Alcohol and the Law - Backgrounder

1. Social Host Liability

Social host liability deals with the legal responsibility party hosts have to their guests.  In other words: can the host of a party be held responsible for the actions of his or her intoxicated guests? 

It is important to distinguish between a social host and a commercial host, for example a bar or restaurant.  The key difference is that a commercial host obtains a financial benefit from selling alcohol while a social host does not.  Commercial host liability is covered by particular statutes; however the law on social hosts is less clear.

Negligence Law in General
Social host liability falls into a broad category of law known as negligence law.  It is also sometimes called “torts.” Negligence cases generally take the form of one party suing another party because of a failure to meet a duty of care.  For example: a person may sue the owner of a dog if the dog bites him on the basis that the owner should have taken proper control of the dog.

Not all situations where an injury occurs necessarily involve a law suit.  There are some situations in which there is no duty of care owed by one person to another.  In order to help distinguish between these situations, courts have identified particular categories in which a duty of care is owed:

  • situations in which a person has control or supervision;
  • when an individual creates a dangerous situation;
  • when individuals obtain an economic benefit from their actions;
  • when there is a legal reliance on the actions of another person; and
  • where the law (by statute) imposes a duty of care. 

If the facts of the case fall into one of those categories, it is assumed that a duty of care exists.

When a relationship does not fall into one of these categories, courts must determine whether they should recognize a new duty of care. This is determined by answering two questions:

  1. Is the relationship between the parties close enough that an individual may contemplate that carelessness on his or her part may harm others? 
  2. Is there a policy reason for finding a duty of care? In other words, is there a logical or common sense reason for the courts to refuse to find a duty of care?

    For example: if someone performs CPR on an unconscious person but accidently injures that person, the courts may think it is better policy to encourage people to save a life, rather than make people worry about liability if they attempt to help a stranger. As a result, the courts will refuse to find a duty of care because they do not want to discourage people from trying to help in emergencies.

Once a court finds that there is a duty of care, it then looks at whether or not that duty has been breached.  If it has, then a person may be liable for damages.

Social Hosts and Negligence Law: Childs v. Desormeaux
Social hosts do not fall into any of the established categories listed under duty of care.  Therefore, it was up to the courts to determine whether social hosts owe a duty of care to a guest at their party who becomes intoxicated or to someone who is injured by that guest’s actions.  This issue was addressed by the Supreme Court of Canada in the case of Childs v. Desormeaux, 2006 SCC 18.

The facts of the case help demonstrate the issues that the court needed to address.  A couple hosted a New Year’s party and invited guests to bring their own alcohol.  The only alcohol provided by the hosts was a bottle of champagne that was shared among the guests at midnight.  A guest at the party arrived at approximately 11:00pm.  He drank 12 beers in 2.5 hours before leaving the party to drive home.  The hosts knew that the guest was a heavy drinker based on previous party experiences, but they did not actually see how much alcohol he consumed that night.  One of the hosts, upon seeing the guest preparing to leave asked “Are you okay, brother?” to which the guest responded “No problem.”  Both hosts testified that the guest did not appear to be drunk. 

The guest drove away with two passengers in the car.  Several kilometres down the road the guest drove his vehicle into oncoming traffic and collided head-on with another vehicle.  One of the passengers in the other car was killed. The second passenger in the other car was a teenage girl who had her spine severed and was paralyzed below the waist.  The teenage girl sued the guest who was intoxicated and sued the hosts of the party.  The question for the court was whether or not the hosts of the party should be liable for the actions of the guest and therefore owe monetary damages to the injured girl.

As previously mentioned, there was no existing category for the duty of care in this case.  The court needed to answer the two questions mentioned above to determine whether the hosts would be liable to the injured girl.  The court found that the relationship between the parties was not sufficiently close to warrant a finding that the hosts owed a duty of care to the girl.  They determined that the hosts of a party do not owe a duty of care to users of a highway.  It was not foreseeable that a guest at the party, who did not appear drunk, would later get into an accident that would cause such an injury.  The hosts of the party did not owe a duty of care to the girl who was injured.

But this does not necessarily mean that all party hosts are immune from any finding of liability in the future.  Two major factors weighed heavily on the court’s decision.  First, the hosts of the party did not know that the guest was drunk when he left the party.  If they had known that he was intoxicated, the result may have been different.  Second, the hosts did not serve alcohol at the party and therefore were unable to monitor how much each guest had to drink.  Once again, the outcome may have been different if the alcohol had been provided and the hosts were capable of monitoring their guests’ alcohol consumption.

Social Hosts and Their Guests
The Childs case dealt with a situation in which a host was found not to owe a duty of care to a third party (highway users).  However, courts have repeatedly found that hosts are liable if their guests injure themselves and those injuries could have been prevented.  In Prevost v. Vetter [2001] B.C.J. No. 495, the hosts frequently held parties at their house and allowed intoxicated guests to spend the night or offered them a ride home. 

One night a guest (the hosts’ niece) was clearly intoxicated and was allowed to drive home.  The niece’s friend was also in the car and was also intoxicated. While driving home, the niece came to a bend in the road and failed to turn quickly enough, causing the car to leave the road. No other vehicle was involved and her friend suffered injuries.

The passenger successfully sued the driver and the hosts for injuries that he sustained in the accident. The driver was found liable to her passenger because she drove while intoxicated and this resulted in the accident. The hosts were liable to the guest because they allowed a person they knew was intoxicated leave the party with the guest in her car, which directly endangered the guest.

While it remains unsettled as to whether a host owes a duty of care to third parties (such as highway users), it is clear that they do owe a duty of care to their guests.  This would be similar to a guest visiting a house where the host did not take proper care of the home and the guest was injured.  Hosts are liable for their actions in relation to their guests if one of those guests is injured due to the host’s negligence.

2. Drinking and Driving

Canada is a federal system of government, meaning that both the federal government (Parliament in Ottawa) and the provincial legislatures have the ability to make law. Only the federal government may make criminal laws. Provinces can create other offences that are not contained in the Criminal Code, but still regulate people’s behaviour.

Criminal Offences
Impaired driving is covered by Sections 253(1)(a) and (b) of the Criminal Code of Canada which make it an offence to operate a vehicle while under the influence of drugs or alcohol.  The maximum level of blood alcohol permitted by law is 80 milligrams of alcohol for every 100 millilitres of blood (or 0.08 percent of blood alcohol concentration). 

Section 253(1)(b) states that a person is guilty of driving while intoxicated if he or she has “ or control of a motor vehicle....”  This means that a person does not have to be driving in order to be found guilty of driving while impaired.  Courts have defined “care and control” to include anytime a person has undertaken acts that cause danger by putting the vehicle in motion.  “Care and control” also include any time a person is found in the driver’s seat of a car, even if that car is not turned on.  It is then up to the accused to prove to the court that he or she did not intend to put the vehicle in motion.

If a police officer has reason to believe that a person has been drinking within the previous 3 hours, the officer may require that person to use a breathalyser to determine his or her blood alcohol levels.  Refusing to comply with a reasonable request by a police officer to provide a sample is also an offence and it carries the same penalties as an actual conviction for impaired driving.

A conviction for impaired driving (or refusal to comply with a request for a breathalyser) carries the following minimum sentences:

  • First conviction: $1,000 fine, 12-month driving prohibition.
  • Second conviction: 30 days in jail, 24-month driving prohibition.
  • Third or subsequent conviction: 120 days in jail, 36-month driving prohibition.

These sentences are minimums and a person is likely to receive significantly more jail time if another person is injured or killed due to an accident caused by drinking and driving.  If bodily harm is caused, the sentence is a maximum of 10 years in prison.  If a person is killed it may result in a life sentence.  The trial judge will make the final determination on sentence based on submissions from the defence and crown.

Provincial Offences
Provinces regulate many aspects of driving that are not covered by the Criminal Code and therefore they retain the ability to punish drivers who do not follow regulations set out by the province.  A driver’s license is issued by the province, which also has the power to take that license away.

British Columbia recently amended The Motor Vehicle Act to include mandatory punishments for drivers found in the warning range (above 0.05 blood alcohol concentration).  The following punishments apply to anyone found in that range:

  • First offence: immediate 3-day driving ban and $600 fine.
  • Second offence: 7-day driving ban and $760 fine.
  • Third offence: 30-day driving ban and $3,650 fine.

The major difference between the criminal offence and the provincial offence is that under the provincial rules, the officer can immediately ban a person from driving.  Under the criminal offence, a person is entitled to a trial and must be found guilty before a punishment can be determined.  The provincial offence presumes that a person is guilty based on their blood alcohol content.