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

71 O.R. (3d) 195

[2004] O.J. No. 2065

Docket No. C38836

Court of Appeal for Ontario

O'Connor A.C.J.O., Weiler and Sharpe JJ.A.

May 19, 2004

*Application for leave to appeal to the Supreme Court of Canada was granted with costs to the applicants in any event of the cause February 17, 2005 (McLachlin C.J.C., Binnie and Charron JJ.).

Torts -- Negligence -- Duty of care -- Social hosts -- Hosts of BYOB house party not having duty of care to person who was injured by driving of impaired party guest -- Hosts not providing or serving guest with alcohol -- Hosts unaware of how much alcohol guest had drunk while at party and not knowing that guest was impaired when he drove away from party -- Hosts not having duty to monitor guest's drinking at party on basis of guest's history as heavy drinker.

The defendants C and Z ("the social hosts") hosted a potluck supper and BYOB party at their home on New Year's Eve. The defendant D was among the guests. He drove to the party in a car for which he did not have insurance. He was a longtime heavy drinker who had twice been convicted of impaired driving and had, in the past, frequently slept over at the social hosts' home when he had had too much to drink. After leaving the party, D was involved in a head-on collision with another vehicle when his car crossed the centre line of the highway. A passenger in the other car was rendered a paraplegic. She brought an action against D and the social hosts for damages. The trial judge held that D was liable for damages. That part of the judgment was not appealed.

With respect to the social hosts, the trial judge held that the plaintiff was asking the court to impose liability for a new duty of care rather than one falling within one of the recognized categories of duties in tort law. Before imposing liability for a new duty of care, the court must be satisfied: (1) that the relationship of the parties is sufficiently close to give rise to a duty of care; and (2) that there are no policy considerations that negative or limit the scope of the duty. The trial judge held that the first requirement was satisfied. He held that the social hosts had a duty to monitor D's drinking at the party because he had a history of being a heavy drinker and had arrived at the party with two passengers who were intoxicated. The trial judge declined, however, to impose a duty of care on the social hosts for policy reasons. He dismissed the action against them. He ordered that there be no order as to costs against the plaintiff. The plaintiff appealed both the finding that the social hosts were not liable and the costs order. The social hosts cross-appealed the costs order, arguing that the trial judge erred in not awarding a Sanderson order directing the payment of their costs from the Motor Vehicle Accident Claims Fund, which represented D.

Held, the appeal should be dismissed as to liability and allowed as to costs; the cross-appeal should be dismissed.

The trial judge did not err in concluding that the social host liability involved a novel duty of care. Social host liability is not simply an extension of commercial host liability. There are significant differences between the relationship of a commercial host and a social host. Commercial hosts serve alcohol for profit and, as a result, the relationship between the commercial host and the drinker is a contractual one giving each party legitimate expectations. The relationship between a social host and a guest is an informal one and, as a result, the expectations they have of one another differ widely. Commercial hosts are closely regulated by statute and have a statutory duty not to serve alcohol to a visibly intoxicated person. [page196]

To comply with their statutory duty, commercial hosts must monitor the alcohol consumption of their patrons and control the structure of the environment in which alcohol is served. Alcohol consumption is a prevalent feature in the ordinary, day-to-day social interaction between social hosts and their guests, but there are no statutory standards against which to judge the imposition of a duty at common law on social hosts. The supply and service of alcohol is unregulated and the environment in which it is served varies widely.

At a BYOB party, social hosts do not assume control over the supply and service of alcohol; they merely provide the venue for the consumption of alcohol. Commercial hosts carry liability insurance as part of the cost of doing business and can spread the cost of their premiums among their patrons. Social hosts often do not have insurance, or have limited insurance for this type of risk and have no means of passing on the costs of insurance premiums to others. Thus, social hosts do not fall neatly into the same category as commercial hosts. Rather, the differences between the situation of a commercial host and a social host require the court to consider whether to impose a duty of care on this new category.

The trial judge erred in his formulation of the duty owed by social hosts to users of the road. On the specific facts of this case, the social hosts did not owe a duty of care to users of the road. Their party was a BYOB party, and they did not provide or serve the alcohol consumed by D. There was no evidence to suggest that the social hosts knew how much alcohol D drank while at the party. Most importantly, the trial judge did not find that the social hosts knew that D was impaired when he drove away from the party. To the extent that the trial judge's reasons might be read as implicitly holding that the social hosts should have known that D was intoxicated because, despite knowing D's history as a heavy drinker, they did not monitor his drinking, the trial judge erred. A person's history of drinking is not the basis of a commercial host's duty to monitor a patron's drinking; still less should it form the basis for imposing any duty on a social host to monitor a guest's drinking at a BYOB party where alcohol is neither provided nor served by the social hosts. The trial judge's errors also undermined his finding that the social hosts were negligent because they did not stop D from driving.

It was unnecessary to decide whether liability should be negated for policy reasons. Such a conclusion should not be reached in a vacuum, but in the context of an overall weighing of whether it is just and fair to impose liability. In order to determine whether the potential benefits of imposing a duty of care on social hosts towards users of the road outweigh the burden placed on social hosts in their interaction with their guests, the extent of the burden must first be determined. That determination was left for another day.

The conclusion that the appeal should be dismissed should not be interpreted to mean that social hosts are immune from liability to innocent third party users of the road for damages caused by impaired guests who drive a car. On the contrary, social host liability was not foreclosed, particularly where it is shown that a social host knew that an intoxicated guest was going to drive a car and did nothing to protect innocent third parties.

The trial judge was correct in holding that, as this case presented a novel issue, there should be no order as to costs against the plaintiff. However, the plaintiff should be awarded her costs against D on a partial indemnity basis, as the issue respecting his liability was not novel. The cross-appeal as to costs should be dismissed on the basis of the novelty of the issue.

APPEAL from a judgment of Chadwick J., 2002 17070 (ON SC), [2002] O.J. No. 3289, 217 D.L.R. (4th) 217 (S.C.J.) dismissing an action and from a costs order of Chadwick J., [2002] O.J. No. 831 (S.C.J.); CROSS-APPEAL from the costs order. [page199]

Dryden (Litigation guardian of) v. Campbell Estate, [2001] O.J. No. 829, 11 M.V.R. (4th) 247 (S.C.J.); [page197] Menow v. Jordan House Ltd., 1973 16 (SCC), [1974] S.C.R. 239, 38 D.L.R. (3d) 105; Stewart v. Pettie, 1995 147 (SCC), [1995] 1 S.C.R. 131, 25 Alta. L.R. (3d) 297, 121 D.L.R. (4th) 222, 177 N.R. 297, [1995] 3 W.W.R. 1, 23 C.C.L.T. (2d) 89, 8 M.V.R. (3d) 1, distd Anns v. Merton London Borough Council, [1977] 2 All E.R. 492, [1978] A.C. 728, 141 J.P. 526, [1977] 2 W.L.R. 1024, 121 Sol. Jo. 377, 75 L.G.R. 555 (H.L.); Kamloops (City) v. Nielsen, 1984 21 (SCC), [1984] 2 S.C.R. 2, 66 B.C.L.R. 273, 10 D.L.R. (4th) 641, 54 N.R. 1, [1984] 5 W.W.R. 1, 29 C.C.L.T. 97, 26 M.P.L.R. 81, apld Other cases referred to Alchimowicz v. Schram (1999), 1999 2655 (ON CA), 116 O.A.C. 287, [1999] O.J. No. 115 (C.A.) [Leave to appeal to the S.C.C. refused, [1999] S.C.C.A. No. 127], affg [1997] O.J. No. 135, 22 O.T.C. 351 (Gen. Div.); Baumeister (Guardian ad litem of) v. Drake (1986), 1986 962 (BC SC), 5 B.C.L.R. (2d) 382, 38 C.C.L.T. 1 (S.C.); Calliou Estate (Public Trustee of) v. Calliou Estate (2002), 99 Alta. L.R. (3d) 390, 306 A.R. 322, [2002] 3 W.W.R. 655, 2002 ABQB 68 (Q.B.); Canada v. Saskatchewan Wheat Pool, 1983 21 (SCC), [1983] 1 S.C.R. 205, 143 D.L.R. (3d) 9, 45 N.R. 425, [1983] 3 W.W.R. 97, 23 C.C.L.T. 121 (sub nom. Saskatchewan Wheat Pool v. R.); Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General) (2004), 234 D.L.R. (4th) 257, 315 N.R. 201, 180 C.C.C. (3d) 353, 46 R.F.L. (5th) 1, 2004 SCC 4, 16 C.R. (6th) 203, [2004] S.C.J. No. 6; Chretien v. Jensen (1998), 1998 4512 (BC CA), 58 B.C.L.R. (3d) 186, [1999] 6 W.W.R. 648 (C.A.), affg [1997] B.C.J. No. 3016 (S.C.); 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.); Crocker v. Sundance Northwest Resorts Ltd., 1988 45 (SCC), [1988] 1 S.C.R. 1186, 64 O.R. (2d) 64n, 29 O.A.C. 1, 51 D.L.R. (4th) 321, 86 N.R. 241, 44 C.C.L.T. 225; Edwards v. Law Society of Upper Canada, 2001 SCC 80, [2001] 3 S.C.R. 562, 56 O.R. (3d) 456n, 206 D.L.R. (4th) 211, 277 N.R. 145, 2001 SCC 80, 8 C.C.L.T. (3d) 153, 13 C.P.C. (5th) 35; Fitkin (Litigation Administrator of) v. Latimer (1997), 1997 1534 (ON CA), 35 O.R. (3d) 464 (C.A.), affg (1993), 1993 8490 (ON SC), 35 O.R. (3d) 466 (Gen. Div.); Hague v. Billings (1993), 1993 8581 (ON CA), 13 O.R. (3d) 298, 102 D.L.R. (4th) 44, 15 C.C.L.T. (2d) 264, 46 M.V.R. (2d) 254 (C.A.), revg in part (1989), 1989 4065 (ON SC), 68 O.R. (2d) 321, 48 C.C.L.T. 192 (H.C.J.); Hall v. Hebert, 1993 141 (SCC), [1993] 2 S.C.R. 159, 78 B.C.L.R. (2d) 113, 101 D.L.R. (4th) 129, 152 N.R. 321, [1993] 4 W.W.R. 113, 15 C.C.L.T. (2d) 93, 45 M.V.R. (2d) 1; Hamilton v. Open Window Bakery Ltd., [2004] 1 S.C.R. 303, 235 D.L.R. (4th) 193, 316 N.R. 265, 2004 SCC 9, 40 B.L.R. (3d) 1, [2004] S.C.J. No. 72, revg in part (2002), 2002 41449 (ON CA), 58 O.R. (3d) 767, 211 D.L.R. (4th) 443 (C.A.); Hercules Managements Ltd. v. Ernst & Young, 1997 345 (SCC), [1997] 2 S.C.R. 165, 115 Man. R. (2d) 241, 146 D.L.R. (4th) 577, 211 N.R. 352, 139 W.A.C. 241, [1997] 8 W.W.R. 80, 31 B.L.R. (2d) 147, 35 C.C.L.T. (2d) 115; Home Office v. Dorset Yacht Co. Ltd., [1970] 2 All E.R. 294, [1970] A.C. 1004, [1970] 2 W.L.R. 1140, [1970] 1 Lloyd's Rep. 453, 114 Sol. Jo. 375 (H.L.); Hunt (Litigation Guardian of) v. Sutton Group Incentive Realty Inc. (2002), 2002 45019 (ON CA), 60 O.R. (3d) 665, 215 D.L.R. (4th) 193, 2002 C.L.L.C. Â210-031, 32 M.V.R. (4th) 45 (C.A.), revg (2001), 2001 28027 (ON SC), 52 O.R. (3d) 425, 196 D.L.R. (4th) 738, 2001 C.L.L.C. Â210-010, 12 M.V.R. (4th) 88, 4 C.C.L.T. (3d) 277 (S.C.J.); Jacobsen v. Nike Canada Ltd. (1996), 1996 3429 (BC SC), 19 B.C.L.R. (3d) 63, 133 D.L.R. (4th) 377, [1996] 6 W.W.R. 488, 17 C.C.E.L. (2d) 90 (S.C.); Kelly v. Gwinnell, 96 N.J. 538 (Sup. Ct. 1984); M'Alister (or Donoghue) v. Stevenson, 1932 536 (FOREP), [1932] A.C. 562, 101 L.J.P.C. 119, 48 T.L.R. 494, 37 Com. Cas. 350, 1932 S.C. (H.L.) 31, 147 L.T. 281, 76 Sol. Jo. 396 (H.L.); Mahar v. Rogers Cablesystems Ltd. (1995), 1995 7129 (ON SC), 25 O.R. (3d) 690, [1995] O.J. No. 3711 (Gen. Div.); Mortimer v. Cameron (1994), 1994 10998 (ON CA), 17 O.R. (3d) 1, 111 D.L.R. (4th) 428, 1 L.W.R. 57, 19 M.P.L.R. (2d) 286 (C.A.) [Leave to appeal to S.C.C. refused (1994), 19 O.R. (3d) xvi, 23 M.P.L.R. (2d) 314, 178 N.R. 146n], revg in part (1992), 9 M.P.L.R. (2d) 185, [1992] O.J. No. 764 (Gen. Div.); [page198] Nespolon v. Alford (1998), 1998 7127 (ON CA), 40 O.R. (3d) 355, 161 D.L.R. (4th) 646, 41 C.C.L.T. (2d) 258, 35 M.V.R. (3d) 280 (C.A.) [Leave to appeal to S.C.C. refused (1999), 236 N.R. 183n], revg [1995] O.J. No. 1616 (Gen. Div.); Odhavji Estate v. Toronto (Metropolitan) Police Force, [2003] 3 S.C.R. 263, 233 D.L.R. (4th) 193, 312 N.R. 305, 2003 SCC 69, 19 C.C.L.T. (3d) 163, [2003] S.C.J. No. 74, 11 Admin. L.R. (4th) 45 (sub nom. Odhavji Estate v. Woodhouse, Odhavji Estate v. Metropolitan Toronto Police Force); Ontario Hospital Services Commission v. Borsoski (1973), 1973 479 (ON SC), 7 O.R. (2d) 83, 54 D.L.R. (3d) 339 (H.C.J.); Paterson Zochonis & Co. v. Merfarken Packaging Ltd., [1986] 3 All E.R. 522 (C.A.); Prevost (Committee of) v. Vetter (2002), 100 B.C.L.R. (3d) 44, 210 D.L.R. (4th) 649, 11 C.C.L.T. (3d) 127, 2002 BCCA 202 (B.C.C.A.), revg (2001), 2001 BCSC 297 (B.C.S.C.), supp. reasons 197 D.L.R. (4th) 292, 5 C.C.L.T. (3d) 266, 2001 BCSC 312 (B.C.S.C.); R. v. Salituro, 1991 17 (SCC), [1991] 3 S.C.R. 654, 131 N.R. 161, 8 C.R.R. (2d) 173, 68 C.C.C. (3d) 289, 9 C.R. (4th) 324; Rose v. Pettle (2004), 23 C.C.L.T. (3d) 21, 43 C.P.C. (5th) 183, [2004] O.J. No. 739 (S.C.J.); Stevenson v. Clearview Riverside Resort, [2000] O.J. No. 4863, [2000] O.T.C. 908 (S.C.J.); Watkins v. Olafson, 1989 36 (SCC), [1989] 2 S.C.R. 750, 39 B.C.L.R. (2d) 294, 61 Man. R. (2d) 81, 61 D.L.R. (4th) 577, 100 N.R. 161, [1989] 6 W.W.R. 481, 50 C.C.L.T. 101 (sub nom. Watkins v. Manitoba); Wince (Guardian ad Litem of) v. Ball (1996), 1996 10414 (AB KB), 40 Alta. L.R. (3d) 66, 136 D.L.R. (4th) 104 (Q.B.); Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.), 1997 336 (SCC), [1997] 3 S.C.R. 925, 121 Man. R. (2d) 241, 152 D.L.R. (4th) 193, 219 N.R. 241, 158 W.A.C. 241, [1998] 1 W.W.R. 1, 39 C.C.L.T. (2d) 155, 31 R.F.L. (4th) 165; Winnipeg Condominium Corp. No. 36 v. Bird Construction Co., 1995 146 (SCC), [1995] 1 S.C.R. 85, 100 Man. R. (2d) 241, 121 D.L.R. (4th) 193, 176 N.R. 321, 91 W.A.C. 241, [1995] 3 W.W.R. 85, 23 C.C.L.T. (2d) 1, 43 R.P.R. (2d) 1 Statutes referred to Courts of Justice Act, R.S.O. 1990, c. C.43, s. 131(1) Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 57.01 Authorities referred to Adjin-Tettey, E."Social Host Liability: A Logical Extension of Commercial Host Liability?" (2002) 65 Sask. L. Rev. 515 Black, V."The Transformation of Causation in the Supreme Court: Dilution and 'Policyization'" in T. Archibald and M. Cochrane eds., Annual Review of Civil Litigation 2002 (Toronto: Thomson Carswell, 2003) Brazier, M., and J. Murphy, Street on Torts, 10th ed. (London: Butterworths, 2001) Drinking and Driving in Europe, a Eurocare Report to the European Union (Brussels: Eurocare, June 2003), online: http://www.eurocare.org Fleming, J.G., The Law of Torts, 9th ed. (Sydney: Law Book Co., 1998) Klar, L.N., Tort Law (Toronto: Carswell, 1996) Klar, L.N., Tort Law, 3rd ed. (Toronto: Thomson Carswell, 2003) Orkin, M.M., The Law of Costs, 2nd ed., looseleaf (Aurora: Canada Law Book, 1987) Zablocki, C.A."The Emergence and Evolution of Social Host Liability in Canada" in T. Archibald and M. Cochrane, eds., Annual Review of Civil Litigation 2003 (Toronto: Thomson Carswell, 2004)

Barry D. Laushway and Beth M. Alexander, for appellants. Eric R. Williams and Jaye E. Hooper, for respondent Julie Zimmerman. Earl A. Cherniak, Q.C., and Kirk F. Stevens, for intervenor Mothers Against Drunk Driving. Helmut R. Brodmann, for respondent Desmond Desormeaux.

The judgment of the court was delivered by

WEILER J.A.: --

OVERVIEW

[1] In this appeal we are asked to decide whether homeowners owe a duty of care to a user of the road who is injured by the driving of an impaired guest after attending a Bring Your Own Booze party ("BYOB") at their home.

[2] Over the past 30 years, the law respecting liability on commercial hosts for alcohol-related injuries has steadily evolved. The starting point was the decision of the Supreme Court of Canada in Menow v. Jordan House Ltd., 1973 16 (SCC), [1974] S.C.R. 239, 38 D.L.R. (3d) 105. The Supreme Court held that a hotel owed a duty of care to a visibly intoxicated patron whom it ejected, after serving him beer when he was visibly intoxicated in violation of applicable liquor licensing legislation, and in the knowledge that he would have to walk along a well-travelled highway at night in order to get home. More recently, in Stewart v. Pettie, 1995 147 (SCC), [1995] 1 S.C.R. 131, 121 D.L.R. (4th) 222, the Supreme Court held that a commercial host also owes a duty of care to third parties who are users of the road to take reasonable steps to prevent a patron, whom the host should have known was intoxicated, from driving.

[3] In this case, a user of the road, Zoë Childs, was seriously injured when the car in which she was riding was struck by another car driven by an impaired driver, Desmond Desormeaux. Prior to the collision, Desormeaux attended a BYOB party at the home of social hosts Julie Zimmerman and Dwight Courrier and became impaired. Childs sued Desormeaux, as well as Zimmerman and Courrier, alleging that their negligence contributed to her injuries. The trial judge held Desormeaux liable for the injuries caused to Childs. No appeal is taken from that decision.

[4] In relation to Zimmerman and Courrier, the trial judge held that Childs was asking the court to impose liability for a new duty of care, rather than one falling within one of the recognized categories of duties in tort law. Before imposing liability for a [page200] new duty of care, the court must be satisfied: (1) that the relationship of the parties is sufficiently close to give rise to a duty of care and (2) that there are no policy considerations that negative or limit the scope of the duty.

[5] The trial judge held that the first requirement was satisfied. He held that the social hosts had a duty to monitor Desormeaux's drinking while at the party because he had a history of being a heavy drinker and had arrived at the party with two passengers who were intoxicated. The trial judge declined, however, to impose a duty of care on Zimmerman and Courrier for policy reasons. Accordingly, he dismissed the action. The trial judge's reasons are reported at 2002 17070 (ON SC), [2002] O.J. No. 3289, 217 D.L.R. (4th) 217 (S.C.J.) and [2003] O.J. No. 831 (S.C.J.). Childs appeals.

[6] I agree with the trial judge that the action should be dismissed but not for the reason that he gave. Unlike the trial judge, on the specific facts of this case, I would not hold that the social hosts owed a duty of care to users of the road. There are a number of factors that lead me to this conclusion.

[7] First, the party hosted by the defendants, Courier and Zimmerman, was a BYOB party. Thus, the social hosts did not provide, nor did they serve, the alcohol consumed by Desormeaux. Second, there was no evidence to suggest that the social hosts knew how much alcohol Desormeaux drank while at the party. Third, and most importantly, the trial judge did not find that the social hosts knew that Desormeaux was impaired when he drove away from the party.

[8] To the extent the trial judge's reasons may be read as implicitly holding that Courrier and Zimmerman should have known that Desormeaux was intoxicated because, despite knowing Desormeaux's history as a heavy drinker, they did not monitor his drinking, the trial judge erred. A person's history of drinking is not the basis of a commercial host's duty to monitor a patron's drinking; still less should it form the basis for imposing any duty on a social host to monitor a guest's drinking at a BYOB party where alcohol is neither provided nor served by the social hosts. The trial judge's errors also undermined his finding that the social hosts were negligent because they did not stop Desormeaux from driving his car.

[9] Because it is unnecessary for me to do so, I do not decide whether liability should be negated for policy reasons. Such a conclusion should not be reached in a vacuum, but in the context of an overall weighing of whether it is just and fair to impose liability. In order to determine whether the potential benefits of imposing a duty of care on social hosts towards users of the road outweigh the burden placed on social hosts in their interaction [page201] with their guests, the extent of the burden must first be determined. That determination is left for another day.

[10] My conclusion that this appeal should be dismissed should not be interpreted to mean that social hosts are immune from liability to innocent third party users of the road for damages caused by impaired guests who drive a car. On the contrary, I do not foreclose social host liability, particularly when it is shown that a social host knew that an intoxicated guest was going to drive a car and did nothing to protect innocent third parties.

[11] Lastly, I deal with the appeal and cross-appeal on costs. The trial judge ordered that there be no order as to costs against Childs. Childs contends that the trial judge erred in not awarding her costs at least as against Desormeaux. Zimmerman and Courrier cross-appeal, arguing that the trial judge erred in not awarding a Sanderson order directing the payment of their costs from the Motor Vehicle Accident Claims Fund, which represented Desormeaux. Desormeaux supports the trial judge's costs order. I agree with the trial judge that as this case presents a novel issue there should be no order as to costs at trial made against Childs. I would, however, award Childs her costs against Desormeaux on a partial indemnity basis, as the issue respecting his liability is not novel. I would dismiss the cross appeal, again, on the basis of the novel issue presented here.

FACTS

[12] On New Year's Eve 1998, Julie Zimmerman and Dwight Courrier hosted a potluck supper and BYOB house party, which was attended by several relatives and friends. Desmond Desormeaux, an old friend of Courrier, was among the invited guests. Desormeaux drove to the party with his girlfriend, Maureen O'Brien and a friend, Ray Sauvé, in a car Desormeaux had recently inherited. He did not have insurance for the car. Desormeaux was a long-time heavy drinker who had been convicted of impaired driving in both 1991 and 1994. He had also been convicted of driving while his licence was suspended in 1996. The group arrived with some fried chicken, a case of 24 beers, a bottle of Amaretto and a bottle of wine, this last being for Maureen O'Brien. Desormeaux's companions were intoxicated. Desormeaux had, in the past, frequently slept over at the social hosts' home when he had had too much to drink.

[13] After Sauvé got into an altercation with another guest, the group left with Desormeaux driving his vehicle. Shortly afterwards, Desormeaux's vehicle crossed the centre line of the highway into the path of an oncoming vehicle driven by Patricia [page202] Hadden and collided head on with it. Zoë Childs, a passenger in the Hadden vehicle, was rendered a paraplegic. Childs' boyfriend Derek Dupre, also a passenger, was killed. All of the other passengers in both cars were seriously injured. Desormeaux's blood sample taken following the accident showed he had a blood-alcohol concentration of 183 mg in 100 ml of blood. The legal limit is 80 mg in 100 ml of blood. Childs sued Desormeaux and the social hosts Zimmerman and Courrier for damages. All counsel agreed that the issues of liability and damages would be bifurcated and that the issue of liability would be tried first.

[14] The trial judge held Desormeaux liable for the injuries to Childs and the other plaintiffs. As I have indicated, this aspect of the trial judge's order is not being appealed. He further held that if Courrier and Zimmerman were also liable, he would apportion liability as between the defendants 85 per cent to Desormeaux and 15 per cent to Courrier and Zimmerman. All parties agree that Desormeaux appears to have no assets and, having regard to the rules of joint and several liability, the social hosts, if liable, would effectively assume the full burden of the damage award in this case.

ISSUES

[15] I propose to address the issues in the following order:

1. Did the trial judge err in concluding that social host liability involves a novel duty of care?

2. Did the trial judge err in his formulation of the duty owed by social hosts to users of the road?

3. Did the trial judge err in holding that tort law should not be expanded to include social host liability for policy reasons?

4. The appeal and cross-appeal on costs.

I. Did The Trial Judge Err in Concluding that Social Host Liability Involves a Novel Duty of Care?

The Anns test

[16] Liability in tort is premised on (1) a duty of care; (2) a breach of the duty of care; and (3) a causal relationship between the defendant's breach of duty and the plaintiff's loss or injuries: Stewart v. Pettie, supra, at paras. 24-33 and para. 60.

[17] The existence of a duty of care is determined by applying the test in [page203] Anns v. Merton London Borough Council, [1977] 2 All E.R. 492, [1978] A.C. 728, affirmed in Kamloops (City) v. Nielsen, 1984 21 (SCC), [1984] 2 S.C.R. 2, 10 D.L.R. (4th) 641, at pp. 10-11 S.C.R. and Stewart v. Pettie, supra, at para. 24. The first step in the analysis is to determine whether the circumstances in the particular case can be characterized as falling within one of the recognized categories of duties.

[18] If the claim cannot be characterized as coming within existing categories, the court will then embark upon the two- stage analysis of the Anns test to determine whether a new duty of care should be recognized. As formulated in Kamloops, supra, the court must answer two questions which may be stated as follows:

(1) Is there a sufficiently close relationship between the parties such that in the reasonable contemplation of the defendants carelessness on their part might cause damage to the plaintiffs?

(2) If so, are there any considerations which ought to negative or limit: (a) the scope of the duty; (b) the class of persons to whom the duty is owed; or (c) the damages to which the breach of the duty may give rise?

[19] Once the court determines that a claim does not come within an existing category of tort, the court first determines if the risk of harm was foreseeable and examines the strength and directness of the relationship between the litigants. This is because the guiding principle in tort law requires a nexus or relationship between the injured person and the injuring person. This nexus or relationship makes it reasonable for the defendant to owe a duty to the plaintiff not to expose him or her to an unreasonable risk of harm: Jordan House, supra, at p. 247 S.C.R.

[20] The type of nexus or relationship in which a duty of care to guard against foreseeable harm is imposed is described by the term proximity. In Odhavji Estate v. Toronto (Metropolitan) Police Force, 2003 SCC 69, [2003] 3 S.C.R. 263, 233 D.L.R. (4th) 193, Iacobucci J. explained at paras. 49-51:

McLachlin C.J. and Major J. concluded [in Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537] at para. 32, that the term "proximity", in the context of negligence law, is used to describe the type of relationship in which a duty of care to guard against foreseeable harm may rightly be imposed. As this Court stated in Hercules Managements Ltd. v. Ernst & Young, 1997 345 (SCC), [1997] 2 S.C.R. 165, at para. 24:

The label "proximity" as it was used by Lord Wilberforce in Anns, supra, was clearly intended to connote that the circumstances of the relationship inhering between the plaintiff and defendant are of such a nature [page204] that the defendant may be said to be under an obligation to be mindful of the plaintiff's legitimate interests in conducting his or her affairs.

Consequently, the essential purpose of the inquiry is to evaluate the nature of that relationship in order to determine whether it is just and fair to impose a duty of care on the defendant. The factors that are relevant to this inquiry depend on the circumstances of the case. As stated by McLachlin J. (as she then was) in Norsk, supra, at p. 1151"[p]roximity may usefully be viewed, not so much as a test in itself, but as a broad concept which is capable of subsuming different categories of cases involving different factors" . . . Examples of factors that might be relevant to the inquiry include the expectations of the parties, representations, reliance and the nature of the property or interest involved.

(Emphasis added)

[21] At the first stage of the Anns test, once the foreseeability of injury is established, the determination of whether there is a relationship of proximity requires the court to consider case-specific factors in evaluating the relationship in order to come to a conclusion whether it is just and fair to impose liability. The determination of whether it is just and fair to impose liability requires the court to make a policy decision: Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537, 206 D.L.R. (4th) 193.

[22] One of the case-specific factors the court considers in evaluating the relationship is the nature of the injuries. Where a person suffers serious physical harm, or a person's health and safety is threatened, courts are more likely to recognize a duty of care not to expose others to the risk of harm. See John G. Fleming, The Law of Torts, 9th ed. (Sydney: Law Book Co., 1998) at p. 7. Examples include Jordan House, supra; Kamloops, supra; and Winnipeg Condominium Corp. No. 36 v. Bird Construction Co., 1995 146 (SCC), [1995] 1 S.C.R. 85, 121 D.L.R. (4th) 193. Where the defendant breaches his duty of care to one person and it is only chance that that person was not injured and a third party was injured instead, the policy of the law appears to be that it is just and fair the third party should not be prevented from claiming compensation from the defendant: Stewart v. Pettie, supra. See also, Vaughan Black"The Transformation of Causation in the Supreme Court: Dilution and 'Policyization'" in Todd Archibald and Michael Cochrane eds., Annual Review of Civil Litigation 2002 (Toronto: Thomson Carswell, 2003) 187 at p. 211.

[23] Another case-specific factor is whether there is a statute regulating the activity in question and whether the statute indicates an intention on the part of the legislature that those who breach the statutory duty imposed on them should be liable to the individuals affected. In cases involving the service of alcohol by a commercial establishment, the underlying liquor licence statutes have played a role in the imposition of a duty of care: [page205] Jordan House, supra. In other regulatory cases involving pure economic loss, a legislative intent not to impose a private law duty of care has been inferred: Edwards v. Law Society of Upper Canada, 2001 SCC 80, [2001] 3 S.C.R. 562, 206 D.L.R. (4th) 211 and Cooper v. Hobart, supra. The existence and nature of any statutory obligations is also relevant to the expectations of the parties, which is another factor in considering whether it is just and fair to impose liability.

[24] Once the trier of fact concludes that the nature of the relationship was such that the defendant ought to have had regard for the interests of the plaintiff, that the injury in question was foreseeable and that there are no case-specific factors that would negate or limit the imposition of liability, the court will proceed to the second stage of the Anns test. At this second stage of the Anns test, the court will consider whether there are other residual policy considerations outside the relationship of the parties that might affect the imposition of a duty of care. The policy considerations concern the effect of recognizing a duty of care on other legal obligations, its impact on the legal system and society more generally: Edwards, supra; Cooper, supra. The court may also consider deterrence, which is a policy consideration that favours liability: Hercules Managements Ltd. v. Ernst & Young, 1997 345 (SCC), [1997] 2 S.C.R. 165, 146 D.L.R. (4th) 577. At this stage, the onus falls on the defendants to show why they, as the persons who negligently caused the loss, should be able to evade liability: Edwards, supra; Cooper, supra.

[25] Where the case does not fall within a recognized category of liability so that consideration of both case- specific and broader factors is required, there is an overlap in the analysis. The reason there is an overlap is because in considering whether it is just and fair to hold the defendant liable, tort law is not simply intended to make persons accountable for their wrongful conduct by compensating the victim but is also intended to promote the welfare of society by preventing accidents and spreading loss. See Elizabeth Adjin-Tettey"Social Host Liability: A Logical Extension of Commercial Host Liability?" (2002) 65 Sask. L. Rev. 515 at pp. 526-32. Recognizing this, the Supreme Court's decisions in Odhavji Estate and in Cooper emphasize the first stage of the Anns test and subsume the considerations in the second stage as part of the determination of whether it is just and fair to impose liability.

The trial judge's decision that this case did not fall within one of the recognized categories of duties

[26] In his reasons at para. 76, the trial judge held that none of the previous decisions in Canada to which he had been referred [page206] had considered the legal issues put before him and held that imposition of a new duty was sought.

[27] Towards the end of his reasons, the trial judge also commented that there appear to be no decisions holding social hosts liable in England, Australia and New Zealand. In the United States, those states that hold social hosts liable appear to do so on the basis of legislation, with the exception of Kelly v. Gwinnell, 96 N.J. 538 (Sup. Ct. 1984), a decision of the New Jersey Supreme Court. (I note that since the decision in Kelly, supra, New Jersey has passed legislation stating social hosts are not liable for the injuries an adult guest sustains from his or her own intoxication: N.J. Stat. Ann. S. 2A:15-5.7 (1987) and that American law is divided on the issue of social host liability. Some states do not recognize social host liability; others limit liability to the service of alcohol to a visibly intoxicated guest: Professor Adjin-Tettey, supra, at p. 541, n. 78).

[28] Childs and the intervenor submit that the trial judge erred in his conclusion that social host liability does not fall within an established category of cases where a duty of care has been recognized. They submit that the obligations of social hosts are merely an extension of the obligations commercial hosts owe to users of the road that have already been recognized by the Supreme Court in Stewart v. Pettie, supra. They further submit that the liability contended for in this case is but an example of Lord Atkin's famous "neighbour" principle in M'Alister (or Donoghue) v. Stevenson, 1932 536 (FOREP), [1932] A.C. 562, 101 L.J.P.C. 119 (H.L.) at p. 580 A.C.:

The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be -- persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.

[29] While the general issue of how far the principles of liability for negligence should be extended is a familiar one, no conclusive authority respecting social host liability exists in Canada. This court has to consider whether, in light of the development of the duty of care in commercial host cases, a duty of care should be held to apply to the social hosts of a BYOB party in a case such as the present.

[30] A number of courts at the trial level have held that social hosts owe a duty to their guests when they leave their homes as well as to users of the road. See e.g., Baumeister (Guardian ad litem of) v. Drake (1986), 1986 962 (BC SC), 5 B.C.L.R. (2d) 382, 38 C.C.L.T. 1 (S.C.); [page207] Mortimer v. Cameron (1992), 9 M.P.L.R. (2d) 185, [1992] O.J. No. 764 (Gen. Div.), varied on other grounds (1994), 1994 10998 (ON CA), 17 O.R. (3d) 1, 111 D.L.R. (4th) 428 (C.A.), leave to appeal to the S.C.C. refused, (1994), 19 O.R. (3d) xvi; Nespolon v. Alford, [1995] O.J. No. 1616 (Gen. Div.), revd (1998), 1998 7127 (ON CA), 40 O.R. (3d) 355, 161 D.L.R. (4th) 646 (C.A.), leave to appeal to the S.C.C. refused, [1998] S.C.C.A. No. 452; Wince (Guardian ad litem of) v. Ball (1996), 1996 10414 (AB KB), 186 A.R. 156, 136 D.L.R. (4th) 104 (Q.B.); Fitkin (Litigation Administrator of) v. Latimer (1993), 1993 8490 (ON SC), 35 O.R. (3d) 466 (Gen. Div.), affd (1997), 1997 1534 (ON CA), 35 O.R. (3d) 464 (C.A.); Alchimowicz v. Schram, [1997] O.J. No. 135, 22 O.T.C. 351 (Gen. Div.), affd (1999), 1999 2655 (ON CA), 116 O.A.C. 287, [1999] O.J. No. 115 (C.A.), leave to appeal to the S.C.C. refused, [1999] S.C.C.A. No. 127; Chretien v. Jensen, [1997] B.C.J. No. 3016 (S.C.), affd (1998), 1998 4512 (BC CA), 58 B.C.L.R. (3d) 186, [1999] 6 W.W.R. 648 (C.A.); Stevenson v. Clearview Riverside Resort, [2000] O.J. No. 4863, [2000] O.T.C. 908 (S.C.J.); Dryden (Litigation guardian of) v. Campbell Estate, [2001] O.J. No. 829, 11 M.V.R. (4th) 247 (S.C.J.); Calliou Estate (Public Trustee of) v. Calliou Estate (2002), 2002 ABQB 68, 306 A.R. 322, 99 Alta. L.R. (3d) 390 (Q.B.); Prevost (Committee of) v. Vetter (2002), 2002 BCCA 202, 100 B.C.L.R. (3d) 44, 210 D.L.R. (4th) 649 (C.A.), revg (2001), 2001 BCSC 312, 197 D.L.R. (4th) 292, 5 C.C.L.T. (3d) 266 (B.C.S.C.). [See Note 1 at end of the document]

[31] In none of the cases, however, have the social hosts been held liable. While some of the cases have reached the appellate level, in order to arrive at their conclusion on the particular appeal, the courts have not had to grapple with the policy considerations of whether it is just and fair to impose a duty of care on the social host. On the facts in these cases, it was not foreseeable that the plaintiff would be injured or, assuming that a relationship of proximity existed that gave rise to a duty of care, the social hosts did what could reasonably have been expected of them in the particular circumstances.

[32] The circumstances giving rise to the existence of a duty of care and, if a duty exists, what is required to discharge that duty have not as yet been defined. As the British Columbia Court of Appeal stated in relation to social host liability to third parties in Prevost, supra, at p. 52 B.C.L.R.: [page208]

Finally, whether social hosts ought to be held liable for the negligent actions off their property of persons who became intoxicated while on their property is a controversial and unsettled question that might well engage the attention of the Supreme Court of Canada in this case.

[33] Social host liability is not simply an extension of commercial host liability. In the following portions of this judgment, I point out that there are significant differences between the relationship of a commercial host and a social host. Commercial hosts serve alcohol for profit and, as a result, the relationship between the commercial host and the drinker is a contractual one giving each party certain legitimate expectations. The relationship between a social host and a guest, who is often a family member or a friend, is an informal one, and, as a result, the expectations they have of one another differ widely. Commercial hosts are closely regulated by statute and have a statutory duty not to serve alcohol to a visibly intoxicated person. To comply with their statutory duty, commercial hosts must monitor the alcohol consumption of their patrons and control the structure of the environment in which alcohol is served. Alcohol consumption is a prevalent feature in the ordinary, day-to-day social interaction between social hosts and their guests, but there are no statutory standards against which to judge the imposition of a duty at common law on social hosts. The supply and service of alcohol is unregulated and the environment in which it is served varies widely. At a BYOB party, social hosts do not assume control over the supply and service of alcohol; they merely provide the venue for the consumption of alcohol. Commercial hosts carry liability insurance as part of the cost of doing business and can spread the cost of their premiums among their patrons. Social hosts often do not have insurance, or have limited insurance for this type of risk and have no means of passing on the costs of insurance premiums to others. Thus, social hosts do not fall neatly into the same category as commercial hosts. Rather, the differences between the situation of a commercial host and a social host require us to consider whether to impose a duty of care to this new category. I would therefore conclude that the trial judge did not err in holding that imposing liability on the social hosts to users of the road in the circumstances of this case involved the recognition of a new duty of care. I would dismiss the first ground of appeal.

II. Did the Trial Judge Err in his Formulation of the Duty Owed by Social Hosts to Users of the Road?

[34] Given that this case involves a novel duty of care, the next question is whether the trial judge erred with respect to the basis [page209] on which he held social hosts have a duty to users of the road and in his formulation of what that duty was.

[35] The core of the trial judge's reasoning is at paras. 97 and 98 of his reasons where he held:

Knowing Desmond Desormeaux's propensity to drink it should have put Dwight Courrier on alert that Desmond Desormeaux also may have been drinking [before he arrived at the party]. Even if he did not inquire of Desmond Desormeaux if he and Maureen O'Brien had been drinking, he should have monitored Desmond Desormeaux's consumption while on the premises. The fact this was a BYOB party does not relieve Dwight Courrier and Julie Zimmerman from monitoring and making inquiries of Desmond Desormeaux. The BYOB situation places more of a duty on the host because they do not know how much their guests are consuming.

Considering Desmond Desormeaux's previous convictions for impaired driving, and other offences, and Desmond Desormeaux's previous conduct when drinking, it is reasonably foreseeable that Desmond Desormeaux was not capable of driving and was putting his passengers, and other users of the highway, at grave risk. The reasonably prudent person would have taken some action to see that Desmond Desormeaux did not drive that evening.

Prior knowledge of propensity to drink

[36] The trial judge's reasons indicate that one of the reasons he imposed a duty on the social hosts to monitor Desormeaux's drinking was the hosts' knowledge of Desormeaux's past drinking habits and past convictions for impaired driving.

[37] In Jordan House, supra, Laskin J., writing for himself, Martland and Spence JJ., held at p. 248 S.C.R., that "[the hotel] was aware, through its employees, of [its patron Menow's] intoxicated condition . . . which . . . it fed in violation of applicable liquor licence and liquor control legislation." The hotel then turned Menow out at night, knowing that he would likely have to walk along a well-travelled highway to get home. As a result, Laskin J. held [at p. 249 S.C.R.] that "the proper conclusion is that the hotel came under a duty to Menow to see that he got home safely by taking him under its charge or putting him under the charge of a responsible person, or to see that he was not turned out alone until he was in a reasonably fit condition to look after himself." Although the minority concurring decision of Judson and Ritchie JJ. at p. 251 S.C.R. held that the knowledge of the innkeeper and his staff of the patron Menow's alcoholic habits "seized them with a duty to be careful not to serve him with repeated drinks after the effects of what he had already consumed should have been obvious", that was not the determinative factor in the decision of Laskin J. The most important factors were that the hotel's employees knew he was [page210] visibly intoxicated, yet served him alcohol, and the foreseeability of injury to him because the commercial host knew that when he left the premises he would have to walk home at night along the road. The hotel's awareness of Menow's alcoholic habits was but one factor going to the hotel's knowledge of Menow's intoxicated condition at the time it evicted him. That factor as I read Laskin J.'s reasons does not by itself result in the imposition of a duty of care.

[38] If a person's history of drinking is not the basis of a commercial host's duty to monitor a patron's drinking; still less should it form the basis for imposing any duty on a social host to monitor a guest's drinking at a party where alcohol is neither provided nor served by the social hosts.

[39] I would hold that the trial judge erred in imposing an obligation on the social hosts to users of the road based on the social hosts' knowledge of Desormeaux's drinking habits and dated convictions for impaired driving. Rather, the social hosts' knowledge of Desormeaux's propensity to drink is but one factor to consider in determining whether the social hosts knew that Desormeaux was intoxicated when he left the party and about to drive.

Existence of a paternal relationship

[40] Courrier had given Desormeaux rides home in the past and Desormeaux had often stayed over at their home when he had been drinking. The appellants contend that Courrier's conduct towards Desormeaux created a unique special relationship of proximity, a "paternal relationship". They submit that this unusual relationship gave rise to a duty of care towards Desormeaux and to users of the road.

[41] A paternal relationship was the basis for the imposition of a duty of care by the motion judge in Prevost, supra, a case in which the parents of a teenage boy had a history of permitting minors to come and party at their home. Although the parents had a house rule that no alcohol was to be consumed, and did not serve alcohol, the motion judge found [at p. 314 D.L.R.]:

The totality of the evidence persuades me that it was a common occurrence for minors to take alcohol to the Vetters' property and consume it there.

Shari Vetter was protective of minors who had been drinking at their home. When drinking got "out of hand", she took steps to protect them -- offering to have them sleep over, asking them to give up their car keys to prevent them driving away, and on occasion, driving them home if they needed a lift. Those precautions persuade me that she was alert to the danger of minors drinking in their home and driving from it. She established a "paternalistic relationship" . . . with underage drinkers at their home. [page211]

I find the Vetters recognized they had a duty to protect minors from the potential danger of driving under the influence of alcohol and to protect those who might drive with them.

[42] The Court of Appeal set aside the summary judgment. It did so [at p. 50 B.C.L.R.] on the basis that:

. . . [W]hether the appellants owed a duty of care to Adam Prevost [the plaintiff] was a function of the reasonable foreseeability of the risk of harm to him in all of the circumstances and that, in turn, depended upon what a reasonable person in the position of the appellants would have perceived as the ability or inability of Desiree Vetter [the defendant] "to handle the situation in which . . . she [had] been placed -- either through youth, intoxication or other incapacity."

Accordingly, the summary trial judge could not decide the first issue placed before him [the duty of care] without deciding facts that are important on the issue of causation.

[43] Thus, the Court of Appeal held that the issue of foreseeability of harm and whether the hosts knew that the guest was incapacitated and unable to drive could not be decided summarily.

[44] In Dryden (Litigation Guardian of) v. Campbell Estate, supra, another decision on which the appellants' rely, one Parchem knew that Campbell, an underage teenager of 18, liked to drink and would get "falling-down" drunk 50 per cent of the time. He also knew that Campbell would drive his truck when inebriated. At Campbell's request, Parchem bought a bottle of rum that they consumed as they drove from place to place in Burlington. After Parchem left Campbell, Campbell continued partying and crashed his truck into a vehicle. The purchase of alcohol by an adult for a minor in essence places the adult in charge of the minor and distinguishes the decision from the present situation.

[45] Both these cases involve the assumption of control or supervision by an adult with respect to a minor as a result of which the adult is required to take affirmative steps to assist and to prevent injury to the minor. In addition, Parchem supplied alcohol to the underage teenager. As stated in Lewis N. Klar, Tort Law, 3rd ed. (Toronto: Thomson Carswell, 2003) at p. 183:

The hallmark of these relationships is that those who enter into them do so willingly, knowing that situations may develop which will require them to act in order to assist others. Thus the imposition of duties of affirmative action in these cases is not inconsistent with the common law's desire not to interfere unduly with one's freedom of action. As well, concomitant with the duty to assist those who are in one's control is the duty to protect others from being injured by them.

[46] Unlike the above cases, the social hosts in this case did not assume control over the behaviour of Desormeaux, an adult. [page212]

[47] Evidence as to Desormeaux's expectations is, however, a factor to consider in deciding whether, in accordance with the first part of the Anns test, the relationship was such that a duty of care should be imposed. The past conduct of the social hosts would be a factor to consider with respect to Desormeaux's expectation as to whether the hosts had a duty to have regard for his interests. Desormeaux's evidence on this point is as follows:

Q. So you trusted him to assist you when you were too drunk to make that call [whether to drive] yourself?

A. I guess somewhat, yes.

Q. Does it work better if I say you expected him to tell you if you'd had too much to drink and you expected him to take the keys away if he thought you had had too much to drink?

A. Well, I'm my own person, you know. I wouldn't expect him to do anything. I'm an adult. I mean, if most -- I know that -- I spent a lotta nights there -- well, we were drinking but -- I mean, if he felt I was intoxicated in any way he would have taken the keys or he would have suggested that I perhaps stay there or he woulda given me a cab -- or called me a cab.

(Emphasis added)

[48] Desormeaux's evidence as to what he expected of the social hosts when he had been drinking was equivocal. Taken at its highest, if the hosts knew Desormeaux was intoxicated and about to drive, he expected them to take steps to prevent him from driving, such as calling him a cab. This is not the same as a paternal relationship. Desormeaux's expectation is, however, a factor that would militate in favour of the imposition of a duty of care if his hosts knew he was intoxicated.

Is it just and fair to impose liability?

[49] The trial judge held that the relationship between Desormeaux and Courrier met the test of proximity and extended this proximity to users of the road as was done in Stewart v. Pettie, supra. The social hosts concede at para. 47 of their factum that social hosts have a duty to their guest when the social hosts have served alcohol to the guest and know that the guest is impaired. However, they criticize the trial judge's imposition of a duty to third party users of the road based on his analysis of the proximity of the relationship between the social hosts and Desormeaux.

[50] In Stewart v. Pettie, Major J. held at para. 28 that the duty of care owed by a commercial establishment to patrons was equally owed to the plaintiff, a passenger in a car, as a class of persons who could be expected to be on the highway. This was because: [page213]

If the patron drives while intoxicated and is involved in an accident, it is only chance which results in the patron being injured rather than a third party. The risk to third parties from the patron's intoxicated driving is real and foreseeable.

[51] Thus, Major J. held that there was a sufficient degree of proximity between the hotel and users of the road as a class to warrant the imposition of a positive obligation of care on the hotel towards the injured third party. Users of the highway were therefore added to the group of persons in a "special relationship" with commercial hosts. This addition is a common sense progressive development in today's society given the high correlation between drunkenness and motor vehicle accidents.

[52] As I understand the commercial host cases, a duty of care will be imposed on the commercial host where the host has served alcohol to a patron and knows or should know that a patron is intoxicated and about to drive. At that stage, the commercial host should reasonably foresee that his act in serving alcohol to a patron to the point of intoxication could result in an accident, unless he dissuades the patron from driving or ensures that the patron is in the care of a responsible person.

[53] Here, the trial judge did not find that the social hosts knew Desormeaux was impaired. At para. 66 of his reasons, the trial judge stated:

When Desmond Desormeaux arrived at the party along with Maureen O'Brien and Ray Sauvé, who were obviously intoxicated, it should have put Dwight Courrier on red alert that Desmond Desormeaux had been with them and probably had consumed as much alcohol, if not more, than the other two.

Again, at para. 97 of his reasons, the trial judge stated:

Desmond Desormeaux and his two friends, Maureen O'Brien and Ray Sauvé, arrive in a vehicle driven by Desmond Desormeaux. Dwight Courrier observes both Maureen O'Brien and Ray Sauvé are intoxicated upon arrival. Knowing Desmond Desormeaux's propensity to drink it should have put Dwight Courrier on alert that Desmond Desormeaux also may have been drinking. Even if he did not inquire of Desmond Desormeaux if he and Maureen O'Brien had been drinking, he should have monitored Desmond Desormeaux's consumption while on the premises.

[54] It does not necessarily follow that the driver of a motor vehicle has had as much to drink as the passengers and the trial judge erred in holding that Courrier should have drawn this inference. Further, at para. 110 of his reasons, the trial judge held that Zimmerman, as well as Courrier, was also negligent because she did not monitor Desormeaux's drinking. Yet the evidence recited by the trial judge above refers only to Courrier. [page214]

[55] The trial judge's holding that the social hosts should have monitored Desormeaux's drinking is problematic both on the law and on the facts. A commercial host has a statutory obligation to monitor consumption of alcohol by patrons, but there will be no liability at common law if the host fails to do so in the absence of foreseeability that the patron will drive. See Stewart v. Pettie, supra, at para. 55; Wince (Guardian ad litem of) v. Ball, supra.

[56] On the evidence, it is not clear that the social hosts knew that when Desormeaux came to the party he would be driving home afterwards, and thus the social hosts would have had no reason to monitor his alcohol consumption. Desormeaux had frequently stayed overnight at the hosts' residence when he was too drunk to drive home. Desormeaux's evidence confirms that he knew he could stay overnight if he wanted to do so. He testified in cross-examination that it was pretty much "a given" that the invitation to the party included an invitation to stay overnight. Courrier didn't actually have to come out and say it because they'd always done that. It was "a given". Courrier may have specifically invited him to stay over but he couldn't recall.

[57] Desormeaux also said he planned to stay over when he went to the party that night although he did not discuss his plan beforehand with O'Brien and Sauvé. The trial judge, after reciting the evidence of Sauvé, at para. 24 of his reasons concludes"It was arranged that they were going to stay over that night, according to Desmond Desormeaux." Desormeaux testified that he left because O'Brien wanted to leave. The group left after Sauvé got into an altercation with a guest at the party. O'Brien testified she did not plan to stay overnight and planned to return to her own home after the party. The trial judge preferred the evidence of O'Brien respecting the events leading up to the party and the events at the party itself.

[58] The fact that O'Brien did not want to stay overnight did not necessarily mean that Desormeaux shared the same plan when they went to the party or that O'Brien's plan was communicated to the social hosts. O'Brien's evidence had no bearing on the past history and relationship of the parties. Thus, when Desormeaux arrived at the party, the social hosts would not know that he would choose to drive home if he was intoxicated instead of spending the night as he had frequently done in the past, and as he knew he was welcome to do.

[59] In his reasons, the trial judge reviewed the evidence of those at the party and commented as to whether they had observed visible signs of impairment in Desormeaux. Ray Sauvé, who had an action for damages for his injuries against Desormeaux, testified at trial that Desormeaux showed signs of [page215] intoxication when drinking and that he was getting loud and obnoxious at the party. On discovery, however, Sauvé had indicated that he had a hard time detecting when Desormeaux was drinking because he could handle his booze and was cool and calm. Peter Sagos, the person with whom Sauvé had the altercation, testified that Desormeaux looked weird and looked drunk.

[60] The evidence of Emilia Farina, a former girlfriend of Desormeaux, was that he had a tremendous capacity to tolerate alcohol, sometimes showing signs of impairment but not always. Maureen O'Brien, whose evidence the trial judge preferred to that of Desormeaux or Sauvé, did not find it easy to tell if Desormeaux had been drinking to excess. She indicated that she was in no position to make an assessment of Desormeaux's intoxication at the time they left the party, but she also testified that Desormeaux appeared to have no trouble talking or walking to the car. In cross-examination she testified that she had not seen him impaired before.

[61] Marco Ortis did not speak to Desormeaux much, but did speak to him shortly after midnight and at that time did not notice anything unusual about him. He estimated that no one at the party would have been too drunk to drive home, which the trial judge found was inconsistent with the evidence of other witnesses at the party.

[62] Other guests at the party, Christine Courrier, George Courrier, and Wendy Courrier made no observation of Desormeaux's condition at the time he was leaving. The social hosts Julie Zimmerman and Dwight Courrier, did not know how much Desormeaux had to drink and testified that Desormeaux did not appear to them [to] be impaired. The trial judge, however, gave very little weight to Courrier's evidence because his test for Desormeaux's sobriety appeared to be that when Desormeaux fell asleep he had too much to drink and as long as he was vertical, there was no problem. Still, the trial judge did not find the hosts knew Desormeaux was impaired, nor did he say what overall conclusion he drew from the witnesses' evidence that he had reviewed in relation to the hosts' knowledge of Desormeaux's impairment.

[63] The trial judge reviewed the evidence of Dr. Cappell, a psychologist in the field of pharmacology, who testified that based on Desormeaux's blood alcohol reading at the time of the accident, he would have consumed 12 beers in two and a half hours. Dr. Cappell testified that this high consumption over a short period of time would have caused Desormeaux to show signs of obvious impairment. The respondent submits that the trial judge did not give sufficient weight to the evidence of its [page216] defence expert that persons with a high tolerance to alcohol appear quite sober to experienced observers because he did not refer to it. The trial judge stated [at para. 73]"I am satisfied on all of the evidence Desmond Desormeaux would be showing obvious signs of impairment when he left the party." In accepting the evidence of Dr. Cappell, the trial judge implicitly rejected the evidence of the defence expert. He was entitled to do so.

[64] While the trial judge was entitled to find that Desormeaux would have exhibited signs of obvious impairment, he did not find that the social hosts must have observed these signs and, having regard to their close relationship with Desormeaux, would therefore have known Desormeaux was impaired. Another difficulty is the trial judge's reference to "all of the evidence". The evidence included evidence that O'Brien and Sauvé were impaired on the basis of which the trial judge held [at para. 66] "[this] should have put Dwight Courrier on red alert that Desmond Desormeaux had been with them and probably had consumed as much alcohol, if not more, than the other two." As I have indicated, the social hosts should not necessarily have inferred that, as the driver of the vehicle, Desormeaux had been drinking and was intoxicated simply because his two passengers were intoxicated.

[65] Although he did not expressly say so, it appears that the trial judge also imposed a duty of care on the social hosts because they "should have known" Desormeaux was intoxicated. What the trial judge did say [at para. 98] was that"it [was] reasonably foreseeable that Desmond Desormeaux was not capable of driving . . .". One basis for that holding appears to be the social hosts' knowledge of Desormeaux's past drinking history which, as I have already held, is a factor relating to knowledge but does not, of itself, fulfill the requirement of "knowledge" or "should have known". The fact that a person has drunk to excess in the past and has driven after doing so on two occasions years earlier, does not mean the social hosts "should have known" he would do so on this night. The evidence indicates that on many other occasions when Desormeaux had become intoxicated he had not driven, but had stayed over at his hosts or been driven home. Another basis for the trial judge's holding appears to be that had the hosts monitored Desormeaux's alcohol consumption they would have known he was intoxicated. The fact this was a BYOB party in which the structure of the environment was such that they would not have known did not excuse them.

[66] That the defendant should have known the person about to drive was impaired was the basis for the imposition of liability in Stewart v. Pettie, supra. Although Pettie was not exhibiting [page217] any visible signs of intoxication, the employee of the Inn who had served him throughout the evening kept a running tab and knew the amount of alcohol Pettie had consumed over a five-hour period. Major J. held [at para. 52] she "either knew or should have known" that Pettie was becoming intoxicated. The appellants and intervenor submit that there should be no distinction between the duty of care on commercial hosts and social hosts.

[67] The atmosphere in which alcohol is consumed in commercial establishments is uniform because of the conformity imposed by statutory requirements. The consumption of alcohol in a social setting, on the other hand, has many variations and the same sweeping analysis cannot be made. It is therefore necessary to engage in an analysis of the specific features of this case as compared to the commercial host situation before dealing with broader policy considerations.

[68] The relationship between a commercial host and a patron is a contractual one. One of the expectations implicit in that relationship is the expectation on the part of the patron that his or her safety will not be jeopardized as a result of the act of the commercial host in serving him or her alcohol or, having done so, in permitting him to engage in a dangerous activity. See e.g., Crocker v. Sundance Northwest Resorts Ltd., 1988 45 (SCC), [1988] 1 S.C.R. 1186, 51 D.L.R. (4th) 321.

[69] Here, there was no contractual relationship between the social hosts and their guests, nor were the social hosts serving alcohol to Desormeaux thereby jeopardizing his safety and that of users of the road. Julie Zimmerman testified that only three-quarters of a bottle of champagne was poured out at midnight for all the guests in one and one-half ounce glasses. There appears to be no evidence as to whether Desormeaux had any. As it was the guests who brought their own alcohol and who decided how much to serve themselves, there was no reason for the social hosts to think that their guests were relying on them to control their alcohol consumption.

[70] The statutory obligations on a commercial host require the commercial host to monitor the patron's consumption of alcohol thereby controlling the conduct of that person. If a party has the right to control the conduct of a person, a failure to exercise that control reasonably resulting in the very kind of damage likely to result from such failure may be actionable by the injured plaintiff: Klar, supra, at pp. 190, 197-98; Margaret Brazier and John Murphy, Street on Torts, 10th ed. (London: Butterworths, 2001) at p. 194. For example, in Home Office v. Dorset Yacht Co. Ltd., [1970] 2 All E.R. 294, [1970] A.C. 1004 (H.L.), the statutory right of the public authority to control the conduct of its trainees [page218] imported a duty of care to the yacht owner who was at risk of foreseeable loss from the trainees' attempt to escape from the island when they were not properly supervised [see Note 2 at end of the document]. Another example of statutory obligations playing a role in the determination of whether it is just and fair to impose liability is the decision in Odhavji, supra. In that case, the plaintiffs sued the Chief of Police, the Toronto Police Services Board and the Province for allegedly failing to ensure that police officers co-operated in an investigation of a fatal shooting. The Supreme Court of Canada held that the Chief of Police had a statutory obligation to ensure that the police officers co-operated with the investigation and thus it was not plain and obvious that an action against him would not succeed. The Supreme Court upheld the lower court's dismissal of the action against the Police Services Board and the Province because there was no similar statutory duty. As noted by Cullity J. in Rose v. Pettle, [2004] O.J. No. 739, 43 C.P.C. (5th) 183 (S.C.J.) at para. 21: [page219]

There is some support in the authorities for a general proposition that a person who has a right to exercise control over another person's conduct will have a duty of care that will be breached if other individuals suffer harm as a result of a failure to exercise such control. In Dutton v. Bogner Regis UDC, [1972] 1 Q.B. 373 (C.A.) for example, Lord Denning M.R. stated:

Much discussion took place before us as to whether the council were under a duty to [inspect] or had only a power to do so. . . . There is a middle term. It is control. . . . The common law has always held that a right of control over the doing of work carries with it a degree of responsibility in respect of the work (at pp. 392-3).

[71] The commercial host's statutory obligation to monitor alcohol consumption is therefore a consideration that bears on the court's determination as to whether it is just and fair to impose liability on the host.

[72] In order to be in a position to monitor consumption as required by statute, the commercial host must control the structure of the environment in which alcohol is served. While breach of a statutory obligation alone is not sufficient to ground liability at common law, the court may have regard to statutory standards as useful evidence of the standard required of the parties at common law: Canada v. Saskatchewan Wheat Pool, 1983 21 (SCC), [1983] 1 S.C.R. 205, 143 D.L.R. (3d) 9 and Klar, supra, at pp. 324-25. In Stewart v. Pettie, supra, at para. 56, Major J. held that if the commercial host structures the environment in which alcohol is consumed in such a way as to make it impossible to know whether a guest is impaired, the commercial host will not escape liability because it should have known the guest was intoxicated and intervened:

I agree that establishments which serve alcohol must either intervene in appropriate circumstances or risk liability, and that this liability cannot be avoided where the establishment has intentionally structured the environment in such a way as to make it impossible to know whether intervention is necessary. Such was the situation in Canada Trust Co. v. Porter, supra, where the alcohol was served from behind a bar and it was impossible for the establishment either to monitor the amount consumed or to determine whether intervention was necessary. A similar situation arose in Gouge v. Three Top Investment Holdings Inc., [1994] O.J. No. 751, (Ont. Ct. Gen. Div.) (QL) where the plaintiff attended a company Christmas party which had a "cash bar", over-indulged, and then was involved in an accident. In such circumstances, it would not be open to the establishment to claim that they could not foresee the risk created when the inability to foresee the risk was the direct result of the way the serving environment was structured.

[73] In the present case, the social hosts had no similar statutory duty requiring them to monitor the drinking conduct of their guests or to control the structure of the environment in which alcohol was served. In deciding that the social hosts owed Desormeaux a duty of care, the trial judge did not discuss the fact [page220] this was a BYOB party and that the expectations of the guests would have been different from those of a patron in a commercial establishment. Instead, he held the social hosts to the same duty of care as a commercial establishment and indeed held that the fact this was a BYOB party required a higher duty of care.

[74] Nor was there any de facto assumption of control on the part of Courrier and Zimmerman over their guests' drinking. A distinguishing feature of this case is that Courrier and Zimmerman did not supply or serve alcohol to their guests. In serving a person alcohol to the point of intoxication while knowing that the person is likely to drive afterwards, the host contributes to the risk of the guest committing a tort against the plaintiff. The host places the guest and users of the highway in a potentially hazardous position and is an active participant in creating the danger of an accident due to intoxication: Klar, supra, at p. 182. A person who undertakes to do an act has an obligation not to act carelessly: Klar at p. 182; Street, supra, at p. 195. Here, the social hosts were not in this sense active participants in creating the danger to users of the highway.

[75] To summarize, in the absence of some assumption of control by a person or justified reliance on that person by another, arising out of the circumstances or as a result of the imposition of a statutory duty, the common law does not make one person liable for the conduct of a second person simply because the second person occasions damage to a third party that is reasonably foreseeable. The person sought to be held liable must be implicated in the creation of the risk. In this case, the social hosts did not assume control over the supply or service of alcohol, nor did they serve alcohol to Desormeaux when he was visibly impaired. The social hosts had no statutory duty to monitor the consumption of alcohol or to control the structure of the atmosphere in which alcohol was served. There is no evidence that anyone relied on them to do so. The social hosts had no reason to monitor Desormeaux's consumption of alcohol because he could have stayed over if he wished to do so. I cannot accept the proposition that by merely supplying the venue of a BYOB party, a host assumes legal responsibility to third party users of the road for monitoring the alcohol consumed by guests, even when the guest includes a known drinker. As I have indicated, the hosts' knowledge of Desormeaux's drinking history is a factor in determining the social hosts' knowledge of his intoxication. The trial judge did not find that the social hosts knew Desormeaux was intoxicated at the time he left the party. A person's drinking history is not, of itself, a sufficient basis on which to hold that a social host should know a person is intoxicated. To the extent the trial judge implicitly [page221] concluded that the social hosts should have known Desormeaux was impaired because of his drinking history and because they did not monitor his drinking, he erred. The trial judge's errors taint his holding that the social hosts were also negligent because they did not stop Desormeaux from driving. Counsel for the appellant did not point to other evidence to support that finding. It would not be just and fair in the circumstances to impose a duty of care.

[76] While I would hold that no duty of care arises in the circumstances of this case to third party users of the road, I would not exclude from future consideration the imposition of a duty of care upon a social host. Depending on the circumstances, a social host may be implicated in the creation of the risk to users of the road, especially if the social host knows that an intoxicated guest is going to drive a car and does not make reasonable efforts to prevent the guest from driving.

III. Did the Trial Judge Err in Holding that Tort Law Should Not be Expanded to Include Social Host Liability for Policy Reasons?

[77] I do not have to resolve the issue of whether the trial judge erred in holding that tort law should not be expanded to include social host liability for policy reasons and I will not, therefore, do so. However, I would not wish my silence on this issue to be taken as agreement with the trial judge's reasons on this point. In the next several paragraphs I discuss some of the factors that are relevant to this issue.

[78] Recognizing the imposition of a new duty of care is an exercise in the balancing of conflicting interests. On the one hand, the court will not want to unjustifiably deprive an injured plaintiff of damages for his or her injuries. On the other hand, courts are reluctant to interfere greatly in a person's freedom to pursue his or her activities by the imposition of too heavy a legal responsibility on potential defendants.

[79] The appellants contend that the trial judge erred in taking into consideration the question of insurance as one of the policy considerations and in concluding it would result in an increase in insurance premiums. I disagree. The trial judge's consideration of insurance was undertaken in the context of his discussion on policy and was not inappropriate: Paterson Zochonis & Co. v. Merfarken Packaging Ltd., [1986] 3 All E.R. 522 (C.A.) at p. 540. Although I am not aware of any case where the imposition of liability in tort turned on whether the tortfeasor had insurance, the availability of insurance is a consideration with respect to how [page222] onerous a burden the imposition of liability on a social host would be. The trial judge pointed out that imposing liability on the social hosts would result in a greater recovery to the injured person where, as here, the driver of the vehicle was not insured, because it would make the homeowners' policy available. He was also of the opinion that homeowners' insurance premiums would rise.

[80] In her article entitled"Social Host Liability: A Logical Extension of Commercial Host Liability?" Professor Adjin-Tettey discusses insurance at pp. 530-31. Although she is otherwise in favour of extending liability to social hosts, Professor Adjin-Tettey concludes that on the whole, homeowners' policies are not an effective avenue for securing adequate compensation for victims of accidents and can be financially ruinous to the social host. Social hosts may not carry liability insurance because, unlike automobile insurance, it is not compulsory, the amount of insurance carried is highly variable and the individual's homeowners' policy may not cover omissions. By contrast, commercial hosts are expected to have such insurance coverage for negligence towards a patron and users of the road as part of doing business. Commercial hosts can also often spread the cost of premiums among their customers. Liability is not financially ruinous.

[81] Notwithstanding her comments about insurance, Professor Adjin-Tettey favours the imposition of liability on social hosts. She is of the opinion that the difficulty of the social host assessing whether a guest is intoxicated and the prospective chilling effect on social relations when the social host intervenes to prevent a guest from driving ought not to shield the social host from liability. Her conclusion is driven by the premise that the imposition of liability would deter drunk driving and reduce accidents.

[82] I agree that deterrence is a factor to be considered. The trial judge doubted that a finding of social host liability would have much of a deterrent effect, but he did not consider the point fully. The intervenor's evidence supports the opposite conclusion. Indeed, the advent of educational programs, new criminal laws and civil liabilities in Ontario has had a significant impact. In 1981, over 60 per cent of those killed in traffic accidents were impaired, whereas in 1998, this figure had dropped to 34 per cent. Drinking and Driving in Europe, a Eurocare Report to the European Union (Brussels: Eurocare, June 2003), online: http://www.eurocare.org indicates at para. 8.2 that jurisdictions holding commercial hosts liable have lower rates of traffic fatalities. Drinking and Driving in Europe also notes at para. 8.3 that private gatherings rank second behind commercial establishments as a source of drivers arrested for drinking. Proof that drunk [page223] driving would be deterred by the imposition of a duty of care on social hosts would be an important factor weighing in favour of its imposition.

[83] In order to determine whether the potential benefits of imposing a duty of care on social hosts towards users of the road -- such as a reduction in drunk driving and accidents -- outweigh the burden placed on social hosts in their interaction with their guests, the extent of the burden must first be determined. The imposition of liability on social hosts would involve a change in lifestyle choices that would in turn have an immediate impact on the lives of many people. For example, in order to be in a position to assess a guest's sobriety and to have the judgement to influence a guest's decision to drive, social hosts would have to remain "reasonably prudent" persons by remaining sober in their own home. If a social host knows that a person is visibly intoxicated and does nothing to prevent the guest from driving, then, arguably the social host has participated in the creation of a risk to users of the road by omission. The imposition of a duty of care on a social host because the host "should have known" the guest was intoxicated is more problematic. As noted by Professor Adjin-Tettey at p. 537, social hosts cannot be "expected to be human breathalyser machines", nor can social hosts "always be in a position to monitor alcohol consumption".

[84] The standard often used to decide whether a duty of care has been discharged at common law is what a reasonable person would do in the circumstances. One of the factors used to determine what is reasonable in the circumstances is social consensus: Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, 234 D.L.R. (4th) 257, per McLachlin C.J.C. In Europe, there does not appear to be a social consensus supporting social host liability generally, let alone with respect to a BYOB party: Drinking and Driving in Europe, supra, at para. 8.3. Lack of social consensus is a factor to consider in deciding whether the common law standard of care of what a reasonable person would do is a workable and realistic one. Before imposing a new duty of care on a social host, the court must be in a position to define for social hosts how that duty can be discharged. In so doing, the court sets boundaries and delineates a risk zone for the imposition of liability in negligence.

[85] The appellant and the intervenor submit that there are many steps that a host could take to dissuade a guest from driving that do not amount to the imposition of an inordinate burden. These include calling the guest a taxi, providing the guest a ride home with a sober driver, asking the guest for his car keys and offering to allow the guest to stay overnight at the host's home. [page224] The appellant and intervenor do not address the question of whether, if these steps are unsuccessful, a social host has an obligation to call the police. If the commercial host cannot dissuade a visibly intoxicated patron from driving, the commercial host has an obligation to call the police. See Hague v. Billings (1989), 1989 4065 (ON SC), 68 O.R. (2d) 321, 48 C.C.L.T. 192 (H.C.J.) at p. 338 O.R., varied on other grounds (1993), 1993 8581 (ON CA), 13 O.R. (3d) 298, 102 D.L.R. (4th) 44 (C.A.). See also Jordan House, supra, at p. 248 S.C.R. where Laskin J. held that calling the police would be a reasonable step. If the standard of care on social hosts were the same as that imposed on commercial hosts it would be an onerous one. It may well be that, owing to the different considerations that apply to a social host as opposed to a commercial host, the social host would not be obliged to call the police.

[86] Another factor to be considered is whether social host liability could be imposed as an incremental common law development. As a general rule, where the change sought is one that has ramifications that are complex and not easy to assess, the court will not extend the common law. This is because the court has before it a single case and may not be in a position to fully appreciate how a general rule will operate, to assess fully the economic and policy issues, or to engage in the development of subsidiary legislation. In such cases, the court considers the legislature should assume the major responsibility for law reform. See Watkins v. Olafson, 1989 36 (SCC), [1989] 2 S.C.R. 750, 61 D.L.R. (4th) 577, at p. 761 S.C.R., per McLachlin J., approved in R. v. Salituro, 1991 17 (SCC), [1991] 3 S.C.R. 654, 68 C.C.C. (3d) 289, at pp. 668-69 S.C.R. per Iacobucci J. and Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.), 1997 336 (SCC), [1997] 3 S.C.R. 925, 152 D.L.R. (4th) 193 at para. 18.

[87] The question of whether the imposition of a duty of care on social hosts should be left to the legislature or whether it is appropriate for judges to impose liability in tort is one on which American courts remain divided. Professor Adjin-Tettey reviews the developments in the United States in her article and favours development of the common law noting that courts have decided many important issues, including commercial host liability, without prior legislative study.

[88] Even where the Supreme Court is of the opinion that the legislature would be best suited to extend the law of tort, if it can be predicted with some certainty that extending tort liability will deter harm, the court will consider imposing liability. In the Winnipeg Child and Family Services case, a seven-member majority of the Supreme Court declined to extend the law of tort to a pregnant mother who was addicted to glue sniffing in order to protect her fetus. The Supreme Court refused to extend liability on the [page225] basis that the proposed changes to the law involved lifestyle choices that would create conflicts between fundamental interests and rights that would in turn have an immediate and drastic impact on the lives of many people. However, the Supreme Court held at para. 43 that if it could be predicted with some certainty that extending tort liability to the lifestyle choices of pregnant women would diminish the problem of injured infants, the change might nevertheless be justified. In that case, the evidence respecting deterrence was far from clear. In our case, the evidence before the court is that extending tort liability would have a deterrent effect.

[89] In the end, I am not persuaded by the trial judge's conclusion that legislation would necessarily be required before imposing liability on a social host. Assuming that the difficulties I have outlined above either do not present themselves in a particular case or are overcome, it may be that judicial decisions imposing a duty of care on social hosts in particular cases would incrementally crystallize into rules of general application providing an element of certainty in the law and limiting its ramifications.

[90] To summarize, the issue of social host liability is not an easy one. This judgment should not be interpreted to mean that social hosts are immune from liability to innocent third party users of the road caused by an impaired guest's driving. On the contrary, I do not foreclose social host liability to innocent third parties particularly when it is shown that a social host knew that an intoxicated guest was going to drive a car and did nothing to protect the innocent third party users of the road.

IV. The Appeal and Cross-Appeal Regarding Costs

[91] In his reasons for judgment, dated August 30, 2002, the trial judge expressed the hope that the defendants would not seek an order of costs against the plaintiffs, but that if the defendants did seek costs, he would receive written submissions on the issue. The trial judge received the submissions and released his reasons on costs on March 10, 2003, whereby he ordered that there would be no order as to costs.

[92] The appellants seek leave to appeal the costs order and seek an order from this court as to costs against the respondent Desormeaux. The respondents Zimmerman and Courrier cross-appeal, arguing that the trial judge erred in not awarding a Sanderson order directing the payment of their costs from the Motor Vehicle Accident Claims Fund ("MVACF"), which represented Desormeaux.

[93] In his reasons, the trial judge carefully considered whether the plaintiffs should be responsible for Zimmerman and [page226] Courrier's costs. Counsel for Zimmerman and Courrier provided a bill of costs seeking costs on a partial indemnity basis in the sum of $194,230.98 for the six-day trial, two pre-trial conferences, mediations and examinations for discovery. The trial judge noted that exhaustive research was provided on the issue of social host liability and that all six days of trial were related to this issue.

[94] The trial judge referred to the relevant legislation, s. 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 and rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and then carefully considered the case of Mahar v. Rogers Cablesystems Ltd. (1995), 1995 7129 (ON SC), 25 O.R. (3d) 690, [1995] O.J. No. 3711 (Gen. Div.). In Mahar, Sharpe J. held that as the issue raised by the unsuccessful plaintiff was novel and involved a matter of public interest, an exception to the general rule that a successful party is entitled to costs should be made. The trial judge noted that the plaintiffs brought the action in good faith, that there was a foundation for joining Zimmerman and Courrier as defendants, and that the plaintiffs were successful against them in establishing that there was contributory negligence. He ultimately concluded [at [2003] O.J. No. 831 (S.C.J.) at paras. 25-28]:

The plaintiff was an innocent victim in this case who has suffered catastrophic injuries as a result of the conduct of Desormeaux. The issue of social host is novel and is in the public interest. The determination of this issue could have a tremendous impact upon the public if social host liability had been established.

Under all of these circumstances, there should be no order as to costs against the plaintiffs.

In view of my finding, I do not have to consider the alternate submissions.

I do note, however, that the issue of liability against the defendant Desormeaux was never really an issue. Although Mr. Brodmann appeared on behalf of Desormeaux, he had very little involvement in the trial and the trial was 99 per cent occupied with the issue of social host as against Zimmerman and Courrier. In my view, it would be unfair and unjust to make the uninsured Desormeaux liable for all of the costs by way of Bullock or Sanderson Order and subsequently require payment of these costs by the Motor Vehicle Accident Claims Fund.

[95] The appellants seek an order from this court as to costs of the trial against Desormeaux on the basis that they were successful against Desormeaux at trial. They contend that Desormeaux's liability was assessed at 85 per cent and that the trial judge failed to give reasons as to why they should not receive costs on a partial indemnity basis from him. In support of this, they assert that Desormeaux made no offers to settle, that his [page227] counsel presented no argument to refute his liability, and that there was nothing novel about Desormeaux's negligence.

[96] The respondents Zimmerman and Courrier cross-appeal. In their submission, the trial judge erred in not awarding a Sanderson order directing the payment of their costs directly from the MVACF. Zimmerman and Courrier contend that the MVACF, in supporting the plaintiff's position of a finding of social host liability, was doing so in order to preserve its own interest in not being required to pay any claims where there is an additional tortfeasor.

[97] The MVACF, responding on behalf of Desormeaux, submits that the trial judge was correct in not awarding costs against Desormeaux, payable by the MVACF, either directly or by way of a Bullock or Sanderson order. In support of this position, the MVACF asserts that an award of costs should be reflective of the dispute in issue, and in this action, the only issue before the court was the issue of social host liability. The MVACF submits that the plaintiffs' costs were incurred in an effort to establish liability against Courrier and Zimmerman, not Desormeaux. Apart from the submission of an Agreed Statement of Facts, no evidence was led by the plaintiffs to establish a claim against Desormeaux. The MVACF posits that Desormeaux's liability was never in doubt as he was convicted for his part in the accident.

[98] With respect to the Sanderson order, the MVACF contends that it is a variant of a Bullock order, and therefore relies on Mark M. Orkin's statement in The Law of Costs, 2nd ed., looseleaf (Aurora: Canada Law Book, 1987) at p. 209.2, that a Bullock order is "not appropriate where a plaintiff alleges independent causes of action against two defendants and where the breaches of duty are in no way connected with each other". As the cause of action against Courrier and Zimmerman was based on the theory of social host liability, it is independent from any theory that might have been advanced against Desormeaux. On this basis, the MVACF argues that a Sanderson order is inappropriate.

[99] The general rule contained in s. 131 of the Courts of Justice Act is that costs are in the discretion of the court. That discretion is entitled to deference on appellate review. As explained by Arbour J. in Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303, [2004] S.C.J. No. 72 at para. 27"[a] court should set aside a costs award on appeal only if the trial judge has made an error in principle or if the costs award is plainly wrong."

[100] I agree with the trial judge that the issue of social host liability is novel and involves a matter of public interest. An [page228] exception to the general rule that a successful party is entitled to costs should be made and I would not order that Childs pay any costs at trial. For the same reason, I would dismiss the cross-appeal respecting costs and would not order any costs in favour of Zimmerman or Courrier. I would also not order that these parties pay any costs of this appeal.

[101] With respect to Desormeaux, the issue was not a novel one and I view the matter respecting costs differently. The trial judge did not give reasons as to why Childs should not receive costs on a partial indemnity basis from him and thus it is not possible to review whether he erred in principle in exercising his discretion in this regard. I would order that Childs as the successful plaintiff against Desormeaux is entitled to costs at trial against the MVACF on a partial indemnity basis. I would not order any costs of the appeal against the MVACF in favour of Childs.

[102] Finally, I note that the parties have agreed that Ray Sauvé and Maureen O'Brien who brought their own separate action would be bound by the trial judge's decision regarding the liability of Courrier and Zimmerman. For the reasons given above, I would not order any costs in their favour against Courrier and Zimmerman. The MVACF was appointed to represent Desormeaux in this action as well. I would order that a similar order against the MVACF be made in favour of Sauvé and O'Brien respecting their trial costs as was made in favour of Childs.

CONCLUSION

[103] For the reasons given, I would hold that the trial judge did not err in concluding that social host liability involves a novel duty of care. The trial judge, however, erred in his formulation of the duty of care owed by Zimmerman and Courrier to Childs. In the particular circumstances of this case the social hosts did not owe a duty of care to Childs. As a result, I would dismiss the appeal. I would grant leave to appeal costs and would allow the appeal of Childs with respect to costs at trial to the extent of awarding her costs against Desormeaux on a partial indemnity basis payable out of the MVACF. I would make the same order respecting the costs of Sauvé and O'Brien. I would dismiss the cross-appeal as to costs at trial. I would not make an award of costs respecting this appeal for or against any party.

Appeal dismissed with respect to liability and allowed as to costs; cross-appeal dismissed. [page229]

Notes

1. These cases and others are summarized in an article by Christian A. Zablocki"The Emergence and Evolution of Social Host Liability in Canada" in Todd Archibald and Michael Cochrane, eds., Annual Review of Civil Litigation 2003 (Toronto: Thomson Carswell) [forthcoming in 2004]. The author concludes"The one certainty is that the future of social host liability in Canada is fraught with uncertainty. It is a controversial and unsettled area of tort law which has engaged considerable legal and policy debate."

2. The defendant's power of control over the activity of the person who suffers damage or who causes damage is a significant factor in liability being found in a number of cases cited to us. Home Office v. Dorset Yacht Club Co. Ltd., supra, involves the imposition of a duty on officials running a custodial institution to exercise reasonable care to control the youthful inmates from escaping. The court held that when the officials were negligent in their supervision, the damage to a yacht owned by a third party was foreseeable because they were on an island and this was the only means of escape. In Crocker v. Sundance Northwest Resorts Ltd., supra, the contestant had consumed large quantities of his own alcohol and the resort had also served the contestant alcohol at one of its bars; the resort also organized and controlled participation in the dangerous competition of snow tubing. In Hall v. Hebert, 1993 141 (SCC), [1993] 2 S.C.R. 159, 101 D.L.R. (4th) 129 and Ontario Hospital Services Commission v. Borsoski (1973), 1973 479 (ON SC), 7 O.R. (2d) 83, 54 D.L.R. (3d) 339 (H.C.J.) the defendant got the inebriated plaintiff to drive his car. In Jacobsen v. Nike Canada Ltd. (1996), 1996 3429 (BC SC), 133 D.L.R. (4th) 377, 19 B.C.L.R. (3d) 63 (S.C.), there was an employer-employee relationship and the employer supplied beer to employees at the workplace. In Hunt (Litigation Guardian of) v. Sutton Group Incentive Realty Inc. (2001), 2001 28027 (ON SC), 52 O.R. (3d) 425, 196 D.L.R. (4th) 738 (S.C.J.), revd (2002), 2002 45019 (ON CA), 60 O.R. (3d) 665, 215 D.L.R. (4th) 193 (C.A.) the employee became intoxicated at her employer's office party. At the time she was engaged as an employee, answering the phone, was expected to clean up after the party, and was paid throughout. The plaintiff alleged that her employer failed to take adequate steps to prevent her from leaving her place of employment while she was in a state of intoxication. She stopped at a bar on the way home and had two more drinks. The trial judge cited L.N. Klar's text Tort Law (Toronto: Carswell, 1996) at p. 161 to the effect that one of the clearest examples of a relationship which involves a right of one person to control the behaviour of another is the employer-employee relationship. The opposite side of this right is the duty to protect the employee and to take reasonable care to ensure his safety.