Last Friday night, Wiliams McEnery held a small reception for Eric Willams and Jaye Hooper. As most readers will know, Eric and Jaye were the winning counsel in Friday’s Supreme Court of Canada ruling in Childs v. Desormeaux, the “social host liability” case. The members of their firm wanted to congratulate their colleagues at Friday’s get-together and we dropped in for a while.
First of all, Jaye Hooper and Jennifer Jolly (another WM lawyer) took us to task for not having posted on this blawg since April 21. We attributed this to Heather and Steve’s attendance at the Advocates’ Society conference in Ireland, but Jaye and Jennifer would accept no excuses.
(We had not even tried to scoop the competition with a commentary on the Supreme Court’s decision in Childs on Friday morning. How could we, when Jaye Hooper was busy writing a bulletin from inside the Supreme Court’s “lockup”, before the rest of us had even seen the decision? Besides, the Internet was soon buzzing with bulletins and commentaries of all sorts about the ruling.)
But now that the dust has settled (and to make it clear that we have not ceased publication of this blawg!), a few thoughts about the Childs case.
First, congratulations to Eric and Jaye but also, to Barry and Scott Laushway and Beth Alexander, who were counsel for Zoe Childs. Not only did they represent the interests of their clients with great skill and professionalism but they did so while maintaining their collegiality and even friendship with each other during the long course of this high-stakes litigation. Their handling of this case brought honour to the legal profession.
What to say about the reasons for judgment of Madam Justice McLachlin, concurred in by the other members of the court? Well, we were almost ejected from Friday’s Williams McEnery reception for suggesting, somewhat diffidently, that the reasons were a bit disappointing. Both Eric and Jaye, still feeling quite argumentative, strongly disagreed. However, for what it’s worth, these are our criticisms:
- The court said, in the very first paragraph of the decision, 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”. In paragraph 46 though, the following statement was made: “A social host at a party where alcohol is served is not under a duty of care to members of the public who may be injured by a guest’s actions, unless the host’s conduct implicates him or her in the creation or exacerbation of the risk.” If the court’s analysis is correct, that no duty arises in the case of a “passive” social host but that one might arise in the case of an “active” host whose conduct creates or exacerbates risk to the public, that must mean that the “relationship” between the two types of hosts and members of the public is qualitatively different. This is so, because a duty of care arises from the relationship between the parties (see para. 11 of Childs, where Anns v. Merton London Borough Council is discussed). If the relationship between a member of the public and a “passive” host does not give rise to a duty, but that between the member of the public and an “active” host does, it would have been very helpful to the practising bar if the court had delineated more clearly where the line is drawn between the two types of host (and therefore, when a duty of care might arise).
- In some future case, someone is going to ask a court to impose liability on an “active” host (or at least, on a host who will be so characterized) for injuries to a third party caused by an intoxicated party-goer. It seems beyond doubt that the Childs decision has not foreclosed such an argument. But even if the plaintiff in that future case were able to show that the defendant was an “active” host, who created or exacerbated the risk of injury to a third party, thus (perhaps) satisfying the first branch of the Anns test, the plaintiff would still be met with the second branch of the Anns case. According to that branch, the court must go on to consider whether there are policy considerations which ought to negative or limit the scope of the duty, the class of persons to whom it is owed or the damages to which breach may give rise. In Childs, neither the Ontario Court of Appeal nor the Supreme Court addressed the policy considerations of imposing a duty of care on a social host. Justice James Chadwick, who was the trial judge in Childs, did undertake an extensive analysis of the policy issues (and it was on this basis that he ruled that no duty arose). As matters stand, we have no idea how the Supreme Court would view the second part of the Anns test in a social host setting. It is unfortunate that future litigants who meet the first branch of the test might have to go all the way to the Supreme Court to find out whether it is even possible to satisfy the second branch of Anns or whether the court might ultimately agree with Justice Chadwick, that even if a duty of care does arise, it should not be permitted on policy grounds.
- Finally, in paragraph 29 of the decision, Justice McLachlin criticized the trial judge’s “problematic reasoning” in a way that we find puzzling: “Instead of finding that the hosts ought reasonably to have been aware that Mr. Desormeaux was too drunk to drive, the trial judge based his finding that the hosts should have foreseen injury to motorists on the road on problematic reasoning. He noted that the hosts knew that Mr. Desormeaux had gotten drunk in the past and then driven. He inferred from this that they should have foreseen that unless Mr. Desormeaux’s drinking at the party was monitored, he would become drunk, get into his car and drive onto the highway. The problem with this reasoning is that a history of alcohol consumption and impaired driving does not make impaired driving, and the consequent risk to other motorists, reasonably foreseeable. The inferential chain from drinking and driving in the past to reasonable foreseeability that this will happen again is too weak to support the legal conclusion of reasonable foreseeability — even in the case of commercial hosts, liability has not been extended by such a frail hypothesis.” Justice Chadwick’s reasons contain the following finding: “I am satisfied on all of the acceptable evidence that Dwight Courrier [one of the homeowners] was well aware of Desmond Desormeaux’s past drinking problems including his previous convictions.” Even if knowledge is insufficient to give rise to a duty of care, it seems odd to suggest that it does not make it at least somewhat more foreseeable, that the past offender might get drunk again and injure someone while driving in an intoxicated state.
Overall, we are inclined to agree with those who have suggested that the door is not completely closed on social host liability. How open is it? Unfortunately, the answer to that question will probably require more litigation in another case.