Court of Appeal distinguishes case from Childs v. Desormeaux and sets aside motion judge’s order dismissing the Plaintiffs’ claims on summary judgment. The door to a finding of social host liability is left open.
Date Heard: October 5, 2018 | Full Decision [PDF]
Mark Williams and Jake Richard were colleagues and friends who regularly got together to drink beer after work. On the evening in issue Mr. Williams drank 15 cans of beer in three hours while visiting with Mr. Richard at the home of Mr. Richard’s mother. There was no debate that Mr. Williams was inebriated and that Mr. Richard knew Mr. Williams was in no condition to drive.
Mr. Richard became aware of Mr. Williams’ intention to drive his babysitter home with his children in the car. Beyond threatening to call the police, Mr. Richard did nothing further to stop Mr. Williams who a short time after leaving Ms. Richard’s residence, loaded his children into his car and drove their babysitter home. On the way back to his residence, Mr. Williams was involved in a serious accident. He was killed and his children were injured.
Two court actions were commenced. In the first, Mr. Williams’ children and their mother sue for personal injuries sustained by the children. In the second, the children and their mother claim damages pursuant to the Family Law Act. Both actions are premised on a claim that the respondents breached a duty of care as social hosts.
On motion for summary judgment, Justice Gorman dismissed both claims relying on the leading social host liability decision of the Supreme Court in Childs v Desormeaux. Justice Gorman held that the requisite duty of care had not been established and that even if it were established, such a duty of care would have ended once Mr. Williams arrived home to pick up his children and their babysitter.
The Court of Appeal confirmed the duty of care analysis in the context of an allegation that a social host has failed to act should consist of three elements as set out in Childs: (1) whether the injury was reasonably foreseeable; (2) if there is sufficient proximity such that there is a duty to act and if these two elements are satisfied establishing a prima facie duty of care then (3) whether this duty is negated by other, broader policy considerations.
The Court of Appeal noted that the motion judge’s duty of care of analysis was flawed and incomplete. It distinguished the within actions from Childs as follows:
[34]… I am not satisfied that the motion judge’s analogy between the facts at hand and the facts of Childs is apt. The motion judge did not advert to or consider the obvious factual differences between the cases. 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 influence. Alcohol was provided or served, to a certain extent, as the garage refrigerator the men were accessing had 30 to 40 cans of beer in it. These facts distinguish the case at bar from Childs. Moreover, nowhere in her analysis did the motion judge consider the statement in Childs, at para. 44, that “it might be argued that a host who continues to serve alcohol to a visibly inebriated person knowing that he or she will be driving home has become implicated in the creation or enhancement of a risk sufficient to give rise to a prima facieduty of care to third parties”.
The Court also indicated the motion judge committed an error in law by accepting that as a general rule when a drunk guest returns safely home the duty of care ends. The Court confirmed that “in a social host liability case, there is no automatic rule that the duty of care expires once the intoxicated driver arrives home safely.”
Accordingly, the appeal was allowed and the motion judge’s order was set aside.
Read the full decision [PDF]
