Williams v. Richard: Ontario Court of Appeal weighs in on Social Host Liability
In late 2018 the Court of Appeal for Ontario released its reasons for judgment in Williams v. Richard, the latest in a series of court decisions grappling with the concept of social host liability in Canada. The decision can be read in full here. Williams was an appeal from a summary judgment motion where the court dismissed the plaintiff’s claim for damages arising from serious personal injuries following a single vehicle incident involving a drunk driver. At issue before both the motion judge and the Court of Appeal was the state of social host liability law in Canada.
As Alcohol & Advocacy has previously reported, the law with respect to social host liability in Canada has been uncertain for some time. In another recent decision out of Ontario, Wardak v. Froom, the court refused to determine at an early stage that a social host could not or did not owe its guests a duty of care to prevent them from driving drunk.
Williams, if it proceeds to trial, may establish precedent that firmly expands the legal liability of social hosts to include the actions of their intoxicated guests when they get behind the wheel. The facts in Williams are grim, creating a very real risk that bad facts may lead to bad law.
Mark Williams and Jake Richard were co-workers, friends and neighbours. They regularly got together to drink beer after work. Mr. Richard lived with his mother 500 metres from the home Mr. Williams shared with his wife and three children. Mr. Williams and Mr. Richard drank beer at one or the other’s home three to four times per week. They drank heavily and regularly enough that they entered into a pact that if either of them were going to drive while intoxicated and children were involved, the other would call the police.
On the day in issue, Mr. Williams came over to Mr. Richard’s home late in the afternoon after the two men had finished work for the day. They drank in Mr. Richard’s garage for approximately three hours during which time Mr. Williams consumed approximately 15 cans of beer. There was no dispute in the evidence before the chambers judge that Mr. Williams was inebriated and that Mr. Richard knew that Mr. Williams was in no condition to drive.
During this time Mr. Williams’ children were at home in the care of a babysitter. When Mr. Williams decided to call it a night Mr. Richard was aware that Mr. Williams intended to drive the baby sitter home, and that his kids would be in the car with him. Mr. Richard threatened to call the police on his friend, but acknowledged that he did not believe that Mr. Williams took that threat seriously. There was some evidence that he received an assurance from Mr. Williams that he would not drive the babysitter home.
Beyond threatening to call the police, Mr. Richard did nothing further to stop Mr. Williams from driving while drunk. The Court of Appeal observed that, for example, he did not call Mr. Williams’ wife or the babysitter to alert them of the situation and he did not ask his mother (who was not drinking) to drive the babysitter home.
Shortly after Mr. Williams left, Mr. Richard decided to accompany his mother to a variety store to purchase cigarettes. While driving to the store, Mr. Richard noted that Mr. Williams’ personal vehicle was not in the driveway. When Mr. Richard arrived at the store where his mother intended to buy cigarettes, only at this point in time did he decided to call the police from a nearby pay phone to alert them about a drunk driver.
On their way home from shopping for cigarettes Mr. Richard and his mother came upon the scene of Mr. Williams’ accident. He had driven into the rear of a stationary tractor. He was killed as a result of the collision and his three children were seriously injured.
The plaintiff in the action is Mr. Williams’ wife, suing on behalf of her injured children. She asserts that both Mr. Richard and his mother owed a duty of care to her late husband to prevent him from drinking and driving.
LAW OF SOCIAL HOST LIABILITY
Generally speaking, the law in Canada is that individuals who host social occasions where alcohol is consumed will not be found liable if an intoxicated guest subsequently gets behind the wheel and injures another driver. This issue was settled in the seminal Supreme Court of Canada decision Childs v. Desmoreaux, which Alcohol & Advocacy summarized here.
However in the cases subsequent to Childs no clear formula emerged with respect to social host liability for other situations, such as injuries to guests themselves should they choose to drink and drive or third parties (e.g. passengers). Rather, the determination of whether such a duty of care exists has hinged on the host’s knowledge of a guest’s intoxication and future plans to engage in potentially dangerous activity (foreseeability), and if on the specific facts of the case “something more” exists to create a positive duty on the host’s behalf to act. The “something more” could be facts that suggest the host was inviting the guest to an inherently risky environment or facts that suggest a paternalistic relationship existed between the parties (a proximity analysis).
The Court of Appeal observed there are many different factual permutations that can transform a social gathering into an invitation to an inherent and obvious risk. The Court explained that these situations can be situated along a spectrum. On one end of the spectrum are “bring your own alcohol” parties where hosts provide minimal alcohol and the gathering is of a modest size. At the opposite end of the spectrum would be a “wild” house party attended by underage drinkers. This latter situation likely implicates the host in the creation of an inherently risky environment.
In Williams the Court of Appeal overturned the motion judge’s decision finding fault with the duty of care analysis. The Court observed that the motion judge failed to consider each of the three elements necessary to confirm that the social host failed to meet the duty of care:
- A consideration of whether the injury was reasonably foreseeable;
- Whether there was sufficient proximity such that there was a duty to act; and
- If a prima facie duty of care had been established, whether it was negated by broader policy considerations.
The motion judge’s duty of care analysis, which was brief, did not follow this structure.
The Court of Appeal concluded that the facts of the case raised a genuine issue requiring a trial to determine whether Mr. Richard, as a social host, may have invited Mr. Williams into an inherently risky environment that he controlled and created, thereby creating a positive duty of care. Similarly, the court found that there was conflicting evidence with respect to Ms. Richard’s awareness of the pact between her son and Mr. Williams, her knowledge of their heavy drinking, and her knowledge that Mr. Williams intended to drive on the night in question. For these reasons the Court of Appeal determined there was a genuine issue requiring a trial to determine the question of proximity as it related to Ms. Richard.
The Supreme Court of Canada’s decision in Childs, which at least at the time seemed to close the door on social host liability, was at least part premised on the Court’s contrasting of how alcohol is served in commercial settings ( e.g. liquor licensing legislation, motive for profit and staff ability to monitor consumption) compared to social settings. Childs was decided in 2006 and the underlying car accident occurred in 1999. It has been over 20 years since Mr. Desormeaux left a house party and drove into oncoming traffic. As regular readers of Alcohol & Advocacy know, since that time the way Canadians consume alcohol has changed considerably.
In British Columbia for example liquor primary licences are now available for businesses outside of the traditional food and beverage industry such as art galleries and hair salons, and many meal delivery services now offer alcohol delivery as well. These and other welcome changes to British Columbia’s liquor laws have blurred some of the distinctions noted by the court in Childs that used to differentiate a commercial provider of alcohol from merely a social host.
Perhaps more importantly, Canadians’ tolerance for drunk drivers continues to shrink as evidenced by recent changes to the Criminal Code and the introduction in British Columbia of a regulatory (non-criminal) immediate roadside driving prohibition regime.
The facts in Williams are no doubt extreme. Should the matter proceed to trial, the judge may be left with little choice but to conclude that both or either of Mr. Richard and his mother had a positive duty to stop Mr. Williams from driving, and that by failing to do so, they are liable in damages to his injured children. Whether or not you agree with such an outcome, the precedent could change the way Canadians host social gatherings where alcohol is involved.
Alcohol & Advocacy will be monitoring the situation closely.
*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.