Social host liability and the duty that follows guests home

The morning after a dinner party, most hosts are thinking about dishes. But if a guest drove home drunk and caused a crash, the law might bring the party back to their door.

What is social host liability in Canada?

Social host liability refers to the legal responsibility a private host may carry when an intoxicated guest leaves a gathering and injures someone. It falls under negligence law, which means that the claim is not that the host meant to cause harm, but rather, it is that the host failed to take reasonable steps to prevent it.

To succeed in a social host liability claim, four things must be established:

• the host owed the plaintiff a duty of care
• the host breached that duty
• the plaintiff suffered damage
• the host’s breach caused that damage

These are similar to the elements that must also be established in a personal injury case for negligence.

Learn more about the liability of the host of a party or an event under social host liability with this video:

Check out our article on “Personal injuries proceedings act: Limits, notices, and traps” to learn about the factors that lawyers and litigants should not miss in these cases.

Social host liability under common law

The Supreme Court of Canada (SCC) addressed social host liability directly in Childs v. Desormeaux, 2006 SCC 18, which is a case that arose from a New Year’s party in Ottawa.

Desmond Desormeaux consumed approximately 12 beers over two and a half hours at a bring-your-own-booze (BYOB) party hosted by Dwight Courrier and Julie Zimmerman. When he left, one of his hosts walked him to his car and asked if he was okay. Desormeaux said he was fine, drove into oncoming traffic, and left the teenager Zoe Childs paralyzed from the waist down.

The SCC ruled unanimously that the hosts owed no duty of care. The court held that hosting a party where alcohol is served, without more, does not implicate a host in the creation of risk to the public.

However, the court’s ruling in Childs was never meant to be a blanket shield. The social host liability analysis is always fact-specific, and the facts matter enormously.

When does a social host owe a duty of care?

Whether a social host owes a duty of care depends on what that host knew and what the host did. Courts apply the Anns-Cooper-Odhavji framework drawn from Odhavji Estate v. Woodhouse, 2003 SCC 69, and which was affirmed in Childs. This framework runs on three requirements, namely:

• Was harm reasonably foreseeable?
• Was there sufficient proximity between the parties to ground a positive duty to act?
• Are there any overriding policy considerations that negate a duty even where the first two are met?

Whether the harm was reasonably foreseeable

On foreseeability, the host’s knowledge of the guest’s intoxication is the central issue. As the Ontario Court of Appeal confirmed in Williams v. Richard, 2018 ONCA 889, foreseeability in social host liability cases turns on whether the host had evidence the guest was intoxicated and whether an accident was therefore a reasonable consequence of allowing that guest to drive.

Relevance of drinking and driving history

Importantly, a history of a guest drinking and driving is not enough on its own. In Childs, the SCC held this inferential chain was too weak to support a finding of foreseeability, even in commercial host cases.

Whether there was proximity between parties

On proximity, the court in Childs identified three situations where a positive duty to act may arise:

• where a host intentionally attracts and invites guests into an inherent risk the host creates or controls
• where a paternalistic relationship of supervision and control exists between the host and the guest
• where a host exercises a public function or runs a commercial enterprise with implied public responsibilities

Private social hosts generally do not fall into any of these three categories, but courts have recognized that something more can shift the analysis. In Williams, the Ontario Court of Appeal reversed a summary dismissal and ordered a trial, finding that several facts potentially brought the case within the rule on social host liability:

• Williams (the guest) and Richard (the host) had a recurring pattern of drinking together after work, and it’s not just a one-off gathering
• beer was stored in a garage refrigerator at Richard’s home, meaning alcohol was supplied rather than brought by the guest
• Richard likely knew Williams had drunk 15 beers and planned to drive his children home, though this was disputed
• the two men had an explicit pact to stop each other from driving drunk when children were involved

The court also pointed to Childs, where it was left open whether a social host who continues serving a visibly intoxicated guest knowing that guest plans to drive could attract liability. That question has never been conclusively answered by a Canadian court, for now.

Watch this video which explains the Childs case and social host liability specifically under Ontario’s laws:

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What is commercial host liability for serving alcohol?

The law draws a firm line between social and commercial hosts, and that line carries real consequences for how cases are built.

The standard for commercial hosts was first established in Jordan House Ltd. v. Menow, [1974] SCR 239, where commercial host liability for serving alcohol imposes a higher duty of care. Understanding why helps plaintiffs press for its application in cases that sit on the boundary.

In Menow, the SCC found the Jordan House hotel liable after it served a well-known patron, John James Menow, past the point of visible intoxication, then ejected him onto a busy highway at night. He was struck by a car within half an hour. The hotel knew Menow personally, knew his propensity to drink to excess, and had given internal instructions not to serve him unless accompanied by a responsible person. Notably, these instructions were ignored.

Reasons for higher bar on commercial establishments

There are three explanations why commercial host liability operates at a higher level than social host liability:

• monitoring capacity: every drink is tracked for billing, and servers may be trained, or even required by regulation, to identify signs of intoxication
• statutory obligations: commercial establishments operate under licensing regimes, such as Ontario’s Liquor Licence and Control Act, which impose express positive duties that social hosts do not face
• financial incentive to over-serve: the SCC in Childs noted that overconsumption is more profitable for commercial hosts, while its costs fall on the drinker, the public, and innocent third parties

The duty recognized in Menow was affirmed and extended in Stewart v. Pettie, [1995] 1 SCR 131. In Stewart, the SCC stated that commercial hosts owe a duty not just to intoxicated patrons but to third parties who could foreseeably be harmed, which includes passengers in the same vehicle.

On the facts of Stewart, however, Mayfield Investments Ltd. was found not liable, largely because two sober companions were present at the table throughout the evening and the host could reasonably assume one would drive.

Can a social host still be liable after a guest drives home?

For years, some courts treated a guest’s safe arrival home as the point where a social host’s responsibility ended. However, Williams put that assumption to rest.

The Ontario Court of Appeal held in Williams that there is no automatic rule that social host liability expires once a guest arrives home safely. The motion judge in that case had relied on obiter comments from John v. Flynn, 2001 CanLII 2985 (ON CA), but the Court of Appeal distinguished John as involving a corporate defendant that neither served alcohol nor hosted any social occasion.

Treating those obiter comments as binding law on social host liability, the court said, was an error. When and where a social host’s duty ends is a question of fact, not a fixed rule, and it belongs to the jury.

Social host liability: the liability that attaches even if guests leave

A party ends. Guests leave. But for a host who knew a guest was intoxicated and said nothing, the law does not always leave with them. Whether social host liability attaches depend on what the host knew, what was supplied, what was done or left undone, and whether the harm that followed was reasonably foreseeable. The law here runs on a spectrum, and every case lands somewhere on that spectrum based on its own facts.

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