Clu3m1 | Private Social Host Liability | Ron Vaknin | | Mr. Badger | 1/13/2016 |

The fairness of private social host liability is often debated. The question of, “How liable am I for others actions in my home?” is a concern for every person planning a social event. Up until 2006, social host liability laws were very vague and lacked the concreteness to be consistent. The case of Childs v. Desormeaux is the current precedent that set the social liability of a host to a reasonable amount. Prior to this case, the laws were unclear and lacked the distinction between private and commercial social host liability. However, the precedent that was set forces people to be more responsible for their actions, creates a specific differentiation between private and commercial liability and gives a more definitive and specific ruling. Currently, Canada’s social liability laws are at a suitable medium of tort law and express a more definitive edict.

The first argument to come up in any social host liability case is the prima facie duty of care. The literal definition of prima facie is, "at first sight". However, in this context it means, “Sufficient to establish a fact or raise a presumption” (Cornell Law). Duty of care is the legal responsibility to avoid causing harm to others and the public (Business Dictionary). In accordance to the Anns test their needs to be a relationship between the plaintive and the defendant, as well as foreseeability for there to be a duty of care. However, foreseeability alone is not enough to create a sufficient relationship between the host and the complainant. The deciding factor is whether there was negligence on the host’s part. However, the Supreme Court of Canada (SCC) stated that it is not the legal obligation of a private host to "monitor the conduct of guests on behalf of the public” (Zivot). This means that as long as the host was not creating an unsafe environment they are not liable for their guests. An example of when a host would be liable is if he/she continued to serve an intoxicated guest who you know will be driving.

The Laws prior to Childs v. Desormeaux were very unclear. The case that had set a precedent three years prior was, Odhavji Estate v. Woodhouse. This lawsuit reaffirmed the two provisions set by the Anns test for a social host to be liable to “duty of care”. However, it adds that foreseeability may not be enough to prove proximity, yet without foreseeability it is impossible to prove prima facie duty of care (Supreme Court Judgements: Childs v. Desormeaux 11). Proximity is one of the two main requirements for the Anns test and often goes hand in hand with foreseeability (Supreme Court Judgements: Childs v. Desormeaux 11-12). This means that there must be an established relationship between the host and the guest and that the potential for harm is high and can be easily predicted. Proximity is required to create a connection between two parties to determine if the duty of care is accredited. The third requirement is the, “absence of overriding policy considerations which negate a prima facie duty established by foreseeability and proximity” (Supreme Court Judgements: Childs v. Desormeaux 12). The two requirements for duty of care set by, Anns v. Merton London Borough Council were very broad, vague and had a lot of wiggle room. For that precise reason a new precedent setting case (Childs v. Desormeaux) was sure to arise, which it did.
The case of Childs v. Desormeaux is the most recent and influential dispute to effect the laws of social host liability. After partying to bring in the year 1999, Desormeaux decided to drive home very intoxicated and impaired. He was estimated to have consumed twelve beers and had blood alcohol level of 225 mg per 100 ml or 0.225, almost three times the legal limit. Desormeaux then drove into the incoming car of Patricia Hadden. Desormeaux killed one of the passengers and seriously injured the remaining three. One of which was Zoe Childs, who was paralyzed and sued Desmond Desormeaux, as well as the host of the party he attended. The question that arose was, “Are the hosts liable and if so how much?” The verdict originally was that there was prima facie, however it was, “negated by policy considerations” (Zivot). Childs then filed an appeal but it was thrown out by the Court of Appeal for Ontario, who stated that there was no prima facie of duty of care (Zivot). The Supreme Court of Canada stated that host could be liable if they do not cease, “to serve alcohol to a visibly inebriated person knowing that he or she will be driving” (Prior).

The main difference between the legal duty of care for a private social host and a commercial one was not set by Childs v. Desormeaux. However, this case forced the Supreme Court of Canada to call upon a previous commercial social host liability lawsuit in order to differentiation between the two (Zivot). The case they brought up was Stewart v. Pettie. Mr. and Mrs. Stewart were eating dinner with Mr. and Mrs. Pettie at the Mayfield Inn. Both Mr. Stewart and Mr. Pettie were intoxicated, the intoxicated Mr. Stewart was driving everyone home and got into a car accident. Mrs. Pettie who was not wearing her seatbelt became a quadriplegic. The issue that arose was whether Mayfield Investments Ltd. was liable or not. Due to the fact that both Mrs. Pettie and Mrs. Stewart had not consumed any alcoholic beverages, the verdict was that it was safe for the serving staff to assume that one of the two, who had not been drinking would be driving. Mayfield was originally found not liable but after an appeal they were found to liable for ten percent (Supreme Court Judgement: Stewart v. Pettie). They were not found entirely accountable to due to the unforeseeable outcome that Mr. Stewart would drive given his wife and Mrs. Pettie were sober and that they knew the amount of alcohol he had consumed. However, Mayfield Investments Ltd. is still partially at fault, since any establishment that is selling alcohol (for immediate consumption) has a “special responsibility” to go out of their way to ensure the safety of its patrons (Zivot).

The lawsuit of Stewart v. Pettie sets clear lines between the liability of a private and commercial social host. They have been differentiated in three ways. In a commercial host environment it is easier to oversee the drinking of alcohol, especially when servers require prerequisites (Smart Serve) that teaches them about the laws in regards to excessive drinking (Zivot). While in a private host environment, there are no servers (generally) who know how to deal with alcohol in concerns to intoxication. Another is that the sale of alcohol (for immediate consumption) is heavily regulated, which creates the notion of increased liability for the commercial host, which will create a more vigilant environment (Zivot). However, in private homes one is not purchasing alcohol nor is alcohol significantly regulated and therefore, the private host is not liable. The final major difference is that when an individual purchases alcohol it creates contractual relationship that requires the commercial host to be more observant (Zivot). The difference again is there is no transfer of money so there is no contractual relationship. These differences are such because private social hosts are not benefitting financially by providing alcohol or allowing others to bring their own. This clarification of the laws specified for a private host creates a reasonable difference between a private and commercial host, setting their liability to an appropriate amount based on their benefits.

Private social host liability has always been a topic under discussion, but due to its history of vagueness and misconception many do not really understand it. The confusion between commercial and private liability has not helped. This is a legal issue that will apply to everyone at some point in their lives and probably arises often because everyone enjoys having people over to party. The problem that has deterred numerous people from being a private host has been the lack of definitive and specific laws. However, due to the straightforwardness of the Childs v. Desormeaux civil suit and the precedent setting statements released by the Supreme Court of Canada, the laws are more understandable, reasonable and easier to find. Canada’s social liability laws are more than merely adequate, but rather are an impressive example of reasonable and just laws of the land.

Works Cited (MLA) * Prior, James B. “Your Party, Your Problem: A Guide to Social Host Liability.” Miller Thomson LLP. Web. 1 Jan. 2010. http://www.millerthomson.com/en/publications/articles/your-party-your-problem-a-guide-to-social * Supreme Court of Canada. “Childs v. Desormeaux.” Judgements of The Supreme Court of Canada. Web. 5 May. 2006 https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/3/index.do * Supreme Court of Canada. “Stewart v. Pettie.” Judgements of The Supreme Court of Canada. Web. 26 Jan. 1995 https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1216/index.do * Zivot, Louis J. “SCC Ruling on Childs v. Desormeaux and its Impact on Social Host Liability.” McMillan LLP. Web. 2006 http://www.mcmillan.ca/SCC-Ruling-on-Childs-v-Desormeaux-and-its-Impact-on-Social-Host-Liability * Legal Information Institute. “Prima Facie.” Cornell University Law School. Web. https://www.law.cornell.edu/wex/prima_facie * Business Dictionary. “Duty of Care.” Business Dictionary. Web. http://www.businessdictionary.com/definition/duty-of-care.html