Since the landmark Supreme Court of Canada decision in Menow v. Jordan House Ltd, 1974 SCR 239 (CanLII), courts have held that commercial hosts, such as bars and restaurants, owe a duty of care to their guests. If, for example, a patron consumes several pints throughout an evening, their bartender must intervene if the guest stands, jingles their car keys, and proceeds to an exit.
While both case law and legislation comprehensively define commercial host liability, the rules are far less clear regarding social host liability, an area of Canadian civil law which aims to hold hosts responsible for the safety of their guests.
Liability for alcohol-related injuries
Social host liability is based on the civil law concept of negligence. In negligence, whether a plaintiff is suing for a car accident, surgical malpractice, or an injury sustained during a party, they must prove that a defendant breached a duty of care they owed to the plaintiff, causing injury.
The framework for understanding social host liability stems from the seminal Supreme Court of Canada case of Childs v Desormeaux, 2006 SCC 18 (CanLII). In Childs, a partygoer left a party intoxicated and collided with an oncoming vehicle, which led to one death and several injuries. When the injured parties sued, they named as defendants both the driver and the party hosts, arguing that the hosts were obliged to monitor their guests' alcohol consumption and mitigate against risk.
The Court held that the hosts did not owe a duty of care to the plaintiffs injured in the third-party vehicle because they did not serve alcohol at the party, and such risk to a third party was not foreseeable. However, the Court's finding was fact-specific. It did not create any steadfast rule. Liability can exist if the factual matrix presents 'something more' than what the Court identified in Childs.
After Childs, plaintiffs who allege social host liability have attempted to prove that 'something more' existed in the circumstances of their case. Case law has established that either an inherently risky party setup or a paternalistic relationship owed from host to guest can create this 'something,' as in the Ontario Court of Appeal case Wardak v. Froom, 2017 ONSC 1166 (CanLII).
In Wardak, an underage and intoxicated party guest left a party hosted by his underage friend and got into a severe single-car accident. The guest sued their friend's parents, arguing they were aware of the underage drinking and breached a duty of care owed to the guest. The parents moved for a summary judgment motion; however, justice Matheson held that a trial was necessary because a finding of liability against the parents was possible.
So why was liability possible in Wardak but not in Childs? First, the guest in Childs was an adult, so there was no inherent paternalistic relationship between the host and guest. Further, the injured party in Childs was not a guest but the victim of a guest's drunk driving.
Now, what if the parents in Wardak had served the guest alcohol themselves? What if the guest was a legal adult at eighteen but not old enough to drink? These questions force courts to take a facts-based approach to social host liability and restrict any hard and fast rules.
While there is no settled law arising from either of these cases, it is clear that social host liability is a possibility where alcohol is involved. But are all social host cases inextricably tied to alcohol?
Liability for cannabis-related injuries
While no case has dealt with whether social hosts can be found liable for the injuries attached to a minor ingesting cannabis at a party, we can look at prior cases for factual similarities and guidance.
Many cases examining a social host's liability revolve around motor vehicle accidents and guests who drove impaired. It stands to reason that as cannabis consumption proliferates in Canadian culture, and police services develop more reliable methods of detecting cannabis in drivers, social host liability for motorists who drive under the influence of cannabis will likely be raised.
When this does occur, the Courts will look to Childs and note that a duty of care may exist in any party situation where there is a risk of foreseeable harm that is proximate between the host and guest. The likelihood of this being the case is higher where the guests are minors, first-time cannabis users, or where the party includes inherently risky activities, such as swimming, go-karting, or physical activity.
How can social hosts protect themselves from liability?
Party hosts generally do not owe a duty of care to third parties, but they can owe such a duty to their guests. To avoid liability, a host should take active and positive steps to ensure safety and mitigate risks. Some practices are relatively common, such as leaving car keys in a bowl or organizing taxis for guests, but some are more forward-thinking:
- Consider outlining safe party practices and plans for home commutes within the party invitation
- Take active steps to disallow minors from drinking, such as locking alcohol cupboards
- Offer a space for guests to stay the night
- Require one or more hosts to stay sober
- Require guests using cannabis to pre-plan a safe trip home
- Require underage guests to pre-plan their trip home
While the law associated with social host liability is somewhat grey, the best practices to avoid liability are intuitive and worthwhile considerations. Courts have taken a facts-based approach to determine liability because every event is different, and hosts must appreciate a set of obligations particular to themselves, their homes, and their guests.
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