Christmas party liability: When Cousin Eddie comes over

Author(s): Carr Hatch

December 16, 2019

Cousin Eddie and his family will be staying with you yet again. He will bring his Rottweiler and his old RV will be parked in your driveway. You will host your usual Christmas party with family and friends attending. Cousin Eddie’s Eggnog and, since 2018 and the Cannabis Act, his endless supply of marijuana will also be there. National Lampoon! Merry Christmas! Let’s have a look at party liability in Ontario.

Christmas Party Liability Cousin Eddie 1

The recent changes to marijuana laws have added another layer to social host liability in Ontario. Homeowners will face the same allegations of negligence when a party guest leaves the party and is injured or injures someone else while driving impaired, whether it is from alcohol, marijuana, or a combination of both. Whether the allegations will lead to actual findings of negligence will, of course, depend on the facts.

In 2017, we represented an 18-year-old who was badly injured in the frequently cited social host liability case of Wardak v. Froom. In that case, we were successful on a summary judgment motion brought by the homeowner’s insurer in efforts to dismiss the case outright. The homeowner was sued for permitting underage drinking while hosting a party. The party had several 17 and 18-year-olds in attendance. Most of the people there were 18 or 19, along with the homeowner/parents and a few guests in their early 20’s. The party host/parents knew there were underage drinkers there, and it was obvious everyone was drinking with a loud game of beer-pong going on in the basement. The party host/parents were upstairs most of the time but would go down to the basement to bring food and check in from time to time. They would also see guests come up from the basement to use the washroom. They admitted they observed our client as being “wobbly.” They did not serve their own alcohol at the party. One of the parents offered to walk our client home but lost track of him. Our client left the party on foot, got into a car at his home down the street, and was tragically involved in a single-vehicle accident while driving impaired.

The leading case on social host liability in Canada is the Supreme Court of Canada case of Childs v. Desormeaux, which said that party hosts do not owe a duty of care to injured third party road users without more. In that case, a New Year’s Eve party guest drove while impaired and paralyzed Zoe Childs, who was a third party occupant of a vehicle that just happened to be on the road at the time. The third party occupant had no connection to the party other than being struck by a party guest. The party hosts were not found to be at all responsible for the injured third party, as there needed to be something more.

The Wardak case, involving an 18-year-old, was distinguished from the Childs case because the injured party was not a third party but was an actual guest of the party and the Wardak case involved underage drinking. In argument, we focused on the “paternalistic relationship of supervision and control,” which was stated in the Childs case as a potential fact scenario where the party hosts may have a positive duty to act. We argued that the positive duty to act was triggered by there being known underage drinkers at their party.

Christmas Party Liability Cousin Eddie 2

The law has no interest in preventing people from having parties, even for Cousin Eddie. The Supreme Court of Canada in the Childs case did not consider hosting a house party as a risky activity. The Court found that hosting a party with alcohol involved is a common occurrence. In fact, the Childs case said that a party host is entitled to respect the autonomy of their guests and that drinking and the assumption of impaired judgment due to drinking is a personal choice that falls on the individual guest. What this means is if Cousin Eddie drinks too much at your house, he will be the one responsible if he gets into an accident with someone else. However, if Cousin Eddie threw up in your kitchen from drinking and you kept serving him; you knew he was vulnerable because he had a metal plate in his head (he does); and then you kicked him out of your house with his keys and you knew he was going to drive to go get Clark Griswold’s boss (Frank Shirley); the Childs decision would be distinguished and you would have reached that “without more”. Everything changes, however, where there are underage guests involved. This opens up the paternalistic relationship argument. Parents/party hosts need to be aware of this distinction. This arguably opens up a positive duty to act because their underage guests have a special vulnerability.

Do not hesitate to host a party with alcohol, just use common sense. Do not allow underage drinking or underage marijuana consumption. Do not encourage or provide it to underage guests. Take steps to make sure youngsters have plans to get home safely. Parents start getting in trouble when they try to act like teenagers themselves or, in some cases, they act like Cousin Eddie.

Take care and Happy Holidays!

Carr Hatch is a Partner at Thomson, Rogers. He has represented people across Ontario as well as Ontarians in the United States who were involved in drinking and drug related injury cases. To reach Carr please call 416-868-3208 or email him HERE.

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