We therefore hold that a host who serves liquor to an adult social guest, knowing both that the guest is intoxicated and will thereafter be operating a motor vehicle, is liable for injuries inflicted on a third party as a result of the negligent operations of a motor vehicle by the adult guest when such negligence is caused by the intoxication.
We impose this duty on the host to the third party because we believe that the policy considerations served by its imposition far outweigh those asserted in opposition. While we recognize the concern that our ruling will interfere with accepted standards of social behaviour...we believe that the added assurance of just
compensation to the victims of drunken driving as well as the added deterrent effect of the rule on such driving outweigh the importance of those other values.
The Supreme Court of New Jersey (Kelly v. Gwinnell, 476 A. 2d 1219 (N.J. 1984)
IN 1999 DESMOND DESORMEAUX drank at a BYOB (Bring Your Own Booze) New Year's Eve party hosted by Dwight Courier and Julie Zimmerman at their home. Courier and Zimmerman knew he had a history of drinking to excess. Subsequently, Desormeaux caused a car accident in which Zoe Childs was a passenger. Childs' spine was severed. The passenger sitting next to Childs was killed outright. In the civil litigation that followed, Childs and her family sought $3.2 million in compensation from Courier and Zimmerman. Desormeaux had no auto insurance and negligible assets. On December 7, 2005, the Supreme Court of Canada hears, in Childs v. Desormeaux, its first social host liability case.
The case and the issue of social host liability in general are socially sensitive, even explosive, intertwining moral and financial responsibility and potentially affecting every Canadian who's ever served drinks to guests. The issue is not new.
Indeed, writing in The Advocates' Society Journal in 1993, Toronto lawyers Bert Raphael, Q.C., and David Kunsch suggested social host liability was the “next logical step” in the “consistent and predictable” evolution of commercial host liability in Canada during the 1970s and 1980s. They confidently predicted “It seems inevitable that the courts will start holding social hosts liable for the damages caused by and to guests who leave their premises in an intoxicated state.”
A decade-plus later, Zoe Childs and her lawyer hope the Supreme Court will boldly go where no Canadian court—indeed, virtually no common law court—has dared go before and find Courier and Zimmerman liable for the injury caused her by Desormeaux. Whether such a decision would spell “the end of dinner parties” across the country (to steal a phrase from Lang Michener's David Bertschi) or not, the implications of the Supreme Court's decision—whichever way it goes for Childs—will reverberate throughout Canadian society.
Certainly the Insurance Bureau of Canada (IBC) and Mothers Against Drunk Driving (MADD) Canada,
interveners in the proceedings, think so. Their involvement illustrates the moral and financial tangle inherent in the social host liability debate. Like the (for the most part unsuccessful) social host liability cases that have come before it, Childs raises important issues of individual and social responsibility with pecuniary consideration against a backdrop of immense personal tragedy.
WHO'S WHO. The legal players in Childs run the gamut from a solo practitioner about to make his Supreme Court debut to a heavyweight at one of Canada's top-tier national law firms. Zoe Childs is represented by Barry Laushway, a Prescott, Ontario lawyer with a thriving plaintiffs personal injury practice (and a penchant for calling the now 23-year-old woman “an innocent little girl”). He doesn't see his client's position as particularly novel—just an extension of long-established commercial host liability and existing negligence law—nor as “opening the floodgates” to countless social host liability suits that will lay waste to the insurance industry.
The lawyer for Zimmerman and Courier disagrees. Eric Williams, the name partner of Ottawa boutique Williams McEnery, sees more at stake, potentially, in Childs than what his clients (and their insurance company) stand to lose. The particular circumstances of this case—most notably, the fact that his clients hosted a BYOB party and neither provided nor served alcohol to Desormeaux—aside, he thinks there is good reason most jurisdictions have avoided social host liability. “People could lose their homes, their RRSP, everything,” he says, “because they didn't notice Aunt Emma was imbibing white wine back in the kitchen.”
Unless, of course, they had liability insurance, which the majority of homeowners do (for better or worse: if Courier and Zimmerman didn't have insurance—or Desormeaux did—would Childs be suing them?). And that's why IBC, represented by Alan D'Silva at the Toronto office of Stikeman Elliott LLP, is in the fray. It is anxious that the Supreme Court be aware of the “profound” impact a finding of social host liability in Childs may have on the Canadian insurance industry.
“My client's main concern is the potential cost to insurers and in turn to homeowners and tenants if the doors are opened for social host liability,” says D'Silva. “IBC wants to make sure the decision is not made without some understanding of the implications for insurers.”
So far the courts have kept the industry's interests in mind, even absent formal representation. When Childs was tried in the Superior Court of Ontario, despite finding that given Desormeaux's past history and relationship to Courier the hosts should have monitored his drinking at the party, Justice Chadwick declined to impose a duty of care on them, suggesting such a finding would result in “chaos.” As he wrote in his decision, “Then every time an accident occurred and the driver had been drinking at a private party, the social host would be joined as defendant.
Social hosts would have to obtain insurance. If social hosts' liability were expanded by the courts then the insurance companies would face financial expenses resulting in increased premiums to all clients.” (The Court of Appeal effectively concurred with this analysis and reversed the trial judge's finding that the hosts should have monitored Desormeaux's drinking.)
For MADD Canada, represented pro bono by Earl Cherniak, Q.C., and Kirk Stevens of Lerners LLP, Childs offers an opportunity for courts to impose a “duty of care” on social hosts akin to that imposed on commercial establishments since the 1974 decision of the Supreme Court of Canada in Jordan House Ltd. v. Menow and Honsberger (1 S.C.R. 239).
“MADD Canada believes that imposing or recognizing at law a responsibility to show care when you host an alcohol-related event is going to deter drinking and driving and save lives from being marred as occurred in the Childs case,” says Stevens. “They have an interest in using the private law system as a tool to advance the aims of preventing people being killed or maimed, it's as simple as that.”For all practical purposes, absent from the fray is Desormeaux (represented by Helmut Brodmann at Bell Baker, who defers comment regarding the ongoing litigation to Eric Williams), now serving a 10-year prison sentence for criminal charges resulting from the accident and not appealing the lower court finding that he was liable for Childs' injuries.
WHO PAYS? Unburdened by car insurance or other assets, the drunk driver who caused the accidents and Childs' injuries is effectively off the financial hook. His legal costs—and Childs' costs against him, as awarded at the appeal—were assumed by the Motor Vehicle Accident Claims Fund. As noted by Justice Weiler in the Ontario Court of Appeal decision, “All parties agree that Desormeaux appears to have no assets and, having regard to the rules of joint and several liability, the social hosts, if liable, would effectively assume the full burden of the damage award in this case.”
It is no stretch to consider whether Courier and Zimmerman may not be about to earn the dubious title of Canada's first liable social host couple not just because they had the misfortune to know and host Desormeaux, but more particularly because Desormeaux did not carry insurance. That's typical of the smattering of Canadian social host liability cases. As Alan D'Silva points out, “Most cases to date have been of the sort where the driver or guest has no insurance, and so the injured parties target the homeowner who has insurance.”
“These are the exact circumstances here,” notes Eric Williams, counsel to Courier and Zimmerman. “There are five claims outstanding against the hosts because, unknown to them, the drinker had no insurance. Both people injured in his vehicle and the three injured people in the other vehicle, are suing the hosts. Because (Desormeaux) has no assets and no insurance suddenly the social host is on for the whole thing, if there is any liability.” To date, he adds, “this is what has given rise to extreme judicial reticence to impose social host liability across the common law world.”
The possibility that the Supreme Court decision in Childs may abandon this reticence is causing Alan D'Silva's client great concern. As D'Silva is quick to note, “IBC obviously does not support drunk driving.” And it is carefully trying not to appear to take “individual” sides in Childs. There is great concern on the part of the IBC as to what the Supreme Court may say even if the appeal is dismissed.
As D'Silva notes, “If you read the Court of Appeal decision, there is certainly a suggestion that in the right circumstances someone could be liable for social host liability.” After setting out in some detail why the Court did not find Courier and Zimmerman liable because of the specific circumstances of the case, Justice Weiler wrote “My conclusion that this appeal should be dismissed should not be interpreted to mean that social hosts are immune from liability to innocent third party users of the road for damages caused by impaired guests who drive a car. On the contrary, I do not foreclose social host liability...”
“IBC is concerned about the way this issue may unfold,” understates D'Silva. As expressed in the affidavit of Randall J. Bundus, the vice-president, general counsel and corporate secretary of the IBC, filed when the IBC sought intervener status in the Childs preceedings, “the imposition of liability on social hosts would have a profound effect on the interests of the insurance industry as a whole and the customers which this industry serves.”
Of course should the Supreme Court determine that social hosts can be found liable, the insurance industry will take steps to ensure it's not left holding the entire bag. As the IBC states not-so-obliquely in its affidavit, the costs will be passed down to policyholders. Or, insurers may carve out social host liability from standard home owners or tenants insurance.
Whatever they do, underwriting social host liability will be a nightmare. “It's a very difficult thing to underwrite,” says D'Silva. “It's not like car insurance where you know somebody can be a bad risk because he or she had five accidents. How do you determine who is potentially a ‘bad' host?”
For Eric Williams, the potential big losers in Childs—apart from his clients, of course—are uninsured hosts who “make one little slip or error and their home, RRSPs, everything could be gone.” But like D'Silva, Williams worries that if the window to social host liability is opened by the Supreme Court, the trickle of social host liability cases Canada has seen will swell to a flood.
Barry Laushway, acting for Zoe Childs, does not buy “the opening the floodgates” argument. “Our argument is that the behaviour here is pretty egregious for the court to find liability in this case without opening any floodgates,” he says. “In this case, the host knew the drunk very well, knew what he was like drunk...he slept over at their house and they put plastic sheets under him because he would urinate on the couch. I don't think many of us invite [those types of] people to our home...”
There's another consideration. The insurance industry is not in the business of losing money. If the Supreme Court upholds social host liability, the insurance industry may well exit underwriting it. And if social hosts have no insurance...will they be sued? And if sued, how likely would the courts be to find them liable?
As Justice Weiler noted in the Ontario Court of Appeal decision, “Although I am not aware of any case where the imposition of liability in tort turned on whether the tortfeasor had insurance, the availability of insurance is a consideration with respect to how onerous a burden the imposition of liability on a social host would be.” It is equally hard to find a social host liability case in which the plaintiff feels the moral need to go after social hosts if he has been able to obtain sufficient financial compensation from the guest.
PASSING THE BUCK. Casting the social host liability debate in terms of passing the buck—moral and financial—may be cynical, but it's something even the judiciary has engaged in. In the Superior Court of Ontario decision in Childs, Justice Chadwick tried to kick the ball out of the courts and into Parliament suggesting, “It is obvious that the government has both the financial resources and legislative ability to regulate social host responsibility if they so desire.” In Prevost (Committee of) v. Vetter ((2001), 197 D.L.R. (4th) 292 (B.C.S.C.), reversed (2002), 100 B.C.L.R. (3d) 44 (C.A.)), a case that almost created social liability in Canada, the BC Court of Appeal sent out a direct SOS with Justice Smith pointedly noting that “whether social hosts ought to be held liable for the negligent actions off their property of persons who became intoxicated while on their property is a controversial and unsettled question that might well engage the attention of the Supreme Court of Canada.”
Prevost attracted a great deal of attention with Justice Coultas of the British Columbia Supreme Court finding the Vetter parents liable for the injuries Adam Prevost suffered after being driven away from the party (hosted by the Vetter sons) by the Vetters' 18-year-old niece. But, after the BC Court of Appeal overturned it and ordered a new trial, all came to naught. As Robert A. Clark, counsel to the Prevost family confirms, the parties settled in October 2003, three weeks before the new trial date.
Even had it not settled, Prevost would not have set quite the tone Childs may, involving minors and, in Adam Prevost, an attendee at the party held at the Vetters' home (there was also some uncertainty, unresolved at trial, about the causation of the accident). Robert Clark notes that in Prevost he went to considerable lengths to establish a “special parental relationship” between the minors partying at the Vetter house and the Vetter parents. “In Childs, where you have an adult coming to an adult party, establishing that relationship [necessary to prove duty of care] may be a stretch,” he suggests.
(Notably, in Canada as well as the US, many of the attempts to unseat social host immunity have involved minors, e.g., Baumeister v. Drake (1986), 5 B.C.L.R. (2d) 382 (S.C.), Wince (Guardian ad litem of) v. Ball (1996) 8 W.W.R. 28 (Alta. Q.B.), and Dryden (Litigation Guardian of) v. Campbell Estate (2001), 11 M.V.R. (4th) 247 (Ont. S.C.J.). In Dryden, not precisely a social host situation, the court did apportion five per cent liability to the 24-year-old “adult” who bought alcohol for the “minor” drunk driver but attached “the lion's share of culpability, both morally and legally...to the drinking driver”—killed in the accident.)
Barry Laushway believes Childs stands more of a chance in challenging the judiciary's reluctance in finding blame with the social hosts because, unlike in many of its predecessors, the victim here is “innocent.” It certainly is easier for the courts—and the public—to sympathize with Zoe Childs than the plaintiff in Alchimowicz v. Schram (1997 Ontario General Division, 1999 Ontario Court of Appeal) in which the “grossly intoxicated” plaintiff became a quadriplegic after diving off a dock into Lake St. Clair, subsequently suing the host of the party he attended earlier, people who provided him with alcohol throughout the evening, as well as the friends who drove him, uninvited, to the dock.
Laushway is aware that much of the debate among social host liability focuses on the abrogation of personal responsibility. But Childs would not have wound its way up to the highest court, he suggests, if Zoe Childs had “become intoxicated at this party” and was driving herself home. “I agree the drunk should accept responsibility,” says Laushway. “But in this case, he had so little responsibility...he had no insurance. We're saying a bad alcoholic like Mr. Desormeaux does not take responsibility, so you as his host should take responsibility.”
For Kirk Stevens, the drunk driver's personal responsibility and the social host's personal responsibility (and liability) are blended or fused together. “Various wrongdoers can share the blame,” he argues. “Sure, drinking and driving is a personal responsibility, but the law has recognized for a long time that sometimes we do have a responsibility for the behaviour of others. We have assumed that responsibility because we have served them alcohol, or provided a venue for the serving of alcohol in the same way that somebody who hosts a kids' party assumes the responsibility that the kids don't just run out into the street. Alcohol reduces the ability of people to exercise their judgment. The whole idea of personal responsibility is not incompatible with the concept of responsibility for the behaviour of others.”
Stevens goes on to state that “There is nothing inconsistent with the development of law in this area and the notion of personal responsibility. Unfortunately, sometimes the debate is cast in terms of making those two things total opposites.”
Eric Williams, counsel to Courier and Zimmerman, would have preferred it if the Supreme Court had listened to Justice Chadwick and not granted leave to appeal leaving the issue up to the legislature. “The incremental case by case analysis does not fit within this situation,” he says. “It doesn't tell people what they can do in order to protect themselves.”
It is, of course, possible that after deciding Childs, the Supreme Court will leave the overall social host liability issue to be settled by the provincial legislature. But Stevens thinks this is unlikely. “My client's position is that social host liability is something that the courts should be handling, and I also think that is the case. I think the courts can handle this on a case by case basis better than a legislature can. The common law, once it recognizes a duty of care...can work out on a case by case basis what is reasonable in a whole variety of circumstances people put themselves into when they drink or hold social events where others drink.”
HIGH HOPES. If one is permitted to be sanguine with a Supreme Court of Canada hearing date looming, Eric Williams is sanguine. “There was no service in this case and that is a very hard issue to get over. The Supreme Court will likely talk about social hosts and everything, but it would be a far ranging situation if they changed the result, that is, that this particular fact situation should be dismissed.”
“My view is that I would be surprised if any court held there was an obligation on any social host in a situation where they didn't have service or furnishing of alcohol. That is a greater duty of care than a commercial host would have,” Williams concludes. That, certainly, was the position of the Court of Appeal. As Justice Weiler wrote, “I cannot accept the proposition that by merely supplying the venue of a BYOB party, a host assumes legal responsibility to third-party users of the road for monitoring the alcohol consumed by guests, even when the guest includes a known drinker.”[sic]
Alan D'Silva won't speculate as to what the Supreme Court result may be, but he concedes that the very fact that the Court chose to hear Childs has the IBC, his client, worried. Indeed, it is doubtful whether Courier and Zimmerman (never mind their lawyer) are as worried as the insurance industry is.
As the IBC argues on the Bundus affidavit, filed, “If the potential for the imposition of liability on social hosts is established in this case, there is a considerable and substantial risk that in litigation arising from incidents of impaired driving, social hosts may be added as defendants as a matter of course…. As a result, the cost of insurance to pay possible claims will increase and will be compounded by the fact that most homeowner policies require insurers to defend civil actions against their insureds with ‘duty to defend' clauses…. Clearly, the risk of imposing a duty of care on social hosts...has far reaching implications for the insurance industry, homeowners and tenants.”
From Zoe Childs' corner Laushway is focused on getting, effectively, as much compensation as possible for his client. But he too is looking to the bigger picture. “All of us are hoping for some kind of definite answer as to whether there is such a tort as social host liability. There have been very few cases of pure social host liability...generally involving a second party.” In other words, a guest suing his hosts for letting him drink too much, then break his neck, a la Alchimowicz. “Here we have a whole new dynamic. An innocent little girl who had nothing to drink, a passenger in a car whose driver had nothing to drink. I think our case draws the line very clearly.”
But there have been other cases, in the UK, Australia, New Zealand, as well as various jurisdictions in the US, that have appeared black and white (at least to the plaintiffs and their counsel) and those courts, like Justice Chadwick in Childs, have been reluctant to assign financial, if not moral, blame to the hosts. For MADD and its counsel, that's problematic.
For MADD this hesitancy on the part of the Court is a significant obstacle. As Kirk Steven, counsel to MADD in Childs, argues “The key issue here is whether or not the courts are going to be consistent in applying the principles of negligence law in an area that is socially sensitive. It's socially sensitive because many people in this society drink and they know people who do drink.” And drink and drive. “Most people have faced that temptation, whether they succumbed to it or not.” And who hasn't let a guest who's had a few glasses of wine with dinner drive themselves home?
MADD hopes Childs may herald the end of that, dramatically altering social mores. Conversely, the insurance industry would prefer to convince the Supreme Court of “the need to have social host liability considered as a matter for legislative reform or debate or, alternatively, temper any common law duty” with its impact on “insurance issues.” Because, ultimately, the social host liability issue is not a moral issue. It is about passing the financial buck. And, because it is a financial issue, for the insurance industry and for social hosts alike, should the Supreme Court in principle open the door to social host liability while upholding Weiler's findings on the service and furnishing of alcohol, MADD should not expect a decrease in drinking and driving.
For innocent third parties, BYOB or not, this is a hard result.
Marzena Czarnecka is a Lexpert staff writer.
We impose this duty on the host to the third party because we believe that the policy considerations served by its imposition far outweigh those asserted in opposition. While we recognize the concern that our ruling will interfere with accepted standards of social behaviour...we believe that the added assurance of just
compensation to the victims of drunken driving as well as the added deterrent effect of the rule on such driving outweigh the importance of those other values.
The Supreme Court of New Jersey (Kelly v. Gwinnell, 476 A. 2d 1219 (N.J. 1984)
IN 1999 DESMOND DESORMEAUX drank at a BYOB (Bring Your Own Booze) New Year's Eve party hosted by Dwight Courier and Julie Zimmerman at their home. Courier and Zimmerman knew he had a history of drinking to excess. Subsequently, Desormeaux caused a car accident in which Zoe Childs was a passenger. Childs' spine was severed. The passenger sitting next to Childs was killed outright. In the civil litigation that followed, Childs and her family sought $3.2 million in compensation from Courier and Zimmerman. Desormeaux had no auto insurance and negligible assets. On December 7, 2005, the Supreme Court of Canada hears, in Childs v. Desormeaux, its first social host liability case.
The case and the issue of social host liability in general are socially sensitive, even explosive, intertwining moral and financial responsibility and potentially affecting every Canadian who's ever served drinks to guests. The issue is not new.
Indeed, writing in The Advocates' Society Journal in 1993, Toronto lawyers Bert Raphael, Q.C., and David Kunsch suggested social host liability was the “next logical step” in the “consistent and predictable” evolution of commercial host liability in Canada during the 1970s and 1980s. They confidently predicted “It seems inevitable that the courts will start holding social hosts liable for the damages caused by and to guests who leave their premises in an intoxicated state.”
A decade-plus later, Zoe Childs and her lawyer hope the Supreme Court will boldly go where no Canadian court—indeed, virtually no common law court—has dared go before and find Courier and Zimmerman liable for the injury caused her by Desormeaux. Whether such a decision would spell “the end of dinner parties” across the country (to steal a phrase from Lang Michener's David Bertschi) or not, the implications of the Supreme Court's decision—whichever way it goes for Childs—will reverberate throughout Canadian society.
Certainly the Insurance Bureau of Canada (IBC) and Mothers Against Drunk Driving (MADD) Canada,
interveners in the proceedings, think so. Their involvement illustrates the moral and financial tangle inherent in the social host liability debate. Like the (for the most part unsuccessful) social host liability cases that have come before it, Childs raises important issues of individual and social responsibility with pecuniary consideration against a backdrop of immense personal tragedy.
WHO'S WHO. The legal players in Childs run the gamut from a solo practitioner about to make his Supreme Court debut to a heavyweight at one of Canada's top-tier national law firms. Zoe Childs is represented by Barry Laushway, a Prescott, Ontario lawyer with a thriving plaintiffs personal injury practice (and a penchant for calling the now 23-year-old woman “an innocent little girl”). He doesn't see his client's position as particularly novel—just an extension of long-established commercial host liability and existing negligence law—nor as “opening the floodgates” to countless social host liability suits that will lay waste to the insurance industry.
The lawyer for Zimmerman and Courier disagrees. Eric Williams, the name partner of Ottawa boutique Williams McEnery, sees more at stake, potentially, in Childs than what his clients (and their insurance company) stand to lose. The particular circumstances of this case—most notably, the fact that his clients hosted a BYOB party and neither provided nor served alcohol to Desormeaux—aside, he thinks there is good reason most jurisdictions have avoided social host liability. “People could lose their homes, their RRSP, everything,” he says, “because they didn't notice Aunt Emma was imbibing white wine back in the kitchen.”
Unless, of course, they had liability insurance, which the majority of homeowners do (for better or worse: if Courier and Zimmerman didn't have insurance—or Desormeaux did—would Childs be suing them?). And that's why IBC, represented by Alan D'Silva at the Toronto office of Stikeman Elliott LLP, is in the fray. It is anxious that the Supreme Court be aware of the “profound” impact a finding of social host liability in Childs may have on the Canadian insurance industry.
“My client's main concern is the potential cost to insurers and in turn to homeowners and tenants if the doors are opened for social host liability,” says D'Silva. “IBC wants to make sure the decision is not made without some understanding of the implications for insurers.”
So far the courts have kept the industry's interests in mind, even absent formal representation. When Childs was tried in the Superior Court of Ontario, despite finding that given Desormeaux's past history and relationship to Courier the hosts should have monitored his drinking at the party, Justice Chadwick declined to impose a duty of care on them, suggesting such a finding would result in “chaos.” As he wrote in his decision, “Then every time an accident occurred and the driver had been drinking at a private party, the social host would be joined as defendant.
Social hosts would have to obtain insurance. If social hosts' liability were expanded by the courts then the insurance companies would face financial expenses resulting in increased premiums to all clients.” (The Court of Appeal effectively concurred with this analysis and reversed the trial judge's finding that the hosts should have monitored Desormeaux's drinking.)
For MADD Canada, represented pro bono by Earl Cherniak, Q.C., and Kirk Stevens of Lerners LLP, Childs offers an opportunity for courts to impose a “duty of care” on social hosts akin to that imposed on commercial establishments since the 1974 decision of the Supreme Court of Canada in Jordan House Ltd. v. Menow and Honsberger (1 S.C.R. 239).
“MADD Canada believes that imposing or recognizing at law a responsibility to show care when you host an alcohol-related event is going to deter drinking and driving and save lives from being marred as occurred in the Childs case,” says Stevens. “They have an interest in using the private law system as a tool to advance the aims of preventing people being killed or maimed, it's as simple as that.”For all practical purposes, absent from the fray is Desormeaux (represented by Helmut Brodmann at Bell Baker, who defers comment regarding the ongoing litigation to Eric Williams), now serving a 10-year prison sentence for criminal charges resulting from the accident and not appealing the lower court finding that he was liable for Childs' injuries.
WHO PAYS? Unburdened by car insurance or other assets, the drunk driver who caused the accidents and Childs' injuries is effectively off the financial hook. His legal costs—and Childs' costs against him, as awarded at the appeal—were assumed by the Motor Vehicle Accident Claims Fund. As noted by Justice Weiler in the Ontario Court of Appeal decision, “All parties agree that Desormeaux appears to have no assets and, having regard to the rules of joint and several liability, the social hosts, if liable, would effectively assume the full burden of the damage award in this case.”
It is no stretch to consider whether Courier and Zimmerman may not be about to earn the dubious title of Canada's first liable social host couple not just because they had the misfortune to know and host Desormeaux, but more particularly because Desormeaux did not carry insurance. That's typical of the smattering of Canadian social host liability cases. As Alan D'Silva points out, “Most cases to date have been of the sort where the driver or guest has no insurance, and so the injured parties target the homeowner who has insurance.”
“These are the exact circumstances here,” notes Eric Williams, counsel to Courier and Zimmerman. “There are five claims outstanding against the hosts because, unknown to them, the drinker had no insurance. Both people injured in his vehicle and the three injured people in the other vehicle, are suing the hosts. Because (Desormeaux) has no assets and no insurance suddenly the social host is on for the whole thing, if there is any liability.” To date, he adds, “this is what has given rise to extreme judicial reticence to impose social host liability across the common law world.”
The possibility that the Supreme Court decision in Childs may abandon this reticence is causing Alan D'Silva's client great concern. As D'Silva is quick to note, “IBC obviously does not support drunk driving.” And it is carefully trying not to appear to take “individual” sides in Childs. There is great concern on the part of the IBC as to what the Supreme Court may say even if the appeal is dismissed.
As D'Silva notes, “If you read the Court of Appeal decision, there is certainly a suggestion that in the right circumstances someone could be liable for social host liability.” After setting out in some detail why the Court did not find Courier and Zimmerman liable because of the specific circumstances of the case, Justice Weiler wrote “My conclusion that this appeal should be dismissed should not be interpreted to mean that social hosts are immune from liability to innocent third party users of the road for damages caused by impaired guests who drive a car. On the contrary, I do not foreclose social host liability...”
“IBC is concerned about the way this issue may unfold,” understates D'Silva. As expressed in the affidavit of Randall J. Bundus, the vice-president, general counsel and corporate secretary of the IBC, filed when the IBC sought intervener status in the Childs preceedings, “the imposition of liability on social hosts would have a profound effect on the interests of the insurance industry as a whole and the customers which this industry serves.”
Of course should the Supreme Court determine that social hosts can be found liable, the insurance industry will take steps to ensure it's not left holding the entire bag. As the IBC states not-so-obliquely in its affidavit, the costs will be passed down to policyholders. Or, insurers may carve out social host liability from standard home owners or tenants insurance.
Whatever they do, underwriting social host liability will be a nightmare. “It's a very difficult thing to underwrite,” says D'Silva. “It's not like car insurance where you know somebody can be a bad risk because he or she had five accidents. How do you determine who is potentially a ‘bad' host?”
For Eric Williams, the potential big losers in Childs—apart from his clients, of course—are uninsured hosts who “make one little slip or error and their home, RRSPs, everything could be gone.” But like D'Silva, Williams worries that if the window to social host liability is opened by the Supreme Court, the trickle of social host liability cases Canada has seen will swell to a flood.
Barry Laushway, acting for Zoe Childs, does not buy “the opening the floodgates” argument. “Our argument is that the behaviour here is pretty egregious for the court to find liability in this case without opening any floodgates,” he says. “In this case, the host knew the drunk very well, knew what he was like drunk...he slept over at their house and they put plastic sheets under him because he would urinate on the couch. I don't think many of us invite [those types of] people to our home...”
There's another consideration. The insurance industry is not in the business of losing money. If the Supreme Court upholds social host liability, the insurance industry may well exit underwriting it. And if social hosts have no insurance...will they be sued? And if sued, how likely would the courts be to find them liable?
As Justice Weiler noted in the Ontario Court of Appeal decision, “Although I am not aware of any case where the imposition of liability in tort turned on whether the tortfeasor had insurance, the availability of insurance is a consideration with respect to how onerous a burden the imposition of liability on a social host would be.” It is equally hard to find a social host liability case in which the plaintiff feels the moral need to go after social hosts if he has been able to obtain sufficient financial compensation from the guest.
PASSING THE BUCK. Casting the social host liability debate in terms of passing the buck—moral and financial—may be cynical, but it's something even the judiciary has engaged in. In the Superior Court of Ontario decision in Childs, Justice Chadwick tried to kick the ball out of the courts and into Parliament suggesting, “It is obvious that the government has both the financial resources and legislative ability to regulate social host responsibility if they so desire.” In Prevost (Committee of) v. Vetter ((2001), 197 D.L.R. (4th) 292 (B.C.S.C.), reversed (2002), 100 B.C.L.R. (3d) 44 (C.A.)), a case that almost created social liability in Canada, the BC Court of Appeal sent out a direct SOS with Justice Smith pointedly noting that “whether social hosts ought to be held liable for the negligent actions off their property of persons who became intoxicated while on their property is a controversial and unsettled question that might well engage the attention of the Supreme Court of Canada.”
Prevost attracted a great deal of attention with Justice Coultas of the British Columbia Supreme Court finding the Vetter parents liable for the injuries Adam Prevost suffered after being driven away from the party (hosted by the Vetter sons) by the Vetters' 18-year-old niece. But, after the BC Court of Appeal overturned it and ordered a new trial, all came to naught. As Robert A. Clark, counsel to the Prevost family confirms, the parties settled in October 2003, three weeks before the new trial date.
Even had it not settled, Prevost would not have set quite the tone Childs may, involving minors and, in Adam Prevost, an attendee at the party held at the Vetters' home (there was also some uncertainty, unresolved at trial, about the causation of the accident). Robert Clark notes that in Prevost he went to considerable lengths to establish a “special parental relationship” between the minors partying at the Vetter house and the Vetter parents. “In Childs, where you have an adult coming to an adult party, establishing that relationship [necessary to prove duty of care] may be a stretch,” he suggests.
(Notably, in Canada as well as the US, many of the attempts to unseat social host immunity have involved minors, e.g., Baumeister v. Drake (1986), 5 B.C.L.R. (2d) 382 (S.C.), Wince (Guardian ad litem of) v. Ball (1996) 8 W.W.R. 28 (Alta. Q.B.), and Dryden (Litigation Guardian of) v. Campbell Estate (2001), 11 M.V.R. (4th) 247 (Ont. S.C.J.). In Dryden, not precisely a social host situation, the court did apportion five per cent liability to the 24-year-old “adult” who bought alcohol for the “minor” drunk driver but attached “the lion's share of culpability, both morally and legally...to the drinking driver”—killed in the accident.)
Barry Laushway believes Childs stands more of a chance in challenging the judiciary's reluctance in finding blame with the social hosts because, unlike in many of its predecessors, the victim here is “innocent.” It certainly is easier for the courts—and the public—to sympathize with Zoe Childs than the plaintiff in Alchimowicz v. Schram (1997 Ontario General Division, 1999 Ontario Court of Appeal) in which the “grossly intoxicated” plaintiff became a quadriplegic after diving off a dock into Lake St. Clair, subsequently suing the host of the party he attended earlier, people who provided him with alcohol throughout the evening, as well as the friends who drove him, uninvited, to the dock.
Laushway is aware that much of the debate among social host liability focuses on the abrogation of personal responsibility. But Childs would not have wound its way up to the highest court, he suggests, if Zoe Childs had “become intoxicated at this party” and was driving herself home. “I agree the drunk should accept responsibility,” says Laushway. “But in this case, he had so little responsibility...he had no insurance. We're saying a bad alcoholic like Mr. Desormeaux does not take responsibility, so you as his host should take responsibility.”
For Kirk Stevens, the drunk driver's personal responsibility and the social host's personal responsibility (and liability) are blended or fused together. “Various wrongdoers can share the blame,” he argues. “Sure, drinking and driving is a personal responsibility, but the law has recognized for a long time that sometimes we do have a responsibility for the behaviour of others. We have assumed that responsibility because we have served them alcohol, or provided a venue for the serving of alcohol in the same way that somebody who hosts a kids' party assumes the responsibility that the kids don't just run out into the street. Alcohol reduces the ability of people to exercise their judgment. The whole idea of personal responsibility is not incompatible with the concept of responsibility for the behaviour of others.”
Stevens goes on to state that “There is nothing inconsistent with the development of law in this area and the notion of personal responsibility. Unfortunately, sometimes the debate is cast in terms of making those two things total opposites.”
Eric Williams, counsel to Courier and Zimmerman, would have preferred it if the Supreme Court had listened to Justice Chadwick and not granted leave to appeal leaving the issue up to the legislature. “The incremental case by case analysis does not fit within this situation,” he says. “It doesn't tell people what they can do in order to protect themselves.”
It is, of course, possible that after deciding Childs, the Supreme Court will leave the overall social host liability issue to be settled by the provincial legislature. But Stevens thinks this is unlikely. “My client's position is that social host liability is something that the courts should be handling, and I also think that is the case. I think the courts can handle this on a case by case basis better than a legislature can. The common law, once it recognizes a duty of care...can work out on a case by case basis what is reasonable in a whole variety of circumstances people put themselves into when they drink or hold social events where others drink.”
HIGH HOPES. If one is permitted to be sanguine with a Supreme Court of Canada hearing date looming, Eric Williams is sanguine. “There was no service in this case and that is a very hard issue to get over. The Supreme Court will likely talk about social hosts and everything, but it would be a far ranging situation if they changed the result, that is, that this particular fact situation should be dismissed.”
“My view is that I would be surprised if any court held there was an obligation on any social host in a situation where they didn't have service or furnishing of alcohol. That is a greater duty of care than a commercial host would have,” Williams concludes. That, certainly, was the position of the Court of Appeal. As Justice Weiler wrote, “I cannot accept the proposition that by merely supplying the venue of a BYOB party, a host assumes legal responsibility to third-party users of the road for monitoring the alcohol consumed by guests, even when the guest includes a known drinker.”[sic]
Alan D'Silva won't speculate as to what the Supreme Court result may be, but he concedes that the very fact that the Court chose to hear Childs has the IBC, his client, worried. Indeed, it is doubtful whether Courier and Zimmerman (never mind their lawyer) are as worried as the insurance industry is.
As the IBC argues on the Bundus affidavit, filed, “If the potential for the imposition of liability on social hosts is established in this case, there is a considerable and substantial risk that in litigation arising from incidents of impaired driving, social hosts may be added as defendants as a matter of course…. As a result, the cost of insurance to pay possible claims will increase and will be compounded by the fact that most homeowner policies require insurers to defend civil actions against their insureds with ‘duty to defend' clauses…. Clearly, the risk of imposing a duty of care on social hosts...has far reaching implications for the insurance industry, homeowners and tenants.”
From Zoe Childs' corner Laushway is focused on getting, effectively, as much compensation as possible for his client. But he too is looking to the bigger picture. “All of us are hoping for some kind of definite answer as to whether there is such a tort as social host liability. There have been very few cases of pure social host liability...generally involving a second party.” In other words, a guest suing his hosts for letting him drink too much, then break his neck, a la Alchimowicz. “Here we have a whole new dynamic. An innocent little girl who had nothing to drink, a passenger in a car whose driver had nothing to drink. I think our case draws the line very clearly.”
But there have been other cases, in the UK, Australia, New Zealand, as well as various jurisdictions in the US, that have appeared black and white (at least to the plaintiffs and their counsel) and those courts, like Justice Chadwick in Childs, have been reluctant to assign financial, if not moral, blame to the hosts. For MADD and its counsel, that's problematic.
For MADD this hesitancy on the part of the Court is a significant obstacle. As Kirk Steven, counsel to MADD in Childs, argues “The key issue here is whether or not the courts are going to be consistent in applying the principles of negligence law in an area that is socially sensitive. It's socially sensitive because many people in this society drink and they know people who do drink.” And drink and drive. “Most people have faced that temptation, whether they succumbed to it or not.” And who hasn't let a guest who's had a few glasses of wine with dinner drive themselves home?
MADD hopes Childs may herald the end of that, dramatically altering social mores. Conversely, the insurance industry would prefer to convince the Supreme Court of “the need to have social host liability considered as a matter for legislative reform or debate or, alternatively, temper any common law duty” with its impact on “insurance issues.” Because, ultimately, the social host liability issue is not a moral issue. It is about passing the financial buck. And, because it is a financial issue, for the insurance industry and for social hosts alike, should the Supreme Court in principle open the door to social host liability while upholding Weiler's findings on the service and furnishing of alcohol, MADD should not expect a decrease in drinking and driving.
For innocent third parties, BYOB or not, this is a hard result.
Marzena Czarnecka is a Lexpert staff writer.
Lawyer(s)
Bert Raphael
David A. Bertschi
Bary David Laushway
Eric R. Williams
Alan L.W. D'Silva
James B. Chadwick
Earl A. Cherniak
Kirk F. Stevens
Helmut R. Brodmann
Karen M. Weiler
Randall J. Bundus
Kenneth J. Smith
Firm(s)
Supreme Court of Canada
Advocates' Society (The)
McMillan LLP
Insurance Bureau of Canada
Mothers Against Drunk Driving (MADD)
Williams Litigation Lawyers
Stikeman Elliott LLP
Ontario Superior Court of Justice
Lerners LLP
Bell Baker LLP
Court of Appeal for Ontario
Supreme Court of British Columbia
Supreme Court of New Jersey