Nov 8, 2018
Ont. C.A. allows appeal of summary dismissal of social host liability claims, finding the issue of duty of care is a genuine issue requiring a trial
Author Bevin Shores
In Williams v Richard, 2018 ONCA 889, an appeal of two related actions concerning a social host liability claim, the Court of Appeal allowed the plaintiffs’ appeal of the dismissal of their actions on summary judgment and ordered the actions proceed to trial.
Justice Hourigan, writing for the Court, set out the context for the appeal at paragraphs 1-3:
“ Mark Williams and Jake Richard were colleagues and friends. They regularly got together to drink beer after work. On the evening in issue, Mr. Williams consumed approximately 15 cans of beer over the course of about three hours while visiting with Mr. Richard at the home of Mr. Richard’s mother, Eileen Richard. A short time after leaving Ms. Richard’s residence, Mr. Williams loaded his children into his car and drove their babysitter home. On the way back to his residence, Mr. Williams was involved in a serious accident. He was killed and his children are alleged to have been injured.
“ This series of events spawned two court actions. In the first, Mr. Williams’ children and their mother sue for personal injuries allegedly sustained by the children. In the second, the children and their mother claim damages pursuant to the Family Law Act, R.S.O. 1990, c. F.3. Both actions are premised on a claim that the respondents breached a duty of care as social hosts.
“ On a motion for summary judgment, the motion judge dismissed both claims, finding that the requisite duty of care had not been established and that even if it were established, such a duty of care would have ended once Mr. Williams arrived home to pick up his children and their babysitter. In so finding, she relied primarily on two cases: Childs v. Desormeaux, 2006 SCC 18,  1 S.C.R. 643 and John v. Flynn, 54 O.R. (3d) 774 (C.A.), leave to appeal to S.C.C. refused,  S.C.C.A. No. 394. These reasons explain why I have concluded that the motion judge’s order cannot stand. In its place, I would order that the cases proceed to trial.”
The issues on appeal were framed at paragraph 17:
“ This appeal raises the following issues:
(i) Did the motion judge err in her duty of care analysis regarding foreseeability and/or proximity?
(ii) Did the motion judge err in her reliance on John?
(iii) Should this court consider the issues of whether any residual policy considerations suggest a duty of care should not exist and whether the respondents met the applicable standard of care? If so, how do those issues impact the result?”
With respect to the duty of care analysis, the Court began with a discussion of the leading authority, Childs v. Desormeaux, 2006 SCC 18, and the cases that followed, summarizing in part at paragraphs 24-28:
“ The post-Childs jurisprudence on social host liability, discussed below, demonstrates that there is no clear formula for determining whether a duty of care is owed by social hosts to third parties or guests. Rather, the determination of whether such a duty of care exists usually hinges on fact specific determinations pertaining to two main issues. The first issue is the host’s knowledge of a guest’s intoxication or future plans to engage in a potentially dangerous activity that subsequently causes harm. This is a foreseeability analysis. The second determination asks if “something more” is present on the facts of the case to create a positive duty to act. The “something more” could be facts that suggests the host was inviting the guest to an inherently risky environment or facts that suggest a paternalistic relationship exists between the parties. This is a proximity analysis.”
“ There are many different factual permutations of what could transform a social gathering into an invitation to an inherent and obvious risk. It is helpful to think of these situations as being situated along a spectrum. At one end of the spectrum is Childs, which was a “bring your own alcohol” party where the hosts provided minimal alcohol. Similarly, private parties of a reasonable size are usually viewed by the courts as not inherently risky: see Robinson v. Lewis, 2015 ABQB 385, at paras. 72-77. Likewise, an invitation to a co-worker’s home to have dinner and after-work drinks outside is not inherently dangerous or risky: see Allen, at para. 78. Moving further down the spectrum, a young adult throwing a “wild” Halloween party and providing alcohol for around 40 people, some of whom are using illegal drugs, may implicate a host in the creation of an inherent risk: see Kim, at paras. 9-10, 25. On the far end of the spectrum, a teenager throwing a house party at which over 100 people attend, most of whom are underage drinkers, while their parents are out of town, likely implicates the host in the creation of an inherent risk: Oyagi, at paras. 6-7, and 12.”
Turning to the duty of care analysis applied by the motion judge, the Court began by outlining the three elements to analyze in determining whether a social host owed a duty of care:
“ With these principles in mind, I consider the analysis of duty of care in the present case. Normally, a duty of care analysis in the context of an allegation that a social host failed to act should consist of three elements. First, is the issue of whether the injury was reasonably foreseeable. Second, is the issue of whether there is sufficient proximity such that there is a duty to act. If these elements are satisfied, a prima facie duty of care has been established and the third issue is whether this duty is negated by other, broader policy considerations: see Childs, at paras. 12 and 31.
“ The motion judge’s duty of care analysis, which is very brief, does not follow this structure…”
Justice Hourigan proceeded to discuss the three factors pertaining to each of the Richards defendants, concluding that the issue of whether they owed a duty of care in the circumstances was a genuine issue requiring a trial.
With respect to the motion judge’s application of John v. Flynn, the Court concluded that the motion judge erred in law by concluding that the Richards defendants’ duty to the plaintiffs ended when Williams arrived home after departing Richards’ residence and before the accident in question occurred.
“ After completing her duty of care analysis, the motion judge proffered an alternative reason for dismissing the claims. She stated that if she were incorrect on the issue of a duty of care, any such duty expired when Mr. Williams arrived safely at his home. In reaching that conclusion, she relied on a statement made by this court in John at para. 50 as follows:
There is no duty of care on the part of Eaton Yale to members of the driving public arising out of Flynn's participation in the EAP [a counselling program] and if there was such a duty, it did not extend beyond the point where Flynn left the company premises and drove safely to his home. Any suggestions as to how Eaton Yale could have controlled Flynn's activities beyond that point are hopelessly speculative.
“ The motion judge then stated at para. 64 of her reasons, “any suggestion that Eileen and Jake could have controlled Mark’s activities beyond the point he arrived at his home is similarly speculative. If Jake in fact, owed Mark a duty of care, that duty concluded once Mark arrived at his home.”
“ The motion judge seemed to accept that such a general rule was established in John. She seized upon the fact that Mr. Williams arrived home safely to find that any duty of care ended when Mr. Williams reached that point. That was an error in law. In a social host liability case, there is no automatic rule that the duty of care expires once the intoxicated driver arrives home safely. The limits of the duty are determined by the facts of the case. The motion judge was obliged to explain why the duty of care ended on Mr. Williams’ arrival home, especially since the evidence focussed not on whether Mr. Williams would drive home, but on whether he would drive the babysitter home.”
With respect to the issue of policy considerations, the Court declined to consider this on appeal, preferring to leave the issue to be addressed in the event that a duty has been found to exist:
“ In the alternative, the respondents assert that if they owed a duty of care, this court should determine whether it is negated by other, broader policy considerations and, if it is not, whether their actions met the standard of care. I would decline to consider these issues on appeal.
“ The issue of whether a duty of care is negated by policy considerations is best dealt with after the duty has been found to exist. That way any consideration of countervailing policy arguments can be undertaken with the benefit of an evidentiary record supporting the finding of a duty of care. Similarly, an analysis of whether the duty of care has been met should be considered after the precise nature of the duty has been established.”
Williams v Richard 2018ONCA0889