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Underage drinking and the spectre of social host liability

With the end of the school year in sight and festivities like prom approaching, educators, parents, and students alike will be planning well-deserved celebrations to mark the end of another chapter. Prohibited by schools but sometimes permitted by parents, underage drinking parents, underage drinking has been known to occur. Parents should be aware of the potential liability they may face as social hosts should there be an injury arising from underage drinking on their property.

Relevant legislation

As most are aware, the legal drinking age in Ontario is 19. This is established by the Liquor Licence Act,1 which provides that no person shall knowingly sell or supply liquor to a person who is or appears to be under 19 years of age,2 and expressly prohibits those under 19 years old from having, consuming, attempting to purchase, purchasing, or otherwise obtaining liquor. There is, however, an exception to these rules: parents or legal guardians of a minor may give them alcohol in a residence or in a private place.3 The minor must consume such alcohol at the place where it is supplied.4 This exception allows parents to provide alcohol to their own minor children in their private home, but does not extend to minors over which an adult does not have legal custody, for example, teens at a party in their home.

Educators and parents wishing to host social functions or parties should also be aware of their duties and potential liability under Ontario’s Occupiers' Liability Act.5 Pursuant to section 3 of that Act, an occupier of a premises has a duty of care to ensure that anyone on the premises, as well as any property those persons bring, are reasonably safe. This duty is imposed on persons in physical possession of a premises, who have responsibility for and control over the premises or the activities taking place, or who have control over persons allowed to enter the premises. As such, this duty may apply to adults who allow minors to drink alcohol on their property.

Should an occupier fail to meet the duty of care and a person is injured on their property, they may be liable for negligence. The essential elements of a negligence claim are that the defendant owed and breached a duty of care to the plaintiff, that the breach of this duty caused the plaintiff’s injury, and that the plaintiff suffered actual damage or loss as a result.

A key consideration in determining liability for negligence is the foreseeability that the injury would occur. In assessing the liability of adults who have allowed minors to drink alcohol on their property, a court will consider what that party knew or ought to have known in the circumstances, what reasonable steps, if any, were taken to reduce the risk of injury, and whether the adults engaged in negligent or reckless conduct themselves. While educators and parents are not required keep minors under constant supervision, they are required to ensure the safety of those on their property and will likely be responsible for any injury should they fail in this duty.

Case law

Canadian courts appear increasingly willing to hold parents responsible for injuries that occur where minors have become intoxicated on their property. This is a facet of social host responsibility, the leading case on which is the Supreme Court of Canada’s decision in Childs v. Desormeaux (Childs).6 In Childs, the defendants hosted a New Year’s Eve party at their home. The party was a “Bring Your Own Booze” event, and the defendant hosts served only a small amount of champagne at midnight. One of the guests, defendant Desormeaux, consumed about twelve beers over the two and half hours he was at the party, but proceeded to drive home with two passengers at the end of the night. He was involved in a head-on collision which killed one passenger in the other vehicle and seriously injured the three others, rendering the plaintiff a quadriplegic.

The plaintiff sued both Desormeaux and the party hosts, arguing that the hosts had a duty of care to third parties who may be injured by intoxicated guests. The Supreme Court of Canada dismissed the action, and held that social hosts will not ordinarily owe a duty to of care to the third parties injured by intoxicated guests. However, the court left open the possibility that social hosts could be liable for the actions of their intoxicated guests where the hosts themselves contribute to the risk of injury, stating:

 [a] social host at a party where alcohol is served is not under a duty of care to members of the public who may be injured by a guest’s actions, unless the host’s conduct implicates him or her in the creation or exacerbation of the risk.7

Ontario courts have used the reasoning in Childs to allow actions against parents who have served or allowed minors to consume alcohol on their property. Such was the case in Wardak v. Froom,8 where two defendant parents hosted a 19th birthday party for their son at their home. A number of guests attended the party, some of whom were underage. While the defendants did not serve alcohol themselves they were aware that guests brought their own alcohol, and that several guests were not legal drinking age.

Most of the party took place in the basement of the home, where guests were reportedly drinking and playing beer pong. By contrast, the defendants stayed on the main floor to monitor guests’ coming and going, though they did visit the basement periodically. At some point in the evening, the 18-year-old plaintiff became intoxicated, and the defendants noted him wobbling and exhibiting odd behaviour when he came upstairs to use the washroom. Notably, the parents did nothing to prevent the plaintiff from continuing to drink. Eventually, when the defendants had momentarily gone upstairs, the plaintiff walked home, got into his car, and began driving. He drove over a fire hydrant and hit a tree, sustaining significant injuries that left him a quadriplegic with cognitive impairments.

The plaintiff subsequently sued the defendants for negligence, arguing that they had a duty to ensure his safety as a guest. The defendants brought a motion for summary judgment dismissing the action, contending that they could not be liable as hosts because they had not served the guests alcohol. Relying on Childs, the Ontario Superior Court dismissed the defendant parents’ motion. Noting that the serving of alcohol is “relevant... [but] not, by itself, determinative of social host liability,”9 the court held that nothing precluded a finding of a duty of care in the circumstances. Ultimately, the court ruled that the matter presented a genuine issue requiring trial. In other words, the court acknowledged that the defendants could be found liable as social hosts in this situation. This finding affirms the risk that parents could be liable for any injuries that occur after they have served or allowed minors to drink alcohol on their property.

Takeaways for educators and parents

The above cases remind educators and parents that while celebration is in order at this time of year, there can be significant personal and legal consequences arising from underage drinking. Both educators and parents should refuse to permit a minor to attend a school function while intoxicated. In particular, parents should be encouraged to supervise any house parties or social events that occur on their properties, to forbid the consumption of alcohol at such events, and to limit the size of such parties if necessary to maintain proper supervision. 

1 RSO 1990, c L19.

2 Ibid at s 30.

3 Ibid at s 13.

4 Ibid.

5 RSO 1990, c O2.

6 Childs v. Desormeaux, 2006 SCC 18.

7 Ibid at para 47.

8 Wardak v. Froom, 2017 ONSC 1166.

9 Ibid at para 54.