Date: Fri, 5 May 2006 10:09:17 -0400

From: David Cheifetz

Subject: Childs v. Desormeaux

Vaughan was right as to the result. The appeal was dismissed.

Based on the headnote it seems that the basis is no duty and there will not be a duty at all in the ordinary social host case; rather than yes duty but no breach. And the Court added that on the facts there were no facts to establish misconduct.

Here's the headnote.

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Held: The appeal should be dismissed.

Social hosts of parties where alcohol is served do not owe a duty of care to public users of highways. The proximity necessary to meet the first stage of the Anns test has not been established. First, the injury to C was not reasonably foreseeable on the facts established in this case. There was no finding by the trial judge that the hosts knew, or ought to have known, that D, who was leaving the party driving, was impaired. Also, although the hosts knew that D had gotten drunk in the past and driven, a history of alcohol consumption and impaired driving does not make impaired driving, and the consequent risk to other motorists, reasonably foreseeable. Second, even if foreseeability were established, no duty would arise because the wrong alleged is a failure to act or nonfeasance in circumstances where there was no positive duty to act. No duty to monitor guests' drinking or to prevent them from driving can be imposed having regard to the relevant legal principles. 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. Short of active implication, a host is entitled to respect the autonomy of a guest. The consumption of alcohol, and the assumption of the risks of impaired judgment, is in almost all cases a personal choice and an inherently personal activity. Absent the special considerations that may apply in the commercial context, when such a choice is made by an adult, there is no reason why others should be made to bear its costs. Lastly, with respect to the factor of reasonable reliance, there is no evidence that anyone relied on the hosts in this case to monitor guests' intake of alcohol or prevent intoxicated guests from driving.

While, in the commercial context, it is reasonable to expect that the provider will act to protect the public interest, the same cannot be said of the social host, who neither undertakes nor is expected to monitor the conduct of guests on behalf of the public. [24-32] [38-47]

Because a prima facie duty of care has not been established in this case, it is unnecessary to consider whether any duty would be negated by policy considerations at the second stage of the Anns test.

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Good reading.

----- Original Message -----
From: "Vaughan Black"
To: "Lewis KLAR"
Sent: Thursday, May 04, 2006 3:40 PM
Subject: Re: ODG: Childs v. Desormeaux

Ah well, after all these fine words I predict that the SCC will not find liability tomorrow, and all because one cannot count on the defendant's being insured. It found commercial host liability because bars have insurance, and we could have liability for employers who allow too much booze to be served at office parties. They'd most likely be insured too.

But, even if the homeowner in Childs had insurance that would cover his liability in this case, we can't count on that being the case. Lots of homeowners in Canada lack third-party liability insurance.

I'm not suggesting that the SCC will give this as its reason. Only that it determines the result.

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