McLeish Orlando lawyer explains how they've managed to win the right to pursue a social host liability case, despite the high bar set by the Supreme Court
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Despite a Supreme Court ruling that sets a high bar for a successful social host liability suit, one personal injury lawyer still thinks these cases are worth pursuing.
William Harding, an associate at McLeish Orlando LLP, explained that within the supreme court’s high test, opportunities exist to successfully pursue justice in these cases. Harding says these cases are extremely dependent on their facts. Through a thorough examination of the facts and some novel arguments, lawyers at McLeish Orlando were able to win a breakthrough case at the Ontario Court of Appeal around social host liability, despite, of in some ways because of, the Supreme Court’s test.
“In Childs v. Desmoreaux the Supreme Court denied the claim against a social host. However, they outlined just how facts driven this analysis is,” Harding says. “Despite denying that claim, since then there have been cases with slightly different factual circumstances that will allow the claim to proceed/ Our firm has always been pushing this type of claim.”
One such example of McLeish Orlando’s work in this area was a Court of Appeal ruling in late 2018 in the case of Williams v Richard. In that case Mr. Williams became intoxicated while drinking numerous beers with a Mr. Richards in Richards’ home. After he left Richards’ home he arrived at his home where he picked up his children and their babysitter to drive the babysitter home. He was involved in a collision in which he died, and his children suffered injuries.
A summary judgement motion brought by the defendants stated that no duty was owed to the injured children. The judgement ruled that a duty of care couldn’t be established and even if it could, Williams had gone home before driving his children and their babysitter. The duty of care ended when he got home.
McLeish Orlando principal partner Patrick Brown, along with Harding, elected to appeal that judgement. At the Court of Appeal, they went about highlighting the key factual differences between Williams and Childs.
“In Childs it was a larger party and the extent of the drinks provided was a small champagne toast. Everyone brought their own drinks…there's less control over the situation,” Harding says. “In Williams it was only two people, the social host provided 100% of the alcohol consumed, and the guest ultimately drove away very intoxicated. This host had every opportunity to observe his guest. He was the one who actually provided him all of the alcohol. So that's a huge distinction from Childs. The host here was actually instrumental in creating the risk.”
Brown and Harding argued, too, that the duty of care didn’t end when Williams arrived home. The Court of Appeal agreed. While the case is not over, McLeish Orlando has won the right to pursue it. The Court of Appeal accepted his argument that the unique facts of the Williams case put it over the high bar set by Childs.
Harding thinks there are wide-ranging ramifications for this Court of Appeal decision. In the more common cases of commercial host liability, the acceptance of his argument that liability doesn’t end at home could expand the liability of bars and restaurants serving liquor. Harding stressed, though, that this liability would be determined on a case by case basis.
This is not the first time McLeish Orlando has successfully made this argument. In 2016, Dale Orlando and Joseph Cescon successfully defended a summary judgment motion seeking to dismiss the claim of a seriously brain injured plaintiff. In that case, the plaintiff Mr. Linton, became intoxicated at the defendant restaurant and then returned home to a rented ski chalet. Sometime after arriving home, he proceeded to fall down a set of stairs, and suffered a serious injury. The defendant argued that the duty of care owed to Mr. Linton ended when he arrived home. Orlando and Cescon were successful in arguing that the duty owed does not automatically end after arrival home, and Mr. Linton was able to continue to pursue his claim.
In terms of social host liability, Harding thinks now’s the time for personal injury lawyers and members of the public to familiarize themselves with Childs and Williams. When the coronavirus pandemic passes, there’s likely to be an “explosion” of social activity. As people start having friends over again they should be aware of their responsibility as “hosts” and know just where the line of liability lies.
Harding says this ruling stems from McLeish Orlando’s ethos, as a personal injury firm driven to tackle challenging legal issues and make favourable law for plaintiffs.
“It takes a tremendous amount of time and resources to pursue this types of cases properly, but as a firm we relish the opportunity to create favourable precedents for injured plaintiffs and their loved ones. We think we are uniquely positioned as a firm to commit these kinds of resources to advancing these claims. That's why we are willing to pursue novel arguments in terms of expanding the duty of care owed to social and commercial guests as well as fight to distinguish cases from Supreme Court decisions when necessary. It's just something that we think we're in a position to do and are always willing to pursue.”
