*Since the writing of this blog the decision has not been overturned – SCC refused Leave to Appeal.
A recent decision of Justice Wendy Matheson of the Ontario Superior Court of Justice may have breathed new life into Social Host Liability more than 10 years after the Supreme Court of Canada decision in Childs vs. Desormeaux.
In Wardak and Froom the 18 year old Plaintiff was involved in a single vehicle accident after being a guest at a 19th birthday party hosted for the son of the Defendants. The single vehicle accident led to the Plaintiff becoming a brain injured quadriplegic. He sued the Defendants as social hosts. The Defendants moved for Summary Judgment on the basis that they did not owe the Plaintiff a duty of care, and if they did, they met the applicable standard of care.
On the issue of Duty of Care, the argument was based on Childs: no duty of care was owed because the Defendants did not serve alcohol at the party.
Justice Matheson noted that the Court in Childs held that there was no duty of care based upon the facts in Childs, but did not foreclose a duty of care for other cases. She cited the following passage from Childs.
“I conclude that hosting a party at which alcohol is served does not, without more, establish the degree of proximity required to give rise to a duty of care on the hosts to third party highway users who may be injured by an intoxicated guest….”
In terms of the “more” which give rise to the requisite degree of foreseeability, the Supreme Court had described three situations, one of which was a paternalistic relationship of supervision and control.
Justice Matheson found such paternalistic relationship existed because the Plaintiff was both underage and an invited guest at the party. As a greater distinction to Childs, the plaintiff in that case was not at the party, but instead was a third party struck by someone who attended the party.
In terms of the issue of whether or not the Defendants had met the standard of care, assuming that there was one, Justice Matheson found this a triable issue noting:
a) The Defendants had noticed that the Plaintiff was behaving oddly, but had not taken positive steps to stop him from drinking (even though the evidence was that the Defendants did offer to walk him home on two occasions).
b) The Defendants had not established that they were monitoring the Plaintiff’s departure (even though the Defendants’ daughter followed the Plaintiff home and implored him not to drive).
c) The Defendants did not take the positive step of phoning the Plaintiff’s father.
In conclusion it should be noted:
1. That although the Motion for Summary Judgment was dismissed, the Court did not make any determination of law which were binding on the parties at trial.
2. The Defence relied on the case of Stephenson vs. Clearview which was decided before the Supreme Court Canada Decision of Childs. The Court found it of little probative value in the social host context given the subsequent Supreme Court of Canada Decision in Childs.
3. The Court held that the Childs Decision did not preclude finding a duty of care in the right circumstances or based upon the right facts.
4. The Court found an invited underage guest to be those right circumstances.
The seriousness of the Plaintiff’s injuries may have informed the Judge into being more cautious about dealing with this case summarily.
Michael Taylor is one of the founding partners of ZTGH. If you have a question about this decision or a file involving social host liability, please contact Michael here.