Zoe Childs (CBC)

The high court had ruled in 1995 that bars, restaurants and other commercial establishments that serve alcohol had such a "duty of care." The ruling meant that bars are legally liable if, for instance, they continue to serve obviously inebriated customers and then do nothing to stop them from getting into their cars.

The question is: should average Canadians have the same legal responsibility? The Supreme Court had never considered the issue and Canadian law did not provide a clear answer to the question of host responsibility. The high court would finally get the chance to weigh in on the issue because of a lawsuit arising out of a tragic accident.

The Zoe Childs case

Zoe Childs was just 18 years old when she was involved in a horrendous accident in Ottawa in the early morning hours of Jan. 1, 1999. The car she was riding in was hit head-on by a drunk driver. Her 17-year-old boyfriend was killed. She was left a paraplegic.

It turned out that the drunk driver – Desmond Desormeaux – was an alcoholic with two previous drunk-driving convictions. He had just left a New Year's Eve house party where he'd done a lot of drinking – perhaps a dozen beers in a little more than two hours. His blood alcohol level was more than twice the legally allowed maximum. Desormeaux was subsequently sentenced to 10 years in jail – at the time, the longest sentence ever imposed in Canada for impaired driving causing death.

Zoe Childs sued Desormeaux and the hosts of the party that he had attended, asking for $6 million in damages. Her suit against Desormeaux was successful, in that he was found to be legally liable, but he had no money. As for her suit against the hosts, Justice James Chadwick of the Ontario Superior Court ruled against her in 2002.

Justice Chadwick ruled that even though the hosts should have known Desormeaux could have caused an accident, he felt that this "prima facie duty of care" was negated because of the implications of imposing a duty of care on social hosts. "A finding of liability against the social hosts would place an inordinate burden on all social hosts," Justice Chadwick wrote. He invited politicians to take up the issue and dismissed her suit.

Childs appealed that ruling to the Ontario Court of Appeal, which dismissed her appeal. But it cited different reasons. In a 3-0 ruling, Justice Karen Weiler wrote in 2004 that the hosts in this case did not have a " prima facie duty of care" and should not be held liable because they did not supply the alcohol, they didn't know how much alcohol Desormeaux had consumed, and they didn't know he was drunk when he left their party.

"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. ... It would not be just and fair in the circumstances to impose a duty of care," Justice Weiler wrote.

But the Appeal Court said if the circumstances had been different, the hosts could have been held liable. That left the door open for Zoe Childs to take her case to the Supreme Court of Canada, which she did.

The arguments

For Zoe Childs, the issue of host responsibility was clear. "I just don't understand how people can't have a moral issue about it," she said. "I don't understand how people can honestly sit and say, 'I have no responsibility' for even the people that are in their house."

The Supreme Court of Canada began hearing her case in January 2006.

Childs' lawyer, Barry Laushway, said the hosts of the party should have seen the accident coming, noting that they knew Desormeaux was a heavy drinker.

"Whatever the test is, we say it has to be more than what these people did – which is absolutely nothing," he argued.

But the lawyer for the hosts said hosts cannot be held responsible for counting the drinks their guests consume. Eric Williams argued that his clients had not served Desormeaux the alcohol and could not have known how much he had drunk or how drunk he was when he drove off.

Two groups were granted intervener status in this case.

Lawyers representing Mothers Against Drunk Driving (MADD) said private party hosts should meet the same standards of care that apply to bars.

"Social host liability creates a strong financial incentive for those managing alcohol-related events to act responsibly, which in turn reduces impaired driving by their guests," they argued.

The other intervener was the Insurance Bureau of Canada (IBC). It said if the Supreme Court was to rule in Childs' favour, there would be a spike in both lawsuits and insurance premiums. Their lawyers said reversing the lower court rulings would place an unreasonable duty on social hosts to monitor the alcoholic intake of all their guests.

"It is not reasonable that social hosts should have to know the drinking history of their guests, as well as their condition when they arrive and leave the party," the IBC lawyers argued in their brief.

The Supreme Court decision

On May 5, 2006, the Supreme Court handed down its decision. And it was not the news Zoe Childs, now 24, had been hoping for.

In a unanimous decision, the high court dismissed her appeal.

"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," the Supreme Court said.

"Short of active implication, a host is entitled to respect the autonomy of a guest."

The high court noted that bars and other commercial providers of alcohol have been found to have a legal duty to members of the public who are injured as the result of a patron driving drunk.

"The situation of commercial hosts, however, differs from that of social hosts," it ruled.

It listed three reasons for the difference. For one thing, the Supreme Court said, it's much easier for commercial establishments to monitor alcohol consumption of their patrons.

Secondly, the court also noted that the sale and consumption of alcohol is strictly regulated – something that sets up different public expectations and attitudes about the consumption of alcohol.

Thirdly, it said the "contractual nature" of the relationship between a bar and a patron is "fundamentally different" from that between a private party's host and his or her guests.

"Unlike the host of a private party, commercial alcohol servers have an incentive not only to serve many drinks, but to serve too many," the Supreme Court said. "Over-consumption is more profitable than responsible consumption."

The Supreme Court said because "a prima facie duty of care has not been established," it had no choice but to dismiss Zoe Childs' appeal.