Since the last edition of our TS Communiqué, we have added to the team. We are proud to announce that Adam Wiseberg has joined us as an Associate in the Business Law Practice Group and will be working closely as a junior to Stephen Tierney, our Managing Partner.

The firm continues to support and give back to the Community. Over the past few months, we have supported (either through sponsorships, donations, or attending fundraising events) organizations such as the Canadian Paraplegic Association, The Canadian Cancer Society, The Royal Ottawa Hospital, the YM-YWCA, and the Feed the Hungry Program. 

We are also excited to report that we will be a Major Sponsor at this year’s Westfest. As you may know, Westfest is Westboro Village's festival of music, art and life. In six short years, Westfest has become one of Ottawa's premiere summer festivals. A not-for-profit organization, governed by a board of directors, Westfest is a diverse celebration that includes music, visual, literary, performance art, dance, spoken word and theatre. It is about artists, it's about community and it's about what makes this city a great place to live. An estimated 80,000 Westfest-goers will walk the streets of this 100% Canadian festival from June 12 to 14, 2009. Best of all, Westfest is free! For more information about Westfest, please visit their website at www.westfest.ca. In this quarter’s Communiqué, we decided to focus upon legal topics that could affect any of our lives at any time – from whether we have a duty of care to members of the public who may be injured by a guest who has attended a social party at our home where alcohol has been served; to whether a bar owes us a duty of care if another patron injures us while at the bar; to what potential legal consequences may flow from a failure to wear a seatbelt in a car in the event of an accident.

We hope these articles may provide some insight on these issues. However, if you have any questions, or wish to speak to a lawyer in our Personal Injury Practice Group, please contact one of our professionals at 613-728-8057. Our initial consultation is free. Our Personal Injury Practice Group consists of Frank Tierney, Ian Stauffer, Dana Tierney, Susan Mitchell, Teena Belland, Lesly Joseph and Sabina Veltri.

“[A]s a general rule, a social host does not owe a duty of care to a person injured by a guest who has consumed alcohol.”

This was the principle of law affirmed by the Supreme Court of Canada in the seminal case of Childs v. Desormeaux. On December 31, 1998, Desmond Desormeaux attended a New Year’s Eve party hosted by the defendants Dwight Courrier and Julie Zimmerman. The evening was a BYOB event where guests were responsible for bringing their own alcohol; the only alcohol served by the hosts was ¾ of a bottle of champagne at midnight. Desormeaux left the party at 1:30 a.m. to drive home, after consuming a large amount of alcohol. En route, he drove his car into oncoming traffic, and collided head-on with another vehicle containing four passengers. One passenger was killed and the three others were injured. Among the injured was the plaintiff, Zoe Childs. Her spine was severed and she was rendered paralyzed from the waist down. The trial judge found that at the time of the accident, Desormeaux had a blood alcohol level of 0.225, and was thus quite impaired.

Childs brought a lawsuit against Desormeaux, as well as the party hosts, Courrier and Zimmerman, alleging they had a responsibility to prevent Desormeaux from driving while impaired. The primary issue to be decided by the Court was “whether social hosts who invite guests to an event where alcohol is served owe a legal duty of care to third parties who may be injured by intoxicated guests”.

The first task for the Court was to determine whether the duty proposed in this case was a ‘novel’ one – that is, whether a duty of care had already been recognized in similar situations. The Court compared the proposed duty to that imposed on commercial alcohol providers who have been found to owe a duty of care to third-party members of the public who are injured as a result of the drunken driving of a patron.

The Court concluded that this duty of commercial hosts cannot be simply extended to social hosts for three reasons: (1) commercial hosts have the capacity to monitor alcohol consumption and are expected to do so, as their servers typically undertake special training with regards to signs of intoxication – social hosts do not; (2) the sale and consumption of alcohol in commercial establishments is heavily regulated, and understood to include additional responsibilities such as the monitoring of consumption; and (3) commercial alcohol servers have an incentive to serve as many drinks as possible, while the same type of profit-driven activity does not exist in a private party setting.

After determining that the duty proposed in the present case was therefore novel, the Court engaged in the two-step analysis set out in Anns v. Merton London Borough Council, and adopted in Kamloops (City of) v. Nielsen to determine whether a prima facie duty arose. The first step in the Anns test is to determine whether there is sufficient “proximity” between the parties – that is, whether the relationship is sufficiently close to justify imposing a duty at law.

One aspect of the “proximity” analysis is a consideration of whether the ultimate harm suffered by the plaintiff was one that was “reasonably foreseeable” by the defendants, as well as other factors going to the relationship between the parties. The Court held that although Desormeaux was known to his hosts to be a heavy drinker, the defendants Courrier and Zimmerman could not have foreseen that allowing Desormeaux to drive might result in injury to other motorists, as there was no evidence that they knew or ought to have known that he was impaired. Furthermore, the Court found that a history of impaired driving “is too weak to support the legal conclusion of foreseeability”.

Even if foreseeability had been established, the Court held that this alone would not have triggered a prima facie duty, as the wrong alleged was a failure to act where there was no positive duty to act. The common law has found such a positive duty in three situations: (1) where a defendant has invited a third party to a risk that the defendant himself has created or controls; (2) where a paternalistic relationship of supervision exists between the parties; and (3) where the defendant exercises a public function that includes implied responsibilities to the public at large. As the role of a private party host does not fall within any of these three categories, then foreseeability alone would not be sufficient to establish a prima facie duty of care.

As proximity was not established, and thus no prima facie duty of care was owed by social hosts of parties to public users of highways, there was no need for the Court to engage in the second step of the Anns analysis where it would examine policy considerations that might negate or limit the scope of the duty.

It is interesting to note that the Court left several possible avenues of liability open. Much was made of the finding of the trial judge that the hosts did not know – nor should they ought to have known – that the person about to drive was intoxicated. However, the implication is that if the party hosts had known the guest was intoxicated, there could have potentially been a duty on them to prevent the guest from driving. In addition, the Court noted that if a host continued to serve alcohol to a visibly intoxicated person knowing that he would be driving home, this could be creation or enhancement of risk sufficient to give rise to a prima facie duty of care (which would then be subject to contrary policy considerations in the second step of the Anns test).

Given that the potential liability of social hosts was not completely foreclosed, the Court’s summary of its ruling is particularly apt: “A social host at a party where alcohol is served is not under a duty of care to members of the public who may be injured by a guest’s actions, unless the host’s conduct implicates him or her in the creation or exacerbation of the risk.”

Childs v. Desormeaux, 2006 SCC 18, at paragraph 1.

Ibid at paragraph 8.

[1978] A.C. 728 (H.L.).

[1984] 2 S.C.R. 2 (S.C.C.).

Supra, note 1 at paragraph 29.

Ibid, paragraph 28.

Ibid, paragraph 47.

What is the extent of the duty owed by a commercial establishment which sells alcohol to its patrons and to members of the general public?  This question was considered by the Supreme Court of Canada in the case of Stewart v. Pettie,

In this case, the plaintiff, along with her husband, her brother (Stuart Pettie) and his wife, attended a dinner theatre operated by the defendant, Mayfield Investments Ltd. (the “Inn”). Mr. Pettie drove everyone to the theatre. Throughout the evening, both men consumed several alcoholic beverages, while the women had no alcohol. The same cocktail waitress served the group’s table all evening, and kept a running total of all the alcohol ordered. The trial judge found that Mr. Pettie had consumed 10 to 14 ounces of liquor; however, he showed no signs of intoxication.

The group left the theatre around 11 p.m., and subsequently had a discussion about whether Pettie was fit to drive – they ultimately decided that he was. While driving home, although Pettie was driving properly and safely, he lost control of the vehicle on a slippery road and the car struck a pole, then a wall. The plaintiff, who was not wearing a seatbelt, was thrown across the car and struck her head, rendering her a quadriplegic. No one else was seriously injured. The trial judge found that there was no doubt Pettie was intoxicated at the time, given that the evidence showed he had a blood alcohol level of between 0.190 and 0.200 an hour after the accident.

The primary issue for the court to decide was whether the defendant Inn had met the standard of care required of a commercial vendor of alcohol, or whether it was negligent in failing to take any steps to ensure that Pettie did not drive after leaving the theatre.

In holding that the defendant had a duty of care to third party users of public highways, the Court referred to its decision in Jordan House Ltd. v. Menow , where the duties of a commercial host were canvassed extensively for the first time. In Menow, it was held that a duty of care exists between alcohol-serving establishments and their patrons who become intoxicated, with the result that they are unable to look after themselves. The plaintiff in that case had been ejected from the defendant hotel for being too intoxicated, even though the hotel’s employees knew that to get home the plaintiff would have to walk along a busy highway. While walking, the plaintiff was struck by a car. The Court held that the bar breached its duty by kicking the plaintiff out when its employees knew he would have to walk along the highway – the risk created by the hotel’s actions was foreseeable, and therefore liability should attach.

In Stewart, the Court noted that “it is a logical step to move from finding that a duty of care is owed to patrons of the bar to finding that a duty of care is also owed to third parties who might reasonably be expected to come into contact with the patron, and to whom the patron may pose some risk”. Just as a bar owes a duty to a patron and may be required to prevent an intoxicated person from driving, a bar equally owes a duty to third parties who may be using the highways – the risk to third parties from the patron’s intoxicated driving is real and foreseeable. The Court held that in the present case, there was a sufficient degree of proximity between the plaintiff and the defendant Inn, and therefore a duty of care was established at law. Thus the question became: what was the standard of care and was it breached?

The Court rejected the plaintiff’s argument that the Inn breached the standard of care by serving Pettie past the point of intoxication. As Major J. pointed out, “I fail to see how the mere fact that an individual is over-imbibing can lead, by itself, to any risk of harm to third parties”. Only if there is foreseeable harm of risk will a defendant be required to take some action. While the Court accepted that a “special relationship” existed between alcohol vendors and the motoring public, it did not accept that this relationship alone warranted the imposition of a positive obligation to act, as the important thing is still foreseeable risk. Therefore, the question was: “whether, before 11:00 p.m. on December 8, 1985, the circumstances were such that a reasonably prudent establishment should have foreseen that Stuart Pettie would drive, and therefore should have taken steps to prevent this”.

The Court held that the defendant Inn could not avoid liability simply because Pettie was not exhibiting signs of intoxication – the waitress kept a running tab of drinks, and should have known that he was becoming intoxicated even if she couldn’t tell visually. However, the defendant could avoid liability by virtue of the presence of 2 sober women within the group. The Court noted that had Pettie been alone, the Inn could have discharged its duty by calling a sober person to take care of him. However, since he was already in the care of sober people who knew how much he had to drink, it was not reasonable to require the defendant to do more. The Court found that the Inn would have known the group arrived together, spent the evening together, and left together – it was therefore reasonable for the Inn to assume that one of the sober people in the group would drive. The Inn did not have to ask who would be driving, as it was not reasonably foreseeable that Pettie would be driving.

The decision of the Court was a confirmation that establishments which serve alcohol must intervene in appropriate circumstances to protect themselves from liability. In a situation where the establishment creates an environment where it is impossible to know whether intervention is necessary (for example, where the bar cannot count the number of drinks because they are served from behind a bar), the standard of care to be exercised will be greater. However, this was not the situation in the present case – the Inn was aware of the circumstances in which Pettie was drinking, including the presence of 2 sober members in the group, and therefore it was not reasonable for the Inn to intervene.

The concept of reasonable foresee ability as it relates to the liability of commercial hosts was further elaborated upon in the recent British Columbia Court of Appeal decision in Donaldson v. John Doe. The plaintiff Donaldson had attended an Oktoberfest party held at a ballroom owned and operated by the defendant corporation. Each patron who purchased a ticket was given, among other things, a souvenir glass beer mug. Patrons could purchase extra mugs throughout the evening, and those who did so typically hung their many mugs from their belts.

At the conclusion of the event, the plaintiff had walked a short distance from the venue when he was struck in the face by a glass mug carried by another attendee of the event. This person was unknown to the plaintiff, and it was never established whether he struck the plaintiff intentionally or accidentally.

The plaintiff suffered irreparable damage to his right eye and some facial scarring. He brought an action against the defendant corporation on the ground that it had breached a duty of care owed to the plaintiff. The Court explained that the duty of care recognized in the Stewart case is not restricted to third-party users of highways: “commercial hosts who serve alcohol have a responsibility to protect members of the public from their intoxicated patrons… those members of the public who use the highways are a subset of this category”. Therefore, the defendant company did in fact owe a duty of care to protect the plaintiff from injury by patrons who left Oktoberfest intoxicated.

The Court declined to undertake a thorough analysis of the standard of care, as it found that insufficient evidence had been led. In order to prove a breach of the standard of care, the plaintiff would have had to establish that the person who struck him with the beer mug was intoxicated to the point where the defendant company should have foreseen that he may – deliberately or carelessly – injure someone with the mug. As the evidence advanced in this regard was lacking, the Court found that the defendant company had not breached the standard of care on the balance of probabilities.

The liability of a commercial host as set out by the courts is primarily dependent on the foreseeability of an injury suffered by a third-party member of the general public who comes into contact with a patron of the host. The injury may result from a car accident as in the Stewart case, from a physical blow as in the Donaldson case, or even from a situation which has not yet been dealt with by the courts. It is now clear that regardless of the cause or type of injury sustained by a member of the public at the hands of an intoxicated patron, the courts will only attach liability to a commercial host if the injury was a reasonably foreseeable consequence of its interaction with the patron.

[1995] 1 S.C.R. 131.

[1974] S.C.R. 239.

Supra note 1, at paragraph 28.

Ibid at paragraph 35.

Ibid at paragraph 51.

2009 CarswellBC 191 (B.C.C.A.).

Ibid at paragraph 38.

When a passenger in a vehicle fails to wear his or her seatbelt, there are obvious safety implications at play. What may not be so obvious, however, are the potential legal consequences which flow from this failure in the event of an accident. In Snushall v. Fulsang, the Ontario Court of Appeal had the opportunity to consider these consequences. The Court undertook an analysis of the principles of contributory negligence as they relate to an injured passenger’s failure to wear a seat belt.

Carol Snushall was a passenger in a car driven by her fiancé (Mr. Snushall). The car was traveling westbound as it approached an intersection – the Snushalls had the green light. A southbound van suddenly entered the intersection and turned right on the red light, in front of the Snushall vehicle. Mr. Snushall had assumed that the van would accelerate after exiting the intersection; however, the van stopped a short distance later as it waited to make an immediate left turn. The Snushalls’ vehicle struck the rear of the van, and the plaintiff suffered serious injuries to her head and back. At trial, the evidence showed that the car had both a regular lap seat belt as well as a separate shoulder harness. Although the plaintiff was wearing the lap belt, the jury found that she was 35% contributorily negligent for failing to wear the car’s separate shoulder harness, and reduced her damage award by that percentage.

On appeal by the plaintiff, the primary issue was the quantum of contributory negligence that she should be assessed. The Court of Appeal confirmed that a jury verdict could only be set aside “if it was so unreasonable and unjust that a court is satisfied that no jury looking at all the evidence and acting judicially could have reached it”. The Court found that the jury’s assessment of contributory negligence in this case was outside the usual and appropriate range of contributory negligence for failing to wear a seatbelt, and was therefore unreasonable.

The Court emphasized that there is a legal distinction between cause and fault. The defendant’s negligence was the entire cause of the accident, as without it no accident would have occurred. Therefore, the discussion should not be concerned with whether the plaintiff caused her injuries by failing to wear the shoulder harness, but rather to what degree she was at fault (or blameworthy) for the extent of her injuries.

The Court then engaged in a discussion of the appropriate range for contributory negligence for not wearing a seatbelt. It noted that Canadian cases dealing with the same issue have typically assessed a range between 0% and 25%, and therefore an assessment of contributory negligence beyond that range is prima facie unreasonable. The Court held that an assessment of 25% is appropriate where all of the plaintiff’s injuries could have been avoided by wearing a seatbelt; where this is not established by the evidence, the assessment should be less.

With respect to the plaintiff’s contributory negligence in the present case, the Court considered 3 factors when coming to an assessment: (1) the plaintiff had complied with the legislative standard of wearing the lap belt, even though she did not wear the separate shoulder harness; (2) the evidence showed that even those who do wear the separate shoulder harness typically do not wear it properly as it is uncomfortable – thus, if worn in the improper manner, the protection would have been reduced; and (3) the evidence did not establish that wearing the shoulder harness would have prevented all her injuries, as her head was likely to have been injured even if she had been wearing the harness. After a consideration of these factors, the plaintiff’s contributory negligence was assessed at 5%.

The decision of the Court of Appeal in Snushall was implicitly approved by the Supreme Court of Canada, as leave to appeal to the nation’s highest court was refused.

The principles set forth in the Snushall decision were elaborated upon by Riopelle J. of the Ontario Superior Court of Justice in Landreau v. Tremblay , albeit in slightly different circumstances. The plaintiff in Landreau had been riding in the box of a pick-up truck driven by his stepfather. As the truck was being driven across a farmer’s field, it fell into ditch, and the plaintiff struck his head on the truck’s rollbar.

In assessing the plaintiff’s contributory negligence, Riopelle J. adopted the principles set out in Snushall – he confirmed that, with respect to a reduction in damages for contributory negligence, the court’s task “is to decide on the amount of that reduction considering, as one factor, the extent by which the damages might have been prevented, but keeping in mind that [the defendant’s] negligence caused the accident and was the prime cause of all the damages”.

While Riopelle J. took note of the 25% maximum  range for not wearing a seatbelt set out in Snushall, he found that the present case revealed a higher degree of blameworthiness than simply not wearing a seatbelt because the plaintiff was in the box of truck. Therefore, the plaintiff’s contributory negligence was assessed at 35%.

These decisions highlight the legal importance of wearing one’s seatbelt. While the courts seem to be reluctant to reduce an injured passenger’s damages by more than one-quarter, such a reduction will be possible where the passenger can be said to have been significantly blameworthy with respect to the extent of his or her injuries. Therefore, while wearing a seatbelt may prevent injuries in the event of a car accident, it will also ensure that if injuries do occur, the plaintiff will be entitled to the full measure of his or her damages.

2005 CarswellOnt 4578 (Ont. C.A.).

Ibid, paragraph 19.

2007 CarswellOnt 9987 (Ont. S.C.J.).

Ibid, paragraph 11.