In Hamilton v. Kember (and another action), Mr. Justice John F. McGarry was dealing with a defence motion for summary judgment in two personal injury actions. The moving defendants were a young woman and her parents. In 2004, when the young woman (“Chelsie”) was a 17-year old high school student, her parents had agreed to let her have a party at their home while they were to be away camping. Chelsie was only supposed to have about 20 guests but, as often seems to happen, uninvited guests showed up, swelling the number of students to between 85 and 100.
Chelsie’s parents had also told her that she was to serve no alcohol and that anyone who became inebriated was to be told to stop drinking. Chelsie did not serve the guests but she herself did consume alcohol.
Late in the evening of the party, two young men (at least one of whom was drunk) were standing by the side of the road in front of the home, when they were struck by a car driven by another guest. Both were catastrophically injured and brought these actions. (The reasons do not say whether or not the driver was alleged to have been intoxicated.)
On their examination for discovery, the parents admitted that they knew there would be drinking at the party and the risks of teenagers “getting out of hand”. Chelsie acknowledged having become aware that the party was getting out of hand and that she had taken no steps to contact the police or the neighbours.
Counsel for Chelsie and her parents moved for dismissal of the action, relying on the Supreme Court of Canada’s decision in Childs v. Desormeaux. In our commentary on that decision, we suggested that the ruling had not closed the door to social host litigation and Justice McGarry’s ruling (dismissing the defence motion for summary judgment) seems to bear that out.
His Honour felt that there were genuine issues for trial. Factors that he considered significant included:
- the parents’ awareness that there would probably be drinking by minors during their absence;
- the concomitant risk of the party getting out of control;
- the parents’ failure to contact Chelsie to ensure that their instructions were being complied with; and
- Chelsie’s failure to take any action when the party got “out of hand”.
Justice McGarry held that, in these circumstances, it could not be said that the defendants owed no duty to the plaintiffs.