July 28, 2006 – Summer is coming to an end and in order to take advantage of your new pool one last time, you invite your friends to a small party and inform them to bring their favourite drinks. What responsibility would you have if one of your guests were to leave the event drunk and injure a third party? The Supreme Court of Canada had to consider this issue in the case of Childs v. Desormeaux in a judgement rendered on May 5, 2006.
In order to celebrate New Year’s Day 1999, Julie Zimmerman and Dwight Courrier decided to organize a small party at which guests were to bring their own drinks. Mr. Desmond Desormeaux, who was known to be a heavy drinker, was one of the guests. The evening of the party, Mr. Desormeaux consumed approximately 12 beers in two and a half hours and his blood alcohol level reached three times the legal limit.
Following an argument with another guest, Mr. Desormeaux decided to leave the party in his car. Given his advanced state of drunkenness, he drove his car into oncoming traffic and collided head on with a vehicle occupied by four people, killing one of them on impact and seriously injuring the other three. The appellant in this case, Zoe Childs, whose spine was severed in the accident, has been paralyzed from the waist down since then.
Mr. Desormeaux pled guilty to a series of criminal charges arising from these events and was sentenced to 10 years in prison. Given that he had no insurance and few assets, Zoe Childs decided to institute proceedings against the hosts of the party in order to be indemnified for her injuries.
The trial court
The trial judge concluded that a reasonable person in the position of the hosts, Mr. Courrier and Ms. Zimmerman, should have foreseen that Mr. Desormeaux might cause an accident and/or injure someone. However, he was of the opinion that the duty of care this gave rise to was negatived by the social and legal considerations of imposing a duty of care on social hosts to third parties injured by their guests, government regulation of alcohol sale and use, and the preferability of a legislative, rather than a judicial, solution. The judge therefore dismissed the action.
The Ontario Court of Appeal
According to the Ontario Court of Appeal, the circumstances did not even disclose a duty of care. The Court of Appeal stated that, unlike commercial hosts, the law does not impose a duty on social hosts to monitor the consumption of alcohol, nor does anyone rely on them to do so. Thus, unless they have actively participated in creating the risk that gave rise to an accident, social hosts cannot be found liable to third-party users of the roads. Consequently, it dismissed Ms. Childs’ appeal.
The Supreme Court of Canada
Ms. Childs appealed to the Supreme Court of Canada for a ruling by that Court as to whether, in Canada, social hosts who invite guests to an event where alcohol is served owe a legal duty of care to third parties who may be injured by those intoxicated guests.
The Supreme Court began its analysis by considering whether, in a similar case, such a duty had been recognized. Comparing the situation to the responsibility imposed upon restaurant and bar owners, the Supreme Court asked itself whether the duty of care imposed upon commercial alcohol providers could extend to social hosts. The Court answered this question in the negative based on the following three reasons:
- Commercial hosts have the advantage of being able to monitor alcohol consumption by their patrons
- Legislation governing the sale of alcohol imposes special responsibilities on those who profit from its supply
- The contractual nature of the commercial sale of alcohol justifies the imposition of a duty to monitor
The Supreme Court therefore concluded that if the duty alleged did exist, it had to be a new duty.
For such a duty to be imposed upon social hosts, a plaintiff must establish a sufficiently close relationship between the social hosts and third-party road users, or proximity justifying the imposition of such a duty of care. The Supreme Court concluded that the facts in this case did not support the existence of such a relationship giving rise to a duty of care. Indeed, short of an overt act by hosts or their active implication in the creation of a risk, such as through the organization of a drinking contest, the criteria of foreseeability of the harm must be satisfied. However, the injuries caused to Ms. Childs were not reasonably foreseeable and, even if they had been, the failure to act or nonfeasance in the circumstances was not sufficient to impose such a duty on the respondents.
Organizing a private party at which alcohol is served is insufficient to implicate the host in the creation or enhancement of the risk. In addition, the principle of individual autonomy means that the consumer of alcohol is responsible for his own personal choices.
The factor of reasonable reliance was also raised, but the Court concluded that the guests had not relied on the hosts to monitor their alcohol consumption. Given that the existence of a duty of care had not been established, the Court was of the view that it was not necessary to consider the social and legal factors that had been examined at first instance. The Supreme Court therefore dismissed the appeal.
Application in Québec
To begin, it is important to remember that Québec’s automobile insurance plan is mandatory and precludes the institution of any civil proceedings for damages against a drunk driver and, consequently, against the hosts, in the event of a road accident. But, what would happen in the event of alcohol consumption at a party resulting in another type of accident, such as a sledding accident or, quite simply, a fight? First, one has to consider the Civil Code of Québec whose article 1457 imposes a general duty on every person to abide by the rules of conduct incumbent upon that person, according to the circumstances, so as not to cause injury to another.
Adding to that the possibility of applying section 2 of the Charter of Human Rights and Freedoms which imposes upon every person the obligation to come to the aid of anyone whose life is in peril, it is possible to envisage certain exceptions to the scope of this judgment in Québec.
All in all, it is important to always be prudent when organizing a party involving alcohol. Regardless of the impact of this recent decision on Québec law, why wait for legislative or judicial intervention rather than take the lead by acting like a reasonable person. Your conscience will always be the better for it!