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THE ANTI-SOCIAL HOST

Alternative title: Would you like a beer after you sign this waiver?

It’s the holidays. Time for a family gathering. You throw a party.
Your Uncle Jim sits in the corner, not saying much. He brings his own beer. You have no idea how much he drinks. What you do know is that Uncle Jim likes his drink. Likes it a little too much, actually. He’s lost his licence before because of drinking and driving. Strangely, though, Uncle Jim never seems to appear intoxicated no matter how much he drinks.

You’ve tried to keep Uncle Jim’s drinking to a minimum before. The result was
thoroughly unpleasant. He got belligerent, your family got upset, and the party ended
badly.

After the party, the phone rings. There’s been an accident. Uncle Jim is fine. The
pedestrian he hit isn’t. The police want to come over and talk to you.

We call it “Social Host Liability”. Everyone else calls it their worst nightmare.

Julie Zimmerman and Dwight Courrier hosted a pot lock supper and BYOB party at their home on New Year’s Eve, 1998. One of their guests, Desmond Desormeaux, left the party intoxicated, and while driving his car, crossed the centre line and struck a vehicle in which Zoë Childs was a passenger. She was made a paraplegic. Her boyfriend was killed in the accident.

Would it surprise you to learn that Desmond had previous convictions for impaired driving and didn’t have insurance?

On December 7, 2005, The Supreme Court of Canada will hear argument as to whether Julie Zimmerman and Dwight Courrier are partly liable for Zoë Childs’ injuries. The Trial Judge said no. The Ontario Court of Appeal said no. The Supreme Court of  Canada will have the last word.

The Ontario Court of Appeal decision1 is an interesting review of the law of the civil liability of social hosts.

Unlike the Starship Enterprise, the law does not boldly go where no man2 has gone before
when imposing civil liability in unique or new circumstances.

Lawyers and Judges are trained to look to precedent to decide cases. With all due respect to those who have written on this topic, when we are faced with unique or new circumstances, we usually go back to first concepts and we often flounder. In my view, that is what is going on right now in the area of social host liability.3

In all such cases, courts have broken down the problem in to a series of steps, all to be weighed and considered, before coming to a conclusion. The Ontario Court of Appeal takes us through the steps in the Childs v. Desormeaux
decision.

The first step is whether the loss is foreseeable. You should have known better, my mother used to say. It seemed like a good idea at the time was the way I used to answer her. Come to think of it, I still say that.

The next step in deciding whether there is liability is to decide if there is a “relationship of proximity”. As the Court of Appeal repeats from earlier cases, various factors have to be weighed, including “expectations of the parties, representations and reliance”.

Great words. But like most abstract legal principles, you can twist them to suit any facts. If you can’t, take up another occupation. We then look at “case specific factors”.4

Next, we examine “public policy” considerations. As I see it, the question is: Do we wish
to dissuade certain activities in our society? For example, do we want to allow ski hill
operators to sell beer to patrons and then allow those patrons, while in a visibly
intoxicated state, to ride inner tubes down a hill? The Supreme Court of Canada said no.5
I know a lot of people who would argue otherwise. They usually send me “Darwin
awards” emails.

This quote from the Court of Appeal in Childs is instructive:

Tort law is not simply intended to make persons accountable for their wrongful conduct by compensating the victim but is also intended to promote the welfare of society by preventing accidents and spreading loss.6

That quote, in my view, takes us to the heart of the debate.

Should we be setting public policy by applying legal concepts such as the “relationship of proximity”? Does anyone outside of the legal community really understand or appreciate the concept? Can we have a reasoned public debate when the question is framed in this manner?

More to the point, as a society, are legal cases the way to deal with this social policy
concern?

As was once stated: To ask the question is to answer it.7

Take a look at the MADD8 website in the United States. Under the heading “Activism”,  reference is made to the fact that 18 states do not recognize liability against social hosts. Instructions are given to help people lobby their elected representatives to change the law in those states. In the United States, they have been rather more engaged in such debates than we have in Canada. That is changing, though. MADD Canada intervened in the Childs case.

Rather than engage in the detailed analysis of legal concepts, it seems less cumbersome, and certainly more to the point, to debate the public policy issue now, and decide when or if social hosts will be liable. However, that is not going to happen any time soon. Instead, we’ll have to wait for the decision of the Supreme Court of Canada.

In the meantime, my advice to you is something I’ve practiced for many years. Be antisocial.

 

  1. (2005), 71 O.R. (3d) 195
  2. I would have used the gender neutral word “person”, but it just doesn’t work.
  3. It is hoped that using the words “with all due respect” will insulate the writer from being cited for contempt, or sued for libel.
  4. I’ve resisted the temptation to insert a Dragnet reference here.
  5. Crocker v. Sundance Northwest Resorts Ltd., [1988] 1 S.C.R. 1186, 1988 CanLII 45 (S.C.C.)
  6. Supra, note 1 at page 205.
  7. I’ve always liked that phrase, but, for the life of me, I can’t remember who wrote it.
  8. Mothers Against Drunk Driving: www.madd.org.