The Supreme Court of Canada’s recent decision in Childs v. Desormeaux, 2006 SCC 18, will provide individuals hosting social events with a significant degree of assurance that they will not be held responsible for the subsequent conduct of their intoxicated guests, including innocent third-party users of the road. In a unanimous judgment, the Court found 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.
The Case in Issue
The case arose from the tragic events of a 1998 New Year’s Eve BYOB ("bring your own booze") party hosted by Julie Zimmerman and Dwight Courrier. Among their guests was Desmond Desormeaux, an admitted alcoholic. The evidence from the trial was that Desormeaux was at the hosts’ home for approximately two hours and consumed twelve beers that he had brought with him. Desormeaux drove away from the party early, after being involved in an argument with another guest. Owing to his intoxication, however, Desormeaux veered out of his own lane and collided head-on with another vehicle. One occupant of the other car was killed and another, Zoe Childs, was severely injured. Desormeaux had no insurance at the time of the accident and was virtually without assets.
The Lower Court Decisions
Ms. Childs commenced a lawsuit to recover compensation for the injuries she sustained against both Desormeaux and the party hosts. Ms. Childs claimed that the hosts, Zimmerman and Courrier, had a legal duty to prevent Desormeaux from driving while intoxicated. At trial, Chadwick J. of the Ontario Superior Court of Justice found that the hosts did owe such a duty of care to Ms. Childs and other users of the road. Recognizing this was a novel duty and a new kind of liability, Chadwick J. determined that he was required to apply the two-stage analysis set out in the leading authority Anns v. Merton London Borough Council,  A.C. 728. The Anns test requires a court to consider whether: (i) there is a sufficiently close or "proximate" relationship between a social host and third-party users of the road to find a duty of care; and, (ii) if so, there are any countervailing policy considerations that negate that duty of care.
Chadwick J. held that the hosts owed Childs a duty of care under the first stage of the Anns test because they were aware of Desormeaux’s history of alcoholism and the resulting harm to Ms. Childs from Desormeaux’s actions was therefore reasonably foreseeable. However, the trial judge declined to find the hosts legally responsible for Desormeaux’s conduct on the second part of the Anns test – the public policy grounds - because it would be against public policy to expand tort law in this fashion. On the public policy aspect of the test, Chadwick J. considered that recognizing social host liability would likely lead to a proliferation of litigation, with hosts being added as defendants in a claim every time an accident occurred following a private function. This would have wide social ramifications, leading to increased claims under homeowners’ insurance policies, with the likely result of increased premiums for all policyholders.
The Ontario Court of Appeal agreed with the trial judge that there should be no social host liability but concluded that on the facts in this case, the hosts did not act negligently, therefore vitiating any need to consider the second part of the Anns test, the public policy grounds. The Court of Appeal considered the fact that the party was a BYOB event where the hosts had not assumed control over the service of alcohol and, moreover, the hosts were not in fact aware that Desormeaux was intoxicated. Given these facts, no duty of care was owed in the circumstances. Nonetheless, the Court of Appeal left open the possibility that social hosts might be held liable in appropriate circumstances, stating as follows:
This judgment should not be interpreted to mean that social hosts are immune from liability to innocent third party users of the road caused by an impaired guest’s driving. On the contrary, I do not foreclose social host liability to innocent third parties particularly when it is shown that a social host knew that an intoxicated guest was going to drive a car and did nothing to protect the innocent third party users of the road.
The Supreme Court’s Decision
Ms. Childs appealed to the Supreme Court and the issue before the Court was whether or not social host liability ought to be recognized as part of Canadian tort law.
In considering the issue, the Court made clear that social host liability was a novel tort and was not simply analogous to existing duties of care. The Court recognized that while the law does impose special obligations on commercial hosts (i.e., restaurant and bar owners) to monitor the alcohol consumption of patrons, there were significant differences between social and commercial hosts that made extending these duties without regard to the dissimilarities between the parties inappropriate. Specifically, the Court held that: (i) supervising consumption is an inherent function of the commercial host, even if only in order to ensure payment; (ii) the parameters of a commercial host’s responsibilities were clearly articulated through legislation; and (iii) the benefit that commercial hosts derived from the sale of alcohol, namely profit, justified the imposition of a duty to monitor its consumption for the public good. These same factors were not sufficiently operative in the relationship of social hosts and their guests to justify imposing a duty of care.
In considering the first aspect of the Anns test, the Court found that the relationship between hosts and users of the public roads was not close enough to merit recognizing a new duty of care. On the facts in issue, the harm that befell Ms. Childs was not reasonably foreseeable to the hosts; the mere fact that Desormeaux had a history of impaired driving did not make the risk that such behaviour would happen again reasonably foreseeable and these hosts did not actually know that Desormeaux was intoxicated on the night of the accident.
The Court went on to note that even if foreseeability of the harm had been established, there would still be no duty to monitor a guest’s alcohol consumption. The hosts were accused of a failure to act and it is only in very limited circumstances that Canadian tort law recognizes and imposes positive duties on individuals to take action. Generally speaking, positive action is only required where there is some special relationship between the parties to justify the imposition of a duty. For example, positive duties of care may be required where the defendant in some way creates the risk of harm and profits from that creation, where the defendant acts in paternalistic role of care and control over an individual or where the defendant is engaged in some public function or commercial enterprise which has attendant responsibilities to act with special care.
The Court held that none of these limited circumstances applied to the relationship between hosts and guests, however. Hosts are clearly not acting in a public capacity, nor do they assume a paternal role over their guests. The Court similarly rejected the argument that hosting a party was anything other than a common occurrence and certainly could not be characterized as a "risky activity." Instead, the Court stressed the responsibility of the guest for his or her own conduct, noting that a person who accepts an invitation to a private gathering does not "park his autonomy at the door." The consumption of alcohol is a personal choice and a guest therefore assumes the risks of his own impaired judgment. As stated by the Court:
Holding a private party – the bare facts of this case – is insufficient to implicate the host in the creation of the risk sufficient to give rise to a duty of care to third parties who may be subsequently injured by the conduct of a guest. The host creates a place where people can meet, visit and imbibe alcohol, whether served on the premises or supplied by the guest. All this falls within accepted parameters of non-dangerous conduct. More is required to establish a danger or risk that requires positive action…. Suffice it to say that hosting a party where alcohol is served, without more, does not suggest the creation or exacerbation of risk of the level required to impose a duty of care on the host to members of the public who may be affected by a guest’s conduct.
Given that a duty of care was not recognized in law, it was unnecessary for the Court to consider whether policy considerations also weighed against social host liability under the second stage of the Anns test.
The Status of Social Host Liability in Canada
The practical outcome of this decision is twofold. First, the judgment protects hosts from indeterminate liability, making clear that individuals will not be unduly burdened by the unrealistic requirement of having to "police" their guests, monitoring their alcohol consumption and assessing their individual states of intoxication throughout a gathering.
Second, the rejection of social host liability protects private individuals (specifically homeowners) and their insurers from bearing a disproportionate share of the loss occasioned by drunk drivers. The recognition of social host liability would have led to social hosts being routinely added to claims made against drunk drivers. Under the laws of joint and several liability, which permit a plaintiff to recover a judgment entirely from any named defendant, this could have led to the unfair result of making social hosts and their insurers bear the entire cost of the intoxicated individual’s actions. Indeed, this would have been the result in the present case. While the trial judge found the hosts were only fifteen percent responsible for the damages suffered by Ms. Childs, the reality of the situation was that Desormeaux was impecunious, without assets or insurance, and could not meet his portion of the damage award. Therefore the hosts and their insurers would have been responsible for the whole damage award, despite the fact that of being found only minimally responsible for the injury to Ms. Childs.
As a result of the Supreme Court’s decision in this case, the burden for the loss remains squarely on the shoulders of the party responsible for it – the intoxicated driver.
It is to be noted that the result of a similar fact pattern in Québec could be different.
Indeed, Québec’s statutory and mandatory public insurance regime for car accident completely precludes any civil suit, even against the impaired driver himself and thus certainly against the host.
If, however, this prohibition did not come into play, for example in the circumstances where, instead of a car accident, the excessive consumption of alcohol lead to a fight which resulted in serious injury, the question for the Court would then be whether such an injury was reasonably foreseeable by the host, in which case his or her liability could be engaged.
It is to be noted that Québec’s civil law is not as restrictive as the common law of tort in regards to the imposition of a positive duty, every person having a general duty to abide by the rules of conduct which lie upon him or her according to the circumstances as stipulated by s. 1457 C.c.Q. In that regard, s. 2 of the Québec’s Charter, also imposes a duty of assistance and aid towards any person in peril.
While the ultimate decision of the Court under such a scenario is hard to predict, it is likely that the recourse would also be rejected under civil law when the hosts are unaware of the intoxication of their guests, but perhaps more likely that they would be held liable if aware of this intoxication and of its foreseeable consequences.
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.