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Social Host Liability: Still A Potential Cause Of Action In Ontario

The recent decision of Wardak v. Froom ("Wardak") provides an update on the law of social host liability in Ontario. The decision also provides important practice points that highlight the time and expense required to be successful on a summary judgment motion.

The plaintiff in Wardak was an 18 year old young man who became a quadriplegic as a result of a single vehicle motor vehicle accident. The accident occurred after the plaintiff attended a 19th birthday party at the defendants' home. The defendants (parents of the plaintiff's friend) did not serve or supply alcohol but they were aware that there was underage drinking at the party. Party guests provided witness statements (but not sworn affidavits) for the motion that the plaintiff was intoxicated.

Shortly before the plaintiff left the defendants' house, he was seen by them acting strangely and yelling. One of the defendants offered to walk him home but the offer was rudely declined. When the defendants took their eyes off of the plaintiff, he left the house, walked home and got into a motor vehicle. The plaintiff then drove over a fire hydrant and hit a tree. He had a blood alcohol level of more than three times the legal limit.

The plaintiff brought a social host liability claim against the defendants. The defendants sought to have the action dismissed on a summary judgment motion on the basis that the law precluded a finding of a duty of care due to the Supreme Court of Canada decision in Childs v. Desormeaux ("Childs") and, in any event, because the defendants met any required standard of care.

The central legal issue in Childs was whether social hosts owed a legal duty of care to third parties who may be injured by intoxicated guests. In Childs, the injured person was a third-party motorist who had been injured after an intoxicated party guest was in a motor vehicle accident. The Chief Justice in Childs held that there was no duty of care on the facts of that case, but seemingly left the door open for future social host liability claims by stating at paragraph 47 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" (emphasis added).

The Plaintiff in Wardak argued, and the Court accepted, that the use of the phrase "without more" allows for a duty of care to arise in other circumstances that did not exist in Childs, such as if foreseeability of harm is present and other aspects of the relationship between the plaintiff and the defendant establish a special link or proximity. In particular, a situation that could lead to a positive duty to act on a party host is in the circumstances of a paternalistic relationship of supervision and control. The Court denied the defendants' motion on the basis that the law did not preclude a finding that a duty of care existed on the facts of the case.

This decision also highlights the amount of work required to be put into a successful summary judgment motion. The Court also refused to grant the defendants' motion based on the factual record put before the Court on the issue of whether the defendants met the required standard of care. The Court had a shortage of the evidence that it required to make a final determination. In particular, affidavit evidence from a number of partygoers who had relevant evidence was not put before the Court. Some of the evidence before the Court was by way of witness statements instead of sworn affidavits. This method of providing evidence was not sufficient. The Court commented that it needed to see sworn affidavits from key partygoers, in addition to the evidence already provided by the parties, to justly make a final determination in the case.

The Court found that there were genuine issues requiring a trial in order to reach a decision on the merits and that it would not be in the interest of justice to evaluate the credibility of the defendants or draw inferences from the evidence based on the record before it.

  • Par : Erin H. Durant, Kevin P. Nearing