



COURT OF APPEAL FOR ONTARIO

CITATION: Williams v. Richard, 2018 ONCA 889

DATE: 20181107

DOCKET: C63999

Hourigan, Miller and Trotter JJ.A.

BETWEEN

Grace
    Williams, Evan Williams, and Chloe Williams, minors under the age of 18 years by
    their Litigation Guardian, Cheryl Williams

Plaintiffs (Appellants)

and

John
    Kardux, David VanLagen, Ava Hillier, Litigation Administrator of the Estate
    of Mark Williams, deceased, Axa Insurance (Canada),
Jake Richard
and
Eileen
    Richard

Defendants (
Respondents
)

AND BETWEEN

Grace
    Williams, Evan Williams, and Chloe Williams, minors under the age
    of 18 years by their Litigation Guardian, Cheryl Williams, and Cheryl Williams,
    personally

Plaintiffs (Appellants)

and

John
    Kardux, David VanLagen, Axa Insurance (Canada),
Jake Richard
and
Eileen Richard

Defendants (
Respondents
)

Patrick Brown and William Harding, for the appellants

Brian Smith, for the respondents

Heard: October 5, 2018

On appeal from the judgments of Justice Kelly A. Gorman of
    the Superior Court of Justice, dated June 9, 2017, with reasons reported at
    2017 ONSC 3590.

Hourigan J.A.:

A.

Introduction

[1]

Mark Williams and Jake Richard were colleagues and friends. They
    regularly got together to drink beer after work. On the evening in issue, Mr.
    Williams consumed approximately 15 cans of beer over the course of about three
    hours while visiting with Mr. Richard at the home of Mr. Richards mother,
    Eileen Richard. A short time after leaving Ms. Richards residence, Mr.
    Williams loaded his children into his car and drove their babysitter home. On
    the way back to his residence, Mr. Williams was involved in a serious accident.
    He was killed and his children are alleged to have been injured.

[2]

This series of events spawned two court actions. In the first, Mr.
    Williams children and their mother sue for personal injuries allegedly
    sustained by the children. In the second, the children and their mother claim
    damages pursuant to the
Family Law Act
, R.S.O. 1990, c. F.3. Both
    actions are premised on a claim that the respondents breached a duty of care as
    social hosts.

[3]

On a motion for summary judgment, the motion judge dismissed both claims,
    finding that the requisite duty of care had not been established and that even
    if it were established, such a duty of care would have ended once Mr. Williams
    arrived home to pick up his children and their babysitter. In so finding, she
    relied primarily on two cases:
Childs v. Desormeaux
, 2006 SCC 18,
    [2006] 1 S.C.R. 643 and
John v. Flynn
, 54 O.R. (3d) 774 (C.A.), leave
    to appeal to S.C.C. refused, [2001] S.C.C.A. No. 394. These reasons explain why
    I have concluded that the motion judges order cannot stand. In its place, I
    would order that the cases proceed to trial.

B.

Facts

[4]

The factual background to this appeal may be briefly described as
    follows.

[5]

Mr. Richard lived in his mothers home, which was located approximately
    500 meters from the home Mr. Williams shared with his wife and three children.

[6]

Mr. Williams and Mr. Richard worked together for approximately four
    years. They got together after work three to four times per week to drink beer
    at one or the others home.

[7]

On the day in issue, October 18, 2011, the men worked from 7 a.m. to 1
    p.m. Mr. Williams dropped Mr. Richard home after work. The pair had no plans to
    meet again later. However, Mr. Williams showed up at Ms. Richards home in his
    work van at approximately 4:30 p.m. that day.

[8]

Mr. Williams and Mr. Richard went to the garage and drank for about the
    next three hours. During that time, Mr. Williams is estimated to have consumed approximately
    15 cans of beer. There does not seem to be any debate that Mr. Williams was
    inebriated and that Mr. Richard knew Mr. Williams was in no condition to drive.

[9]

Mr. Richard became aware of Mr. Williams intention to drive the babysitter
    home in his personal vehicle and was aware that Mr. Williams would have his children
    in the car when he did so. The men had a pact that if either of them were going
    to drive while intoxicated and children were involved, the other would call the
    police. According to Mr. Richard, he threatened to call the police but he did
    not believe that Mr. Williams took that threat seriously. There is some evidence
    he received an assurance from Mr. Williams that he would not drive the
    babysitter home.

[10]

It
    is far from clear whether Mr. Richard was satisfied with Mr. Williams
    assurance. His evidence regarding whether he believed that Mr. Williams was
    going to drive the babysitter was internally inconsistent. There was also
    inconsistent evidence regarding what Mr. Richard told his mother. Mr. Richard
    testified that he advised his mother that Mr. Williams was going to drive the
    babysitter home with the children in the car. Ms. Richard testified that she
    understood from the conversation with her son that Mr. Williams would not be
    driving the babysitter home.

[11]

Beyond
    threatening to call the police, Mr. Richard did nothing further to stop Mr.
    Williams from driving while drunk. He did not call Mr. Williams wife or the babysitter
    to alert them to the situation. He did not ask his mother, who was not
    drinking, to drive the babysitter home. He did not walk to Mr. Williams home
    to see if his personal vehicle was in the driveway. It is also clear that Ms. Richard
    took no steps to prevent Mr. Williams from driving.

[12]

According
    to Mr. Richard, approximately ten minutes after Mr. Williams left, he accompanied
    his mother to a variety store in Otterville to buy cigarettes. He did so in
    part because he was worried that Mr. Williams might have driven the babysitter
    home. Mr. Richard admitted to being concerned about the situation before he
    left with his mother. His mothers evidence was that they did not leave the
    house to go to the store until approximately a half hour after Mr. Williams
    left.

[13]

While
    driving to the Otterville store, Mr. Richard noted that Mr. Williams personal
    vehicle was not in his driveway. He went in the store and found that it did not
    have his mothers brand of cigarettes. Upon leaving the store, Mr. Richard
    called the police from a payphone outside the store to alert them about a drunk
    driver. He and his mother then travelled to another store in Norwich to buy
    cigarettes.

[14]

On
    the way back from Norwich, Mr. Richard and his mother came upon the scene of
    Mr. Williams accident. He had driven into the rear of a stationary tractor
    towing a trailer. Mr. Williams was ejected from the vehicle and died as a
    result of his injuries.

[15]

These actions were commenced naming various
    defendants. The only remaining defendants are Mr. Richard and Ms. Richard.

[16]

The respondents brought a motion for summary judgment,
    asserting that they owed no duty of care to the appellants. The motion judge ruled
    in their favour.  She was of the view that the appellants had failed to
    establish the existence of any duty of care owed by Mr. Richard or Ms. Richard.
    In the alternative, she concluded, relying on
John
, that if a duty did
    exist, it was spent when Mr. Williams arrived safely home before departing
    again to drive the babysitter.

C.

Issues

[17]

This appeal raises the following issues:


(i)

Did the motion judge err in her duty of care analysis regarding
    foreseeability and/or proximity?


(ii)

Did the motion judge err in her reliance on
John
?


(iii)

Should this court consider the issues of whether any residual policy
    considerations suggest a duty of care should not exist and whether the
    respondents met the applicable standard of care? If so, how do those issues
    impact the result?

D.

Analysis

(1)

Duty of Care

(a)

Legal Principles from
Childs

[18]

Childs

is the
    leading case in Canada regarding social host liability. The Supreme Court
    applied the
Anns-Cooper-Odhavji
framework to conclude
that

the social
    hosts in that case did not owe a duty of care to the plaintiff, a public user
    of the highway who was injured by the hosts intoxicated guest: at paras. 11-15,
    citing
Anns v. Merton London Borough Council
(1977), [1978] A.C. 728 (H.L. Eng.);
Cooper
    v. Hobart
, 2001 SCC 79; [2001] 3
    S.C.R. 537;
Odhavji Estate v. Woodhouse
, 2003 SCC 69, [2003] 3 S.C.R. 537. The outcome of

Childs
hinged on two issues: foreseeability and
    proximity.

[19]

With respect to foreseeability, the Supreme
    Court noted the absence of a finding by the trial judge that the hosts in

Childs

knew
    or ought to have known that Mr. Desormeaux, the social guest, was too drunk to
    drive. Further, the court

held that foreseeability was not established
    by the fact that the hosts had knowledge of the guests past drinking and
    driving:
Childs
,
at paras. 28 - 29.

[20]

In
Childs
, as in the present case, the court was concerned not
    with an overt act by the social hosts but with their alleged failure to act. In
    other words, the claim was based on a failure to stop Mr. Desormeaux from
    driving while intoxicated. In these circumstances, the court found that the
    plaintiff had the onus of establishing
foreseeability of harm, and in addition, other aspects of the
    relationship between the plaintiff and the defendant that create a special
    link or proximity:
Childs
, at para. 34.

[21]

The Supreme Court articulated three
    situations that establish such a special link and that require legal
    strangers to take action. The court explicitly stated that these are not
    strict legal categories, but recognized, at paras. 35-37, features of a relationship
    that bring legal strangers into proximity:

(i)

Where a defendant intentionally attracts and
    invites third parties into an inherent and obvious risk that he or she has
    created or controls;

(ii)

Paternalistic relationships of supervision and control;
    and

(iii)
Where a defendant exercises a public function or
    engages in a commercial enterprise that includes implied responsibilities to
    the public at large.

[22]

Common to the above three situations is
    the defendants material implication in the creation of risk or his or her
    control of a risk to which others have been invited:
Childs
, at para. 38.

[23]

In
Childs

the court found that simply holding a house party where
    alcohol is served is not an invitation to participate in highly risky activity.
    More is required to establish a risk that requires positive action:
Childs
, at para. 44.

(b)

Legal Principles from post-
Childs
jurisprudence

[24]

The post-
Childs

jurisprudence
    on social host liability, discussed below, demonstrates that there is no clear
    formula for determining whether a duty of care is owed by social hosts to third
    parties or guests. Rather, the determination of whether such a duty of care
    exists usually hinges on fact specific determinations pertaining to two main
    issues. The first issue is the hosts knowledge of a guests intoxication or
    future plans to engage in a potentially dangerous activity that subsequently
    causes harm. This is a foreseeability analysis. The second determination asks
    if something more is present on the facts of the case to create a positive
    duty to act. The something more could be facts that suggests the host was
    inviting the guest to an inherently risky environment or facts that suggest a
    paternalistic relationship exists between the parties. This is a proximity analysis.

[25]

The foreseeability case law has focused
    heavily on a social hosts knowledge as to the relevant guests level of
    intoxication, whether there were signs that the guest was intoxicated, and thus
    whether it was reasonably foreseeable that the guest would engage in certain
    acts and behaviours that subsequently led to an accident: see
Sidhu
    (Litigation guardian of) v. Hiebert
, 2011
    BCSC 1364;
Wardak v. Froom
, 2017
    ONSC 1166, 38 C.C.L.T. (4th) 166;
Lutter v. Smithson
, 2013 BCSC 119, 18 C.C.L.I. (5th) 294;
Sabourin
    (Litigation guardian of) v. McKeddie
, 2016
    ONSC 2540;
Kim v. Thammavong
, 2007
    CanLII 52791 (Ont. Sup. Ct.), affirmed 2008 CanLII 63230 (Ont. Div. Ct.).

[26]

In the context of summary judgment
    motions, some of the jurisprudence has suggested that the presence of
    conflicting evidence about the level of a hosts knowledge of a guests
    intoxication is enough to render a full trial necessary: see
Sidh
u
at paras.
    40-41;
Wardak
, at paras. 58-61;
Lutter
, at paras. 26, 29-30. In particular, cases that offer
    conflicting evidence on a hosts knowledge of a guests intoxication via
    affidavits may be particularly unsatisfactory; there could be a significant
    risk of injustice if such issues were not further explored in a full trial:
Lutter
, at para. 30. However, this does not mean that any
    ambiguity in the evidence on a hosts knowledge of a guests intoxication will
    result in summary judgment being denied. For example, in
Sabourin
,
the motion
    judge found that even if the plaintiffs evidence was taken at its highest,
    there was a lack of evidence that the host knew there was excessive drinking or
    that any guest was showing obvious signs of intoxication: para. 38. As such, there
    was a lack of reasonable foreseeability and summary judgment was granted.

[27]

Much of the post-
Childs
jurisprudence regarding proximity has engaged in a
    factually specific evaluation of whether something more is present to suggest
    that a positive duty to act may exist. While there is no definitive list, the
    case law has looked at a variety of factors to determine what could qualify as
    something more that would make a social gathering an inherent and obvious
    risk, including: whether alcohol was served at the party or whether guests were
    invited to bring their own alcohol, the size and type of the party, and whether
    other risky behaviour was occurring at the party, such as underage drinking or
    drug use:

see generally

Childs
,

Sidhu
,
Wardak
,

Lutter
,
Sabourin
,
Kim
,

Allen v. Radej
, 2014 ABQB 171,
Oyagi v. Grossman
, 2007 CanLII 9234 (Ont. Sup. Ct);
Wenzel v. Desanti
,
2011 ABCA
    226, 510 A.R. 327, leave to appeal to S.C.C. refused, [2011] S.C.C.A. No. 437.

[28]

There are many different factual
    permutations of what could transform a social gathering into an invitation to
    an inherent and obvious risk. It is helpful to think of these situations as
    being situated along a spectrum. At one end of the spectrum is

Childs
, which was a bring your own alcohol party where the
    hosts provided minimal alcohol. Similarly, private parties of a reasonable size
    are usually viewed by the courts as not inherently risky: see
Robinson
    v. Lewis
, 2015 ABQB 385, at paras. 72-77.
    Likewise, an invitation to a co-workers home to have dinner and after-work
    drinks outside is not inherently dangerous or risky: see
Allen
, at para. 78. Moving further down the spectrum, a
    young adult throwing a wild Halloween party and providing alcohol for around
    40 people, some of whom are using illegal drugs, may implicate a host in the
    creation of an inherent risk: see
Kim
, at paras. 9-10, 25. On the far end of the spectrum, a teenager throwing
    a house party at which over 100 people attend, most of whom are underage
    drinkers, while their parents are out of town, likely implicates the host in
    the creation of an inherent risk:

Oyagi
,

at paras. 6-7, and 12.

(c)

Motion Judges Duty of Care Analysis

[29]

With these principles in mind, I consider
    the analysis of duty of care in the present case. Normally, a duty of care
    analysis in the context of an allegation that a social host failed to act
    should consist of three elements. First, is the issue of whether the injury was
    reasonably foreseeable. Second, is the issue of whether there is sufficient
    proximity such that there is a duty to act. If these elements are satisfied, a
prima
    facie
duty of care has been established and
    the third issue is whether
this duty is negated by
    other, broader policy considerations: see
Childs
, at paras. 12 and 31.

[30]

The motion judges duty of
    care analysis, which is very brief, does not follow this structure. She indicated
    that the first issue was whether proximity had been established. However, she
    then proceeded to examine the issue of foreseeability as it related to Ms.
    Richard. At para. 48 she found, there is no evidence that Eileen Richard knew
    that Mark was about to drive while impaired. She concluded, therefore, that
    foreseeability had not been established. The motion judge then found at paras.
    49 and 51 that proximity had not been established in regard to Ms. Richard
    because none of the
features
    of a relationship that bring legal strangers into proximity, as cited by the
    Supreme Court in
Childs,

were present.

[31]

With respect to Mr. Richard,
    the motion judge never made an explicit finding regarding foreseeability but observed
    at para. 54, Jake obviously knew that Mark intended to drive the company van
    to his home approximately 5 minutes away. She then stated, the question
    becomes one of proximity. Specifically, the motion judge said at para. 56
    that the issue to be determined is, was Jake a social host, whom invited Mark
    into an inherently risky environment which he controlled or created. Her
    analysis of that issue began with a quote from para. 42 of
Childs
:

The first category concerns defendants who have created or
    invited others to participate in highly risky activities. Holding a house party
    where alcohol is served is not such an activity. Risks may ensue, to be sure,
    from what guests choose to do or not do at the party. But hosting a party is a
    far cry from inviting participation in a high-risk sport or taking people out
    on a boating party. A party where alcohol is served is a common occurrence, not
    one associated with unusual risks demanding special precautions. The second
    category of paternalistic relationships of supervision or control is equally
    inapplicable. Party hosts do not enjoy a paternalistic relationship with their
    guests, nor are their guests in a position of reduced autonomy that invites
    control. Finally, private social hosts are not acting in a public capacity and,
    hence, do not incur duties of a public nature.

[32]

Then at para. 58 she stated, accordingly,
    I must conclude that Jake neither created nor controlled an inherently and
    obviously risky environment. Proximity has not been established.

(d)

Duty of Care of Jake Richard

[33]

As mentioned above, it is unclear from
    the motion judges reasons whether she turned her mind to the issue of
    foreseeability as it applied to Mr. Richard. In my view, there is enough
    conflicting evidence to suggest there is a genuine issue requiring a trial
    regarding whether it was reasonably foreseeable that Mr. Williams would drive
    home and then drive his children and their babysitter, while under the
    influence of alcohol.

[34]

The next issue is the question of
    proximity as it applies to Mr. Richard. I am not satisfied that the motion
    judges analogy between the facts at hand and the facts of
Childs
is apt. The motion judge did not advert to or
    consider the obvious factual differences between the cases. This was not a
    large social gathering, rather it was two men drinking heavily in a garage.
    There was a developed pattern of this behaviour, enough so that the men had a pact
    as to what to do in the event one of them drove children while under the influence.
    Alcohol was provided or served, to a certain extent, as the garage refrigerator
    the men were accessing had 30 to 40 cans of beer in it. These facts distinguish
    the case at bar from
Childs
.
    Moreover, nowhere in her analysis did the motion judge consider the statement
    in
Childs
,
at para. 44
,
that it
might
    be argued that a host who continues to serve alcohol to a visibly inebriated
    person knowing that he or she will be driving home has become implicated in the
    creation or enhancement of a risk sufficient to give rise to a
prima
    facie

duty of care to third parties.

[35]

In my view, the facts of the case at bar raise
    a genuine issue requiring a trial regarding whether Mr. Richard, as a social
    host, may have invited Mr. Williams into an inherently risky environment that
    he controlled and created, thereby creating a positive duty of care.

(e)

Duty of Care of Eileen Richard

[36]

On the issue of foreseeability as it
    relates to Ms. Richard, the motion judge was incorrect when she concluded that
    there was no evidence Ms. Richard knew that Mr. Williams would be driving while
    intoxicated. As described above, there was in fact conflicting evidence on the
    point. That evidence raises a genuine issue requiring a trial.

[37]

With respect to the issue of proximity
    and Ms. Richard, t
he unique circumstances
    of this case, including her awareness of the general pact between Mr. Richard
    and Mr. Williams, Mr. Williams habitual heavy drinking on her property, and
    her knowledge of his alcohol consumption and intention to drive on that
    evening, could potentially implicate Ms. Richard in the creation or control of
    an obvious and inherent risk. There was conflicting evidence on these issues
    and I find that there is a genuine issue requiring a trial to determine the question
    of proximity as it relates to Ms. Richard.

(f)

Summary

[38]

In summary, the motion judges duty of
    care analysis was flawed and incomplete. There is conflicting evidence on many
    of the key issues. A trial is required to determine whether Mr. Richard and/or
    Ms. Richard owed a duty of care to Mr. Williams and/or his children

(2)

John v. Flynn
Analysis

[39]

After completing her duty of care analysis, the motion
    judge proffered an alternative reason for dismissing the claims. She stated
    that if she were incorrect on the issue of a duty of care, any such duty expired
    when Mr. Williams arrived safely at his home. In reaching that conclusion, she
    relied on a statement made by this court in
John
at para. 50
as follows:

There is no duty of care on the part of Eaton Yale to members
    of the driving public arising out of Flynn's participation in the EAP [a
    counselling program] and if there was such a duty, it did not extend beyond the
    point where Flynn left the company premises and drove safely to his home. Any
    suggestions as to how Eaton Yale could have controlled Flynn's activities
    beyond that point are hopelessly speculative.

[40]

The motion judge then stated at para. 64
    of her reasons, any suggestion that Eileen and Jake could have controlled
    Marks activities beyond the point he arrived at his home is similarly
    speculative. If Jake in fact, owed Mark a duty of care, that duty concluded
    once Mark arrived at his home.

[41]

The facts of
John
are very different than the facts in the case at bar.
    In that case, the individual defendant was an employee of the corporate defendant,
    working the overnight shift. The employee, who had previously sought assistance
    for his drinking problem through an employer supplied counseling program, drank
    steadily for eight hours before reporting for work, and consumed more alcohol
    during his breaks. The corporate defendant did not provide liquor to its
    employees, nor was it the host of a party or social occasion of any kind on the
    night in question.

[42]

The individual defendant concealed that
    he had been drinking. He completed his shift without incident, and his
    supervisor did not observe any signs of intoxication. He drank another beer in
    his truck and returned home. He then headed out again to visit a friend and was
    involved in an accident shortly thereafter. The individual defendant was
    intoxicated at the time of the accident.

At
    trial, the jury
apportioned liability 70
    per cent as against the individual defendant and 30 per cent as against the
    corporate defendant.

[43]

On appeal, this court held that the trial
    judge confused two unrelated duties: the duty of an employer to its employees
    to provide them with a safe work environment and the duty of a commercial host
    (and in specific circumstances, a social host) to its guests where the host has
    knowledge of the intoxication of the patrons or guests:
John
, at para. 19.

[44]

In
John
, the respondents argued that employers have a duty to
    provide employees with a safe work environment and that they should be held
    liable for harm caused by employees to themselves or to others they come in
    contact with, even when those employees are not working on company property.

That argument was rejected. The court held that
    the duty to provide a safe work environment for employees does not extend to
    members of the public who may come into contact with an employee outside the
    workplace:
John
, at paras. 48
    and 50. The court noted that the employer did not provide the employee with
    alcohol and was unaware that the employee was intoxicated. Further, the
    accident was not associated with the employer in any way besides the fact that it
    was caused by one of its employees:
John
, at para. 33.

[45]

It is clear from the reasons that the
    disposition of the appeal was based on a finding that no duty of care was
    extant in the circumstances of that case. The statement made, without analysis,
    that if such a duty existed it ended when the employee returned home was
obiter
    dicta
. In any event, I do not read the statement as standing for the
    proposition that in all circumstances a duty of care ends when a drunk driver
    returns safely home.

[46]

The motion judge seemed to accept that
    such a general rule was established in
John
. She seized upon the fact that Mr. Williams arrived
    home safely to find that any duty of care ended when Mr. Williams reached that point.
    That was an error in law. In a social host liability case, there is no
    automatic rule that the duty of care expires once the intoxicated driver
    arrives home safely. The
limits of the
    duty are determined by the facts of the case.
The motion judge was obliged to explain why the duty of care ended on Mr.
    Williams arrival home, especially since the evidence focussed not on whether
    Mr. Williams would drive home, but on whether he would drive the babysitter
    home.

[47]

In my view, the motion judge erred in
    concluding that any duty of care automatically expired when Mr. Williams
    arrived home. Assuming that such a duty existed, it is an issue for the jury to
    determine if and when the duty ended.

(3)

Other Issues

[48]

In the alternative, the respondents assert that if they owed a duty of
    care, this court should determine whether
it
is negated by other, broader policy
    considerations
and, if it is not, whether
    their actions met the standard of care. I would decline to consider these
    issues on appeal.

[49]

The issue of
whether
a
duty
    of care is negated by policy considerations
is best dealt with after the duty has been found to exist. That way any
    consideration of countervailing policy arguments can be undertaken with the benefit
    of an evidentiary record supporting the finding of a duty of care.

Similarly, an analysis of whether the duty of care has
    been met should be considered after the precise nature of the duty has been
    established.

E.

Disposition

[50]

I would: (i) allow the appeal and set aside the motion
    judges order; (ii) remit the cases to the Superior Court for trial; (iii) order
    the respondents to pay the appellants their costs of the appeal in the agreed
    upon, all-inclusive sum of $4,000; and (iv) remit the costs of the motion below
    to the trial judge.

Released: C.W.H. November 7, 2018

C.W. Hourigan J.A.

I agree. B.W. Miller J.A.

I agree. G.T. Trotter J.A.


