A host liability lawsuit, arising from a fatal drunk driving accident, is proceeding to trial in Ontario.

A recent Court of Appeal for Ontario ruling shows judges disagree on how the 2006 Supreme Court of Canada ruling in Childs v. Desormeaux should apply to lawsuits against owners of homes where motorists got drunk before driving.

On Oct. 18, 2011, Mark Williams was killed after he drove his car into the rear of a stationary tractor towing a trailer. His three children were passengers. The three children (through their litigation guardian) were allegedly injured and are suing Jake Richard and his mother, Eileen Richard.

Jake Richard lived at his mother’s place, where he was drinking with Williams the afternoon before Williams died. The plaintiffs are alleging the defendants breached their duty of care as social hosts. That allegation has not been proven.

car keys  and a  whiskey shotThe lawsuit was originally thrown out of court in Williams v. Richard, released in June, 2017 by Judge Kelly Gorman of the Ontario Superior Court of Justice.

That ruling was overturned by the Court of Appeal for Ontario in a ruling released Nov. 7, 2018, on the grounds that there are issues requiring trial.

Before the fatal accident in 2011, Williams drank about 15 cans of beer with Richard, who lived about 500 metres away from Williams. After drinking at the Richard’s home, Williams went to his home, picked up his babysitter and his three children and drove the babysitter home. Williams had the vehicle accident while returning to his home after dropping off the babysitter.

A trial needs to be held to determine “whether it was reasonably foreseeable,” on the part of the Richards, “that Mr. Williams would drive home and then drive his children and their babysitter, while under the influence of alcohol,” Justice William Hourigan of the Court of Appeal for Ontario wrote in its ruling released Nov. 7.

In initially dismissing the lawsuit, Judge Gorman “erred in concluding that any duty of care automatically expired when Mr. Williams arrived home” from Richard’s place, Hourigan added.

Judge Gorman had cited the Childs decision. Zoe Childs was paralyzed after a collision in 1999. The vehicle in which she was riding was hit by one driven by Desmond Desormeaux, who had been drinking at a party.

The Supreme Court of Canada ruled that the hosts of that party did not have a duty of care towards Childs.

“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,” Supreme Court of Canada judge Beverly McLachlin wrote in Childs.

But the circumstances of Childs were different from the circumstances under which Williams was killed in 2011, Hourigan wrote.

“This was not a large social gathering, rather it was two men drinking heavily in a garage,” wrote Hourigan.

Concurring were Bradly Miller and Gary Trotter, the other two judges hearing the appeal of the Williams children.

Since the Childs ruling was released in 2006, Canadian courts have issued several more decisions on host liability.

“While there is no definitive list, the case law has looked at a variety of factors to determine what could qualify as ‘something more’ that would make a social gathering an inherent and obvious risk, including: whether alcohol was served at the party or whether guests were invited to bring their own alcohol, the size and type of the party, and whether other risky behaviour was occurring at the party, such as underage drinking or drug use,” Hourigan wrote in Williams v. Richard.

Source: Canadian Underwriter