Date: Tue, 9 May 2006 15:58:10 -0400 (EDT)

From: David Cheifetz

Subject: Childs v Desormeaux

Professor Sebok:

Briefly, because this is too interesting and is taking me away from things I have to do immediately.

It's my view that the SCC's statement about what the trial judge held that Courrier knew or should have known about the state of Desormeaux's impairment the facts of the case is contrary to what the trial judge held and what Canadian law requires the SCC (and for that matter the Ontario Court of Appeal) to have concluded that meant. The trial findings of fact were never challenged.

Let's look at what the trial judge (once a very experienced trial lawyer with a significant defence background) held - you can find the reasons here.

First, the trial judge's conclusion on the state of Desormeaux's impairment and whether there were visible signs.

[73] It was Dr. Cappell’s evidence that Desmond Desormeaux had consumed twelve beers within the two and half hours. In reaching that conclusion he took into consideration that Desormeaux was a seasoned drinker and this would affect his elimination rate. It was Dr. Cappell’s opinion, which I accept, that Desormeaux would have a blood alcohol reading of 235 at the time he left the party. This is almost three times the legal limit. This high consumption over a short period of time would cause the blood alcohol content to rise at a very high rate and cause impairment. I am satisfied on all of the evidence Desmond Desormeaux would be showing obvious signs of impairment when he left the party.

Second, these earlier findings.

[66] I am satisfied on all of the acceptable evidence that Dwight Courrier was well aware of Desmond Desormaux’s past drinking problems including his previous convictions. When Desmond Desormeaux arrived at the party along with Maureen O’Brien and Ray Sauvé, who were obviously intoxicated, it should have put Dwight Courrier on red alert that Desmond Desormeaux had been with them and probably had consumed as much alcohol, if not more, than the other two.

[67] 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.

Finally, we the evidence that Courrier say Desormeaux leaving.

[35] Ray Sauvé got into an argument after he wiped his hands on Peter Sagos’ suede jacket. After this altercation they all decided to leave. Ray Sauvé walked to the car with them. 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.

How much more explicit do we need the trial judge to have been that Courrier ought to have known. We don't even have to go to the question of whether wilful blindness in this case is (by legal fiction) the equivalent of actual knowledge.

I'm not at all sure, from what I read in the 3 sets of reasons, that plaintiffs' counsel and MADD's counsel didn't put the core of the case at the broadest "social host where liquor is served, therefore duty to monitor etc" level. I see nothing in the trial, Ontario Court of Appeal, or SCC reasons that suggests that Childs' counsel made a pitch that the case could be decided in favour of Childs on some more limited basis. I would have expected the Court of Appeal to mention that pitch were it advanced as one of the reasons the trial judgment was wrong. Even if an argument based on wilful blindness (say, tantamount to recklessness even if not to actual knowledge) wasn't tried at trial, the trial findings created it at appeal. Perhaps it was in the facta but the appellate panels did not mention it. That would be a surprising omission were the argument made on appeal, even if it was rejected. It's another issue if the argument was made in the facta but abandoned. Even then I'd except some mention of the issue, even if a passing "made in facta but not pursued" aside.

Best regards,

David Cheifetz

----- Original Message ----
From: Anthony Sebok
Sent: Tuesday, May 9, 2006 1:51:22 PM
Subject: RE: ODG: RE: Childs v Desormeaux

David's comment about the practical implications of the Childs decision is very interesting. The decision surprised me not because of its outcome but because of its reasoning. The SCC twisted the plaintiff's theory of the case so that the holding refers to a duty in negligence that is much more extreme than the plaintiff intended, or I suspect, that most critics of the outcome would endorse.

If I am not mistaken, the SCC exploited what it called an ambiguity in the trial court's decision. In para. 28 the SCC noted that the trial court found that the plaintiff did not prove that the defendant knew nor should have known that Desormeaux showed signs of impairment when he left the party. (Contradicting fact #6 in David's list below.) The SCC concluded in para. 29 that under the facts proven by the plaintiff, the only duty that could have been breached by the defendant was the duty to protect third parties on the highway from guests at his party "who had gotten drunk in the past."

I am pretty sure that this was not the plaintiffs' theory of the duty at issue, and even if that is what the trial court found, it strikes me as singularly unhelpful to decide the case on this basis. As the SCC noted, the theory of social host liability in the US is usually based in the idea that social hosts have a duty not to serve additional alcohol to guests of the host who "are visibly inebriated." (Para 44; this is the rule, for example, that the California Supreme Court announced in Coulter v. Superior Court of San Mateo County, 21 Cal. 3d 144 (1978)). This rule may be too liberal for some people (it was too liberal for the California legislature) but it seems to narrow the proximity question raised by the SCC to a reasonable level. The duty the SCC attributed to the plaintiffs in this case does seem too broad and vague - and it also seems like a red herring.

It seems to me that in the next case the plaintiff needs to clean up the ambiguity identified by the SCC. The next case should involve a social host who knew or should have known that the guest was impaired and nonetheless to whom they served a drink. I wonder what the SCC would do then?

That is my practical point. Figuring out the theoretical difference between the duty upon which the SCC ruled and the duty the plaintiff ought to have alleged is trickier. What is the difference between (1) inviting a known habitual drunk driver to a party where alcohol is served and not monitoring their consumption and (2) serving alcohol to a visibly impaired guest who one knows will drive? The act of pouring the drink (or having one's agent pour the drink) seems to make all the difference in the world; it is what persuades many that there is no difference between social hosts and commercial hosts. But, to return to Richard's line of inquiry, how great a difference is there between (1) and (2) on the level of additional risk created to third parties? Not much, I would think. I have never seen an American court find a duty under (1), and I suspect that even in NJ the duty would be limited to (2). This suggests that the effort to coherently distinguish between misfeasance and nonfeasance is worthwhile. I agree with John and Ben that it is important to explain the difference. I would find the SCC's decision more persuasive in Childs - which knocks (1) out of the box - if they could explain to me what they would do in a case where they were faced with (2).

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