SCC Ruling on Childs v. Desormeaux and its Impact on Social Host Liability 




On May 5th, 2006 the Supreme Court of Canada, in issuing their judgment in Childs v. Desormeaux, seems to have put an end to social host liability.  The Court found that 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  This is the first time the SCC  has considered the duty owed by social hosts to third party plaintiffs injured by the negligence of intoxicated guests.  Prior to this decision, it was unclear whether principles underlying negligence law could extend to encompass social host liability.  This decision provides a surprisingly clear direction affirming the duty owed by commercial hosts and refusing to expand this duty to social hosts. 

This case arose from a car accident that occurred in the early morning of January 1, 1999 after a New Years Eve party hosted by defendants, Courrier and Zimmerman.  After leaving the party their intoxicated guest, Desormeaux, drove into oncoming traffic and collided with another vehicle, killing one passenger and seriously injuring the other three, one of whom was Childs.  Childs was rendered a paraplegic.  Desormeaux and other guests had brought their own alcohol to the party.  The only alcohol served by the hosts was a small amount of champagne.  The trial judge found that Desormeaux  had likely consumed 12 beer at the party. 

In applying the test established in Anns v. Merton London Borough Council, and as further refined in Kamloops (City of) v. Nielsen, the trial judge found that there was a prima facie duty of care owed by the social hosts to Childs, but this duty was negated by policy considerations.  The Court of Appeal for Ontario dismissed the appeal and held that this situation did not even give rise to a prima facie duty of care.

In its judgment the SCC first addressed whether the proposed duty was novel or whether it had been established in prior case law.  The closest comparison of this duty is to that of commercial hosts who have been held to owe such a duty to their customers and to third parties (Stewart v. Pettie).  The Court distinguished the position of a commercial host from that of a social host on three grounds. First, monitoring of alcohol consumption is easier for the commercial host, in that  "not only is monitoring inherently part of the commercial transaction, but . . . servers can generally be expected to possess special knowledge about intoxication."  Second, the sale  and consumption of alcohol is strictly regulated and subject to a licensing scheme.  This gives rise to expectations of patrons and the public that there is a "special responsibility" of commercial hosts who stand to profit from the sale of alcohol. Social hosts are not subject to these same expectations for monitoring consumption and enforcing limits. The third difference arises from the contractual nature of the relationship between the commercial host and the patron.  Commercial hosts stand to benefit from selling as many drinks as possible to patrons with the patron and the public bearing the costs.  In the view of the Court, "this perverse incentive supports the imposition of a duty to monitor alcohol consumption."

After finding that there is no established duty of  social hosts the Court went on to apply the Anns test.  Chief Justice McLachlin and Justice Major summarized the first stage of the Anns test in Edwards v. Law Society of Upper Canada as "whether the circumstances disclose reasonably foreseeable harm and proximity sufficient to establish a prima facie duty of care. . . .   Mere foreseeability is not enough to establish a prima facie duty of care.  The plaintiff must also show proximity – that the defendant was in a close and direct relationship to him or her such that it is just to impose a duty of care in the circumstances." Here, the Court concludes that the injury was not reasonably foreseeable, as there was no evidence to suggest the hosts knew Desormeaux was intoxicated.  However, the Court went on to explain that if reasonable foreseeability were established, no duty would result as this was a case of nonfeasance in which no duty to act arose. 

The Court explained that where there is no overt act on the part of the defendant, the relationship of the parties must be examined to see if it gives rise to a "special link or proximity."  The Court listed three broad scenarios where such a duty to act may arise.  First, a duty to act may arise where the defendant invites a third party to assume an inherent or obvious risk that he or she controls.  Second, a duty may arise as a result of a paternalistic relationship, such as parent and child or student and teacher.  Third, a defendant who exercises a public function or commercial enterprise may owe a duty to the public, such as the duty owed by a commercial host.  These scenarios are tied together by broad principles: the creation or control of risk on the part of the defendant, the autonomy of the individual, and reasonable reliance of those undertaking the risk and the public that the defendant will intervene to reduce the risk or take steps to initiate a rescue. 

In its application of the law, the Court found that holding a private party at which alcohol is served and consumed, whether served at the party or supplied by the guests, does not give rise to a duty of care owed to third parties.  Merely hosting a party where alcohol is served "does not suggest the creation of  or exacerbation of the level required to impose a duty of care on the host to the members of the public who may be affected by a guest's conduct."  The Court also noted that "a person who accepts an invitation to attend a private party does not park his autonomy at the door . . . short of active implication in the creation or enhancement of the risk, a host is entitled to respect the autonomy of a guest."  Finally, the Court held that a private host is not expected to "monitor the conduct of guests on behalf of the public."  

The Court chose not to address whether a duty may arise where a social host continued to serve a clearly intoxicated guest with knowledge that he or she will be driving.  The Court implies, however, that a prima facie duty may arise and that an analysis of possible policy implications would then be necessary and could very well negate such a duty.