Law Times

Page 12 January 7, 2019 • Law Times www.lawtimesnews.com later, after he and his mother drove to a store for cigarettes and noticed Williams' personal car was gone from his driveway. But on the way home, they came across the crash scene. A motion judge ruled the case against Richard and his mother, who owned their home, should be dismissed because they owed no duty of care to Williams. Even if they did, the judge found the duty expired when Williams arrived home safely, before he left the house with the babysitter and children. But the three-judge appeal court panel found fault with the motion judge's duty of care an- alysis, and touched on the factu- al differences between this case and those in the landmark case of Childs. "This was not a large social gathering, rather it was two men drinking heavily in a garage. There was a developed pattern of this behaviour, enough so that the men had a pact as to what to do in the event one of them drove children while under the inf luence," wrote Appeal Court Justice William Hourigan for the panel. "There is conf licting evi- dence on many of the key issues. A trial is required to determine whether Mr. Richard and/or Ms. Richard owed a duty of care to Mr. Williams and/or his chil- dren," he added. The plaintiffs' lawyer Patrick Brown, a partner at McLeish Orlando LLP, says the case offers valuable clarification on the is- sue of social host liability. "It's really an extension of what the Supreme Court has already indicated, and the take- home message for people is that you've got to look closely at fore- seeability and proximity," he says. Brian Smith, a lawyer with London, Ont. firm Wallace Smith LLP who acted for the Richards, says his clients were disappointed with the result, and are currently assessing their options, which include taking the matter to trial. "It's a risky thing obviously, because we don't want to open the door on social host liability," he says. Lara Fitzgerald-Husek of Oatley Vigmond Personal In- jury Lawyers LLP, says she wel- comes the recent decisions for redressing the balance on social host liability. "Defendants and insurers have been relying on Childs as if it answered the question in black and white," she says. "These de- cisions show that courts are at- tuned to the fact that social hosts are not automatically absolved of liability." According to Sudevi Mukherjee-Gothi, the head of the insurance defence group at Pallett Valo LLP, it may only be a matter of time before a trial judge makes a finding of liability against a social host, especially since the legalization of cannabis for recreational use introduced a new legal source of intoxication for partygoers. "I'm concerned that the gen- eral opinion in the public is that they're off the hook when they host a party, because that's cer- tainly not the case," she says. "I think we'll be seeing more cases dealing with the issue in the future." LT a more granular analysis was required of the company's limi- tations defence. "The analysis would also take into consideration the special relationship between the parties, which the motions judge himself acknowledged contained a duty of utmost good faith," Strathy wrote. "This relationship of particu- lar vulnerability and correspond- ing duty of utmost good faith are contextual factors which should have been taken into consider- ation in the motions judge's anal- ysis of when, with reasonable dili- gence, the plaintiffs ought to have discovered the alleged misrepre- sentations, and the reasonable- ness of any sreliance they placed on the initial or subsequent rep- resentations made by the insurer and its agents." "There was much to consider in this regard," the appeal court panel added, noting its earlier conclusion that the policy lan- guage was "impenetrable and confusing." A spokesperson for Sun Life told Law Times that he could not comment, given that the matter remains before the courts, but the company has sought leave to appeal the verdict to the Supreme Court of Canada. According to McPhee, the sig- nificance of the appeal court's de- cision extends well beyond those involved directly in the case. "I can tell you that we are looking at a number of other universal life insurance compa- nies, so they should be all be tak- ing a hard look at their policies and how they are administering them," she says. After dealing with the defendants' applica- tion for leave to appeal, McPhee is already looking forward to proceeding with discoveries and getting ready for a trial now that the action has been certified. "We need some sunshine shone on the business practices at play here, and how policyhold- ers were treated," she says. LT FOCUS Continued from page 10 Continued from page 11 Ruling has significance Hosts not 'automatically absolved' Includes lists of: • Federal and provincial judges • Federal courts • Ontario courts and services • Small claims courts • The Institute of Law Clerks of Ontario ONTARIO LAWYER'S PHONE BOOK 2019 Ontario Lawyer's Phone Book is your best connection to legal services in Ontario with more than 1,400 pages of essential legal references. More detail and a wider scope of legal contact information for Ontario: • Over 26,600 lawyers listed • Over 8,700 law firms and corporate offices listed • Telephone numbers, e-mail addresses, office locations and postal codes Perfectbound Published December each year On subscription $87.50* One time purchase $91* Order No. L7798-8405 ISBN 978-0-7798-8405-6 Multiple copy discounts available Plus applicable taxes and shipping & handling. 1rices subject to change without notice Order your copy today. Visit www.store.thomsonreuters.ca or call 1-800-387-5164 for a 30-day, no risk evaluation CONNECT INSTANTLY TO ONTARIO'S LEGAL COMMUNITY Untitled-4 1 2019-01-02 10:49 AM Patrick Brown says a recent case in the Court of Appeal for Ontario offers valuable clarification on the issue of social host liability. Megan McPhee says the significance of a recent Court of Appeal for Ontario deci- sion extends well beyond those involved directly in the case.

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