When it comes to social host liability context is important, says Carr Hatch of Thomson Rogers
The COVID-19 pandemic forced the cancellation of many festive occasions usually marked by parties or get-togethers, and by the time things return to normal people could be making up for missing multiple St. Patrick’s Days, May 24s, birthdays and the like — and may be tempted to party even harder than usual. In light of this likelihood, it's pertinent to be up to date on the present state of social host liability.
Many of the cases dealing with social host liability involve parents hosting the party at their home where they know minors are drinking alcohol.
“The courts look at underage drinking cases on a spectrum based on the degree of responsibility of the parents, the foreseeability of harm and the proximity in creating the risk,” says Carr Hatch, a partner at Thomson Rogers.
A 2006 Supreme Court of Canada decision, Childs v. Desormeaux, is considered the leading case on the subject in Canada. It "left the door open for social host liability where something more is present on the facts to create a potential positive duty of the social host to act,” Hatch explains.
It requires “something more” to trigger social host liability. For example, if the hosts invited their guests to a potentially risky environment where there was also underage drinking, or if a paternalistic relationship existed between the hosts and the guests. Those would be factors in establishing liability, but the underage drinking in and of itself is not enough.
A case Hatch argued in 2017, Wardak v. Froom, was successful on a summary judgment motion where an underage plaintiff left a house party while intoxicated, walked down the street and got into his vehicle which was parked in his own driveway and got into an accident resulting in him being seriously injured.
“The party hosts had knowledge of the underage drinking and permitted beer pong being played in the basement,” he says. “They also know their guest was severely intoxicated.”
Wardak had some impact on the law in this area, and is referenced in a recent case out of B.C. that expands on social host liability and did not find any liability on the part of the host.
In McCormick v. Plambeck, the plaintiff was involved in a motor vehicle accident as an intoxicated passenger when the driver, who was not intoxicated at that time, stole a car after he and the plaintiff left a party on foot. These facts were not enough to establish that “without more” threshold which opened the door to the potential for social host liability cases within the Childs decision. The judge rejected the case on foreseeability — ruling that the hosts could not have foreseen that a guest would leave the party, steal a car and operate it unsafely.
“If the facts were changed and the plaintiff left a party on foot and was obviously intoxicated, walked across a street and was struck by a vehicle, or got into his own vehicle parked in the driveway of the hosts, the facts would be there to likely establish that ‘without more/something more,’” Hatch says.
The party host parents also took several measures that showed they took some degree of responsibility despite permitting underage drinking, which on its own is not enough for liability. The hosts had guests place their keys in a bowl, patrolled the party occasionally and drove guests home at the end of the night. The court also took into account the context of the laid back island community, noting the existence of regular underage drinking and marijuana consumption in the community.
As we head into the holiday season — albeit one with festivities dampened by COVID — it’s important to recognise social host liability “is far from dead in Canada,” says Hatch, adding that some of the cases where a plaintiff could have succeeded have settled without the need for trial, particularly when the damages would have easily exceeded the limits of a home owner's insurance policy.
"For party hosts, you are vulnerable when you permit underage drinking in your home,” he says. “That alone, however, is not enough to trigger social host liability — context is important.”