Social Host Liability in Ontario: Childs v Desormeaux

If my guests drive drunk, am I responsible?

As we embark on the warm summer months, many Canadians are eager to attend or host social gatherings where alcohol is being served. Although we all enjoy a margarita or two, hosting an event where alcohol is served could have legal implications, which begs the following questions:

1. Can a private social host of a party be held liable if an intoxicated patron leaves the party, decides to drive, and hits somebody else?
2. Must the private host monitor the amount of alcohol consumed by guests who attend a private party?
3. Does it matter whether the private host provided the alcohol?
4. If my guests drive drunk, am I responsible?
5. What are the legalities of hosting a party?
6. Is it a crime to let someone drive drunk?

The answer to these questions is: “It depends on the facts of the particular case”, as is the answer to most legal questions.

The 2006 Childs v Desormeaux Case

In 2006, the Supreme Court of Canada (“SCC”), grappled with the above-mentioned questions in the leading case of Childs v Desormeaux.[1] This case has changed the legal landscape regarding social host liability in Canada, and the facts are quite tragic:

After leaving a private BYOB (Bring Your Own Booze) party, an impaired Desmond Desormeaux drove his car into oncoming traffic and collided with a third party vehicle, killing one passenger and seriously injuring three other passengers, including Zoe Childs. At trial, it was revealed that Desormeaux had consumed approximately 12 beers at the party over the course of 2.5 hours.

Ultimately, the SCC set a ground-breaking precedent when they decided that the private social hosts of the party did not owe a duty of care to the third party, Zoe Childs, and the other third parties who were injured. In short, the reasons for the decision include:

1. It is not foreseeable to private social hosts, as opposed to commercial hosts, that an inebriated guest will leave the party, drive a car, and get into an accident, seriously injuring other highway users.[2]
2. The private social host in this case did not exacerbate or create risk since they did not serve alcohol, as it was a BYOB party. Desormeaux drank to the extent he did and left the party out of his own choice.[3]
3. There was no statutory duty imposed on private hosts to monitor guests’ alcohol consumption, which is different than commercial, profit-making hosts who do have the duty to monitor, pursuant to section 29 of the Liquor Licence Act, RSO 1990, c. L.19.[4]

Importantly, the SCC left open the possibility for social host liability in Ontario in situations where a social host intentionally serves alcohol to a clearly intoxicated guest. The harm is arguably foreseeable and the social host creates increased risk by serving alcohol under these circumstances.

Since the Childs decision, many similar cases were dismissed on the basis that private social hosts do not owe a duty of care to public highway users who are injured by an intoxicated guest.

While the Childs decision establishes that a social host generally does not owe a duty of care to third parties, a different analysis applies to a social host’s duty of care to actual guests of the party. In the 2017 Wardak v Froom decision, the Ontario Superior Court of Justice found that a private social host may owe a duty of care to a plaintiff who was an underage guest at the party and was exhibiting clear signs of impairment.[5] After leaving the party, the plaintiff guest drove his car and was involved in a motor vehicle accident from which he sustained serious injuries. At a motion brought by the defendants to dismiss the claim relying on the Childs decision, Justice Matheson established that a trial is required to determine whether a duty of care is owed here and whether liability could be established. Justice Matheson noted that the Childs decision was not determinative as social host liability could exist under these circumstances since the injured plaintiff in this case was an actual guest, as opposed to a third party as in the Childs decision.[6]

Social Host Liability and The Wardak v. Froom Case

There has been further headway made on social host liability and duty of care to third party plaintiffs. In the recent 2018 decision of Williams v Richard, Mark Williams and Jake Richard were drinking at the home of Jake’s mother.[7] After leaving, Williams drove to pick up his children. Tragically, Williams collided with the back of a stationary tractor trailer killing himself and seriously injuring three of his children. On a motion for summary judgment, Justice Gorman dismissed the claims against Jake Richard and his mother as social hosts. Justice Gorman relied on the Childs decision and held that the requisite duty of care had not been established.[8] The plaintiffs appealed to the Ontario Court of Appeal. The appeal was allowed and the motion judge’s order was set aside.[9] The Ontario Court of Appeal found that the motion judge failed to apply the three elements of a duty of care analysis properly, which are as follows: [10]

1. Was the injury reasonably foreseeable? In other words, did the host have knowledge of the guest’s intoxication and plans to drive?
2. Is there sufficient proximity such that there is a duty to act? In other words, are there specific facts that suggest a “paternalistic relationship existed between the parties” and that the host created an “inherently risky environment”?
3. Whether this duty is negated by other, broader policy considerations.

The recent decisions of Wardak v Froom and Williams v Richard shed greater light on the issue of social host liability in this post-Childs era. In short, a private social host generally will not be held liable for injuries sustained by third parties caused by a guest of the party. However, there is a greater likelihood that private social hosts will be held liable for injuries sustained by guests of the party. Additional factors such as providing alcohol (as opposed to a BYOB event), knowledge of a person’s intoxication, or serving alcohol to underage guests could bolster the chances that liability may be found against a private social host.

Drink responsibly this summer!

For more information about social host liability in Ontario please contact our Toronto personal injury lawyers, for a free consultation. Though we are a Toronto based law firm, we provide legal services across Canada.