Date: Mon, 8 May 2006 06:00:03 -0400

From: David Cheifetz

Subject: Childs v Desomeaux

Here's a question that some of you might ponder with your torts classes.

Regardless of whether one agrees with the principle established in the SCC decision, was that principle ever applicable to the Child facts - or, put better, the facts as found by the trial judge. Given those findings, which were not upset at either appellate level, should the case been approached as an example of the paradigm social host case at the appellate levels? Or was it something else?

Ask your students to reread the trial judgment.

Then ask your students to speculate why this case was argued and decided as it was, at the Ontario Court of Appeal and Supreme Court of Canada levels, in light of the trial findings of fact.

The case involved merely nonfeasance? What are we to make of this trial finding, then? "I am also satisfied on the evidence that Dwight Courrier deliberately did not pay any attention to how much alcohol was brought in by the Desormeaux group or how much was consumed while on the premises." (my emphasis on 'deliberately did not') [para 67].

The key findings of fact regarding Desormeaux are in para 35 and then para 63-73 and include "When they were leaving Dwight Courrier asked Desmond Desormeaux “are you ok brother” to which Desmond Desormeaux responded “no problem”. Dwight Courrier did not ask Desmond Desormeaux to stay overnight as he had done before nor did he offer to call a taxi [ para 35] and "I am satisfied on all of the evidence Desmond Desormeaux would be showing obvious signs of impairment when he left the party" [para 73].

In those circumstances, why did it matter that it was a "BYOB" party? Is it "mere" nonfeasance to deliberately ignore the likelihood (probably a known certainty) that an guest will drink to the state of impairment, then drive home, on the alcohol that I permit him to drink at my premises? Given tort law's general attitude to 'wilful blindness' conduct why was this situation any different from one in which Courrier had provided the alcohol to Desormeaux?

How does a case in which at least one host chose to be deliberately, wilfully, blind to the extent of alcohol consumption of an invited guest with a known, significant history of driving while impaired, was seen to leave and known to be driving home, end up argued and decided on the basis that it was?

David Cheifetz

<<<< Previous Message  ~  Index  ~  Next Message >>>>>