Another year is coming to an end. ‘Tis the season of holiday parties with friends, family, and colleagues. Amid this festivity, a reminder about the law on social host liability is apropos.
The leading case on social host liability is Childs v Desormeaux[1], where the Supreme Court of Canada considered a tragic case involving an impaired driver and a motor vehicle collision which left one person dead and another paralyzed. The Plaintiffs claimed that the hosts of a party at which the impaired driver was a guest owed them a duty of care and had failed to stop Mr. Desormeaux from driving while intoxicated.
The Supreme Court decided the case on the issues of proximity and foreseeability, and ultimately found that the social hosts did not owe a duty of care to the Plaintiffs on the facts of that case.
In particular, foresee-ability had not been established as there had been no finding of fact that the social hosts knew or ought to have known that their guest was too drunk to drive. With respect to proximity, the Supreme Court found that simply holding a house party where alcohol is served is not an invitation to participate in highly risky activity; more is required to establish a risk that requires positive action.[2]
Despite its ultimate conclusion in Childs, the Supreme Court did not foreclose the possibility of a duty of care arising in a social host context with different facts, writing: “…it might be argued that a host who continues to serve alcohol to a visibly inebriated person knowing that he or she will be driving home has become implicated in the creation or enhancement of a risk sufficient to give rise to a prima facie duty of care to third parties”.[3]
The Court of Appeal for Ontario more recently considered the issue of social host liability in the case of Williams v Richard.[4]
Here, the case involved two men, Mr. Richard and Mr. Williams, who had formed a pattern of consuming large quantities of alcohol together after work. On the occasion in question, shortly after leaving Mr. Richard’s mother’s home where he had consumed approximately 15 beers over the course of 3 hours, Mr. Williams loaded his children into his car and drove their babysitter home. On the way back to his residence, Mr. Williams was involved in a serious accident in which he died and his children were injured. Mr. Williams’ spouse and injured children commenced an action against, inter alia, Mr. Richard and his mother on the basis of social host liability.
The Plaintiffs appealed a motion judge’s decision to grant the defendants summary judgement to dismiss their claims. The Court of Appeal ultimately decided in the Plaintiffs’ favour, and overturned the motion judge’s decision.
The Court of Appeal found that there was a genuine issue for trial on the question of whether Mr. Richard and Ms. Richard, as a social hosts, may have invited Mr. Williams into an inherently risky environment that they controlled and created, thereby creating a positive duty of care.
In making this finding, the Court of Appeal distinguished Williams from Childs on several important facts:
- Mr. Richard knew that Mr. Williams was too intoxicated to drive;
- alcohol had been provided or served (there were 30-40 beers available in the garage refrigerator);
- there was a pattern of drinking heavily at one another’s homes, and the two men had a pact that if either of them was going to drive intoxicated with children, the police would be called;
- Ms. Richards was aware of the pattern heavy drinking on her property and of the pact between the two men;
- neither Mr. Richard nor Ms. Richard did anything to stop Mr. Williams from driving while drunk;
- there was conflicting evidence about whether Ms. Richard knew that Mr. Williams would be driving while drunk.
The Court of Appeal also found that the motion judge erred in concluding that any duty of care automatically expired when Mr. Williams arrived home.
In deciding Williams, the Court of Appeal provided a helpful overview of the law, illustrating the range of factual scenarios which may or may not attract social host liability:
27 Much of the post-Childs jurisprudence regarding proximity has engaged in a factually specific evaluation of whether “something more” is present to suggest that a positive duty to act may exist. While there is no definitive list, the case law has looked at a variety of factors to determine what could qualify as “something more” that would make a social gathering an inherent and obvious risk, including: whether alcohol was served at the party or whether guests were invited to bring their own alcohol, the size and type of the party, and whether other risky behaviour was occurring at the party, such as underage drinking or drug use: see generally Childs, Sidhu, Wardak, Lutter, Sabourin, Kim, Allen v. Radej, 2014 ABQB 171 (Alta. Q.B.), Oyagi v. Grossman [2007 CarswellOnt 1699 (Ont. S.C.J.)], 2007 CanLII 9234; Wenzel v. Desanti, 2011 ABCA 226, 510 A.R. 327 (Alta. C.A.), leave to appeal to S.C.C. refused, (2012), [2011] S.C.C.A. No. 437 (S.C.C.).
28 There are many different factual permutations of what could transform a social gathering into an invitation to an inherent and obvious risk. It is helpful to think of these situations as being situated along a spectrum. At one end of the spectrum is Childs, which was a “bring your own alcohol” party where the hosts provided minimal alcohol. Similarly, private parties of a reasonable size are usually viewed by the courts as not inherently risky: see Robinson v. Lewis, 2015 ABQB 385 (Alta. Q.B.), at paras. 72-77. Likewise, an invitation to a co-worker’s home to have dinner and after-work drinks outside is not inherently dangerous or risky: see Allen, at para. 78. Moving further down the spectrum, a young adult throwing a “wild” Halloween party and providing alcohol for around 40 people, some of whom are using illegal drugs, may implicate a host in the creation of an inherent risk: see Kim, at paras. 9-10, 25. On the far end of the spectrum, a teenager throwing a house party at which over 100 people attend, most of whom are underage drinkers, while their parents are out of town, likely implicates the host in the creation of an inherent risk: Oyagi, at paras. 6-7, and 12.[5]
The case illustrates that the issue of social host liability is very much alive.
Unfortunately, impaired driving involving alcohol and/or drugs is a leading cause of death and injury in Canada.[6] These tragedies are unnecessary and avoidable.
Social hosts should be mindful of potential liabilities when hosting gatherings involving the provision of alcohol and/or cannabis, and take extra care this holiday season to encourage guests to consume alcohol and/or cannabis responsibly and to use safe means of transportation. In particular, social hosts would be well advised to avoid creating inherently risky environments which may ultimately contribute to impaired and unsafe driving on Canadian highways.
Have a safe and
happy holiday season!
[1] Childs v Desormeaux, 2006 SCC 18. [“Childs”]
[2] Ibid at para. 44.
[3] Ibid.
[4] Williams v Richard, 2018 ONCA 889. [“Williams”]
[5] Ibid at paras. 27-28.
[6] https://madd.ca/pages/impaired-driving/overview/statistics/