January 19, 2006

By Brian Babcock

On January 18, 2006, the supreme court of Canada heard arguments in Childs v. Desormeaux , the Ontario Court of Appeal case featured in a recent web tip on Social Host Liability . It will likely be several months before a result is known, and then we will have new guidelines as to if and when social hosts are responsible for injuries caused by their guests to other persons.

There are two main issues to be decided:

  • Under the ordinary law of negligence, on the facts of this case, were the injuries caused by the drunken guest “reasonably foreseeable” by the host?
  • If so, are there social policy reasons to exclude or limit liability?

“Reasonable foreseeability” is assessed not from the individual viewpoint of the actual host, but by what an average person in that situation might expect to happen. As noted in my earlier tip, the facts in the Childs case are extreme in that regard – the hosts had little involvement in the availability of liquor, and no actual knowledge that this particular guest was either drunk, or driving. Whatever the outcome on these facts, we hope the court will comment on a variety of scenarios, providing more general guidelines.

The insurance industry, and others, argue that drinking at home, or house parties, is such a common socially accepted practice, that requiring homeowners to become gatekeepers would not only result in unlimited liability, but would fundamentally alter Canada’s social fabric. It was this argument that was relied on by the court of appeal to reject a general rule of social host liability, distinguishing the role of social host from an employer or tavern, where the relationship is commercial and closely regulated, with mandatory training of staff, and compulsory insurance. Advocates of expanded social host liability argue, among other things, that imposing a cost will encourage more responsible behaviour, and suggest that in this situation, change is good. Similar considerations will be weighed in the Supreme Court ruling.

We will post a further update once the decision is released.