Under certain circumstances, a social host can be held liable if one of their guests drinks excessively at the function or party, then leaves while intoxicated, and consequently causes a motor vehicle accident.

 

In Hansen v. Sulyma, the Plaintiff was a passenger in a vehicle which had run out of gas, and pulled over to the side of the road. The Defendant, who was intoxicated after having been at a local pub, struck the vehicle in which the Plaintiff was a passenger in, rendering the Plaintiff a quadriplegic. While the Defendant was held to be mostly liable for the accident, the British Columbia Court of Appeal also found the pub to be 20% at fault.

 

[36] The law is clear, of course, that this court may not interfere with a trial judge’s apportionment of liability under the Negligence Act, R.S.B.C. 1996, c. 333, unless there are “very strong and cogent reasons” for doing so: see Moses v. Kim 2009 BCCA 82 at para. 33. Even given this stringent standard, however, I am persuaded that the allocation of minimal responsibility to the pub defendants was grossly disproportionate to their comparative blameworthiness, including their disregard of their statutory obligations. We were referred to various cases involving host liability to injured third parties, including Menow v. Honsberger [1974] S.C.R. 239 (S.C.C.) and Laface v. McWilliams 2005 BCSC 291. In Laface, Kirkpatrick J. (as she then was) in turn quoted at para. 187 a passage from a judgment of Mackenzie J. in Lum (Guardian ad litem of) v. McLintock (1997) 45 B.C.L.R. (3d) 303 (B.C.S.C.), where she stated:

In pragmatic terms, responsibility placed on commercial hosts is likely to be most effective as a deterrent in keeping intoxicated drivers off the roads. The cost of damage awards should modify rational conduct of commercial hosts directed to maximizing economic advantage … [At para. 27.]

In all the cases of commercial host liability to which Ms. Wright referred us, liability of between 78% and 28.5% was apportioned to defendants in the position of the pub defendants in this instance.

[37] Notably, counsel for Mr. Sulyma made no submission at trial as to what portion of blameworthiness should be allocated to these defendants. The plaintiff submitted that the figure should be 5% and the trial judge simply adopted that submission, apparently without considering the precedents in this province that augur in favour of a considerably higher apportionment. Moreover, the trial judge’s suggestion that she would have allocated 75% of the liability to Mr. Leprieur if only two parties had been involved, and her effectively “crediting” him with the 5% seems illogical, with all due respect. The proper course was for the trial judge to consider the relative fault of all three parties (assuming, as counsel agreed, that the pub defendants could be treated as one for the purposes of this determination) and to determine the relative blameworthiness of each in comparison to the others.

[38] I would allow the appeal on this point and re-apportion 20% of the liability to the pub defendants, 70% to Mr. Leprieur, and 10% to Mr. Sulyma.

 

In Lutter v. Smithson, the Plaintiff was injured in a motor vehicle accident when struck by a drunk driver. The Defendant driver had attended a “bring your own booze” party, and had left in a very inebriated state. The party was hosted by a family celebrating their 19 year old daughter’s birthday. An action was commenced against the drunk driver, as well as the hosts of the party, who brought an application to have the matter summarily dismissed. The Court, however, rejected this, holding that a summary trial application would not be appropriate, and that a full trial would be required to ensure the most complete record possible.

 

[15]         As a more general proposition, I am satisfied that the novel question of liability arising out of the consumption of alcohol by a minor at a party hosted on a defendant’s property as raised in this case is best addressed after a full trial. That approach ensures the most complete record possible. In reaching that conclusion, I take into account the additional costs to the Mazus associated with the trial process but there is otherwise no prejudice. In Sidhu v. Hiebert, 2011 BCSC 1364, the summary judgment application judge reached a similar conclusion.

 

[28]         In the present case, the application respondents point out that s. 33(1)(c) of the LCLA forbids a host permitting a minor to consume liquor “in or at a place under his or her control.” At the material time, the uncontradicted evidence is that Smithson was 18 years old and, accordingly, a minor. I agree with the respondents that this may militate in favour of imposing a positive duty. The evidence also reveals that other minors were present at the party, although it may be that most were also close to the age of majority.

 

[29]         To adopt some of the language in Childs, found at para. 45, these distinctions raise the question whether an adult host is actively implicated in the creation or enhancement of the risk if she permits an underage person on her property to consume alcohol to the point of intoxication, perhaps extreme intoxication. As in Sidhu, that important question is, in my view, better left to be determined upon the fullest record available after a regular trial. Accordingly, it would be unjust to decide the issue on a summary judgment application.

 

[30]         There is, in my view, a significant risk of injustice in attempting to determine the answers to the essential questions that the Mazus raise in this case on a summary trial. I dismiss the application. It is accordingly not necessary for me to review the detailed evidence filed on behalf of the Mazus, including the basis for Mrs. Mazu’s belief that Smithson would not drive and her reasons for not taking additional steps to reduce the risk that he might do so.

 

[31]         The application respondents should have approached this application differently and sought a separate determination whether it was appropriate for determination under the summary judgment rule. I decline to order any costs in their favour.

In Van Hove v. Boiselle, the Plaintiff was involved in a motor vehicle accident, and sued the Defendant for damages. ICBC’S lawyer consequently brought third party proceedings against the pub where the Defendant had been drinking before the accident, alleging that they over-served the Defendant. Counsel for the pub brought a summary trial application, arguing that the claim against them should be dismissed. The Court dismissed this part of the application, ruling that the matter would need to proceed to a full trial, where all evidence would be heard.

 

[16]             The duty of care that commercial hosts who serve alcohol owe to the general public arises out of the profit making nature of the enterprise and the well-known dangers associated with the product. It is generally foreseeable that intoxicated patrons may, as a direct result of their intoxication, cause injury to others.

 

[17]             The question then becomes one of the standard of care – whether, in the circumstances of a particular case, the commercial host did what was necessary to fulfill the duty. That inquiry includes the question of the whether the actual circumstances and means of injury were foreseeable.

 

[18]            A plaintiff who proves breach of both the duty and the standard of care must then prove causation – whether the breaches actually caused the injury, which would not have occurred “but for” the negligent conduct of the defendant.

 

[20]            One such fact in this case, on which I do not have sufficient evidence, is the level of Mr. Goll’s intoxication. If L.J.D.’s employees knew or ought to have known that he was as intoxicated as Ms. Boiselle, or nearly so, it may be open to a trial judge to find, on all of the evidence, that allowing her to leave the pub in his company did not meet the standard of care. It may also be open to a trial judge to find that her arrival home with an equally intoxicated person did not amount to a “safe” arrival within the meaning of the authorities and did not break the chain of causation.

 

In Sidhu v Hiebert, three children were injured, one of them seriously, as passengers in their parents’ vehicle when it was struck by a drunken motorist who had previously been at a social party. In addition to naming the at-fault motorist as a Defendant, the Plaintiffs also named the social host as a co-Defendant. Counsel for the Defendant brought an application to have the lawsuit dismissed as against the social host, however this application was rejected by the Court, which ruled that certain circumstances can give rise to liability being found against a social host.

 

[17]           Mr. Rattan’s position is that he owed no duty to the infant plaintiffs arising out of the fact that Mr. Hiebert had consumed alcohol at his home. He relies on the decision of the Supreme Court of Canada in Childs v. Desormeaux, 2006 SCC 18 (CanLII), 2006 SCC 18. Mr. Rattan says that the effect of Childs is that he owed no duty to monitor Mr. Hiebert’s alcohol intake while at his house, or to take any steps to protect other users of the highways when Mr. Hiebert proposed to drive away from his house.

 

[32] Whether a duty had been established on the face of it depended on the answer to this question: “What, if anything, links party hosts to third-party users of the highway?” (Childs, para. 24)…

 

[33] The Supreme Court of Canada’s answer was that injury to the plaintiff Childs was not reasonably foreseeable on the facts found by the trial judge and, even if foreseeability had been established, no duty would arise because the wrong alleged was a failure to act, or nonfeasance, in circumstances where there was no positive duty to act.

 

[34] There are two aspects of the Court’s answer that require examination in light of the issues raised in this case: first, the conclusion that the plaintiff’s injuries in Childs were not reasonably foreseeable on the facts as found in that case; second, that failure to act could not give rise to liability in circumstances where there was no duty to act.

 

[43] The court says at para. 31:

 

… However, where the conduct alleged against the defendant is a failure to act, foreseeability alone may not establish a duty of care. In the absence of an overt act on the part of the defendant, the nature of the relationship must be examined to determine whether there is a nexus between the parties. Although there is no doubt that an omission may be negligent, as a general principle, the common law is a jealous guardian of individual autonomy. Duties to take positive action in the face of risk or danger are not free-standing. Generally, the mere fact that a person faces danger, or has become a danger to others, does not itself impose any kind of duty on those in a position to become involved.

 

[44] I take from this passage that this aspect is also evidence-driven, in that whether there is a nexus between the parties will depend on the nature of any relationship revealed by the evidence. The passage also suggests that if there is more than a “mere fact that a person faces danger,” again revealed in the evidence, the general statement may not apply.

 

[45] The court in Childs summarized three situations where courts have in the past imposed positive duties to act: where a defendant has intentionally attracted and invited third parties to inherent and obvious risks created or controlled by the defendant; where there is a paternalistic, supervisory or controlling relationship between defendant and plaintiff; and where the defendant is engaged in a public function or commercial enterprise that implies responsibility to the public.

 

[46] I agree with counsel for Mr. Rattan that this case does not fit comfortably within any one of these three situations, but I also note that the Court in Childs at para. 34 said these were not strict legal categories, but serve to elucidate factors that can lead to positive duties to act.

 

[56] Because I am persuaded that this case should be decided on a full record of evidence at trial, I conclude that I should leave to trial the question of whether motorists can reasonably rely on a social host to not exacerbate an obvious risk by continuing to supply alcohol to an apparently impaired guest who the host knows will drive away from the party. It seems to me that justice requires that I allow the parties to develop the evidence and argument on a full trial.