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Social Host Liability in Canada: 2020

The law of social host liability has a relatively short history in Canada. What are the circumstances in which a social host will be held liable when a guest, possibly impaired, leaves a party where the hosts at least permitted drinking, drives a car and causes injury to himself and possibly to innocent third parties?

This was addressed in part by the Supreme Court of Canada in 2006 in the leading case of Childs v. Desormeaux, 2006 SCC 18. The issue before the court and the general answer was put simply as this:

A person hosts a party. Guests drink alcohol. An inebriated guest drives away and causes an accident in which another person is injured. Is the host liable to the person injured? I conclude that as a general rule, a social host does not owe a duty of care to a person injured by a guest who has consumed alcohol and that the courts below correctly dismissed the appellants' action.

This was a unanimous decision with reasons drafted by Chief Justice McLachlin in 49 succinct paragraphs, a model of clarity and precision.

The facts in Childs were tragic, as they frequently are in drinking and driving road accidents. Some of the facts can be summarized as follows:

  • The case involved a traffic accident in the early morning hours of January 1, 1999 in Ottawa when the defendant Desormeaux, on leaving a party, drove his vehicle into an oncoming car, killing one and injuring three others, one of which was the passenger Childs, then a teenager. She suffered a severed spine leaving her paralyzed from the waist down.
  • Desormeaux drank possibly 12 beers over 2.5 hours while attending a party at the house of the social host defendants and was well over the legal limit. He pled guilty to criminal charges and was sentenced to 10 years in jail.
  • The party was a BYOB event, the hosts only providing a partial bottle of champagne to ring in the new year.
  • Desormeaux was known to be a heavy drinker but the hosts were not found to have known he was inebriated on leaving the party. He was asked: "Are you okay, brother?" To which he responded: "No problem."

The court applied the House of Lords decision in Anns v. Merton London Bourough Council [1978] A.C. 728 (H.L.) in which Lord Wilberforce proposed a two-part test for the determination of whether a duty of care arises in novel cases. CJ McLachlin put it thus:

The first stage focuses on the relationship between the plaintiff and the defendant, and asks whether it is close or "proximate" enough to give rise to a duty of care (p. 742). The second stage asks whether there are countervailing policy considerations that negative the duty of care.

In this case, the court did not find it necessary to consider stage two of whether there were any policy considerations that trumped a duty of care. No duty of care arose on the facts of this case.

Why did not a duty of care arise on the facts of this case? First, it was held that claims against private hosts for alcohol related injuries caused by a guest created a new category of claim, thus the need to resort to first principles. In short, there was not sufficient proximity. There was an absence of reasonable foreseeability. Even if there was reasonable foreseeability, no duty arose because the wrong alleged as a failure or act, or nonfeasance, in circumstances in which there was no positive duty to act.

The evidence did not establish that Desormeaux displayed signs of intoxication, however surprising this might be. Thus, no reasonable foreseeability of injury arose in the first instance. But foreseeability itself does not give rise to a duty. The court put is this way:

. . . where the conduct alleged against the defendant is a failure to act, foreseeability alone may not establish a duty of care. In the absence of an overt act on the part of the defendant, the nature of the relationship must be examined to determine whether there is a nexus between the parties. Although there is no doubt that an omission may be negligent, as a general principle, the common law is a jealous guardian of individual autonomy. Duties to take positive action in the face of risk or danger are not freestanding. Generally, the mere fact that a person faces danger, or has become a danger to others, does not itself impose any kind of duty on those in a position to become involved.

This case did not foreclose all cases of potential liability on social hosts. What are the circumstances in which a social host may have liability for the injury of a guest or a third party who is injured by an inebriated guest? What if you hosted a party for minors in which you permitted drinking and at least condoned or were aware of drug use such as marijuana and two young men leave the party, steal a car, and the driver is killed when he drives off the road and the passenger is catastrophically injured? It sounds somewhat promising for the injured passenger that the social hosts would be required to pay for his injuries.

Such a case was recently decided by Chief Justice Hinkson in McCormick v. Plambeck, 2020 BCSC 881. CJ Hinkson introduced the case in these words:

[1] In the early morning of September 16, 2012, following a party at the home of the defendants Stephen Patrick Pearson and Lidia Diana Pearson ("the Pearsons"), a 1992 Subaru motor vehicle left the roadway on North End Road on Salt Spring Island ("the accident"). After leaving the roadway, the vehicle crashed into the woods beside the road.

[2] The Subaru was owned by the defendants Megan and Andrew Coupland ("the Couplands"). The driver of the Subaru, the defendant Ryan Plambeck ("Ryan"), was killed in the accident, and the plaintiff, a passenger in the vehicle, sustained serious injuries.

[3] The plaintiff has settled his claims against the Couplands and Ryan, but seeks a finding of liability for the accident against the Pearsons on the basis of what is referred to in a number of authorities as "social host liability".

Some of the additional relevant facts were these:

  • Salt Spring Island is part of the Gulf Islands between Vancouver and Vancouver Island. "It was described by a number of witnesses as a "laid-back" community, where the lifestyle is slower paced than in larger urban centers. Several witnesses commented on the habit of many on the Island leaving their homes and vehicles unlocked, and of some leaving car keys in unlocked vehicles."
  • The use of marijuana and the consumption of alcohol by minors was widespread to the knowledge of the hosts and parents in general.
  • The plaintiff McCormick was 17. The deceased driver Plambeck was 18.
  • The plaintiff was well award of the dangers of drinking and driving and said he would never get into the car of someone who had been drinking.
  • The party took place between 9:00 and 1 a.m. 50 to 60 children attended. Most were drinking. Some arrived intoxicated. There was some marijuana smoking outside.
  • The hosts attempted to make it clear that drinking and driving were prohibited. Keys were to be collected on arrival. Arrangements would be made to drive anyone home that needed a ride. Alcohol was not provided by the hosts. The hosts circulated the party hourly. It was reasonably well monitored although there were varying states of sobriety.
  • The plaintiff and Plambeck left the party on foot. They walked to the Coupland residence where a vehicle was left with the keys inside. They stole the car with Plambeck driving.
  • The accident occurred when Plambeck drove off the road when he failed to negotiate a curve at a high rate of speed. He had no driver's license.

The plaintiff argued that the hosts owed him a duty of care, that they breached that duty by allowing him to become intoxicated and that they failed to prevent him from leaving the property in that state. Applying the tests set out in Childs, the judge dismissed the case against the hosts on this primary basis:

[249] I find as well that the Pearsons assumed some element of control over the minors who attended the party, but I am not prepared to find that they created an inherent and obvious risk that the minor guests would or could be injured.
[250] Although I have found that the defendants were in a paternalistic relationship with the guests of the party, I find that no duty of care has been established in this case because the injury complained of was not reasonably foreseeable as a result of the defendants' conduct. The plaintiff's case thus fails on the duty of care analysis.
[251] Having concluded that a prima facie duty of care has not been established, I find it unnecessary to consider whether any duty would be negated by policy considerations at the second stage of the Anns test.

The plaintiff's case did not fail so much as a matter of legal principles but, as in most cases, the evidence simply did not satisfy the tests they had to meet. The judge was not convinced that the plaintiff was in fact intoxicated on leaving the party. Further, while the driver had been drinking, the accident was not caused by impairment. (The driver had a blood reading of 69 mg%, being less that the legal limit of 80 mg%.) Although many harms may have been possible in allowing minors to drink and leave the premises on foot, this does not make the injuries here reasonably foreseeable. There were no obvious signs that either the plaintiff or the driver would suffer injury on leaving the party.

Even if a duty of care arose, there was no breach of any standard of care. The standard of care of one in a paternalistic role is that of a careful and prudent parent measured against the "community standards at the time". The judge said this:

[269] In my view, the standard proposed by the plaintiff is essentially one of perfection; anticipating all possibilities and avoiding any risks. That is simply not the way the world works. The duty is to act reasonably, not to act perfectly. It is never possible to eliminate all risks and the Pearsons were not required to do so.

The troubling feature in this case was that the party constituted a breach of the statutory regime regarding consumption of alcohol by minors. This alone did not demand a higher standard of care. Such parties happen in British Columbia, and probably elsewhere. ". . . the court takes judicial notice of the fact that graduation parties are an established custom in British Columbia, notwithstanding that they constitute, when minors are involved, a breach of the law." This is the way the world works.

Had liability been imposed, the judge would have awarded $5,858,407.54 in damages. In my view, this case is unlikely to be successfully appealed as it so dependent on the findings of fact and well supported in law.