Canada: Social Host Liability; The Door Opens A Little Wider

Last Updated: June 9 2017
Article by Richard Horak

Since the seminal decision in Childs v. Desormeaux [2006] 1 S.C.R. 643, in which the Supreme Court of Canada held that the Defendants did not owe a duty of care to the Plaintiff, counsel and insurers have wondered as to the potential liability of social hosts. While rejecting the Plaintiff's claim in Childs, the Supreme Court expressly left open the possibility that, on other facts, a duty of care might arise.

The recent decision of Justice Matheson in Wardak v. Froom (2017) O.N.S.C. 1166 has provided further insight as to what might give rise to a duty of care ... the door which the Supreme Court of Canada left open "a crack" in Childs has now been pushed open a little bit further.

The Wardak decision is also instructive for comments made by Justice Matheson about Summary Judgment Motions.

Facts

The Plaintiff Dean Wardak, then 18 years old, attended a 19th birthday party at a friend's home. The Defendants were the parents of the birthday boy and the owners of the home where the party was held. Although the Defendants did not serve alcohol to the Plaintiff they knew that drinking was going on at the party, which was a "bring your own booze" event and they knew that the Plaintiff and some other party guests were not of legal drinking age. The Defendants admitted that they "supervised" the guests, including the Plaintiff.

Shortly after 11:00 p.m. the Plaintiff left the house and walked to his home (he lived nearby). Upon arriving home the Plaintiff got into his car and drove away. He drove for only a short time before striking a fire hydrant and a tree. A blood alcohol test at the hospital disclosed that the Plaintiff had a reading of more than 3 times the legal limit.

As a result of the car accident the Plaintiff was rendered a quadriplegic with cognitive impairments.

Evidence on the Motion

Justice Matheson discussed at great length the nature of the evidence put forward by way of Affidavit evidence from both sides; the discussion below will only touch on some of the concerns raised by Justice Matheson. Of importance was his conclusion that the evidence "has certain frailties that would not always stand in the way of summary judgment but are problematic in the circumstances of this case".

The Affidavits sworn by the Defendants attached copies of the transcripts of their Examinations for Discovery, and also the transcript of the Examination for Discovery of the Plaintiff. Justice Matheson noted that the transcripts of the Defendants were not proper evidence and although under Rule 31.11 the Defendants could read into evidence any part of an opposite party's Examination for Discovery, that Rule was applicable only to trials. Also attached to the Affidavits filed by the Defendants were a number of witness statements provided to the Police, none of which were sworn statements. An Affidavit was also filed by a lawyer on behalf of the Defendants, but that Affidavit recounted certain events about which the affiant did not have personal knowledge and did not indicate the source of the information.

Justice Matheson made similar comments regarding Affidavit material filed on behalf of the Plaintiffs, both with respect to discovery transcripts, unsworn Police statements and a lawyer's Affidavit. Witness summaries produced by the Defendants in answer to undertakings given at discovery were also produced; these summaries were unsigned and unsworn and were considered by Justice Matheson to be "double hearsay" and not proper evidence.

However, neither side objected to the other side putting evidence forward in the manner described. Justice Matheson indicated that on this basis he was "prepared to overlook many of the technical problems with the record".

Conflicting Evidence

While there was some agreement about certain facts, there was conflicting evidence regarding the extent of the Plaintiff's intoxication. Some guests suggested that the Plaintiff was "a bit drunk", while other guests suggested that the Plaintiff was "quite intoxicated". Significantly, there was no evidence that the Defendants attempted to get the Plaintiff or any of the other under-aged party guests to stop drinking at any point in time.

There was a dispute as to whether one of the Defendants gestured for his daughter and her boyfriend to "keep an eye on" the Plaintiff just before he left the party. In her Police statement the Defendant's daughter said that the Plaintiff was "completely zoned out" and looked like he was going to be sick when he left. She and her boyfriend followed the Plaintiff home and tried to talk to the Plaintiff as he reversed out of his driveway, but the Plaintiff drove away. She then called 911 and reported that the Plaintiff was driving while "visibly intoxicated".

Test for Summary Judgment

Based on the Supreme Court of Canada decision in Hryniak v. Mauldin [2014] 1 S.C.R. 87, Justice Matheson held that the first question was for him to determine if there was a genuine issue requiring a trial. Although a Jury Notice had been filed, case law suggested that delivery of a Jury Notice does not automatically preclude a Summary Judgment Motion, but it must be considered when a Judge is deciding whether or not to use the expanded fact finding powers under Rule 20.

Social Host Liability

Justice Matheson noted that the Supreme Court of Canada, while holding there was no duty of care on the facts in the Childs case, "left the door open for other cases". In Childs the Chief Justice had stated as follows: "I conclude that hosting a party at which alcohol is served does not, without more, establish the degree of proximity required to give rise to a duty of care on the host to third party highway users who may be injured by an intoxicated guest ... " [emphasis added]

In Childs the Supreme Court noted three situations that could lead to a positive duty to act. One was a paternalistic relationship of supervision and control; Justice Matheson found it significant that the Defendants in the case at bar agreed that they were "hosting and supervising the party". Moreover, the fact that the Plaintiff was a guest and not a third party was "perhaps" a significant factor in terms of foreseeability and proximity.

The fact that the Defendants did not actually serve alcohol to the Plaintiff was not determinative.

The Defendants argued that even if there was a duty of care, and even if facts favourable to the Plaintiff were accepted, the standard of care had been met by the Defendants and the claim should be dismissed. However, Justice Matheson noted that in view of the conflicting evidence he was unable to make such a finding.

Decision

Based on the analysis in Hryniak, Justice Matheson concluded that there were genuine issues requiring a trial on the facts in order for a decision to be reached on the merits. He did not believe that it would be in the interests of justice to use the fact finding powers under Rule 20, nor would it be fair and just for him to evaluate the credibility of the parties or draw inferences from the evidence that would be necessary to decide the matter. He also concluded that ordering a mini trial would not produce any efficiency; moreover, a mini trial should not be ordered to determine integral factual issues when a Jury Notice has been filed.

The Summary Judgment Motion was accordingly dismissed with costs.

Conclusion

As the decision in Wardak was a Summary Judgment Motion the case is of limited value in terms of determining the extent of potential social host liability. It is however a very important decision in terms of the possible basis for a finding of a duty of care to arise and it is also very instructive in terms of the handling of Summary Judgment Motions.

There is little doubt that the efforts to "push open the door" a little further will continue.

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.

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