The unanimous seven-judge panel hearing the case distinguished the situation presented from others involving public hosts such as bars or restaurants serving alcohol to customers.
“It is reasonable to expect that the public provider will act to protect the public interest. There is public reliance that he will comply with the rules that prohibit serving too much alcohol to a patron and that if this should occur and the patron seeks to drive, that the public host will take reasonable steps to prevent the person from driving,” then-chief justice Beverley McLachlin wrote for the panel.
“The same cannot be said of the private social host, who neither undertakes nor is expected to monitor the conduct of guests on behalf of the public.”
“I conclude that hosting a party at which alcohol is served does not, without more, establish the degree of proximity required to give rise to a duty of care on the hosts to third-party highway users who may be injured by an intoxicated guest,” she added, hinting that the decision could have gone the other way had the facts disclosed a reasonably foreseeable harm to other road users.
Situations involving a social host with a paternalistic relationship to guests or one who intentionally invited third parties to “inherent and obvious” risks, could possibly create a positive duty of care, the decision says.
Despite that invitation, Bevin Shores, a partner with insurance defence boutique Hughes Amys LLP in Hamilton, Ont., says no plaintiffs have yet managed to squeeze themselves through the gap wedged open by the top court.
“Social host liability has proven a little elusive for the lawyers who practise in this area,” she says.
“Frankly, we haven’t seen any determinative case law yet, but we are inching closer to that point.”
In the absence of a formal finding of social host liability at trial, Shores explains that advancements have come via motions for summary judgment brought by defendants wishing to dismiss claims.
For example, in Wardak v. Froom, Ontario Superior Court Justice Wendy Matheson ruled a trial was required to determine whether the hosts of a 19th birthday party could be held liable for the serious injuries of an 18-year-old guest who walked the short distance home drunk, before driving his vehicle over a fire hydrant and into a tree.
According to the decision, the hosts of the party (the birthday boy’s parents) claimed they owed no duty of care to guests because they hadn’t served any alcohol. Even if a duty was found, they argued it had been met.
But Matheson remained unconvinced.
“Although there are some facts that can be found on the record before me, the relevant factual matrix quickly becomes complicated and cannot fairly and justly be determined on this motion. Nor is the claim bound to fail on the law,” she wrote, dismissing the defendants’ motion for summary judgment.
The most recent refinement in the case law came at the end of 2018, when the Court of Appeal for Ontario overturned a judge’s decision to grant another set of defendant hosts summary judgment dismissing a claim against them.
The plaintiffs in Williams v. Richard are the children of Mark Williams, who were injured in the same crash that killed their father. According to the appeal court decision, Williams drove into the back of a stationary tractor trailer following an after-work drinking session at the home of his friend, Jake Richard.
In addition to a lawsuit for their own injuries, the children sued Richard and his mother for damages under the Family Law Act, alleging they breached their duty of care as social hosts.
The decision says the two men were long-time friends who often shared drinks after work at each other’s homes. On the day in question, Williams arrived at his friend’s house in his work van and drank 15 beers over the course of three hours, with Richard in the garage.
When Williams suggested he would drive his babysitter home with his children in his car, Richard threatened to invoke a pact between the two and call the police on him, before Williams assured him he would not do so.
However, the decision says Richard took no other steps to stop Williams from driving drunk. He did eventually call the police from a payphone a while later, after he and his mother drove to a store for cigarettes and noticed Williams’ personal car was gone from his driveway. But on the way home, they came across the crash scene.
A motion judge ruled the case against Richard and his mother, who owned their home, should be dismissed because they owed no duty of care to Williams. Even if they did, the judge found the duty expired when Williams arrived home safely, before he left the house with the babysitter and children.
But the three-judge appeal court panel found fault with the motion judge’s duty of care analysis, and touched on the factual differences between this case and those in the landmark case of Childs.
“This was not a large social gathering, rather it was two men drinking heavily in a garage. There was a developed pattern of this behaviour, enough so that the men had a pact as to what to do in the event one of them drove children while under the influence,” wrote Appeal Court Justice William Hourigan for the panel.
“There is conflicting evidence on many of the key issues. A trial is required to determine whether Mr. Richard and/or Ms. Richard owed a duty of care to Mr. Williams and/or his children,” he added.
The plaintiffs’ lawyer Patrick Brown, a partner at McLeish Orlando LLP, says the case offers valuable clarification on the issue of social host liability.
“It’s really an extension of what the Supreme Court has already indicated, and the take-home message for people is that you’ve got to look closely at foreseeability and proximity,” he says.
Brian Smith, a lawyer with London, Ont. firm Wallace Smith LLP who acted for the Richards, says his clients were disappointed with the result, and are currently assessing their options, which include taking the matter to trial.
“It’s a risky thing obviously, because we don’t want to open the door on social host liability,” he says.
Lara Fitzgerald-Husek of Oatley Vigmond Personal Injury Lawyers LLP, says she welcomes the recent decisions for redressing the balance on social host liability.
“Defendants and insurers have been relying on Childs as if it answered the question in black and white,” she says. “These decisions show that courts are attuned to the fact that social hosts are not automatically absolved of liability.”
According to Sudevi Mukherjee-Gothi, the head of the insurance defence group at Pallett Valo LLP, it may only be a matter of time before a trial judge makes a finding of liability against a social host, especially since the legalization of cannabis for recreational use introduced a new legal source of intoxication for partygoers.
“I’m concerned that the general opinion in the public is that they’re off the hook when they host a party, because that’s certainly not the case,” she says. “I think we’ll be seeing more cases dealing with the issue in the future.”