March 15, 2017 by Canadian Underwriter
A recent court decision “highlights the amount of work required,” for a defendant being sued after hosting a party where people were consuming alcohol, to get a summary motion dismissing the case, two lawyers argued in a blog post this week.
The Ontario Superior Court of Justice ruling in Wardak v. Froom “provides important practice points that highlight the time and expense required to be successful on a summary judgment motion,” wrote lawyers Erin Durant and Kevin Nearing, in a blog post published Tuesday on the CanLII Connects website.
In April, 2011, Stephen and Carol Froom hosted a 19th birthday party for their son. A friend of their son, Dean Wardak, 18 at the time, walked to the party. Wardak drank alcohol, left the party and later drove.
“He drove over a fire hydrant and hit a tree,” wrote Madam Justice Wendy Matheson in a ruling released Feb. 17. “He was taken to hospital and a blood alcohol test showed .274 (274 mg. of alcohol to 100 ml. of blood), more than three time the legal limit. ”
Wardak “is now a quadriplegic with cognitive impairments,” Justice Matheson added. Wardak filed a lawsuit in 2013 against the Frooms, who asked the court for summary judgement, arguing the lawsuit was bound to fail.
Justice Matheson ruled against that motion, finding there are “genuine issues requiring a trial on the facts needed to reach a decision on the merits.”
Among the rulings cited were Childs v. Desormeaux, released in 2006 by the Supreme Court of Canada.
In Childs, Canada’s highest court ruled that “holding a private party at which alcohol is served …. is insufficient to implicate the host in the creation of a risk sufficient to give rise to a duty of care to third parties who may be subsequently injured by the conduct of a guest.”
In its unanimous ruling, the Supreme Court of Canada ruled against Zoe Childs, whose spine was severed (and was paralyzed) after an accident in 1999. Desmond Desormeaux had driven his vehicle into oncoming traffic and collided with a vehicle in which Childs was a passenger. Desormeaux drank alcohol at a party hosted by Dwight Courrier and Julie Zimmerman.
“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 who may be affected by a guest’s conduct,” Chief Justice of Canada Beverly McLachlin wrote in the unanimous decision in Childs.
The words “without more,” in the Childs ruling, “left the door open for other cases,” Justice Matheson wrote in 2017 in Wardak.
This “allows for a duty of care to arise in other circumstances that did not exist in Childs, such as if foreseeability of harm is present and other aspects of the relationship between the plaintiff and the defendant establish a special link or proximity,” wrote Nearing and Durant on their March 14 post on CanLII Connects. “In particular, a situation that could lead to a positive duty to act on a party host is in the circumstances of a paternalistic relationship of supervision and control.”