Since the landmark Supreme Court of Canada (“SCC”) decision in Menow v. Jordan House Ltd, 1974 SCR 239 (CanLII), courts have held that commercial hosts, such as bars and restaurants, owe a duty of care to their guests. If, for example, a patron consumes several pints throughout an evening, their bartender must intervene if the guest stands, jingles their car keys, and proceeds to an exit.
While both case law and legislation comprehensively define commercial host liability, the rules are far less clear regarding social host liability, an area of Canadian civil law which aims to hold hosts responsible for the safety of their guests.
As a result, hosting an event where alcohol is served could have legal implications, which begs the following questions:
- 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?
- Must the private host monitor the amount of alcohol consumed by guests who attend a private party?
- Does it matter whether the private host provided the alcohol?
- If my guests drive drunk, am I responsible?
- What are the legalities of hosting a party?
- 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.
Liability for Alcohol-Related Injuries:
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:
- 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]
- 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]
- 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]
After Childs, plaintiffs who allege social host liability have attempted to prove that 'something more' existed in the circumstances of their case. Case law has established that either an inherently risky party setup or a paternalistic relationship owed from host to guest can create this 'something,' as in the Ontario Court of Appeal case Wardak v. Froom, 2017 ONSC 1166 (CanLII).
In Wardak, an underage and intoxicated party guest left a party hosted by his underage friend and got into a severe single-car accident. The guest sued their friend's parents, arguing they were aware of the underage drinking and breached a duty of care owed to the guest. The parents moved for a summary judgment motion; however, justice Matheson held that a trial was necessary because a finding of liability against the parents was possible.
So why was liability possible in Wardak but not in Childs? First, the guest in Childs was an adult, so there was no inherent paternalistic relationship between the host and guest. Further, the injured party in Childs was not a guest but the victim of a guest's drunk driving.
Now, what if the parents in Wardak had served the guest alcohol themselves? What if the guest was a legal adult at eighteen but not old enough to drink? These questions force courts to take a facts-based approach to social host liability and restrict any hard and fast rules.
While there is no settled law arising from either of these cases, it is clear that social host liability is a possibility where alcohol is involved. But are all social host cases inextricably tied to alcohol?
Liability for Cannabis-Related Injuries:
While no case has dealt with whether social hosts can be found liable for the injuries attached to a minor ingesting cannabis at a party, we can look at prior cases for factual similarities and guidance.
Many cases examining a social host's liability revolve around motor vehicle accidents and guests who drove impaired. It stands to reason that as cannabis consumption proliferates in Canadian culture, and police services develop more reliable methods of detecting cannabis in drivers, social host liability for motorists who drive under the influence of cannabis will likely be raised.
When this does occur, the Courts will look to Childs and note that a duty of care may exist in any party situation where there is a risk of foreseeable harm that is proximate between the host and guest. The likelihood of this being the case is higher where the guests are minors, first-time cannabis users, or where the party includes inherently risky activities, such as swimming, go-karting, or physical activity.
Social Host Liability and the Williams v Richard 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]
- Was the injury reasonably foreseeable? In other words, did the host have knowledge of the guest’s intoxication and plans to drive?
- 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”?
- 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.
Employer and Employee Functions:
The duty of care owed to guests at private parties has been described above. However, what about with respect to employer and employee functions? Many employer events such as holiday parties and sports events involve alcohol being served. Many of the same factors noted above apply to employers hosting events and functions, however one might argue that the duties of an employer are higher than that of a social host given that they have a clear duty to provide a safe work environment for its employees. Employer liability in this regard can extend to assaults that occur in the workplace as a result of alcohol being served at a party, or even sexual assaults.
Similar to above, however, employer liability will also depend largely on the facts of each case. An employer that hosts a party with an open bar and no supervision of its employees is much more likely to be liable than one that has a bartender and is actively supervising its employees’ alcohol consumption.
How can Social Hosts Protect Themselves from Liability?
Party hosts generally do not owe a duty of care to third parties, but they can owe such a duty to their guests. To avoid liability, a host should take active and positive steps to ensure safety and mitigate risks. Some practices are relatively common, such as leaving car keys in a bowl or organizing Ubers for guests, but some are more forward-thinking:
- Consider outlining safe party practices and plans for home commutes within the party invitation
- Take active steps to disallow minors from drinking, such as locking alcohol cupboards
- Offer a space for guests to stay the night
- Require one or more hosts to stay sober
- Require guests using cannabis to pre-plan a safe trip home
- Require underage guests to pre-plan their trip home
While the law associated with social host liability is somewhat grey, the best practices to avoid liability are intuitive and worthwhile considerations. Courts have taken a facts-based approach to determine liability because every event is different, and hosts must appreciate a set of obligations particular to themselves, their homes, and their guests.
Please drink and consume cannabis products safely!
How can Bogoroch & Associates LLP Help with Social Host Liability?
If you or someone you know has been injured, it is important to determine all proper parties involved and whether a social host may be liable for your injuries. Bogoroch & Associates LLP is experienced in all aspects of personal injury and medical malpractice litigation. Please contact any of our personal injury lawyers for a free consultation.
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