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Torts - Negligence - Duty of Care (Pre-Livent). Rankin (Rankin’s Garage & Sales) v. J.J.
In Rankin (Rankin’s Garage & Sales) v. J.J. (SCC, 2018) the Supreme Court of Canada considered the negligence duty of care between a car lot owner and a minor joy-rider who participated in the theft of a car [paras 16-65].
. Laughlin v. Esmaeili
In Laughlin v. Esmaeili (Ont CA, 2016) the Court of Appeal stated as follows on duty of care:[23] The Supreme Court of Canada has articulated a two-stage test for the determination of a duty of care in a case that does not fit an established category. First, the court must determine whether the facts disclose “a relationship of proximity in which failure to take reasonable care might foreseeably cause harm to the plaintiff”. If yes, there is a prima facie duty of care: Knight v. Imperial Tobacco Canada Ltd., 2011 SCC 42 (CanLII), [2011] 3 S.C.R. 45, at para. 39; see also Reference re Broome v. Prince Edward Island, 2010 SCC 11 (CanLII), [2010] 1 S.C.R. 360, at para. 14. If the plaintiff establishes a prima facie duty, the court must consider whether any “residual policy considerations” relating to “the effect of recognizing a duty of care on other legal obligations, the legal system and society more generally” should negate or narrow the prima facie duty: Cooper v. Hobart, 2001 SCC 79 (CanLII), [2001] 3 S.C.R. 537, at para. 37.
[24] Proximity is a broad concept, concerning the relations between the parties, that one cannot reduce to a single characteristic, but the Supreme Court has identified “expectations, representations, reliance, and the property or other interests involved” as factors relevant to proximity analysis: Hobart, at paras. 34-35. In essence, a finding of proximity reflects a conclusion that a duty ought to be imposed in particular circumstances because it is fair and just to do so having regard to the connection between the parties. . JJ v CC
In JJ v CC (Ont CA, 2016) the Court of Appeal stated on the negligence duty of care as follows:[20] The Canadian approach to establishing whether a duty of care arises in particular circumstances is based on the decision of the House of Lords in Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), as modified by the Supreme Court of Canada in Cooper v. Hobart, 2001 SCC 79 (CanLII), [2001] 3 S.C.R. 537, at paras. 30-31:At the first stage of the Anns test, two questions arise: (1) was the harm that occurred the reasonably foreseeable consequence of the defendant’s act? and (2) are there reasons, notwithstanding the proximity between the parties established in the first part of this test, that tort liability should not be recognized here? The proximity analysis involved at the first stage of the Anns test focuses on factors arising from the relationship between the plaintiff and the defendant. These factors include questions of policy, in the broad sense of that word. If foreseeability and proximity are established at the first stage, a prima facie duty of care arises. At the second stage of the Anns test, the question still remains whether there are residual policy considerations outside the relationship of the parties that may negative the imposition of a duty of care. It may be … that such considerations will not often prevail. However, we think it useful expressly to ask, before imposing a new duty of care, whether despite foreseeability and proximity of relationship, there are other policy reasons why the duty should not be imposed. [21] Following the Anns-Cooper approach, the first question is whether this case is governed by a duty of care that has already been recognized in the case law, or falls within an analogous situation: Cooper, at para. 36. If not, it is necessary to complete the two-stage Anns-Cooper analysis in order to determine whether a duty should be recognized.
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The Anns-Cooper test
[34] The plaintiff bears the burden of establishing that the defendant owes a duty of care, but once the plaintiff establishes foreseeability and proximity, a prima facie duty arises and the burden shifts to the defendant to establish countervailing policy considerations to negate the duty.
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Proximity
[54] Although the concept plays an important role in the Cooper analysis, proximity has fairly been described as an “elusive concept which provides little principled guidance as to when in novel cases a prima facie duty will be recognized”: Philip H. Osborne, The Law of Torts, 5th ed. (Toronto: Irwin Law, 2015), at p. 76. That is so because proximity is, in essence, a statement of a conclusion that a duty ought to be imposed in particular circumstances because it is fair and just to do so.
[55] This is not to say that proximity is an arbitrary conclusion. Whether it is fair and just to impose a duty of care depends on a number of considerations, including “expectations, representations, reliance, and the property or other interests involved”: Cooper, at para. 34. The court elaborated on the nature of proximity in Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41 (CanLII), [2007] 3 S.C.R. 129, at para. 29:The most basic factor upon which the proximity analysis fixes is whether there is a relationship between the alleged wrongdoer and the victim, usually described by the words “close and direct”. This factor is not concerned with how intimate the plaintiff and defendant were or with their physical proximity, so much as with whether the actions of the alleged wrongdoer have a close or direct effect on the victim, such that the wrongdoer ought to have had the victim in mind as a person potentially harmed. A sufficiently close and direct connection between the actions of the wrongdoer and the victim may exist where there is a personal relationship between alleged wrongdoer and victim. However, it may also exist where there is no personal relationship between the victim and wrongdoer. ....
Do residual policy concerns negate the existence of the duty?
[60] Foreseeability and proximity having been established, a prima facie duty of care arises and we move to the second stage in the Anns-Cooper analysis. The question is whether any residual policy considerations – real, not speculative concerns – negate the prima facie duty of care.
[61] The second stage of the analysis is concerned not with the impact of a duty on the defendant, but more broadly on other legal obligations, the legal system, and society in general. The court posed three questions in Cooper, at para. 37:Does the law already provide a remedy? Would recognition of the duty of care create the spectre of unlimited liability to an unlimited class? Are there other reasons of broad policy that suggest that the duty of care should not be recognized? ....
[70] The objection that establishing liability for the injuries of someone who participates in a theft is “offensive to society’s standards”, as was asserted in Campiou, at para. 44, has intuitive appeal. Underlying this sentiment is the notion that wrongdoers should be responsible for the damage they may cause to themselves by their wrongdoing.
[71] But sentiment is not principle. It is well established that the duty of care operates independently of the illegal or immoral conduct of an injured party: Hall v. Hebert, 1993 CanLII 141 (SCC), [1993] 2 S.C.R. 159; British Columbia v. Zastowny, 2008 SCC 4 (CanLII), [2008] 1 S.C.R. 27. The illegal or immoral conduct of a plaintiff operates as a defence to an action in tort only when the integrity of the legal system is at stake – “where a damage award in a civil suit would allow a person to profit from illegal or wrongful conduct or would permit evasion or rebate of a penalty prescribed by the criminal law”: Zastowny, at para. 20. That is not this case.
[72] Recognition of a duty of care regardless of the conduct of the injured party means only that wrongdoers may seek compensation for damages caused by a defendant’s negligence, not their own. Wrongdoers remain responsible for the damage caused by their wrongdoing even if a duty of care is recognized. Their wrongdoing is properly taken into account in determining contributory negligence, as occurred in this case. . Williams v. Toronto (City)
In Williams v. Toronto (City) (Ont CA, 2016) the Court of Appeal usefully enumerated the 'duty of care' elements of the tort of negligence, with focus on the element of proximity, as follows:[7] In order to found a duty of care in negligence, three elements are necessary: (1) The harm complained of must have been reasonably foreseeable; (2) There must have been sufficient proximity between the plaintiff and the defendant that it would be fair and just to impose a duty of care; and (3) There must be no residual policy reasons for declining to impose such a duty: Cooper v. Hobart, 2001 SCC 79 (CanLII), [2001] 3 S.C.R. 537; Edwards v. Law Society of Upper Canada, 2001 SCC 80 (CanLII), [2001] 3 S.C.R. 562; Childs v. Desormeaux, 2006 SCC 18 (CanLII), [2006] 1 S.C.R. 643; Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38 (CanLII), [2007] 3 S.C.R. 83. See also Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.) and Kamloops (City of) v. Nielsen, 1984 CanLII 21 (SCC), [1984] 2 S.C.R. 2.
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[10] The Supreme Court described the proximity element in Cooper, at para. 31, and explained the starting point is to determine whether the relationship between the parties falls within a recognized category:The question is what is meant by proximity. Two things may be said. The first is that “proximity” is generally used in the authorities to characterize the type of relationship in which a duty of care may arise. The second is that sufficiently proximate relationships are identified through the use of categories. The categories are not closed and new categories of negligence may be introduced. But generally, proximity is established by reference to these categories. This provides certainty to the law of negligence, while still permitting it to evolve to meet the needs of new circumstances. [11] In Cooper, at paras. 41-42, the Supreme Court prescribed a proximity analysis that requires the court to address two questions:The first question is whether the circumstances disclose reasonably foreseeable harm and proximity sufficient to establish a prima facie duty of care. The first inquiry at this stage is whether the case falls within or is analogous to a category of cases in which a duty of care has previously been recognized.…
[If not,] [t]he next question is whether this is a situation in which a new duty of care should be recognized. [12] Since, as the motion judge held, at para. 60, there is no category of analogous cases in which a duty of care has previously been recognized, the focus of this appeal is on the degree of proximity and whether a new duty of care should be recognized. If the court finds a sufficient degree of proximity, then a prima facie duty of care exists, and the court next considers whether there are residual policy reasons for declining to impose such a duty on the defendant in the plaintiff’s favour. This is the third element of the Cooper analysis, which I address later in these reasons.
[13] In Hill v. Wentworth Regional Police Services Board et al, 2007 SCC 41 (CanLII), [2007] 3 S.C.R. 129, McLachlin C.J. stated that while proximity requires that the actions of the wrongdoer have a sufficiently “close and direct” effect on the victim, this does not require physical proximity (at para. 29). The absence of a personal relationship, while an “important factor to consider”, is “not necessarily determinative” (at para. 30). The court specifically invoked the words of Lord Atkin in Donoghue to the effect that the duty of care could extend to situations in which the defendant “would know” the plaintiff “would be directly affected by his careless act”.
[14] The plaintiff must show that “the circumstances of the relationship inhering between the plaintiff and the defendant are of such a nature that the defendant may be said to be under an obligation to be mindful of the plaintiff's legitimate interests in conducting his or her affairs”: Hercules Managements Ltd. v. Ernst & Young, 1997 CanLII 345 (SCC), [1997] 2 S.C.R. 165, at para. 24, cited with approval in Odhavji Estate v. Woodhouse, 2003 SCC 69 (CanLII), [2003] 3 S.C.R. 263, at para. 49.
[15] The Supreme Court noted in Cooper courts have determined proximity in new situations, by “looking at expectations, representations, reliance, and the property or other interests involved” in order to “evaluate the closeness of the relationship between the plaintiff and the defendant”, and by asking “whether it is just and fair having regard to that relationship to impose a duty of care in law upon the defendant” (at para. 34). However, “[t]here is no definitive list” of factors: Syl Apps, at para. 30.
[16] When the contact underlying the relationship arises through the operation of a statutory scheme, the statute provides the relevant context for assessing the sufficiency of proximity between the parties: Cooper, at para. 43, Edwards, at para. 9, Syl Apps, at para. 27-29, Fullowka v. Pinkerton's of Canada Ltd., 2010 SCC 5 (CanLII), [2010] 1 S.C.R. 132, at para. 39.
[17] Chief Justice McLachlin identified three types of situation where legislation could play a role in determining whether the governmental actor owes the plaintiff a prima facie duty of care in R. v. Imperial Tobacco, 2011 SCC 42 (CanLII), [2011] 3 S.C.R. 45, at paras. 43-46. The first is where the legislation gives rise to a duty of care explicitly or by implication. The second is “where the proximity essential to the private duty of care is alleged to arise from a series of specific interactions between the government and the claimant. The argument in these cases is that the government has, through its conduct, entered into a special relationship with the plaintiff sufficient to establish the necessary proximity for a duty of care” (emphasis added). In the third type of situation proximity arises from the combination of the legislative scheme and the government’s interactions with the claimant.
[18] Stated summarily: “[T]he proximity inquiry will focus initially on the applicable legislative scheme and secondly, on the interactions, if any, between the regulator or governmental authority and the putative plaintiff”: Taylor v. Canada, 2012 ONCA 479 (CanLII), [2012] 111 O.R. (3d) 161, at para. 75. . Vlanich v. Typhair
In Vlanich v. Typhair (Ont CA, 2016) the Court of Appeal was faced with determining whether a municipality owed a duty of care to an injured party in a motor vehicle accident case, and commented as follows on the issue:(i) The Anns/Cooper test
[21] It is common ground that whether a public authority such as the Township owes a private law duty of care to an individual or to a class is determined by applying the two-part test first announced by the House of Lords in Anns v. Merton London Borough Council, [1978] A.C. 728, at pp. 751-52, and refined by the Supreme Court of Canada in Cooper v. Hobart, 2001 SCC 79 (CanLII), [2001] 3 S.C.R. 537, at paras. 30-31:At the first stage of the Anns test, two questions arise: (1) was the harm that occurred the reasonably foreseeable consequence of the defendant's act? and (2) are there reasons, notwithstanding the proximity between the parties established in the first part of this test, that tort liability should not be recognized here? The proximity analysis involved at the first stage of the Anns test focuses on factors arising from the relationship between the plaintiff and the defendant. These factors include questions of policy, in the broad sense of that word. If foreseeability and proximity are established at the first stage, a prima facie duty of care arises. At the second stage of the Anns test, the question still remains whether there are residual policy considerations outside the relationship of the parties that may negative the imposition of a duty of care. [22] The Supreme Court went on to explain what was meant by “proximity”, the element necessary to establish a duty of care in addition to reasonable foreseeability of harm, at para. 31:Two things may be said. The first is that "proximity" is generally used in the authorities to characterize the type of relationship in which a duty of care may arise. The second is that sufficiently proximate relationships are identified through the use of categories. The categories are not closed and new categories of negligence may be introduced. But generally, proximity is established by reference to these categories. This provides certainty to the law of negligence, while still permitting it to evolve to meet the needs of new circumstances. [23] Proximity is determined by "looking at expectations, representations, reliance, and the property or other interests involved" to "evaluate the closeness of the relationship between the plaintiff and the defendant" and by asking "whether it is just and fair having regard to that relationship to impose a duty of care in law upon the defendant": Cooper, at para. 34. . Parent v. Janandee Management Inc.
In Parent v. Janandee Management Inc. (Ont CA, 2017) the Court of Appeal held that the duty of care of a sign-poster to not to cause injury thereby was self-evident:(1) Duty of care
[7] Janandee raises a number of issues in its appeal. First, it contends that the trial judge erred in concluding that Janandee owed a duty of care to the plaintiffs. We did not call on the respondents on that issue. The submission that no duty of care was owed is an untenable one. In our view, a party who places, or arranges to have placed, signs on public sidewalks clearly owes a duty of care to members of the public to ensure that those signs are placed in a manner that will not cause injury to pedestrians or others who might reasonably be affected. There is a sufficiently close relationship between the persons placing signs, and the persons using the sidewalks, such that it would be within the reasonable contemplation of the former that carelessness on their parts might cause damage to the latter. Further, there are no considerations which ought to negative or limit the scope of the duty or the persons to whom it is owed: Anns v. Merton London Borough Council, [1978] A.C. 728 (U.K.H.L). . Mandeville v. The Manufacturers Life Insurance Company
In Mandeville v. The Manufacturers Life Insurance Company (Ont CA, 2014) the Court of Appeal discussed when a duty of care was owed:2. The Anns Test Considered
[163] In Cooper, at para. 30, the Supreme Court explained the Anns test in the following terms, making it clear that policy considerations arise at both stages of the analysis:In the first stage of the Anns test, two questions arise: (1) was the harm that occurred the reasonably foreseeable consequence of the defendant’s act? and (2) are there reasons, notwithstanding the proximity between the parties established when answering the first question, that tort liability should not be recognized? The proximity analysis involved in the first stage focuses on factors arising from the relationship between the plaintiff and the defendant. These factors include questions of policy, in the broad sense of that word. If foreseeability and proximity are established, a prima facie duty of care arises. At the second stage of the Anns test, the question still remains whether there are residual policy considerations outside the relationship of the parties that may negative the imposition of a duty of care. [Emphasis in original omitted.] The First Stage of the Anns Test
[164] As indicated in the above quote, the first stage of the Anns test focuses on the relationship between the plaintiff and the defendant. The overarching question at this stage is whether the circumstances disclose the reasonable foreseeability of harm and proximity sufficient to establish a prima facie duty of care: Cooper, at para. 31.
[165] While the first stage of the Anns test involves a consideration of both reasonable foreseeability and proximity, the Supreme Court has made it clear that proximity remains the foundation of the modern law of negligence: Design Services, at para. 25. As McLachlin J. stated in Norsk, at p. 1152, “Proximity is the controlling concept which avoids the spectre of unlimited liability”.
[166] When an overt act of the defendant causes physical injury to the plaintiff or the plaintiff’s property, proximity is indicated by the fact of the physical injury. As McLachlin J. stated in Norsk, at p. 1153: “if one is close enough to someone or something to do physical damage to it, one is close enough to be held legally responsible for the consequences.”
[167] How does the analysis change when the claim that is being advanced is one for pure economic loss? McLachlin J.’s reasons in Norsk assist in answering this question.
[168] First, at p. 1152, McLachlin J. emphasized that there must be “sufficient proximity between the negligent act and the loss”. That is, the court must pay special attention to the proximity between the defendant’s conduct and the loss suffered.
[169] Second, at p. 1153, McLachlin J. stated that, in the absence of the usual indicator of proximity – the infliction of physical injury or property damage – the court must take a probing look at the relationship between the parties, and “insist on sufficient special factors to avoid the imposition of indeterminate and unreasonable liability” before recognizing a new duty of care. These factors can include “expectations, representations, reliance, and the property or other interests involved”: Cooper, at para. 30. The court must also consider at this stage questions of policy, insofar as they pertain to the relationship between the parties: Cooper, at para. 30. This approach ensures “a principled, yet flexible, approach to tort liability for pure economic loss … [which] allow[s] recovery where recovery is justified, while excluding indeterminate and inappropriate liability”: Norsk, at p. 1153.
[170] If the court finds that the foreseeability and proximity are established, a prima facie duty of care arises. The court must then move to the second stage of the Anns test.
The Second Stage of the Anns Test
[171] At the second stage, the court must determine “whether there are residual policy considerations outside the relationship of the parties that may negative the imposition of a duty of care” (emphasis added): Cooper, at para. 30. The court is concerned, at this stage, with “the effect of recognizing a duty of care on other legal obligations, the legal system, and society more generally”: Cooper, at para. 37.
[172] In Norsk, at pp. 1154-55, McLachlin J. explained that while proximity is critical to establishing the right to recovery for pure economic loss, it does not always indicate liability. Proximity is a necessary, but not necessarily sufficient, condition of liability because there may be residual policy considerations that call for a limitation on liability. These residual policy considerations permit the courts to reject liability for pure economic loss for policy reasons that are not taken into consideration in the proximity analysis.
[173] When dealing with claims for pure economic loss, the court must be mindful of the more generalized policy reasons for precluding liability, including the “spectre of indeterminate liability” and the potential for encouraging “a multiplicity of inappropriate lawsuits”: Martel, at para. 37. Both of these policy considerations have social implications that extend beyond a particular tort relationship. At paras. 63-69, Martel pointed to several other policy considerations that apply at the second stage of the Anns test. Recognition of a duty of care that might tend to deter socially useful commercial activity is an example of one such policy consideration: Martel, at para. 64. . Williams v. Richard
In Williams v. Richard (Ont CA, 2018) the Court of Appeal 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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