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13 June 2006
On May 5 2006 the Supreme Court of Canada released its long-awaited decision on social host liability in Childs v Desormeaux. In a unanimous decision the court held that, as a general rule:
"[A] social host does not owe a duty of care to a person injured by a guest who has consumed alcohol...A party where alcohol is served is a common occurrence, not one associated with unusual risks demanding special precautions."
Although the court qualified the general rule with the exception of a host whose "conduct implicates him or her in the creation or exacerbation of the risk", this exception appears to be narrow and unlikely to apply to most situations. Therefore, it is hoped that the decision will help to put would-be party hosts at ease, especially as the Canadian summer barbecue and graduation season nears.
Before the Supreme Court's decision in Childs, the Canadian courts wrestled with whether a duty of care should be imposed on private party hosts similar to the duty imposed on commercial hosts, such as bar or restaurant owners. In its earlier decision in Stewart v Pettie, the Supreme Court confirmed that a special relationship exists between a commercial host and the public, requiring the former to take positive steps to protect the latter. Various Canadian lower courts grappled with the idea of finding such a duty of care with respect to private hosts, only to be reversed on appeal. Thus, the issue of social host liability was ripe for consideration by the Supreme Court when, in an earlier stage of the Childs Case, the Ontario Court of Appeal held that merely supplying the venue for a 'bring your own alcoholic drinks' (BYOB) party does not create a prima facie duty to third-party motorists.
Zoe Childs was rendered paraplegic in a car accident in the early morning of January 1 1999. She was a passenger in a car that was hit head on by a vehicle driven by Desormeaux. Desormeaux and his passengers had just left a New Year's Eve celebration at the home of some friends who had hosted a BYOB party for the occasion. Desormeaux had consumed approximately 12 beers over the two and a half hours he had spent at the party, and was known by his hosts to be a heavy drinker and to have driven when drunk on previous occasions. When Desormeaux left the party, he had a blood alcohol level of almost three times the legal limit for driving.
Writing for the court, Chief Justice McLachlin identified the central issue as "whether social hosts who invite guests to an event where alcohol is served owe a legal duty of care to third parties who may be injured by intoxicated guests".
While noting that such a duty exists for commercial hosts, McLachlin noted that this was the first time the Supreme Court had had to consider the duty owed by social hosts.
Not surprisingly, the court distinguished the duties owed by social hosts from those owed by commercial hosts. It did so on three grounds, all tied to the public's expectations of commercial hosts - namely:
Consequently, the court concluded that commercial and social hosts were not sufficiently similar to extend the commercial host's duty of care to social hosts as a recognized category of claim-founding liability.
Therefore, the court was required to determine whether, in the novel situation before it, liability ought to be found. It held that the answer was no: the injury to Childs was not reasonably foreseeable and, even if there were foreseeability, the law does not impose a positive duty to act except in special circumstances, and these circumstances did not exist in this case.
With respect to foreseeability, the court noted that the trial judge did not make a finding with respect to whether the hosts knew or ought to have known that their guest was impaired. Without such a finding, the court questioned how the hosts could be held to have foreseen that allowing their guest to drive might result in serious injury to others. Their knowledge of their guest's history of drinking and driving in the past was, in the court's opinion, too weak to support the conclusion of reasonable foreseeability as there was only a "frail hypothesis" that past conduct could reasonably be foreseen to happen again. The court held that even commercial hosts should not be found liable on that basis.
Central to the court's overall finding of no liability was the concept of individual autonomy and an historic reluctance to impose positive duties to act, as opposed to imposing consequences for what one has already done. As the common law is, as the court put it, "a jealous guardian of individual autonomy", the court was reluctant to find a duty to take positive action, such as preventing Desormeaux from driving.
However, the court noted that a positive duty of care may exist if the relationship between the plaintiff and defendant creates a special relationship, such as where:
In all such cases, the special relationship carries with it the responsibility to reduce the risks created by the defendant's conduct. However, a social host who serves alcohol at a private party was held to be distinguishable from those categories of special relationship. The common thread among the recognized categories is reasonable reliance on the defendant. The court held that this cannot be said of the host of a private party. As the court put it:
"[A] person who accepts an invitation to attend a private party does not park his or her autonomy at the door. The guest remains responsible for his or her conduct. Short of active implication in the creation or enhancement of the risk, a host is entitled to respect the autonomy of a guest...[W]hen such a choice is made by an adult, there is no reason why others should be made to bear its costs."
Having decided that no prima facie duty of care was established, the court concluded that it was unnecessary to consider whether there were any policy considerations that might limit or negate the duty. It held that a social host of a private party will not, in the absence of what appear to be very special circumstances, owe a duty of care to the general public for the actions of his or her guests.
While the court's qualification of the general rule is important to bear in mind, this decision strongly suggests that the general rule applies even in private host bar situations (as opposed to the BYOB party in the Childs Case). The court expressly stated that it did not have to, and was not, deciding whether a social host had a positive duty to act if he or she continued to serve a visibly inebriated person who the host also knew would be driving. The court's heavy emphasis on personal autonomy and its extreme reluctance to impose duties to act suggest that, even in that situation, the issue of liability would still be the subject of serious debate.
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