Childs et al. v. Desormeaux et al. [Indexed as: Childs v. Desormeaux]

67 O.R. (3d) 385

[2003] O.J. No. 3800

Docket Nos. M30222 and C38836

Court of Appeal for Ontario

McMurtry C.J.O. (in chambers)

October 1, 2003

Civil procedure -- Parties -- Friend of court -- Applicant seeking to be added as friend of court in appeal -- Appellants appealing judgment dismissing their negligence action -- Appellants alleging that social host was negligent in allowing guest to leave to drive while drunk -- Applicant being public advocate against drunk driving -- Intervention allowed -- Rules of Civil Procedure, O. Reg. 560/84, rule 13.

The defendant DD was a guest at a New Year's Eve party hosted by the defendants JZ and DC. After he left the party, DD was involved in a traffic accident with a vehicle in which the plaintiff ZC was a passenger. ZC suffered serious injuries, and she sued JZ and DC for negligence, alleging that they had a duty of care to her. The trial judge, Chadwick J., held that the alleged duty of care was novel and did not fall within an established category. Chadwick J. applied the legal test for whether there was a duty of care, and he concluded that while there was a duty, there were good policy reasons not to expand tort law to make the defendant social [page386] hosts liable. ZC and the other plaintiffs appealed. Mothers Against Drunk Driving in Canada ("MADD Canada"), an advocate in the struggle against drunk driving, applied for leave to intervene in the appeal as a friend of the court.

Held, the motion should be granted.

Although the litigation involved private parties, the reality was that the issues involved broad public considerations. Whether to recognize that social hosts owe an actionable duty of care to members of the public was an issue that transcended the dispute between the immediate parties to the litigation. That MADD Canada was aligned with the position of the plaintiffs did not preclude it being granted status as a friend of the court. Today, most intervenors who intervene as a friend of the court articulate a position that may be generally aligned with one side of the argument. In this case, MADD Canada could make a useful contribution to the argument of the issues before the court, and its intervention would not cause injustice to the respondents. That the Executive Director of MADD Canada testified at the trial was also not a bar to its participation.

MOTION for leave to intervene as a friend of the court in an appeal.

Cases referred to Anns v. London Borough of Merton, [1978] A.C. 728, [1977] 2 All E.R. 492, [1977] 2 W.L.R. 1024, 121 Sol. Jo. 377, 141 J.P. 526, 75 L.G.R. 555 (H.L.) (sub nom. Anns v. Merton London B.C.); Authorson (Litigation Guardian of) v. Canada (Attorney General) (2001), 2001 4382 (ON CA), 9 C.P.C. (5th) 218, 147 O.A.C. 355, [2001] O.J. No. 2768 (QL) (C.A.); Childs v. Desormeaux (2002), 2002 17070 (ON SC), 217 D.L.R. (4th) 217, 13 C.C.L.T. (3d) 259, [2002] O.T.C. 628, [2002] O.J. No. 3289 (QL) (S.C.J.); Cooper v. Hobart, [2001] 3 S.C.R. 537, 96 B.C.L.R. (3d) 36, 206 D.L.R. (4th) 193, 277 N.R. 113, [2001] 11 W.W.R. 221, 2001 SCC 79, 8 C.C.L.T. (3d) 26 (sub nom. Cooper v. Registrar of Mortgage Brokers (B.C.) et al.); Louie v. Lastman (2001), 2001 2843 (ON CA), 208 D.L.R. (4th) 380, 152 O.A.C. 341, [2001] O.J. No. 4941 (QL) (C.A.); Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 1990 6886 (ON CA), 74 O.R. (2d) 164, 2 C.R.R. (2d) 327, 45 C.P.C. (2d) 1 (C.A.) Authorities referred to Krislov, S."The Amicus Brief: From Friendship to Advocacy" (1963) 72 Yale L. J. 694 Scriven, D., and P. Muldoon"Intervention as a Friend of the Court: Rule 13 of the Ontario Rules of Civil Procedure" (1986) 6 Adv. Q. 448

Barry D. Laushway, for appellant. Eric R. Williams, for respondents Zimmerman and Courrier. Earl A. Cherniak, Q.C., and Kirk F. Stevens, for proposed intervenors Mothers Against Drunk Driving Canada.

[1] MCMURTRY C.J.O.: -- This is a motion brought by Mothers Against Drunk Driving Canada ("MADD Canada") for leave to intervene as a friend of the court in the appeal brought by the Plaintiffs from the decision of Justice Chadwick rendered on August 30, 2002: Childs v. Desormeaux, 2002 17070 (ON SC), [2002] O.J. No. 3289 (QL), 217 D.L.R. (4th) 217, 13 C.C.L.T. (3d) 259, [2002] O.T.C. 628 (S.C.J.). [page387]

[2] The appellants support the application while the respondents oppose the intervention of MADD Canada. I am satisfied that MADD Canada should be permitted to intervene as a friend of the court.

[3] As I stated in Authorson (Litigation Guardian of) v. Canada (Attorney General) (2001), 2001 4382 (ON CA), 147 O.A.C. 355, 9 C.P.C. (5th) 218 (C.A.), at paras. 8 and 9:

Intervention of third parties into essentially private disputes should be carefully considered as any intervention can add to the costs and complexity of the litigation, regardless of an agreement to restrict submissions.

Many appeals will fall somewhere in between the constitutional and strictly private litigation continuum, depending on the nature of the case and the issues to be adjudicated. In my view, the burden on the moving party should be a heavier one in cases that are closer to the "private dispute" end of the spectrum.

While this litigation might, at first blush, appear to be one that is private in nature, a review of the decision reveals that the issues to be decided as described briefly below, engage a consideration of public policy.

[4] On December 31, 1998, the defendant Desormeaux was an invited guest at a New Year's Eve party hosted by his friends, the defendants Zimmerman and Courrier. According to the factual findings of the trial judge, Desormeaux became intoxicated during the evening to a level that was apparent to his hosts. As happens all [too] often, Desormeaux left the party in his motor vehicle and, tragically, was involved in a traffic accident with a vehicle in which the plaintiff, Zoe Childs, was a passenger. As a result of this accident, 17-year-old Zoe Childs was grievously and permanently injured. On the basis of the evidence adduced at trial, the trial judge found, at para. 104 of his decision, that the defendants "had a duty not to turn Desmond Desormeaux loose on the highway where he could cause injury or death to others". The defendants/respondents on appeal may well challenge both the factual and legal underpinnings of this conclusion.

[5] The plaintiffs argued that the case fell within those categories of cases where a duty of care resulting in tort liability had been previously recognized. Alternatively, the plaintiffs argued that if not within the scope of other recognized duties of care, then a new duty of care ought to be established.

[6] The trial judge held that the proposed duty of care did not fall within an established category of cases in which a duty of care had been previously recognized. Rather, the trial judge found that liability based on a finding of a duty of care imposed on "social hosts" in favour of third parties such as the plaintiff would be new and novel. [page388]

[7] As a result he was obliged to consider whether a new duty of care should be imposed in accordance with the decision of the House of Lords in Anns v. London Borough of Merton, [1978] A.C. 728, [1977] 2 All E.R. 492 (H.L.) as explained by the Supreme Court of Canada in Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537, 206 D.L.R. (4th) 193. At p. 551 S.C.R., p. 203 D.L.R. of the Cooper decision, McLachlin C.J.C. and Major J. on behalf of the court stated:

The proximity analysis involved at the first stage of the Anns test focuses on factors arising from the relationship between the plaintiff and the defendant. These factors include questions of policy, in the broad sense of that word. If forseeability and proximity are established at the first stage, a prima facie duty of care arises. At the second stage of the Anns test, the question still remains whether there are residual policy considerations outside the relationship of the parties that may negative the imposition of a duty of care. It may be, as the Privy Counsel suggests in Yuen Kun Yeu, that such considerations will not often prevail. However we think it useful expressly to ask, before imposing a new duty of care, whether despite forseeability and proximity of a relationship there are other policy reasons why the duty should not be imposed.

[Emphasis in original omitted]

[8] Ultimately, however, while the trial judge held that the plaintiffs had satisfied the first branch of the Anns test, he found "there is good policy reason not to expand tort law to include the social host. In my view it should be left to the legislature to determine a social host liability and also to properly compensate the innocent victims. As such the action is dismissed."

[9] Included in the evidentiary record was the evidence of Andrew Murie, the National Executive director of MADD Canada given in support of the analysis of the policy issues to be considered at the second stage of the Anns test. That this evidence was admitted and considered by the trial judge reflects the reality that the issues in this case involve broad policy considerations.

[10] As a result, while this is a dispute between individuals and in that regard private nature, the issue of whether, on the facts, a duty of care arose and if so whether such duty is or should be recognized in tort law, is one that differentiates this case from one that is solely of interest to the affected parties. Whether to recognize that social hosts owe an actionable duty of care to members of the public is an issue that transcends the dispute between the immediate parties to this litigation.

[11] MADD Canada is well known as a leading advocate in the struggle to end the carnage arising from drunk driving. One of its public policy activities relates to alcohol related civil liability. MADD Canada proposes to make submissions as to the issue of whether liability of social hosts in a case such as this falls within [page389] an existing head of liability or whether such liability is new and novel. If a new head of liability, MADD Canada also proposes to make submissions as to the relevant policy considerations that should inform the decision of whether to recognize such a new tort.

[12] It is not disputed that the position of MADD Canada is generally aligned with the position of the plaintiffs. It has an obvious and well known viewpoint from which it approaches the issue of civil liability arising out of alcohol related activities. Indeed, it is its very interest in the subject matter that has caused it to acquire experience and expertise in the area.

[13] Today most intervenors who intervene as a friend of the court articulate a position that may generally be aligned with one or another side of the argument. The submission of the respondents that a "friend of the court" must be neutral, abstract and objective refers to a restricted notion of the amicus curiae that has long been rejected. In the United States, the author Samuel Krislov, in "The Amicus Brief: From Friendship to Advocacy" (1963) 72 Yale L. J. 694 at p. 704, stated:

The Supreme Court of the United States makes no pretense of such disinterestedness on the part of "its friends". The amicus is treated as a potential litigant in future cases, as an ally of one of the parties, or as the representative of an interest not otherwise represented . . . thus the institution of the amicus curiae brief has moved from neutrality to partisanship, from friendship to advocacy.

[14] While the law of Ontario has not, perhaps, expanded the role of the friend of the court this far, David Scriven and Paul Muldoon, wrote as long ago as 1985, in their article "Intervention as a Friend of the Court: Rule 13 of the Ontario Rules of Civil Procedure" (1986) 6 Advocates' Q. 448, at pp. 456-57:

While the old case law implicitly assumes that a friend of the court cannot provide "assistance" when it intends to advocate its point of view, the language of Rule 13.02 appears to deny this traditional argument. The rule states that any person may intervene as a friend of the court for the purpose of rendering assistance to the court by way of argument. The term "argument" literally means to "persuade by giving reasons" and thus directly imports the notion of advocacy in such applications.

[15] Since the publication of this article the law of this province has developed to recognize the valid and important contribution that can be made in appropriate cases by friends of the court who may be advocates for a particular interpretation of the law. As Dubin C.J.O. succinctly stated in Peel (Regional Municipality) v. Great Atlantic & Pacific Company of Canada Ltd. (1990), 1990 6886 (ON CA), 74 O.R. (2d) 164, 45 C.P.C. (2d) 1 (C.A.), at p. 167 O.R.:

Although much has been written as to the proper matters to be considered in determining whether an application for intervention should be granted, in [page390] the end, in my opinion, the matters to be considered are the nature of the case, the issues which arise and the likelihood of the applicant being able to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties.

[16] As articulated by Dubin C.J.O., this is the test for intervention by public interest groups. I am satisfied that although the position of MADD Canada is generally aligned with the position of the plaintiffs, it can "make a useful contribution" to the argument of the issues before the court. Further, I am satisfied that intervention by MADD Canada will not cause injustice to the respondents. As stated by Morden J.A. in Louie v. Lastman (2001), 2001 2843 (ON CA), 208 D.L.R. (4th) 380, 152 O.A.C. 341 (C.A.), at p. 343 O.A.C.:

It is true that the intervention will expand the number of submissions to which the responding party will be obliged to reply but this, which is for the potential benefit of the court, is not an injustice. Further, having regard to the conditions I attach to the intervention order, the responding party may be compensated for any increased costs resulting from the intervention but will not be liable for costs in connection with it.

[17] While the Executive Director MADD Canada testified at trial, his testimony was restricted to the policy issues in support of recognizing a new tort, and not in relation to the underlying facts of the case. MADD Canada did not otherwise participate in the trial. Counsel for MADD Canada has stated that it will neither challenge the factual findings of the judge nor take any position as to the merits of the case as between the parties. Its participation will be limited, essentially, to whether tortious liability of social hosts does or should exist in Canadian law. In this context, I am satisfied that the fact that the Executive Director of MADD Canada was called to testify at trial is not a bar to its participation as a friend of the court on the appeal.

[18] Accordingly, I grant leave to MADD Canada to intervene as a friend of the court on the following conditions:

(a) that it take the record as is and will not be permitted to adduce further material;

(b) that it will not seek costs on the appeal, but that costs may be awarded against it;

(c) that it deliver its factum, not to exceed 20 pages in length, on or before October 10, 2003;

(d) that the respondents may deliver a supplementary factum, if necessary, to respond to matters raised by the intervenor no later than October 20, 2003; [page391]

(e) that the time allocated for its oral submissions be fixed at 20 minutes.

There will be no costs of this motion.

Order accordingly.