June 29, 2020
An Update on Social Host Liability in Canada: McCormick v Plambeck, 2020 BCSC 881
Are social hosts in Canada legally responsible to pay civil damages when a guest attending their party leaves their home and subsequently suffers injury?
On the particular facts of the very recent case of McCormick v Plambeck (“McCormick”), the British Columbia Supreme Court affirmed that the answer in Canada is still “no”.
Childs v Desormeaux, 2006 SCC 18
By way of background, the leading case on social host liability in Canada remains the Supreme Court of Canada’s (“SCC”) 2006 decision in Childs v Desormeaux (“Childs”). In that case, the Defendants hosted a “BYOB” house party in Ottawa on January 1, 1999. After the party, Mr. Desormeaux, who had been a party guest, and who was inebriated, drove his vehicle into oncoming traffic and collided with another, causing the death of one person and injuries to three others, including the Plaintiff.
On those facts, the SCC ultimately found that the Plaintiff could not succeed in a suit against the social hosts because the Plaintiff’s injuries were not reasonably foreseeable as a result of their conduct. There was no finding that the hosts knew or ought to have known that Mr. Desormeaux was impaired since there was no evidence that he appeared drunk.
The Court went on to hold that, even if foreseeability had been established, there was no duty of care on the part of the social hosts because the wrong alleged was a failure to act in a situation where there was no positive duty to act.
Significantly, the Court also provided examples of situations which could give rise to a positive duty of care. These could include situations in which:
- A defendant creates a risky situation and invites others into it; or
- There exists a paternalistic relationship of supervision and control (parent-child/teacher-student); or
- A defendant offers services to the public that include responsibilities to act with special care to reduce risk.
Ultimately, the SCC concluded that a social host situation among adults did not fit into any of these categories. As it is a common occurrence, it poses no unusual risks and it contains no paternalistic relationship.
It should be noted that, as it is in Childs, the SCC upheld the concept of commercial host liability, and re-stated that a commercial host is one who supplies alcohol as a commercial vendor.
In contrast, the SCC noted that an individual who accepts a private party invitation “does not park his autonomy at the door. - the guest remains responsible for his own conduct. Short of active implication in the creation or enhancement of the risk, a host is entitled to respect the autonomy of a guest …” (Childs, at para 45).
McCormick v Plambeck, 2020 BCSC 881
Very recently, the British Columbia Court Supreme Court had an opportunity to consider whether the SCC’s example of a parent-child relationship might result in an extension of liability to social hosts.
McCormick involved a house party on Salt Spring Island on September 12, 2012. The party was hosted by twin teenagers, while their parents were at home. After the party, the 17-year-old Plaintiff, Mr. McCormick, left on foot with a friend. Together, Mr. McCormick and his friend subsequently stole a motor vehicle which had been left on the road with the keys inside, to go for what the trial judge determined to be a “joy ride.” The Plaintiff’s friend, who was driving, lost control of the vehicle, crashing it into the adjacent woods. The crash resulted in the friend’s death and caused grievous injuries to Mr. McCormick. Mr. McCormick sued the adult hosts of the party, claiming that the paternalistic nature of their relationship gave rise to a duty to prevent him from leaving the party while intoxicated.
In the result, the Court found that the adult party hosts had no liability for Mr. McCormick’s injuries.
To be successful in negligence cases, personal injury claimants must prove four elements:
- That the defendant owed the plaintiff a duty of care;
- That the defendant breached that duty of care;
- That the plaintiff suffered damages; and
- That the defendant’s breach of the duty of care caused the plaintiff’s damages.
In McCormick, the Court found that the Plaintiff failed to satisfy the first element of the negligence test, the existence of a duty of care, because “the injury complained of was not reasonably foreseeable as a result of the defendants’ conduct” (at para 250).
This finding was based on the facts that:
- The trial judge found as a fact that the Plaintiff was “not so impaired that he was incapable of a reasonable thought process when he left the party”; in addition, the trial judge found that the Plaintiff “was no more, and likely a lot less intoxicated at the party than he had been on many prior occasions when attending similar parties” (at para 141);
- Similarly, there was no evidence that the Plaintiff’s friend left the party in an intoxicated state (para. 167);
- As a result, there were no obvious signs that the Plaintiff would suffer harm when he left the party on foot (para 230);
- The theft of the vehicle was not reasonably foreseeable; the practice of leaving keys in parked vehicles was “customary” on the Island, precisely because people did not expect there to be theft (para 149).
The Court went on to comment that, even if a duty of care had been found, the hosts would have met that duty of care through the various safety measures they had put in place at the party (eg. confiscating the keys of those who drove to the party as they arrived; periodically circulating throughout the house to monitor the party’s atmosphere; ensuring that, at the end the night, everyone had a ride home; personally providing rides to several of the attendees; and permitting some attendees to sleep over).
Finally, the Court concluded that, “having found that the [hosts] owed no duty of care to the Plaintiff and that, if they did, they had met their required standard of care, it follows that the Plaintiff’s damage was not caused by any breach of a duty of care by the [hosts]” (at para 287).
Of necessity, social host liability cases must turn on their particular facts. Given the door left open by the SCC in Childs, there was certainly potential in McCormick for a Court to find that there was social host liability where there was a paternalistic relationship between the injured Plaintiff and the Defendant hosts. However, specific findings of fact by the trial judge, combined with a reasoned legal analysis of those facts, led the Court to conclude that no such precedent could be set here.
Nevertheless, this is an evolving area of the law, and different facts may yet yield a different result.
Maureen McCartney-Cameron is counsel with JSS Barristers. Click here for her bio.
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