Social Host Liability in Ontario: An Update
A 2017 court decision, Wardak v. Froom, suggests that the law regarding the legal responsibility social hosts have towards their guests (“social host liability”) may be changing in Ontario. Social hosts may be held liable if an intoxicated guest is injured after leaving their party, particularly if the guest was invited and underage, even if the hosts did not serve alcohol.
In the leading Canadian case, Childs v. Desormeaux, the Supreme Court noted that if social hosts had provided alcohol with knowledge that the impaired guest would drive after the event, they could be liable. In Childs, the Court did not find a duty on the social hosts, as the defendant attended a BYOB party (i.e. the hosts did not serve him or monitor his alcohol consumption) and the injured individual was not a guest. After the party, the guest was involved in a serious car accident which rendered the plaintiff – who had not attended the party – a quadriplegic.
The Supreme Court found that a party host does not owe a duty to other users of the road who are harmed by their intoxicated guests. The Court left open the possibility of establishing a duty of care on social hosts.
The recent Wardak case involves some of the circumstances the Supreme Court had in mind. In Wardak, the defendants hosted a 19th birthday party for their son. The event was BYOB and they were at home throughout the duration of the party. The plaintiff was an 18 year old guest. He consumed alcohol at the party. He was a neighbour and the defendants knew he was underage. The plaintiff left the party on foot, walked a short distance home and got in his car. He drove into a fire hydrant and was involved in a single vehicle accident which rendered him quadriplegic.
As in Childs, the party hosts did not serve or supply alcohol to guests, but were aware that there was underage drinking at the party. There was evidence that the plaintiff was showing signs of intoxication before leaving the party.
In Wardak, Justice Matheson of the Ontario Superior Court considered the Childs decision and relied on a quote from the Supreme Court: “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….”
Justice Matheson concluded that the phrase “without more” allowed a duty of care to arise for social hosts in other circumstances, such as where harm to the plaintiff is foreseeable or if the host had a paternalistic relationship of supervision and control over the plaintiff.
The plaintiff sued the hosts under a social host liability claim. The defendants brought the motion before Justice Matheson to have the case dismissed, arguing that it was bound to fail because Childs prevented finding a duty of care on social hosts.
Justice Matheson found that a paternalistic relationship existed in Wardak – the plaintiff was underage and an invited guest. It was also significant that the plaintiff was a guest, not a third party who was injured by a guest, like in Childs.
Justice Matheson considered the following factors, which could inform social hosts of their obligations to guests:
• although not serving or encouraging the plaintiff to drink, the defendants knew that there was drinking at the party and that some guests were underage;
• the two defendants were monitoring the party and went down to the basement to check on the party guests about eight times;
• there was evidence from partygoers that there was drinking and Beer Pong going on in the basement and the plaintiff was intoxicated;
• nothing was done by the defendants to stop the plaintiff from drinking after a first occasion when he came upstairs to leave and one of the defendants saw him wobbling and acting ‘odd’;
• the plaintiff lived nearby and his father was home (the plaintiff argued that the defendants ought to have called his father for assistance).
The Wardak decision suggests that social host liability is still a possibility in Ontario, even if hosts do not serve alcohol to their guests. Social hosts may still be liable if guests are injured after leaving their event, particularly if the guest is invited, underage and exhibiting signs of impairment at the party.
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