Part 1: ORDER(S) SOUGHT

1. The within action be dismissed against the Applicants pursuant to Rule 9-7.

2. The Applicants be awarded their costs for the application herein and proceedings
at Scale B; and

3. Such further and other relief that this Honourable Court deems just.

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Part 2: FACTUAL BASIS

1. The Three Brits Enterprises Ltd. (“Three Brits”) is a pub style establishment
located at 1780 Davie Street, Vancouver, British Columbia and is licensed to serve alcohol.
In June 2015, Samuel Murphy was employed as the general manager of Three Brits and
Cameron Hennessy was a server/bartender.
Paragraph 2 of the Affidavit #1 of S. Murphy

2. This action arises out of events that allegedly transpired on June 30, 2015.
According to a statement the Plaintiff provided to the Vancouver police department, she
maintains she was a patron of Three Brits for a few hours during the evening of June 30,
2015. Prior to attending Three Brits, the Plaintiff was at a nearby Cactus Club, where she
worked and where she consumed two alcoholic drinks prior to departing. The Plaintiff
says that while she was at Three Brits and in the company of Mr. Hennessy, who was not
working that evening, she had one glass of wine and one shot of Jameson whiskey. The
Plaintiff says that during the evening she voluntarily left Three Brits with Mr. Hennessy
on more than one occasion to attend his apartment across the street.
Pages 80 and 81 of Exhibit “G” to the Affidavit #1 of L. DePellegrin

3. The Plaintiff alleges that, without her knowledge, someone placed a drug, Gamma
Hydroxybutyrate (“GHB”) in one of the drinks she consumed that evening. The Plaintiff
claims Three Brits and Mr. Murphy failed “to take appropriate/reasonable steps while serving
alcohol” and to ensure her “personal safety and security”.
Pages 80, 81 and 82 of Exhibit “G” to the Affidavit #1 of L. DePellegrin
Paragraph 12 of the Notice of Civil Claim

4. The Plaintiff further alleges Three Brits was negligent in failing to implement or
follow any guidelines or policies for the response to a report of a sexual assault and failing
to provide available evidence during a police investigation.
Paragraphs 18 and 19 of the Notice of Civil Claim

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Evidence

5. The evidence offered in support of this lawsuit is sparse and, with respect to the
allegations against the Applicants, non-existent.
Exhibit “D” to the Affidavit #1 of L. DePellegrin

6. The Plaintiff commenced this action the day before the two-year limitation period
expired and it was not until the Notice of Civil Claim was served in 2018 that the
Applicants were aware of any alleged negligence and/or misconduct on their part.
Paragraph 9 of the Affidavit #1 of S. Murphy

7. The evidence produced by the Plaintiff is comprised of, inter alia, the following:
(a) Vancouver Police Department records confirming the Plaintiff reported the
alleged incident on July 29, 2015 following which, an investigation was
undertaken, and it was determined there was insufficient evidence to
pursue charges.
Pages 31 and 62 of Exhibit “F” to the Affidavit of L. DePellegrin
Pages 75, 79 and 83 of Exhibit “G” to the Affidavit #1 of L. DePellegrin

(b) According to the Plaintiff’s statement to the Vancouver Police, Vancouver

General Hospital Sexual Assault Services Medical examination records
confirmed there were no drugs were found to be in her system when
examined.
Pages 81 and 82 of Exhibit “G” to the Affidavit #1 of L. DePellegrin

(c) During that investigation, there were no allegations of involvement and/or

misconduct on the part of the Applicants and Three Brits was never asked
to preserve and/or produce video surveillance of the premises.
Exhibits “F” and “G” to the Affidavit #1 of L. DePellegrin

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Litigation

8. As outlined above, the within proceeding was commenced by Notice of Civil

Claim filed on June 30, 2017 and service was effected in June 2018. The Defendant,
Hennessy, filed a Response and Counterclaim against the Plaintiff on July 11, 2018.
The Applicants filed their Response to Civil Claim on July 17, 2018.

9. Despite numerous requests by counsel, the Plaintiff did not deliver a List of
Documents until November 5, 2018. The Plaintiff provided amended Lists on
December 28, 2018 and February 6, 2019.
Exhibits “D” and “E” to the Affidavit #1 of L. DePellegrin

10. On February 13, 2019, counsel for the Defendant, Hennessy, proposed
scheduling a Summary Trial for April 18, 2019 and all parties agreed to hold this
date for hearing.

11. Examinations for Discovery of the Plaintiff and of the Defendant, Hennessy, are
scheduled for May 13 and 14, 2019 and of the Defendant, Samuel Murphy on his own and
on behalf of The Three Brits Enterprises Ltd. for May 15, 2019. The parties have set aside
February 2021 for a 10-15 day trial.

Part 3: LEGAL BASIS

1. This application is brought pursuant to Rule 9-7 (Summary Trial).

2. Three Brits is a “Commercial Host” who sells and serves alcohol and food to
patrons and as such owes a duty of care to those patrons which includes:
(a) ensuring there are adequate supervision, monitoring and training
systems in place so employees know and abide by responsible serving
practices;

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(b) ensuring there is a sufficient number of serving staff on duty so that

effective monitoring of alcohol consumption by patrons is possible;
(c) monitoring the consumption of alcohol by its patrons;
(d) making reasonable assumptions from the amount of alcohol consumed
by a patron as to whether he or she is likely to be impaired;
(e) monitoring its patrons for behaviour and signs suggestive of
intoxication; and
(f) taking steps to prevent a patron from driving when it knew or ought to
have known that the patron was likely impaired and likely to drive.
Widdowson v. Rockwell, 2017 BCSC 385 (summary trial)

3. There is no evidence the Plaintiff and/or the Defendant, Hennessy, were

overserved. There is no evidence a drug was administered to the Plaintiff
while at Three Brits, or at all. Additionally, the Plaintiff has tendered no
evidence that she and/or the Defendant, Hennessy, exhibited signs of
intoxication. More importantly, with respect to the allegation the Applicants
failed in their duty to ensure her “personal safety”, the Plaintiff has tendered
no evidence indicating the Applicants were aware and/or should have been
aware the Defendant, Hennessy, had a propensity to become violent such that
the alleged subsequent sexual assault that took place at his private residence
should have been foreseeable by them.
Salm v. Coyle, 2004 BCSC 112

4. In order for liability to flow, there must be proof that a breach of the standard
of care “actually caused the loss complained of”. On the facts, there is no evidence
of any negligence and/or breach of duty, statutory or otherwise, on the part
of the Applicants.
Stewart v. Pettie, [1995] 1 S.C.R. 131

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5. The Plaintiff’s attendance at Three Brits is simply part of the factual matrix
that comprises the events she alleges occurred on June 30, 2015. It does not
and cannot translate into civil liability against the Applicants.

Severability and Suitability for Summary Trial

6. The Supreme Court of Canada has endorsed the use of summary type applications
to promote the affordable, timely and just adjudication of claims:

Increasingly, there is a recognition that a culture shift is required in order to create

an environment promoting timely and affordable access to the civil justice system.
This shift entails simplifying pre-trial procedures and moving the emphasis away
from the conventional trial in favour of proportional procedures tailored to the needs
of the particular case....
Hryniak v. Mauldin, 2014 CSS 7, at para. 2

7. In a summary trial application where a party seeks determination on a certain

issue, and not all issues in the action, a two-step approach should be followed. The
first step is to determine whether there should be severance of the issues, and the
second step is to determine if a summary trial on the issue to be determined is
appropriate.
Chun v. Smit, 2011 BCSC 412, at paras. 8 - 9

8. There are compelling reasons to order severance of liability and damages for
the purpose of this application. The liability arguments vis-à-vis the
Applicants are discrete from the issue of damages. There is sufficient evidence
to permit findings of fact necessary to decide the issues of fact and law
between the parties. The determination of these arguments would result in a
significant savings in time and expense of a conventional trial.
Bassi (Litigation guardian of) v Bassi [2010] BCJ No 2663 (BCSC)

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9. There are no material discrepancies in the parties’ evidence relevant to the

Courts determination. Where any such minor discrepancies arise, they can be
resolved with reference to supporting documentation.

10. It is appropriate to sever the liability issue involving the Applicants from the
other issues herein. Specifically:
(a) The liability issue as it relates to the Applicants and the evidence
pertaining to it is entirely separate and distinct from the other issues.
They are not intertwined.

(b) The determination of the liability issue as it relates to the Applicants

does not involve issues of credibility.

(c) The determination of the liability as it relates to the Applicants issue

will result in significant savings in time and expense.

11. The issue of liability as against the Applicants is suitable for summary trial
and there is evidence to permit the court to find the facts necessary to
determine the liability issue.

12. Further, it would not be unjust to proceed summarily. There are no material
discrepancies in the parties' evidence relevant to liability issue as it relates to
the Applicants.

13. The liability issue as it relates to the Applicants is not complex and its
determination would not create unnecessary complexity in the resolution of
the action. To the contrary, the determination of the liability issue would
simplify the remaining issues to be determined at trial.

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Part 4: MATERIAL TO BE RELIED ON

At the hearing of the application, the applicant will rely on the following affidavit(s) and
other documents:
1. Affidavit #1 of Samuel Murphy, made on March 21, 2019;
2. Affidavit #1 of Laurie DePellegrin, made on March 27, 2019;
3. The pleadings and proceedings filed herein;
4. Rules 1-1, 8-1, 9-7 and 12-5(67);
5. Such further and other materials as counsel may advise.

The applicant estimates that the application will take a full day.

TO THE PERSONS RECEIVING THIS NOTICE OF APPLICATION: If you wish to receive

notice of the time and date of the hearing or to respond to the application, you must

(a) file an application response in Form 33 within 5 days after the date of service of
this notice of application or, if the application is brought under Rule 9-7 of the
Supreme Court Civil Rules, within 11 days after the date of service of this notice
of application, and
(b) at least 2 days before the date set for the hearing of the application, serve on the
applicant 2 copies, and on every other party one copy, of a filed copy of the
application response and the other documents referred to in Rule 9-7 (12) of
the Supreme Court Civil Rules.

Date: March 28, 2019

Signature of Janis D. McAfee
[ ] applicant [X] lawyer for Applicants

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To be completed by the court only:

Order made
[ ] in the terms requested in paragraphs of Part 1 of this notice of application
[ ] with the following variations and additional terms:

Date:

Signature of [ ] Judge

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APPENDIX
THIS APPLICATION INVOLVES THE FOLLOWING
[ ] document discovery
[ ] oral examination for discovery
[ ] amend pleadings
[ ] add/change parties
[ ] summary judgment
[X ] summary trial
[ ] service
[ ] mediation
[ ] adjournments
[ ] proceedings at trial
[ ] case plan orders
[ ] experts

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