Date: Tue, 9 May 2006 09:39:50 -0400

From: David Cheifetz

Subject: Childs v Desomeaux

Lewis and all,

Some of us will have to (try to) use this case to give immediate advice about what people should do before they act and provide opinions about whether something was done wrong after the fact. Richard Wright said this case muddies the waters at the level of principle. My current feeling is that it does the same at the level of practice.

There ought not to be a significant 'disconnect' between the law as declared by the SCC and the manner in which that law is understood and used by the public, and used by lawyers, outside of court. Where disputes are involved, the SCC is supposed to produce results that make it practical for the public to comply with the law in ordinary cases without having to resort to legal advice, and for lawyers to apply the law without having to go to trial to determine what it means in a particular case. This decision doesn't do any of that, unless read literally for the proposition that there is no "social" host duty of care short of being a host at a party whose known purpose is for the attendees to drink themselves into oblivion.

What this case means is that I may, for the moment, properly advise my clients (people or their insurers) that this case should mean that if people have parties at home at which alcohol is served, and they do absolutely nothing that might in any way amount to regulating or supervising the manner in which their guests consume alcohol, they're probably safe from a successful law suit if one of the guests leaves impaired, drives, and causes harm because of the impairment. So, if the insurer is prepared to play hardball and spend money on defence costs, and even appeal costs the likelihood is the case will be dismissed.

McLachlin CJ wrote that one needs active implication in the creation of the risk. Let's look at the facts that the SCC effectively held did not amount to sufficient involvement in the creation of the risk to be active implication in the creation of the risk.

1. A party at which the guests, practicably, had to drive to attend or be driven.
2. A guest, D, who, to the knowledge of the host, drove to the party.
3. D was known to be a drunk and known to drink and drive.
4. A host very familiar with D's drinking habits.
5. A host who was deliberately blind to the amount of alcohol D brought to the party, the amount D consumed and its effects on D.
6. D's impairment was such that it was or ought to have been visible to the host.
7. The host saw D leaving and asked D about his condition - accepting D's answer that he was fine.

This isn't tantamount to active implication? The SCC said it wasn't. It was still nothing more than hosting a party where alcohol was served without more [para 45]. "Suffice it to say that hosting a party where alcohol is served, without more, does not suggest the creation or exacerbation of risk of the level required to impose a duty of care on the host to members of the public who may be affected by a guest’s conduct.

So, I will also be asked if this means I'll be able to stop such actions early on, to save defence costs. Even the young Candide wouldn't believe that.

What will probably happen, at least for the short term, is that the defence side will take the position the case that Childs means there's no duty in every social host case other than one in which the host is, essentially, controls the drunk's access to alcohol. That's the case the defence will worry about. For the rest? Not until some court says otherwise.

No worthwhile plaintiffs' lawyer will accept that proposition until some appellate court says so ...

This case will spawn another few years of litigation while we sort out what it means. I suppose I shouldn't complain. I'm not yet near retirement.

David Cheifetz

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