Birthday Blues and Social Host Liability: Sidhu v. Hiebert 2011 BCSC 1364

The last thing Surinder Rattan expected for a birthday gift was a lawsuit. Unfortunately that is exactly what he received. In celebration of his 50th birthday, Surinder Rattan’s family threw a party and invited some of his former schoolmates, including Mr. Hiebert and Mr. Braun. Mr. Heibert and Mr. Braun arrived together, some hours after the party had started and the evidence is conflicted on how much and what kind of alcohol Mr. Heibert consumed at the party, in whose presence he consumed it and who knew of his resulting condition.

Mr. Heibert and Mr. Braun subsequently left the party together and shortly thereafter Mr. Heibert drove his truck through a stop sign, hitting a vehicle in which the three Plaintiffs were riding as passengers. Mr. Heibert’s blood alcohol level was ultimately calculated to be more than three times the legal limit for driving.

Mr. Rattan, among others, was named in the subsequent lawsuit with the allegations being that he was negligent in failing to supervise the amount of alcohol Mr. Hiebert was served and consumed at the gathering, and in failing  to take steps to ensure that upon leaving the gathering Mr. Hiebert would not operate a motor vehicle.

Mr. Rattan brought a summary trial application to have the claim against him dismissed, arguing that he could have no liability to the Plaintiffs arising out of the fact that Mr. Hiebert had consumed alcohol at his home. Mr. Rattan argued that the effect of the Supreme Court of Canada decision in Childs v. Desormeaux, [2006] I.S.C.R. 643 was that he owed no duty to monitor Mr. Hiebert’s alcohol intake while at his house, or to take any steps to protect other users of the highways when Mr. Hiebert proposed to drive away from his house.

In Childs, the Supreme Court of Canada did not find a duty of care between a social host and a third party who had been injured in a motor vehicle accident involving a party guest.  However, despite Mr. Rattan’s argument, the Court  did not go so far as to say that a social host categorically could not have a duty of care to third parties. What the Supreme Court decided was that as a matter of foreseeability and proximity, just hosting a social party where alcohol is served does not entail a duty of care between the social host and a third party injured by a party guest. There has to be “something more” to engender a duty of care, as Madam Justice McLachlin stated:

“I conclude that hosting a party at which alcohol is served does not, without more, establish the degree of proximity required to give rise to a duty of care on the hosts to third-party highway users who may be injured by an intoxicated guest.”

Contrary to Mr. Rattan’s argument, the Childs decision does not eliminate the possibility that a duty of care might arise out of social host circumstances but rather, notes that “something more” than merely hosting a party at which alcohol is served is required to create a duty of care on the host to members of the public who might be affected by a guest’s conduct.

In addressing the “something more” requirement the Court in Rattan noted that the Childs decision summarized three situations where courts have in the past imposed positive duties to act: where a defendant has intentionally attracted and invited third parties to inherent and obvious risks created or controlled by the defendant; where there is a paternalistic, supervisory or controlling relationship between defendant and plaintiff; and where the defendant is engaged in a public function or commercial enterprise that implies responsibility to the public.

While the Court accepted that Mr. Rattan’s situation did not fit comfortably into any of those three situations, it went on to state that these were not strict legal categories but rather served to elucidate factors which could lead to a positive duty to act. The Court noted that a common factor in each of those factors was the social host’s “material role in the creation or management of the risk” and further a “reasonable reliance” on the social host to monitor guests’ alcohol intake or prevent intoxicated guests from driving.

In the circumstance of the Rattan party the Court stated that there was a great deal of conflicting evidence on what Mr. Rattan knew or ought to have known about Mr. Heibert’s level of sobriety when he drove way from the party. Accordingly the Court held that this was a case where the “findings of fact necessary to determine if a duty of care arose in the circumstances should not be made on affidavits, but rather should be made by a trier of fact who has had the advantage of observing and weighing the evidence of the witnesses in direct as well as cross-examination” and dismissed Mr. Rattan’s summary trial application.

Mr. Rattan had commenced third party proceedings against Mr. Braun, alleging that if a duty of care arose for him then it too arose for Mr. Braun. Mr. Braun brought a summary trial application to have the third party action against him dismissed. The Court considered the threshold question of whether a duty of care between Mr. Braun and the Plaintiff arose in the circumstances. The Court ultimately dismissed the third party action against the Plaintiff, holding that:

[66] The language in Childs that might allow a court to conclude that a social host owes a duty of care to highway users injured by a driver who becomes impaired as a guest of the host does not go so far as to admit the possibility of a duty on a companion or fellow traveler who does no more than observe the risky behavior of the drinking guest, and perhaps acquiesce to an extent in the risk by drinking with and then accepting a ride home from the party with the drunken guest.

[67] If the categories of negligence are not closed, then neither are the possibilities that someone might be found to owe a duty of care to another on the basis that he or she somehow assisted in the creation of the circumstances giving rise to a duty of care, or encouraged a principal tortfeasor to engage in conduct that would give rise to a duty of care.

[68] I have examined the evidence for something that would support an argument that such a duty could arise here, without success.

[69] The defendant Rattan seeks to sustain his claims against Mr. Braun by arguing that if he had a duty to monitor Mr. Hiebert’s alcohol intake at the party, or to intervene to prevent Mr. Hiebert from driving drunk, then so too did Mr. Braun. That argument seems to me to go more to the standard of care if duty were established, and not to the existence of the duty.

[70] On the evidence presented, I can see no basis on which a duty of care can be imposed on Mr. Braun. Allowing for evidence that might be available at trial, but not on summary trial (the evidence of Baljinder Rattan), I see no basis on which a duty of care can be imposed on Mr. Braun.

This decision is a good reminder that the door to social host liability is not entirely closed. If  a social host were to personally undertake to monitor alcohol consumption or prevent intoxicated guests from driving, it remains possible that the host could incur liability to third parties injured by the guests. Whether the events which took place at  Mr. Rattan’s 50th birthday party constitute sufficient circumstances to warrant the imposition of such a duty of care remain to be decided at the full trial of this matter.