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Negligence - Duty of Care

Williams v. Richard (Ont CA, 2018)

In this Court of Appeal case the court discusses the duty of care in negligence law in the context of social host liability:
(1) Duty of Care

(a) Legal Principles from Childs

[18] Childs is the leading case in Canada regarding social host liability. The Supreme Court applied the Anns-Cooper-Odhavji framework to conclude that the social hosts in that case did not owe a duty of care to the plaintiff, a public user of the highway who was injured by the hosts’ intoxicated guest: at paras. 11-15, citing Anns v. Merton London Borough Council (1977), [1978] A.C. 728 (H.L. Eng.); Cooper v. Hobart, 2001 SCC 79 (CanLII); [2001] 3 S.C.R. 537; Odhavji Estate v. Woodhouse, 2003 SCC 69 (CanLII), [2003] 3 S.C.R. 537. The outcome of Childs hinged on two issues: foreseeability and proximity.

[19] With respect to foreseeability, the Supreme Court noted the absence of a finding by the trial judge that the hosts in Childs knew or ought to have known that Mr. Desormeaux, the social guest, was too drunk to drive. Further, the court held that foreseeability was not established by the fact that the hosts had knowledge of the guest’s past drinking and driving: Childs, at paras. 28 - 29.

[20] In Childs, as in the present case, the court was concerned not with an overt act by the social hosts but with their alleged failure to act. In other words, the claim was based on a failure to stop Mr. Desormeaux from driving while intoxicated. In these circumstances, the court found that the plaintiff had the onus of establishing foreseeability of harm, and in addition, other aspects of the relationship between the plaintiff and the defendant that create a “special link” or proximity: Childs, at para. 34.

[21] The Supreme Court articulated three situations that establish such a “special link” and that require legal strangers to take action. The court explicitly stated that these are not “strict legal categories,” but recognized, at paras. 35-37, features of a relationship that bring legal strangers into proximity:
(i) Where a defendant intentionally attracts and invites third parties into an inherent and obvious risk that he or she has created or controls;

(ii) Paternalistic relationships of supervision and control; and

(iii) Where a defendant exercises a public function or engages in a commercial enterprise that includes implied responsibilities to the public at large.
[22] Common to the above three situations is “the defendant’s material implication in the creation of risk or his or her control of a risk to which others have been invited”: Childs, at para. 38.

[23] In Childs the court found that simply holding a house party where alcohol is served is not an invitation to participate in highly risky activity. More is required to establish a risk that requires positive action: Childs, at para. 44.

(b) Legal Principles from post-Childs jurisprudence

[24] The post-Childs jurisprudence on social host liability, discussed below, demonstrates that there is no clear formula for determining whether a duty of care is owed by social hosts to third parties or guests. Rather, the determination of whether such a duty of care exists usually hinges on fact specific determinations pertaining to two main issues. The first issue is the host’s knowledge of a guest’s intoxication or future plans to engage in a potentially dangerous activity that subsequently causes harm. This is a foreseeability analysis. The second determination asks if “something more” is present on the facts of the case to create a positive duty to act. The “something more” could be facts that suggests the host was inviting the guest to an inherently risky environment or facts that suggest a paternalistic relationship exists between the parties. This is a proximity analysis.

[25] The foreseeability case law has focused heavily on a social host’s knowledge as to the relevant guest’s level of intoxication, whether there were signs that the guest was intoxicated, and thus whether it was reasonably foreseeable that the guest would engage in certain acts and behaviours that subsequently led to an accident: see Sidhu (Litigation guardian of) v. Hiebert, 2011 BCSC 1364 (CanLII); Wardak v. Froom, 2017 ONSC 1166 (CanLII), 38 C.C.L.T. (4th) 166; Lutter v. Smithson, 2013 BCSC 119 (CanLII), 18 C.C.L.I. (5th) 294; Sabourin (Litigation guardian of) v. McKeddie, 2016 ONSC 2540 (CanLII); Kim v. Thammavong, 2007 CanLII 52791 (ON SC), 2007 CanLII 52791 (Ont. Sup. Ct.), affirmed 2008 CanLII 63230 (ON SCDC), 2008 CanLII 63230 (Ont. Div. Ct.).

[26] In the context of summary judgment motions, some of the jurisprudence has suggested that the presence of conflicting evidence about the level of a host’s knowledge of a guest’s intoxication is enough to render a full trial necessary: see Sidhu at paras. 40-41; Wardak, at paras. 58-61; Lutter, at paras. 26, 29-30. In particular, cases that offer conflicting evidence on a host’s knowledge of a guest’s intoxication via affidavits may be particularly unsatisfactory; there could be a “significant risk of injustice” if such issues were not further explored in a full trial: Lutter, at para. 30. However, this does not mean that any ambiguity in the evidence on a host’s knowledge of a guest’s intoxication will result in summary judgment being denied. For example, in Sabourin, the motion judge found that even if the plaintiff’s evidence was taken at its highest, there was a lack of evidence that the host knew there was excessive drinking or that any guest was showing obvious signs of intoxication: para. 38. As such, there was a lack of reasonable foreseeability and summary judgment was granted.

[27] Much of the post-Childs jurisprudence regarding proximity has engaged in a factually specific evaluation of whether “something more” is present to suggest that a positive duty to act may exist. While there is no definitive list, the case law has looked at a variety of factors to determine what could qualify as “something more” that would make a social gathering an inherent and obvious risk, including: whether alcohol was served at the party or whether guests were invited to bring their own alcohol, the size and type of the party, and whether other risky behaviour was occurring at the party, such as underage drinking or drug use: see generally Childs, Sidhu, Wardak, Lutter, Sabourin, Kim, Allen v. Radej, 2014 ABQB 171 (CanLII), Oyagi v. Grossman, 2007 CanLII 9234 (ON SC), 2007 CanLII 9234 (Ont. Sup. Ct); Wenzel v. Desanti, 2011 ABCA 226 (CanLII), 510 A.R. 327, leave to appeal to S.C.C. refused, [2011] S.C.C.A. No. 437.

[28] There are many different factual permutations of what could transform a social gathering into an invitation to an inherent and obvious risk. It is helpful to think of these situations as being situated along a spectrum. At one end of the spectrum is Childs, which was a “bring your own alcohol” party where the hosts provided minimal alcohol. Similarly, private parties of a reasonable size are usually viewed by the courts as not inherently risky: see Robinson v. Lewis, 2015 ABQB 385 (CanLII), at paras. 72-77. Likewise, an invitation to a co-worker’s home to have dinner and after-work drinks outside is not inherently dangerous or risky: see Allen, at para. 78. Moving further down the spectrum, a young adult throwing a “wild” Halloween party and providing alcohol for around 40 people, some of whom are using illegal drugs, may implicate a host in the creation of an inherent risk: see Kim, at paras. 9-10, 25. On the far end of the spectrum, a teenager throwing a house party at which over 100 people attend, most of whom are underage drinkers, while their parents are out of town, likely implicates the host in the creation of an inherent risk: Oyagi, at paras. 6-7, and 12.

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