Down But Not Out: An Update on Social Host Liability

More than a decade ago, the Supreme Court of Canada released the decision of Childs v. Desormeaux[1] in which the Court considered for the first time whether hosts of parties where alcohol is served (i.e. social host cases) owe a duty of care to public users of highways who are injured when an intoxicated guest drives after the leaving the party.  The Court concluded that, on the facts of Childs, no duty of care was owed.  However, many commentators noted at the time that the Court had left the door open for a duty of care to be established in the right case.[2] The law that has developed in the ten years since Childs shows not only that the door is still open but that, as a result, defendants’ attempts to have social host cases dismissed on summary judgment are sometimes met with limited success.

This paper considers this topic in three parts. The first part provides a refresher on the law of social host liability as it stood after Childs.  The second part considers the treatment by lower courts of recent attempts to dismiss social host cases on summary judgment using the authority of Childs.  The last part provides practical tips for claims examiners in assessing these types of claims.

I. Begin at the Beginning: Childs v. Desormeaux

Mr. Desormeaux was a guest at a friend’s party on New Year’s Eve, 1998.  The party was BYOB, with the hosts only serving part of a bottle of champagne at midnight. Mr. Desormeaux was known to be a heavy drinker. He consumed 12 beers over two and a half hours at the party.  He was later determined to have a blood alcohol concentration well over the legal limit. As he left to drive away from the party, one of the hosts asked, “Are you okay, brother?” to which Mr. Desormeaux replied, “No problem”.  There was however no factual finding by the trial judge that the party hosts knew of Mr. Desormeaux’s inebriation and there was no evidence that he displayed any signs of intoxication during this brief encounter with the host. Shortly after leaving the party, Mr. Desormeaux drove into oncoming traffic and collided head-on with another vehicle, killing one occupant and seriously injuring three others, including Ms. Childs.

Ms. Childs brought a law suit against the party hosts which was successful at trial, but her win was overturned on appeal on the basis that the social hosts did not owe Ms. Childs a duty of care.  A finding that a duty of care is owed from a defendant to a plaintiff is required for the success of any negligence action. Ms. Childs appealed to the Supreme Court of Canada.

The Court considered the novel question of whether the social hosts owed a duty to Ms. Childs as a public user of the highway. It concluded that no duty of care was owed and dismissed the appeal. In coming to this conclusion, the Court made the following significant comments:

• As a general rule, a social host does not owe a duty of care to a person injured by a guest who has consumed alcohol;[3]

• In this case, the Court concluded that there was no duty of care for two reasons. First, the Court found that the injuries to Ms. Childs were not reasonably foreseeable. Importantly, the lack of foreseeability in this case was closely connected to the trial judge’s factual findings – or lack thereof.  As noted, he did not make a finding that the hosts knew, or even ought to have known, that Mr. Desormeaux was intoxicated. I suspect that with other factual findings the Court’s conclusion on the issue of foreseeability would likely have been different.[4]

• However, ultimately the issue of foreseeability was irrelevant because the Court also held that there would have been no duty of care, even if foreseeability had been established. The Court came to this conclusion for policy reasons because the wrong alleged was based on a failure to act. It was asserted that the hosts had a positive duty to intervene and stop Mr. Desormeaux from driving.  In law, it is the rare exception when a court will impose a positive duty to act.[5]

• The Supreme Court explicitly left open the possibility that a duty of care might exist in another case with different facts where the features of the relationship between the guest and social host are sufficient to give rise to a positive duty to act. Historically, the types of the categories that may create such a relationship have included:
  • A situation where a defendant intentionally creates a risky situation and invites others into it (e.g. the operator of a dangerous inner-tube sliding competition owes a duty to exclude people who cannot safely participate);
  • A situation involving a paternalistic relationship of supervision and control such as parent-child or teacher-student; and
  • A situation where a defendant either exercises a public function or engages in a commercial enterprise that involves implied responsibilities to the public at large (e.g. commercial host liability cases would fall into this category).[6]

• Holding a private party at which alcohol is served – on the facts of Childs – is insufficient to implicate the host in the creation of a risk sufficient to give rise to a duty of care to third parties who may subsequently be injured by the conduct of the guest. The host creates a place where people can meet, visit and drink alcohol, whether served on the premises or supplied by the guest. All of this falls within accepted parameters of non-dangerous conduct. Moreover, the guest who accepts an invitation to attend a party does not park his autonomy at the door and remains responsible for his conduct. Short of active implication in the creation or enhancement of the risk, a host is entitled to respect the autonomy of a guest. More is required to establish a danger or risk that requires positive action.[7]

• The Court provided some guidance as to what “more” might entail. One example given was a host who continues to serve alcohol to a visibly inebriated person knowing she or her will drive home.[8]

II. The Door is Still Open

Since Childs, there have been a number of attempts by defendants to strike claims framed in social host liability on the basis that no duty of care exists.  To resist those motions, plaintiffs will argue that there is a triable issue as to whether their case is one where “more” exists such that the host was required to take positive action.

In several instances, it appears lower courts have been reluctant to dismiss social host cases on summary judgment where there is any argument that the case may fall into one of the exceptional categories.  This seems to be particularly true in cases involving underage drinking, which have been interpreted as possibly falling into the “paternalistic relationship” exception.[9]  That being said, there are equally cases in which motions for summary judgment have been successful on the basis that no duty of care exists, even in cases with underage drinkers.[10]

This year’s decision of Wardak v. Froom is one example of reluctance to shut the door on these sorts of claims, particularly where minors are involved.[11]This case arose out of a 19^th birthday party that the defendant social hosts held for their son in their home. The son’s friend Dean Wardak attended the party. Dean lived nearby and arrived on foot. He was 18 years old the time. The parents did not serve any alcohol at the party, but they were aware alcohol would be consumed. The party was BYOB. Some guests played a drinking game called “Beer Pong”. The party took place in the basement, but the parents supervised by going down to the basement multiple times over the evening. There was also no washroom in the basement so the parents saw the guests as they came upstairs to use the washroom. Just before 11 p.m., Dean headed for the front door. The father noticed he was wobbling and that his behaviour was odd.  He offered to walk Dean home.  Dean replied that he wanted to use the washroom, did so, and then went back downstairs. A short time later, Dean again headed toward the front door. The father again offered to walk him home. Dean again said he was going to the washroom. The father went upstairs and while he was there, Dean left the party on foot. He went home, got into a car, and shortly thereafter was in a single-vehicle collision leaving him with serious injuries.

On a motion for summary judgment, there was some conflicting or unclear evidence about (i) the extent to which Dean showed signs of being intoxicated; (ii) whether the father asked his daughter and her boyfriend to keep an eye on Dean; and (iii) the timing of events.

In reliance on Childs, the defendant social hosts brought a motion for summary judgment in which they sought to dismiss Dean’s claim against them on the basis that they did not owe him a duty of care. In dismissing the motion, Justice Matheson stressed the importance of the factual context in the determination of whether a duty is owed and noted that the Supreme Court’s decision “does not preclude a finding of a duty of care where there is a paternalistic relationship or where the injured party is a guest rather than a third-party”.[12]

Her Honour seemed to accept that this case could fall within the paternalistic relationship exception. Even though Dean was 18 years of age and therefore an adult, she stressed that he was not legally permitted to drink in Ontario.  But moreover, she found it significant that Dean, who was injured, was a guest and not a third party.  She reasoned that his status as guest increased foreseeability and proximity.

In my view, there is some reason to question the duty of care analysis in Wardak. First, is it appropriate to consider a paternalistic relationship vis-à-vis an 18-year-old?  As noted in Sabourin v. McKeddie,“the duty in these cases rests on the special vulnerability of the plaintiff and the formal position of power of the defendant”.[13]  Can there be a “special vulnerability” or a “position of power” in a case involving a guest who is legally an adult? While Dean was underage for the purposes of the Liquor License Act, and that Act prohibited Dean from drinking and the parents from supplying Dean with alcohol (which there was no evidence they did), it did not require the parents to prevent Dean from consuming alcohol on their premises (as contrasted with the obligations of licensed establishments which are explicitly prohibited from knowingly allowing underage individuals to consume alcohol on their premises, s. 30(3)).

Weighing against this argument however is the evidence that suggested the parents took on a supervisory role and responsibility for their guests.

Second, the motion judge emphasized the significance of the fact that Dean was injured as a guest, and not a third party.  It is difficult to understand how Dean’s status as guest increased the foreseeability of the accident.  The foreseeability reasoning in Childs turned on the evidence (or lack thereof) of whether the parents knew or ought to have known Mr. Desormeaux was intoxicated.  That analysis remains the same in my view whether it is a guest or third party who is injured.  Moreover, the Supreme Court held that the foreseeability issue is irrelevant unless one of the exceptional categories that create a positive duty to act apply, and for the reasons already discussed I find that analysis somewhat problematic.

While not specifically discussed in the decision, one other factor that may have caused the court concern on the duty of care issue in Wardak  was the evidence of drinking games.  These games arguably create a situation or greater danger and risk that could create a positive duty to act.

Ultimately, in my view Wardak  serves as a reminder that – like in so many areas of law – whether the court will accept that there is no duty of care will turn on the facts of the case.  And, moreover, that our courts will often exercise a high level of caution before dismissing a social host claim involving a minor on summary judgment. To that end, I view Wardak as equally a decision about summary judgment and particularly a reminder of the reticence that still exists to deciding important issues on this basis notwithstanding the Supreme Court of Canada’s comments in Hyrniak v. Mauldin that “a shift in culture is required”.[14]  As Justice Matheson noted, notwithstanding the powers available to her on a summary judgment motion, she was “not persuaded that it would be fair and just to either side of this dispute to evaluate the credibility of the defendants or draw inferences from the evidence that are necessary to decide this matter”.

III. Practical Considerations for Claims Analysts Assessing these Claims

While every case turns on its own facts, the following chart outlines some factors that may create greater or lesser risk that a court will conclude that a duty of care exists in a social host liability case:

[1] [2006] 1 S.C.R.643.

[2] See e.g. “Childs v. Desormeaux: A Post-Mortem”, http://www.cavanagh.ca/blog/?p=166 and “WhateverHappened to … Childs v. Desormeaux: Killer Hospitality”, http://www.lawnow.org/whatever-happened-childs-v-desormeaux-killer-hospitality.

[3] Para. 1

[4] Paras. 27-30

[5] Paras. 31-32

[6] Paras. 34-38

[7] Paras. 44-45

[8] Para. 44

[9] See e.g. Lutter v. Smithson, [2013] B.C.J. No. 133 (S.C.) (dismissing summary judgment motion in an action arising out of a 19^th birthday party which was BYOB where an 18-year-old guest attended, became very drunk, and subsequently injured the plaintiff in a motor vehicle accident); Sidhu (Litigation guardian of) v. Hiebert, [2011] B.C.J. No. 1905 (S.C.) (a decision dismissing the defendant social host’s application for a summary trial in a case arising out of a 50^th birthday party in which a guest became intoxicated where there was a great deal of conflicting evidence about whether the social host knew or ought to have known about the guests state of sobriety when he drove away); Hamilton v. Kember, 2008 CanLii 6988 (ON SC) (dismissing summary judgment motion in an action arising out of a house party that a 17-year-old held, with permission, while her parents were away on a camping trip).

[10] Sabourin v. McKeddie, 2016 ONSC 2540 (CanLII) (successful motion for summary judgment where a 16-year-old passenger of a car was injured after she spent the day drinking at the home of a friend’s father but there was an absence of evidence that the father knew the plaintiff’s age, knew that there were underage drinkers present, provided alcoholic drinks to anyone, knew that excessive drinking was taking place, or knew that anyone was showing obvious signs of intoxication); Ferrier v. Hubert, 2015 ONSC 5286 (CanLII) (successful motion for summary judgment where a young adult guest was injured after attending a 24^th birthday party at his friend’s parent’s cottage where the parents were present at the cottage and knew alcohol was being consumed but not were involved in supervising guests and all guests were adults)

[11] 2017 ONSC 1166 (CanLII)

[12] Para. 52.

[13] 2016 ONSC 2540 (CanLII)at para. 35.

[14] [2014] 1 S.C.R. 87 at para. 2