Law Times

Law Times • January 7, 2019 Page 11 www.lawtimesnews.com Landmark judgment occurred in 2006 Case law on social host liability continues to evolve BY MICHAEL MCKIERNAN For Law Times M ore than a decade on from a landmark Supreme Court of Canada decision that opened the door to social host liability, insurance lawyers are still waiting for a decisive step forward in the case law. The top court's 2006 judg- ment in Childs v. Desormeaux actually dismissed the claim before it, where the hosts of a bring-your-own-booze event were sued by an injured pas- senger whose vehicle was struck head-on by an intoxicated guest. The unanimous seven-judge panel hearing the case distin- guished the situation presented from others involving public hosts such as bars or restaurants serving alcohol to customers. "It is reasonable to expect that the public provider will act to protect the public interest. There is public reliance that he will comply with the rules that prohibit serving too much alco- hol to a patron and that if this should occur and the patron seeks to drive, that the public host will take reasonable steps to prevent the person from driving," then-chief justice Bev- erley McLachlin wrote for the panel. "The same cannot be said of the private social host, who nei- ther undertakes nor is expected to monitor the conduct of guests on behalf of the public." "I conclude that hosting a party at which alcohol is served does not, without more, estab- lish the degree of proximity re- quired to give rise to a duty of care on the hosts to third-party highway users who may be in- jured by an intoxicated guest," she added, hinting that the deci- sion could have gone the other way had the facts disclosed a reasonably foreseeable harm to other road users. Situations involving a social host with a paternalistic rela- tionship to guests or one who intentionally invited third par- ties to "inherent and obvious" risks, could possibly create a positive duty of care, the deci- sion says. Despite that invitation, Bevin Shores, a partner with insurance defence boutique Hughes Amys LLP in Hamilton, Ont., says no plaintiffs have yet managed to squeeze themselves through the gap wedged open by the top court. "Social host liability has prov- en a little elusive for the lawyers who practise in this area," she says. "Frankly, we haven't seen any determinative case law yet, but we are inching closer to that point." In the absence of a formal finding of social host liability at trial, Shores explains that ad- vancements have come via mo- tions for summary judgment brought by defendants wishing to dismiss claims. For example, in Wardak v. Froom, Ontario Superior Court Justice Wendy Matheson ruled a trial was required to deter- mine whether the hosts of a 19 th birthday party could be held li- able for the serious injuries of an 18-year-old guest who walked the short distance home drunk, before driving his vehicle over a fire hydrant and into a tree. According to the decision, the hosts of the party (the birthday boy's parents) claimed they owed no duty of care to guests because they hadn't served any alcohol. Even if a duty was found, they argued it had been met. But Matheson remained un- convinced. "Although there are some facts that can be found on the record before me, the relevant factual matrix quickly becomes complicated and cannot fairly and justly be determined on this motion. Nor is the claim bound to fail on the law," she wrote, dis- missing the defendants' motion for summary judgment. The most recent refinement in the case law came at the end of 2018, when the Court of Appeal for Ontario overturned a judge's decision to grant another set of defendant hosts summary judg- ment dismissing a claim against them. The plaintiffs in Williams v. Richard are the children of Mark Williams, who were in- jured in the same crash that killed their father. According to the appeal court decision, Wil- liams drove into the back of a stationary tractor trailer follow- ing an after-work drinking ses- sion at the home of his friend, Jake Richard. In addition to a lawsuit for their own injuries, the children sued Richard and his mother for damages under the Family Law Act, alleging they breached their duty of care as social hosts. The decision says the two men were long-time friends who often shared drinks after work at each other's homes. On the day in question, Williams arrived at his friend's house in his work van and drank 15 beers over the course of three hours, with Rich- ard in the garage. When Williams suggested he would drive his babysitter home with his children in his car, Richard threatened to invoke a pact between the two and call the police on him, before Wil- liams assured him he would not do so. However, the decision says Richard took no other steps to stop Williams from driving drunk. He did eventually call the police from a payphone a while FOCUS Your injured client needs more than a settlement. Small structures can do big things. STRUCTURE IT EVERY TIME. 1.800.265.8381 | www.mckellar.com Untitled-1 1 2018-06-04 3:39 PM Bevin Shores says that advancements related to findings of social host liability have come via motions for summary judg- ment brought by defendants wishing to dismiss claims. See Hosts, page 12

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