Date: Thu, 18 May 2006 02:48:19 -0400

From: David Cheifetz

Subject: Childs v Desormeaux - redux

I have obtained and reviewed the Ont CA and SCC facta.

For what it's worth as to the ultimate result (not the analysis that led to the result) ...

The Childs' written argument is always the broad

Social host therefore a duty of care to the public at large, now look at the facts to see if the standard was breached in this case and that breach was a cause ...

It was never, not even in the alternative, the narrow

These facts create a duty of care - that C was a host is only one of the facts - in this case, now look at facts to see if the standard was breached and that breach was a cause ...

The trial finding (para. 67) that "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" is not mentioned at all in the Ont CA factum. It is mentioned in the SCC factum but not highlighted and in context as part of the facts showing breach of the standard.

In the Ont CA factum, it's almost as if the deliberate blindness finding was intentionally left out of the recital of facts. That's not the case in the SCC factum, but it's merely in the recital of facts; not given any prominence.

Childs Ont CA factum states the issues were:

Is social host liability a new and novel tort?

Do public policy considerations negate the finding of a duty of care against the Hosts?

The argument is summarized in para 15

15. The Appellant Childs submits that the Trial Judge committed an error in law in finding that social host liability is a new and novel tort. It is the Appellant's position that general negligence principles as well as precedent support the position that social host liability is recognized in Canada.

That argument was repeated at the SCC.

The Childs SCC argument is summarized in para 30 of the SCC factum

30. The Appellant Childs submits that both the Trial Judge and the Court of Appeal committed an error in law in finding that social host liability is a new and novel tort. It is the Appellant's position that a finding of social host liability requires nothing more than the application of general negligence principles to the facts in this case.

So, if oral argument followed the facta, I suppose one can't be critical of the panels for not dealing with an argument in favour of the plaintiff that they weren't asked to address. I will, in due course, find out whether the narrow case ever surfaced in oral argument in questions from the bench.

The MADD facta, of course, always argue for the broad duty.

David Cheifetz

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