Wardak v. Froom: Is the law of social host liability about to change?
Alcohol & Advocacy has written previously about the law of social and commercial host liability; two separate but related categories of relationships that may attract legal liability. The recent decision of the Ontario Superior Court of Justice in Wardak v. Froom suggests that the categories of relationships that may attract legal liability could soon be expanding.
Wardak is a social host liability case. The lawsuit was commenced by the plaintiff Mr. Dean Wardak in 2013 relating to a 2011 single vehicle accident. The trial is set to be heard before a jury. The facts are these.
The defendants Mr. and Mrs. Froom hosted a house party for their son, Graeme, on the occasion of his 19th birthday. The plaintiff, Dean Wardak, was a neighbour of the Frooms and a good friend of Graeme. He was 18 years of age at the time of the party, making him underage from the standpoint of consuming alcohol in Ontario. He walked to the house party. The party was “BYOB” – the Frooms did not serve liquor, but were aware that Graeme’s friends, including Mr. Wardak, were drinking.
The party was largely confined to the basement for the Froom family home. Graeme’s friends played pool, “beer pong” and listened to music. The Frooms stayed upstairs on the main floor of the house for most of the evening, watched the guests come and go, and checked in on the party from time-to-time.
At some point in the evening Dean became intoxicated, although the evidence with respect to when and just how intoxicated he was varied Some party guests describe Dean as quite intoxicated, others describe him as less so. At 11:00 when he came upstairs to use the washroom (there was no washroom in the basement) Mr. Froom noticed Dean wobbling, and offered to walk him home. Dean declined Mr. Froom’s offer, used the washroom, and went back downstairs. Mr. Froom says he then asked his daughter and her boyfriend to keep an eye on Dean. When dean came up stairs a second time, Mr. Froom again offered to walk him home, and this time Dean became angry and was largely non-responsive.
At this juncture Mr. Froom left Dean alone momentarily to show another guest to the washroom. While out of Mr. Froom’s sight Dean abruptly left the party without his jacket or shoes. The Froom’s daughter Emelia was leaving the party at about the same time, and she and her boyfriend described Dean as looking “complete zoned out”. As they left the family home they kept a look out for Dean. When they drove by his house, which was just down the street, they saw the brake lights in Dean’s car come on and saw him drive away. They called 911.
Dean was only driving for a short time before hitting a fire hydrant and a tree. He was taken to hospital and a blood alcohol test showed 274 mg of alcohol to 100 ml of blood, more than three times the legal limit. As a result of the accident, Dean is now a quadriplegic with cognitive impairments.
Social Host Liability issues
Before the court was a motion by the Froom’s to summarily dismiss Mr. Wardak’s claim against them on the basis that there is no genuine issue for trial. Put more simply the Froom’s argued that the law in Canada currently does not make social hosts liable for injuries suffered by guests after they leave their property. The Frooms position was that because they did not serve alcohol at their party they did not owe Mr. Wardak a duty of care. They relied on the 2006 Supreme Court of Canada decision in Childs v. Desormeaux in support of that proposition. However, the central legal issue in Childs was whether social hosts owed a legal duty of care to third parties who may be injured by intoxicated guests. In Childs the injured person was a third-party motorist, not a guest.
In Childs the Chief Justice, for the Court, held that on the facts of that case the social hosts did not owe a duty of care to third parties, but left the door open for other cases, at para. 47, as follows:
I conclude that hosting a party at which alcohol is served does not, without more, establish the degree of proximity required to give rise to a duty of care on the hosts to third-party highway users who may be injured by an intoxicated guest. … [Emphasis added.]
In Wardak Justice Matheson observed that the use of the phrase “without more” allows for a duty of care to arise in other circumstances. In that regard, the Court held that a positive duty of care may exist if foreseeability of harm is present and other aspects of the relationship between the plaintiff and the defendant establish a special link or proximity. Those other aspects of the relationship “bring parties who would otherwise be legal strangers into proximity and impose positive duties on defendants that would not otherwise exist”.
In Childs, the Supreme Court noted three situations that could lead to a positive duty to act. One was a paternalistic relationship of supervision and control. Arguably such a relationship existed between the Frooms and Wardak: the Frooms decided to host and supervise a party where they knew underage drinking would be occurring. This, argued the plaintiff, was the “more” that the Supreme court in Childs was searching for. Accordingly the motions judge in Wardak held that the Supreme Court’s ruling in Childs does not preclude finding a duty of care where there is a paternalistic relationship or where the injured party is a guest rather than a third-party.
The Frooms also argued that even if they did owe Wardak a duty of care, they met the duty of care (e.g. by offering to walk him home) and so the claim should be dismissed on that basis. The court also rejected this submission on the basis that the affidavit evidence before the court was inconsistent and uncertain.
With too much conflicting evidence, the court held that it could not make a satisfactory determination of these important factual issues without a trial. The judge went out to observe that while he did not need evidence from every single partygoer, “it is unsatisfactory to have only double hearsay, unsigned, unsworn summaries of what a number of those people said when interviewed by an unnamed person.”
Justice Matheson was not prepared to find that as a matter of law the Frooms, social hosts, did not owe a duty of care to Wardak. While Wardak is an interlocutory decision, and not a trial of the case on its merits, it is significant that the court is leaving the door open for a significant shift in social host liability.
Wardak may be a social, and not commercial, host liability case, but actors in the liquor and hospitality industry should nevertheless pay attention to this and similar cases. Judicial attitudes towards drinking an driving are changing rapidly, and sophisticated licensees should stay informed on any development in the law in this area.
If you or your establishment require assistance understanding British Columbia’s liquor laws contact Dan Coles at Owen Bird.
*Alcohol & Advocacy publishes articles for information purposes only. They are not a substitute for legal advice, and persons requiring such advice should consult legal counsel.