In Childs v. Desormeaux, 2006 SCC 18, the leading case on social host liability, the Supreme Court of Canada found that no duty of care existed where an intoxicated guest left a party, got in their car, and was involved in a motor vehicle accident in which one individual was killed and another seriously injured.
While the decision in Childs left open the possibility that, in the right circumstances, a social host could be found liable, the Court set a relatively high bar for social host liability. The test has proven difficult to meet.
The most recent decision on social host liability is the Ontario Court of Appeal's decision in Williams v. Richard, 2018 ONCA 889.
FACTS
Mr. Williams and Mr. Richard were colleagues and friends who regularly drank beer together after work. On the evening in question, Mr. Williams became intoxicated after consuming approximately 15 beers at Mr. Richard's home, where he lived with his mother, Ms. Richard.
Mr. Richard, who knew that Mr. Williams was in no state to drive, became aware of Mr. Williams' intention to drive his children's babysitter home, with his children in the car. The two had a pact that if either of them was going to drive while intoxicated and children were involved, the other would call the police.
Although Mr. Richard threatened to call the police, he did nothing further to stop Mr. Williams from driving.
Shortly after leaving the Richard's residence, Mr. Williams loaded his children into his car and drove the babysitter home. On his way back, he was involved in a serious accident, in which he was killed and his children were allegedly seriously injured.
Actions were brought against both Mr. and Ms. Richard, on the grounds that they had breached their duties of care as social hosts.
MOTION DECISION
Mr. and Ms. Richard brought a motion for summary judgment, arguing that no duty of care was owed. The motion judge ruled in their favour, concluding that the requisite duty of care was not established. Relying on John v. Flynn ((2001), 54 OR (3d) 774 (CA)), she found that even if a duty of care did exist, it would have ended once Mr. Williams arrived home safely before leaving again to drive the babysitter.
The ruling was appealed.
APPEAL DECISION
The two main issues on appeal were:
- Did the motion judge err in her duty of care analysis?
- Did the motion judge err in relying on John?
(1) Duty of Care
The duty of care analysis should consist of three elements:
- Was the injury reasonably foreseeable?
- Was there sufficient proximity such that there is a duty to act?
- Was the duty, if any, negated by policy considerations?
The foreseeability analysis focuses on a social host's knowledge of a guest's intoxication or future plans to engage in a potentially dangerous activity that subsequently causes harm.
The proximity analysis considers whether "something more" is present on the facts to create a positive duty to act.
A number of factors are used in determining what constitutes "something more", including whether alcohol was served or guests brought their own alcohol, the size and type of the party, and whether other risky behavior was occurring at the party, such as drug use or underage drinking.
The motion judge's duty of care analysis did not follow this structure.
Mr. Richard
It was not clear whether the motion judge even considered the issue of foreseeability. The Court held that, with regards to whether it was reasonably foreseeable that Mr. Williams would drive his children and their babysitter, the conflicting evidence suggested there was a genuine issue requiring trial.
With respect to proximity, the Court did not agree with the motion judge's analogy between this case and Childs – there was no large social gathering as in Childs, this was two men drinking heavily in a garage where alcohol was provided.
Further, the motion judge failed to consider the statement in Childs that "it might be argued that a host who continues to serve alcohol to a visibly inebriated person knowing that he or she will be driving home has become implicated in the creation or enhancement of a risk sufficient to give rise to a prima facie duty of care to third parties".
The Court held that the facts raised a genuine issue requiring trial with regards to whether Mr. Richard, "invited Mr. Williams into an inherently risky environment that he controlled and created, thereby creating a positive duty of care".
Ms. Richard
On the issue of foreseeability, the motion judge incorrectly concluded there was no evidence that Ms. Richard knew that Mr. Williams would be driving while intoxicated. There was conflicting evidence on this point, which raised a genuine issue requiring trial.
With respect to proximity, the Court held that the facts could potentially implicate Ms. Richard in "the creation or control of an obvious and inherent risk". Again, given the conflicting evidence, there was a genuine issue requiring trial.
(2) Reliance on John
Following her duty of care analysis, the motion judge stated that if she were incorrect in finding that a duty was not established, any such duty ended upon Mr. Williams' initial safe arrival home.
In coming to that conclusion, she relied on a statement made in John, where the Court held that if a duty did exist, "it did not extend beyond the point where Flynn left the company premises and drove safely to his home".
The Court of Appeal concluded that the motion judge erred in finding that any duty of care automatically ended when Mr. Williams arrived safely home, as the statement in John did not stand for the proposition that, in all circumstances, a duty of care ends when an intoxicated driver arrives home safely. The limits of the duty must be determined on the facts.
CONCLUSION
This Court of Appeal decision indicates that the door remains open to a finding of social host liability, reiterating that on the right set of facts, a social host may be found to have breached their requisite duty of care.
The decision also makes clear that a social host's duty of care does not automatically end upon their intoxicated guests' safe arrival home.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
