Reasonable Foreseeability in Social Host Liability
The Court of Appeal for Ontario’s recent decision in Jonas v Elliot[i] reminds me of Johnny Nash’s classic song, “I Can See Clearly Now.” As Johnny Nash sang, “I can see clearly now the rain is gone. I can see all obstacles in my way,” he celebrated his certainty that he could foresee all obstacles to a great day. But, what if he couldn’t foresee the obstacles? In the context of social hosts, the court in Jonas made it clear that if a social host does not reasonably foresee a particular harm, it will not owe a duty of care to the injured.
In Jonas, the City of Stratford rented a facility for a party hosted by Carrie Goudy. The City granted Ms. Goudy permission to serve alcohol. While attending the party, two guests were involved in a physical altercation which resulted in injuries. The injured plaintiff brought an action against the City, Ms. Goudy, and the alleged assailant.
The motions judge made an Order granting partial summary judgment to dismiss the action against the City and Ms. Goudy only. The plaintiff appealed, arguing that the motions judge erred in finding that there was no duty of care on the part of the host and/or City.[ii] In a decision which favours social hosts, the Court of Appeal for Ontario unanimously dismissed the appeal.
The court held that the motions judge correctly articulated a social hosts’ statutory duty of care pursuant to the Occupiers’ Liability Act, as follows:[iii] “a person or organization with physical possession and/or responsibility for and control over a property is supposed to take steps to ensure that all persons on the property are reasonably safe while on the premises.”
Further, the motions judge correctly noted that a duty of care will not exist unless: (1) there is a relationship of proximity between the plaintiff and defendant, and (2) the harm is reasonably foreseeable to the defendant. These same requirements were recently reiterated by the Supreme Court of Canada in 1688782 Ontario Inc v Maple Leaf Foods.[iv]
The court found that the motions judge made 6 findings of fact that were sufficient to demonstrate that the altercation and resulting harm was not reasonably foreseeable to the City and Ms. Goudy:
- Experienced and trained staff were hired to serve alcohol and a friend provided security at the door;
- Both Mr. Jonas and Mr. Elliot had consumed alcohol before attending the party, but neither exhibited prior signs of aggressive behaviour or conduct that would suggest they had consumed alcohol before they arrived;
- Goudy was unaware of their prior alcohol consumption;
- The incident was both sudden and brief;
- There was only one other minor incident that evening involving an intoxicated patron who was appropriately removed from the party, placed in a taxi and taken home; and,
- The fact that Mr. Jonas was let into the party by Ms. Goudy was not the cause of the incident.
These findings of fact were owed deference. Adding to the line of cases in which the courts declined to recognize a duty of care between social hosts and guests injured by other intoxicated guests,[v] Jonas confirms that a holistic assessment of the facts is necessary for determining reasonable foreseeability. In particular, Jonas suggests that a harm will not be reasonably foreseeable if a social host can show it took steps to address what it viewed as foreseeable – for example, if the social host hired trained staff to serve alcohol, had security at the door, sent an intoxicated guest home, had no knowledge of the guest’s prior alcohol consumption, and the altercation leading to the injury was sudden and brief.
Although the findings of fact in Jonas may read as a social host’s checklist for protecting itself from liability, caution should be exercised in doing so. As with all decisions in the personal injury context, decisions will turn on the facts. For example, as explained by McLachlin CJ, writing for the court in in Childs v Desormeaux, if a defendant “creates a risky situation and invites others into it, failure to act thereafter does not immunize the defendant from the consequences of its acts.”[vi]
As it stands, the law leaves open the possibility that social hosts may be liable for harm caused by altercations between guests if the legal components of the duty of care can be established. The question remains: what facts will be sufficient for establishing reasonable foreseeability? Further, in what circumstances will a social host’s actions be deemed insufficient for addressing the foreseeable harms of intoxication? Personal injury lawyers need to be vigilant to ensure that they understand the details leading to their clients’ injuries – liability depends on it.
[i] 2021 ONCA 124.
[ii] The plaintiff also argued that the motion judge erred in bifurcating the proceeding because it resulted in a risk of duplication with his surviving claim against the alleged assailant. This ground of appeal was also dismissed, but will not be addressed in this blog post.
[iii] RSO 1990, c. O.2.
[iv] 2020 SCC 35.
[v] See e.g. Williams v Richard, 2018 ONCA 889; McCormick v Plambeck, 2020 BCSC 881.
[vi] 2006 SCC 18 at para 35.