Documentation:Torts/Negligence Hosting

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TORT LAW
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Property Torts
Interference with goods • Interference with land • Non-natural use of land • Private nuisance • Public nuisance
Negligence Tort
Duty of care • Breach of duty • Damage • Causation • Remoteness
Negligence Categories
Employment • Environmental pollution • Harmful products • Hosting patrons and guests • Infliction of mental injury • Misrepresentation • Occupation of premises • Professional services • Public authorities • Pure economic loss • Relational economic loss • Rescuers • Shoddy goods or structures • Treatment of indigenous children • Unborn children
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Index
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Negligence in hosting patrons and guests
Negligence in hosting can be broken into two types: commercial host liability and social host (non)liability. The basis for distinguishing between these classes typically comes down to the factor of profit.[1] Commercial hosts are profit-earning establishments that serve alcohol, most commonly bars, restaurants, and pubs.[2] Social hosts, meanwhile, do not have pecuniary interests in their guests' alcohol consumption.[1]

Commercial host liability

Duty of care

The principles of commercial host liability were established by the Supreme Court of Canada in Jordan House Ltd. v. Menow.[3] There, the Court held that a commercial establishment owes a duty to take reasonable care to ensure the safety of its intoxicated patrons.[4] This duty includes taking reasonable steps to prevent an intoxicated patron from driving away from the establishment.[5]

In Stewart v. Pettie, the Court saw it natural extension of Jordan House to recognize that a commercial host also owe a duty to third parties sharing the road with an intoxicated patron who was allowed to drive.[6]

However, despite the establishment of a duty of care between these parties, "a great deal turns on the knowledge of the operator (or his employees) of the patron and his condition",[7] such as the host's awareness of the patron's intoxicated state.[8]

Breach of duty

Whether a commercial host breaches its duty of care depends on the circumstances. A commercial host will be expected to act only if there is some foreseeable risk of harm to the patron or to a third party.[9] For example, in Stewart, the Supreme Court of Canada found that the host did not breach its duty to third party road users because it was reasonable to assume that one of the sober guests accompanying the intoxicated patron would arrange for safe transportation.[10]

Social host (non)liability

Duty of care

A group of people at a house party, some sitting on the couch and chairs around a coffee table and some standing up. Some have drinks in their hands.

Unlike commercial hosts, social hosts in Canada have not been found to owe a duty of care to public road users who may be hurt by intoxicated guests.[11] The Supreme Court of Canada in Childs v. Desormeaux gave three reasons for this distinction: commercial hosts are able to monitor their guests' alcohol consumption in a way that social hosts cannot; the sale and consumption of alcohol is regulated by legislation; and commercial hosts and their guests share a contractual relationship in which the former profits from serving alcohol to the latter.[12]

Further, negligence claims against hosts often involve an alleged failure to act, specifically the failure to prevent intoxicated patrons or guests from driving. The common law typically does not bear upon nonfeasance,[13] but the Supreme Court of Canada has established several exceptions that impose a positive duty to act: where the defendant invites third parties to an inherent risk that he controls; where the defendant and plaintiff have a paternalistic relationship; and where the defendant exercises a common function or engages in a commercial enterprise with responsibilities to the public.[14] The Court in Childs determined that social hosts serving alcohol to their guests does not align with any of those exceptions, and it therefore refrained from recognizing a duty between social hosts and third parties who may be injured by intoxicated guests.[15]

"Holiday Party Law - Social Host Liability"
In "Holiday Party Law - Social Host liability", League and Williams Lawyers talk about the law around social host liability and the steps social hosts can take to minimize risks.[16]

The decision in Childs does not preclude recognition of social host duty where the injured person is a guest instead of a third party or where the host and guest share a paternalistic relationship.[17] In Wardak v. Froom, the Ontario Superior Court refused to dismiss by summary judgment a claim involving an alleged duty of care between a social host and an underage guest.[18] The defendants hosted a birthday party for their son, knowing there would be underage guests present and drinking,[19] and the plaintiff was injured after leaving the party intoxicated.[20]

Foreseeability and proximity

Recognizing a novel social host duty of care where it has not previously been established will depend on the Anns/Cooper elements of foreseeability and proximity, as well as policy considerations.[21] In Childs, foreseeability was not made out because the evidence was insufficient to show that the hosts knew their guest was too impaired to drive and might cause injury to other road users.[22] The Supreme Court of Canada in Childs also concluded that there was a lack of proximity between the party hosts and road users.[23] In McCormick v. Plambeck, the alleged duty of care failed because it was not foreseeable that physical injury would result from the plaintiff leaving the hosts' party.[24]

Relevance of liquor legislation

While hosting a party with underage drinking constitutes a breach of statute, the British Columbia Court of Appeal in McCormick clarified that this in itself does not demand a higher standard of care akin to that of commercial hosts.[25]

Legislation
Liquor Control and Licensing Act, SBC 2015, c 19, s 77(1).[26]
Supplying liquor to minors

77(1)   Subject to the regulations, a person must not

(a)        sell, give or otherwise supply liquor to a minor,

(b)        possess liquor for the purposes of selling, giving or otherwise supplying the liquor to a minor, or

(c)        allow a minor to consume or possess liquor in or at a place under the person's control.

Breach of duty

Where a duty of care does arise, it is expected that the host take reasonable steps to minimize harm to their guests.[27] The standard is one of reasonableness and not perfection.[27] In McCormick, the hosts were supervising a birthday party for their daughter, and one of the guests injured himself in a motor vehicle accident after consuming alcohol.[28] The British Columbia Court of Appeal found that even if there was a duty between the social hosts and their underage guests (which there wasn't), it had been properly discharged on the facts of the case.[29] The hosts collected attendees' car keys upon their arrival to the party, asked attendees who needed a ride to call their parents, offered rides themselves, and allowed one attendee to stay the night.[30]

Occupier's liability

Outside of the common law, a host's duty of care to their guests is generally situated within provincial occupier's liability statutes.

Legislation
Occupiers Liability Act, RSBC 1996, c 337, s 3(1)–(3).[31]

Occupiers' duty of care

3(1) An occupier of premises owes a duty to take that care that in all the circumstances of the case is reasonable to see that a person, and the person's property, on the premises, and property on the premises of a person, whether or not that person personally enters on the premises, will be reasonably safe in using the premises.

(2) The duty of care referred to in subsection (1) applies in relation to the

(a) condition of the premises,

(b) activities on the premises, or

(c) conduct of third parties on the premises.

(3) Despite subsection (1), an occupier has no duty of care to a person in respect of risks willingly assumed by that person other than a duty not to

(a) create a danger with intent to do harm to the person or damage to the person's property, or

(b) act with reckless disregard to the safety of the person or the integrity of the person's property.

In Lewis v. Wilson, the defendant hosted a drinking party at his trailer.[32] The plaintiff and another guest, both of whom had consumed significant amounts of alcohol, engaged in "horseplay" which resulted in the plaintiff's injuries.[32] The British Columbia Court of Appeal affirmed the trial judge's finding that the defendant, as the occupier of the premises, owed his guests a duty of care.[32]

Discussion questions

  • Why does the common law generally not hold people liable for their careless omissions to help others? Are the Supreme Court of Canada's reasons in Childs v. Desormeaux for refusing to recognise an affirmative duty of care owed by social hosts compelling?[11]
  • Do policy considerations favour or run against recognising a duty of care owed by social hosts to their guests?


  1. ↑ 1.0 1.1 Adjin-Tettey, Elizabeth (2002). "A Logical Extension of Commercial Host Liability?". Saskatchewan Law Review. 65(2): 521.
  2. ↑ Weidman, Jeff (29 August 2023). "Commercial Host Liability". Clyde & Co.
  3. ↑ Jordan House Ltd. v. Menow, 1973 CanLII 16 (SCC).
  4. ↑ Jordan House Ltd. v. Menow, 1973 CanLII 16 (SCC) at 247–249.
  5. ↑ Stewart v. Pettie, 1995 CanLII 147 (SCC) (§19.9.1) at para 28.
  6. ↑ Stewart v. Pettie, 1995 CanLII 147 (SCC) (§19.9.1) at paras 28–30.
  7. ↑ Jordan House Ltd. v. Menow, 1973 CanLII 16 (SCC) at 250.
  8. ↑ Stewart v. Pettie, 1995 CanLII 147 (SCC) (§19.9.1) at para 52.
  9. ↑ Stewart v. Pettie, 1995 CanLII 147 (SCC) (§19.9.1) at para 35.
  10. ↑ Stewart v. Pettie, 1995 CanLII 147 (SCC) (§19.9.1) at para 54.
  11. ↑ 11.0 11.1 Childs v. Desormeaux, 2006 SCC 18 (§13.4.2.1).
  12. ↑ Childs v. Desormeaux, 2006 SCC 18 (§13.4.2.1) at paras 17–22.
  13. ↑ Childs v. Desormeaux, 2006 SCC 18 (§13.4.2.1) at para 31.
  14. ↑ Childs v. Desormeaux, 2006 SCC 18 (§13.4.2.1) at paras 35–37.
  15. ↑ Childs v. Desormeaux, 2006 SCC 18 (§13.4.2.1) at paras 41–47.
  16. ↑ League and Williams Lawyers (6 November 2016). "Holiday Party Law - Social Host Liability". Youtube.
  17. ↑ Wardak v. Froom, 2017 ONSC 1166 at para 52.
  18. ↑ Wardak v. Froom, 2017 ONSC 1166.
  19. ↑ Wardak v. Froom, 2017 ONSC 1166 at paras 15–17.
  20. ↑ Wardak v. Froom, 2017 ONSC 1166 at para 1.
  21. ↑ McCormick v. Plambeck, 2020 BCSC 881 at para 204.
  22. ↑ Childs v. Desormeaux, 2006 SCC 18 (§13.4.2.1) at paras 29–30.
  23. ↑ Childs v. Desormeaux, 2006 SCC 18 (§13.4.2.1) at para 47.
  24. ↑ McCormick v. Plambeck, 2020 BCSC 881 at paras 228–229.
  25. ↑ McCormick v. Plambeck, 2020 BCSC 881 at paras 279–280.
  26. ↑ Liquor Control and Licensing Act, S.B.C. 2015, c. 19, s 77(1).
  27. ↑ 27.0 27.1 McCormick v. Plambeck, 2020 BCSC 881 at para 261.
  28. ↑ McCormick v. Plambeck, 2020 BCSC 881.
  29. ↑ McCormick v. Plambeck, 2020 BCSC 881 at para 281.
  30. ↑ McCormick v. Plambeck, 2020 BCSC 881 at paras 277–278.
  31. ↑ Occupiers Liability Act, RSBC 1996, c 337, s 3(1)–(3).
  32. ↑ 32.0 32.1 32.2 Lewis v. Wilson, 1990 CanLII 1557 (BCCA).
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