Revisiting Host Liability
As we enter the holiday season, many of us will either be attending or hosting a party where alcohol is being served. Sadly, circumstances will likely arise somewhere in Canada where excessive amounts of alcohol will be consumed by a guest who decides to drive their car and causes an accident resulting in serious personal injury or death. Ever since the leading decision of the Supreme Court of Canada in Childs vs. Desormeaux, it has been considered by many to be settled law that a social host does not owe a duty of care to a public user of a highway who is injured by the hosts’ intoxicated guest. Many cases decided since Childs have been dismissed on the basis that no duty of care existed.
However, new life has been brought to social host liability following the recent decision of the Ontario Court of Appeal in Williams vs. Richard, 2018 ONCA 889. In this case, two friends and work colleagues, Williams and Richard, got together for drinks after work at the home of Richards’ mother. They consumed approximately 15 beers in a three hour period. Williams left the Richard’s residence and drove his car to pick up his children at their babysitter. While on the way back to his residence, he was involved in a very serious accident which resulted in Williams being killed and his three children seriously injured. Two actions were brought as a result of this accident, which included claims as against Richard and his mother, the homeowner, alleging that they had breached their duty of care as social hosts. A motion for summary judgment was allowed and the actions were dismissed on the basis that the requisite duty of care had not been established. The motions judge relied on the decision of the Supreme Court of Canada in Childs and the decision of the Court of Appeal in John vs. Flynn, 54 OR 3rd 774. The Court of Appeal allowed the appeal, finding that the action should not have been dismissed on a summary motion and held that there were factual issues that required determination at trial.
Hourigan J.A., writing for the Court, provided a very helpful analysis of the legal principles arising from the Childs decision and post Childs jurisprudence. The Court noted that there is no clear formula for determining whether a duty of care is owed by a social host to third parties or guests. The determination whether such a duty of care exists will usually depend on fact specific determinations with respect to two issues. First, one must examine the host’s knowledge of the guest’s intoxication or future plans to engage in a potentially dangerous activity that could subsequently cause harm. This is described as the foreseeability analysis. The second question asks if “something more” is present on the facts of the case to create a positive duty to act. This proximity analysis looks for facts that might suggest that a host was inviting the guest to an “inherently risky environment” or facts that suggest a “paternalistic relationship exists between the parties”. The Court noted that there could be many different factual permutations of what could transform a social gathering into an invitation to an inherent and obvious risk. These cases could be situated on a spectrum. The Court noted that on the one end of the spectrum could be the Childs’ fact situation, which involves a ‘bring your own alcohol’ party where the host has provided minimal alcohol. Other examples noted by the Court included private parties of a reasonable size and/or an invitation to a co-workers home to have dinner and after-work drinks, which would generally not be considered inherently dangerous or risky. Along the spectrum, the Court cited an example of a young adult throwing a “wild” Halloween party and providing alcohol and/or illegal drugs, which may implicate the host in the creation of an inherent risk. At the other end of the spectrum, the Court used the example of a teenager throwing a house party which over 100 people attended, most of whom were underage drinkers, while their parents were out of town, which would likely implicate the host in the creation of an inherent risk.
Hourigan J.A. noted that the duty of care analysis to determine whether a social host failed to act consists of three elements:
- Was the injury reasonably foreseeable;
- Is there sufficient proximity such that there is a duty to act. If these elements are satisfied a prima facie duty of care has been established; and
- Whether this duty is negated by other, broader policy considerations.
Based on these principles, the Court of Appeal noted that the motion judge did not undertake the required analysis and that these questions required the Court to make factual determinations which were not suited for determination on a summary judgment motion.
The Court of Appeal in Williams vs. Richard, has provided guidance and direction as to the approach to be taken in determining whether social host liability exists in the circumstances. As noted by the Court, the determination will be based on the specific facts of each case. While the scope of social host liability may not yet be fully determined in Canada, common sense dictates that social hosts should nevertheless continue to take reasonable steps to ensure the safety of their guests who consume alcohol. Whether it is a legal or a moral duty, social hosts should take appropriate steps to ensure that their guests do not create a danger for themselves, their families or members of the public.