Home > Resource Centre > Publications > Publication

On May 5, 2006, the Supreme Court of Canada, in Childs v. Desormeaux, 2006 SCC 18, held that, as a general rule, the host of a private party at which alcohol is served does not owe a duty of care to a person injured by a guest who consumed alcohol at the party. While the unanimous decision of the Supreme Court is a welcome relief to social hosts and their insurers, the Supreme Court has left open the possibility that there could be a potential finding of liability if the host's conduct implicates him or her in the creation or exacerbation of the risk. The Supreme Court noted that "[i]t might be argued that a host who continues to serve alcohol to a visibly inebriated person knowing that he or she will be driving home has become implicated in the creation or enhancement of a risk sufficient to give rise to a prima facie duty of care to third parties."

FACTUAL BACKGROUND

Dwight Courrier and Julie Zimmerman hosted a New Year's party at their home on December 31, 1998. The party was a "BYOB" (Bring Your Own Booze) event. The only alcohol served by the hosts was three quarters of a bottle of champagne in small glasses at midnight. Mr. Courrier and Ms. Zimmerman knew that one of their guests, Mr. Desormeaux, was a heavy drinker.

Mr. Desormeaux consumed approximately twelve beers at the party over a two-and-a-half-hour period. At 1:30 A.M. on January 1, 1999, Mr. Desormeaux walked to his car to leave the party. Mr. Courrier accompanied him to his car and asked him if he was okay. After responding "No problem," Mr. Desormeaux got behind the wheel and drove away with two passengers.

Mr. Desormeaux proceeded to drive his vehicle into oncoming traffic and collided head-on with a car driven by Patricia Hadden. One of the passengers in Ms. Hadden's car was killed, and three others, including the plaintiff, Zoe Childs, were seriously injured. Ms. Childs' spine was severed and she is now paralysed from the waist down. Mr. Desormeaux and his two passengers were also injured.

THE SUPREME COURT OF CANADA'S DECISION

The Supreme Court of Canada concluded that the proposed "social host duty" owed by private hosts to third parties was novel and not analogous to the duty of care owed by a commercial provider of alcohol to third parties. The duty of care owed by commercial hosts does not automatically translate into a duty of care for social hosts for a number of reasons. First, commercial hosts have both the ability and monetary incentive to monitor their patrons' alcohol consumption, and servers in such establishments are generally trained to understand the risks of over-service and the signs of intoxication. Second, the sale and consumption of alcohol is strictly regulated by legislatures, and the rules applying to commercial establishments suggest that they operate in a very different context than private-party hosts. Third, unlike a social host, a tavern keeper has a profit-making incentive to serve too many alcoholic drinks to a patron and thus impair the patron's judgment; this perverse incentive supports the imposition of a duty to monitor alcohol consumption in the interests of the general public.

In the absence of an established duty, the Supreme Court of Canada returned to first principles and concluded that there was insufficient proximity between social hosts and users of public highways, and consequently that hosts of private parties where alcohol is served do not owe a duty of care to public users of highways. In arriving at this conclusion, the Court noted that Ms. Childs' injury was not reasonably foreseeable because there was no evidence that Mr. Desormeaux displayed signs of intoxication when Mr. Courrier accompanied and briefly spoke with Mr. Desormeaux before he drove away. As such, there was no indication that the hosts knew, or ought to have known, that Mr. Desormeaux was impaired before he drove away. In concluding that the injury to Ms. Childs was not reasonably foreseeable, the Court also stated that the fact that the hosts knew of Mr. Desormeaux's history of getting drunk and driving while intoxicated was too weak of an inferential chain to support the legal conclusion of reasonable foreseeability.

The Court went on to state that even if the injury to Ms. Childs had been reasonably foreseeable, the hosts still did not owe such a duty of care because, where the conduct alleged against a defendant is a failure to act, foreseeability alone may not automatically establish a duty of care. The mere fact that a person faces danger, or has become a danger to others, does not generally impose any kind of duty on those in a position to become actively involved. The Court held that a guest remains responsible for his or her conduct and, short of active implication in the creation or enhancement of the risk, a host is entitled to respect the autonomy of a guest. The Court did, however, state that "[i]t might be argued that a host who continues to serve alcohol to a visibly inebriated person knowing that he or she will be driving home has become implicated in the creation or enhancement of a risk sufficient to give rise to a prima facie duty of care to third parties."

The purpose of this document is to provide information as to developments in the law. It does not contain a full analysis of the law nor does it constitute an opinion of Ogilvy Renault LLP or any member of the firm on the points of law discussed.

© Ogilvy Renault LLP 2006 - All Rights Reserved

 Back to Publications

Contacts

Hélène Lefebvre
Montréal
514.847.4457
hlefebvre@ogilvyrenault.com
Profile

Peter J. Stanford
Ottawa
613.780.8626
pstanford@ogilvyrenault.com
Profile

Lucie Pariseau
Québec
418.640.5017
lpariseau@ogilvyrenault.com
Profile

Randy C. Sutton
Toronto
416.216.4046
rsutton@ogilvyrenault.com
Profile