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CAN-ALLCASES
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Page 1
2002 CarswellOnt 2885, 217 D.L.R. (4th) 217, 13 C.C.L.T. (3d) 259, [2002] O.T.C. 628
2002 CarswellOnt 2885, 217 D.L.R. (4th) 217, 13 C.C.L.T. (3d) 259, [2002] O.T.C. 628
Childs v. Desormeaux
Zoe Childs, Andrew Childs, Pauline Childs, Heather Lee Childs and Jennie Khristine Childs, Plaintiffs and Desmond Desormeaux, Julie Zimmerman, The Dominion of Canada General Insurance Company, The General Accident Assurance Company of Canada and Dwight Courrier, Defendants
Ontario Superior Court of Justice
Chadwick J.
Heard: June 3-11, 2002
Judgment: August 30, 2002
Docket: 99-CV-0815
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Counsel: Barry D. Laushway, Beth Alexander, for Plaintiffs
Eric R. Williams, Jaye Hooper, for Defendants, Julie Zimmerman, Dwight Courrier
Helmut R. Brodmann, for Defendant, Desmond Desormeaux
Subject: Torts; Public; Civil Practice and Procedure
Negligence --- General principles — Duty and standard of care — Duty of care
Driver, who had previous convictions for impaired driving and other offences, was invited to party — Party guests
were asked to bring their own alcohol — One of hosts of party had longtime friendship with driver and knew of
driver's alcoholism — Driver left party intoxicated, drove vehicle with passengers in it and caused head on collision
with another vehicle — Plaintiff, who was passenger in other vehicle, was left paraplegic and another passenger was
killed — Driver pleaded guilty to several criminal charges and received ten-year sentence — Plaintiff brought action
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2002 CarswellOnt 2885, 217 D.L.R. (4th) 217, 13 C.C.L.T. (3d) 259, [2002] O.T.C. 628
against hosts of party alleging that they were partially responsible for her injuries — Action dismissed — It should
be left to legislature to determine social host liability and also to properly compensate innocent victims — Duty of
care allegedly owed to plaintiff by hosts was new and novel, and as such, prima facie duty of care did not arise —
Injuries of plaintiff were reasonably foreseeable by hosts and relationship between driver and hosts met test of proximity — Negligence would have been assessed at 85 per cent for driver and 15 per cent for hosts by way of contributory negligence — Good policy reason existed, however, not to expand tort law to include social hosts — Finding of liability would place tremendous obligation upon all social hosts — It was doubtful that finding of social host
liability would serve as deterrent — Deterrence was penalties provided for under Highway Traffic Act and Criminal
Code — Fact that driver was convicted of several criminal offences and was sentenced to ten years in jail was significantly deterrent — For government to provide criteria as to when social host would be liable would avoid chaos
which would develop if matter was left to common law — Criminal Code, R.S.C. 1985, c. C-46 — Highway Traffic
Act, R.S.O. 1990, c. H.8.
Negligence --- Contributory negligence — General
Driver, who had previous convictions for impaired driving and other offences, was invited to party — Party guests
were asked to bring their own alcohol — One of hosts of party had longtime friendship with driver and knew of
driver's alcoholism — Driver left party intoxicated, drove vehicle with passengers in it and caused head on collision
with another vehicle — Plaintiff, who was passenger in other vehicle, was left paraplegic and another passenger was
killed — Driver pleaded guilty to several criminal charges and received ten-year sentence — Plaintiff brought action
against hosts of party alleging that they were partially responsible for her injuries — Action dismissed — It should
be left to legislature to determine social host liability and also to properly compensate innocent victims — Duty of
care allegedly owed to plaintiff by hosts was new and novel, and as such, prima facie duty of care did not arise —
Injuries of plaintiff were reasonably foreseeable by hosts and relationship between driver and hosts met test of proximity — Negligence would have been assessed at 85 per cent for driver and 15 per cent for hosts by way of contributory negligence — Good policy reason existed, however, not to expand tort law to include social hosts — Finding of liability would place tremendous obligation upon all social hosts — It was doubtful that finding of social host
liability would serve as deterrent — Deterrence was penalties provided for under Highway Traffic Act and Criminal
Code — Fact that driver was convicted of several criminal offences and was sentenced to ten years in jail was significantly deterrent — For government to provide criteria as to when social host would be liable would avoid chaos
which would develop if matter was left to common law — Criminal Code, R.S.C. 1985, c. C-46 — Highway Traffic
Act, R.S.O. 1990, c. H.8.
Liquor control --- Offences — Principles of liability — Liability in tort of person serving liquor — General
Driver, who had previous convictions for impaired driving and other offences, was invited to party — Party guests
were asked to bring their own alcohol — One of hosts of party had longtime friendship with driver and knew of
driver's alcoholism — Driver left party intoxicated, drove vehicle with passengers in it and caused head on collision
with another vehicle — Plaintiff, who was passenger in other vehicle, was left paraplegic and another passenger was
killed — Driver pleaded guilty to several criminal charges and received ten-year sentence — Plaintiff brought action
against hosts of party alleging that they were partially responsible for her injuries — Action dismissed — It should
be left to legislature to determine social host liability and also to properly compensate innocent victims — Duty of
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2002 CarswellOnt 2885, 217 D.L.R. (4th) 217, 13 C.C.L.T. (3d) 259, [2002] O.T.C. 628
care allegedly owed to plaintiff by hosts was new and novel, and as such, prima facie duty of care did not arise —
Injuries of plaintiff were reasonably foreseeable by hosts and relationship between driver and hosts met test of proximity — Negligence would have been assessed at 85 per cent for driver and 15 per cent for hosts by way of contributory negligence — Good policy reason existed, however, not to expand tort law to include social hosts — Finding of liability would place tremendous obligation upon all social hosts — It was doubtful that finding of social host
liability would serve as deterrent — Deterrence was penalties provided for under Highway Traffic Act and Criminal
Code — Fact that driver was convicted of several criminal offences and was sentenced to ten years in jail was significantly deterrent — For government to provide criteria as to when social host would be liable would avoid chaos
which would develop if matter was left to common law — Criminal Code, R.S.C. 1985, c. C-46 — Highway Traffic
Act, R.S.O. 1990, c. H.8.
Cases considered by Chadwick J.:
Alchimowicz v. Schram, 1997 CarswellOnt 94, 22 O.T.C. 351 (Ont. Gen. Div.) — distinguished
Alchimowicz v. Schram, 1999 CarswellOnt 83, 49 M.P.L.R. (2d) 299, 116 O.A.C. 287 (Ont. C.A.) — distinguished
Alchimowicz v. Schram (1999), 252 N.R. 199 (note), 133 O.A.C. 198 (note) (S.C.C.) — distinguished
Anns v. Merton London Borough Council (1977), [1978] A.C. 728, [1977] 2 W.L.R. 1024, (sub nom. Anns v.
London Borough of Merton) [1977] 2 All E.R. 492 (U.K. H.L.) — considered
Baumeister v. Drake, 38 C.C.L.T. 1, 5 B.C.L.R. (2d) 382, 1986 CarswellBC 221 (B.C. S.C.) — distinguished
Broadfoot v. Ontario (Minister of Transportation & Communication), 25 M.V.R. (3d) 224, 32 O.R. (3d) 361,
1997 CarswellOnt 669, 26 O.T.C. 158 (Ont. Gen. Div.) — distinguished
Calliou Estate (Trustee of) v. Calliou Estate, 2002 CarswellAlta 118, 2002 ABQB 68, [2002] 3 W.W.R. 655, 99
Alta. L.R. (3d) 390 (Alta. Q.B.) — distinguished
Cooper v. Hobart, 2001 SCC 79, 2001 CarswellBC 2502, 2001 CarswellBC 2503, [2002] 1 W.W.R. 221, 206
D.L.R. (4th) 193, 96 B.C.L.R. (3d) 36, (sub nom. Cooper v. Registrar of Mortgage Brokers (B.C.)) 277 N.R.
113, 8 C.C.L.T. (3d) 26, (sub nom. Cooper v. Registrar of Mortgage Brokers (B.C.)) 160 B.C.A.C. 268, (sub
nom. Cooper v. Registrar of Mortgage Brokers (B.C.)) 261 W.A.C. 268 (S.C.C.) — considered
Crocker v. Sundance Northwest Resorts Ltd., 44 C.C.L.T. 225, [1988] 1 S.C.R. 1186, 51 D.L.R. (4th) 321, 86
N.R. 241, 29 O.A.C. 1, 64 O.R. (2d) 64n, [1988] R.R.A. 444, 1988 CarswellOnt 962, 1988 CarswellOnt 744
(S.C.C.) — distinguished
Dryden (Litigation guardian of) v. Campbell Estate, 2001 CarswellOnt 689, 11 M.V.R. (4th) 247 (Ont. S.C.J.)
— distinguished
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2002 CarswellOnt 2885, 217 D.L.R. (4th) 217, 13 C.C.L.T. (3d) 259, [2002] O.T.C. 628
Edwards v. Law Society of Upper Canada, 2001 SCC 80, 2001 CarswellOnt 3962, 2001 CarswellOnt 3963, 34
Admin. L.R. (3d) 38, 206 D.L.R. (4th) 211, 277 N.R. 145, 8 C.C.L.T. (3d) 153, 13 C.P.C. (5th) 35, (sub nom.
Edwards v. Law Society of Upper Canada (No. 2)) 56 O.R. (3d) 456 (headnote only), 153 O.A.C. 388 (S.C.C.)
— referred to
Haggarty v. Desmarais, 2000 BCSC 86, 2000 CarswellBC 219 (B.C. S.C.) — distinguished
Hague v. Billings, 15 C.C.L.T. (2d) 264, 64 O.A.C. 219, 46 M.V.R. (2d) 254, 102 D.L.R. (4th) 44, 13 O.R. (3d)
298, 1993 CarswellOnt 32 (Ont. C.A.) — distinguished
Hall v. Hebert, [1993] 4 W.W.R. 113, 152 N.R. 321, 15 C.C.L.T. (2d) 93, 101 D.L.R. (4th) 129, 45 M.V.R. (2d)
1, [1993] 2 S.C.R. 159, 26 B.C.A.C. 161, 44 W.A.C. 161, 78 B.C.L.R. (2d) 113, 1993 CarswellBC 92, 1993
CarswellBC 1260 (S.C.C.) — considered
Hunt (Litigation Guardian of) v. Sutton Group Incentive Realty Inc., 2001 CarswellOnt 346, 2001 C.L.L.C.
210-010, 52 O.R. (3d) 425, 196 D.L.R. (4th) 738, 4 C.C.L.T. (3d) 277, 12 M.V.R. (4th) 88 (Ont. S.C.J.) — distinguished
John v. Flynn, 2000 CarswellOnt 219 (Ont. S.C.J.) — distinguished
John v. Flynn, 2001 CarswellOnt 2342, 201 D.L.R. (4th) 500, 54 O.R. (3d) 774, 148 O.A.C. 148, 2001 C.L.L.C.
210-031, 18 M.V.R. (4th) 244 (Ont. C.A.) — distinguished
John v. Flynn, 2002 CarswellOnt 1463, 2002 CarswellOnt 1464 (S.C.C.) — distinguished
Kelly v. Gwinnell (1984), 476 A.2d 1219, 96 N.J. 538 (U.S. N.J. Sup. Ct.) — considered
McAlister (Donoghue) v. Stevenson, [1932] A.C. 562, [1932] All E.R. Rep. 1, 101 L.J.P.C. 119, 147 L.T. 281,
37 Com. Cas. 850 (U.K. H.L.) — considered
Menow v. Honsberger (1973), (sub nom. Jordan House Ltd. v. Menow (Can.)) 38 D.L.R. (3d) 105, [1974]
S.C.R. 239, 1973 CarswellOnt 230, 1973 CarswellOnt 230F (S.C.C.) — distinguished
Prevost (Committee of) v. Vetter, 2001 BCSC 312, 2001 CarswellBC 693, 197 D.L.R. (4th) 292, 5 C.C.L.T.
(3d) 266 (B.C. S.C. [In Chambers]) — distinguished
Prevost (Committee of) v. Vetter, 2002 BCCA 202, 2002 CarswellBC 610, 100 B.C.L.R. (3d) 44, 210 D.L.R.
(4th) 649, 11 C.C.L.T. (3d) 127, (sub nom. Prevost v. Vetter) 166 B.C.A.C. 56, (sub nom. Prevost v. Vetter) 271
W.A.C. 56 (B.C. C.A.) — distinguished
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2002 CarswellOnt 2885, 217 D.L.R. (4th) 217, 13 C.C.L.T. (3d) 259, [2002] O.T.C. 628
Stewart v. Pettie, 23 C.C.L.T. (2d) 89, 25 Alta. L.R. (3d) 297, [1995] 3 W.W.R. 1, [1995] 1 S.C.R. 131, 177
N.R. 297, 8 M.V.R. (3d) 1, 121 D.L.R. (4th) 222, 162 A.R. 241, 83 W.A.C. 241, 1995 CarswellAlta 1, 1995
CarswellAlta 406 (S.C.C.) — considered
Wince (Guardian ad litem of) v. Ball, 40 Alta. L.R. (3d) 66, [1996] 8 W.W.R. 28, 136 D.L.R. (4th) 104, (sub
nom. Wince v. Ball) 186 A.R. 156, 1996 CarswellAlta 461 (Alta. Q.B.) — distinguished
Statutes considered:
Criminal Code, R.S.C. 1985, c. C-46
Generally — referred to
Highway Traffic Act, R.S.O. 1990, c. H.8
Generally — referred to
Importation of Intoxicating Liquors Act, R.S.C. 1985, c. I-3
Generally — referred to
Insurance Act, R.S.O. 1990, c. I.8
Generally — referred to
Liquor Control Act, R.S.O. 1990, c. L.18
Generally — referred to
Liquor Licence Act, R.S.O. 1990, c. L.19
Generally — referred to
Motor Vehicle Accident Claims Act, R.S.O. 1990, c. M.41
Generally — referred to
Regulations considered:
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2002 CarswellOnt 2885, 217 D.L.R. (4th) 217, 13 C.C.L.T. (3d) 259, [2002] O.T.C. 628
Insurance Act, R.S.O. 1990, c. I.8
Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, O. Reg. 403/96
Generally
ACTION by plaintiff against party hosts for contributory negligence for party guest driving impaired and causing
motor vehicle accident resulting in serious injuries to plaintiff.
Chadwick J.:
1
At approximately 1:30 a.m. on January 1, 1999, Zoe Childs, an 18-year-old teenager, was a passenger in a
motor vehicle driven by Patricia Hadden which was travelling southbound on Albion Road, in the Township of
Gloucester, in the Regional Municipality of Ottawa-Carleton.
2
Nicholas Dupre was seated beside the driver, Patricia Hadden, and Zoe Childs was in the rear of the vehicle
with her boyfriend, Derek Dupre, the twin brother of Nicholas Dupre.
3
At the same time the Defendant Desmond Desormeaux and two passengers, Maureen O'Brien and Ray Sauvé,
were travelling northbound on Albion Road in the Desormeaux vehicle. At a location just south of Lester Road, the
Desormeaux vehicle crossed over into the southbound lane on Albion Road and collided head on with the Hadden
motor vehicle.
4
As a result of the collision, Derek Dupre was killed and all of the other passengers in the Hadden motor vehicle were seriously injured. Zoe Childs was the most seriously injured. Her spine was severed at T10 and she is now a
paraplegic.
5
The passengers in the Desormeaux vehicle were also injured along with the driver, Desmond Desormeaux.
Desmond Desormeaux was taken to the Ottawa Civic Hospital where a blood sample was obtained at approximately
4:00 a.m. on January 1, 1999. The blood sample showed a blood alcohol concentration (BAC) of 183 mg/100ml.
Desmond Desormeaux was subsequently charged with a number of offences arising out of the accident. Desmond
Desormeaux pleaded guilty to these charges and received a sentence of 10 years. At the time of the trial, Desmond
Desormeaux was on parole and residing in a halfway house in Ottawa.
6
Shortly before the accident, Desmond Desormeaux had been at a party hosted by the Defendants, Julie Zimmerman and Dwight Courrier. This was a bring your own alcohol drinks (BYOB) party combined with a potluck
supper.
7
The issue at trial is whether Julie Zimmerman and Dwight Courrier, as hosts of this party, should be found
partially responsible for injuries sustained by Zoe Childs in the motor vehicle accident.
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2002 CarswellOnt 2885, 217 D.L.R. (4th) 217, 13 C.C.L.T. (3d) 259, [2002] O.T.C. 628
8
It was agreed by all counsel that the issue of liability and damages would be bifurcated and liability would be
tried first.
9
There are portions of the evening of December 31, 1998 and the early morning of January 1, 1999 that Desmond Desormeaux does not remember. However, he claims to have approximately 80% recollection of what took
place at the party.
10
Desmond Desormeaux had known Dwight Courrier since their teenage years in Ottawa. They had remained
friends for over 20 years and Desmond Desormeaux described Dwight Courrier as his best friend. Dwight Courrier,
in his evidence, only described Desmond Desormeaux as "an acquaintance" and not a friend. Although Dwight
Courrier acknowledged that he saw Desmond Desormeaux two or three times a month over the last 20 years, I accept Desmond Desormeaux's classification of the relationship between himself and Dwight Courrier.
11
Just before Christmas, Desmond Desormeaux met Dwight Courrier at the Billings Bridge Shopping Centre in
Ottawa. Dwight Courrier invited Desmond Desormeaux to join he and his common-law spouse, Julie Zimmerman,
for a New Years Eve party at their home on Anderson Road. The people in attendance were to be mostly family
members as Dwight Courrier's older brother, Randy, was visiting from Vancouver.
12
The Defendant Desormeaux, was 39 years of age at the time of the accident. According to his own assessment he is an alcoholic and has been for 20 years preceding the accident. He has always been in denial until after the
tragic accident.
13
Desmond Desormeaux's drinking became worse after his brother, Steve, died in October of 1990. He took
the death of his brother very hard. He feels now that alcohol was his main way of dealing with his brother's death.
14
On some days, Desmond Desormeaux would drink as many as 24 beers, if he had the money to purchase it.
His work was sporadic and when he was working part-time, he would consume a lesser amount. Although at trial he
denied he would drink 24 beers a day by himself, he was referred to his answer on discovery where he admitted he
did, indeed, drink 24 beers by himself. He claims that this was an exaggeration. At trial he claimed that when consuming 9 to 12 beers he would be drunk and 15 beers would be his upper limit. By his own self-assessment if he
consumed 9 to 12 beers there would be obvious signs of intoxication such as slurring and staggering.
15
Desmond Desormeaux was convicted in June of 1991 for impaired driving, in 1994 again for impaired driving and in 1996 for driving while disqualified.
16
Another mutual friend of Dwight Courrier and Desmond Desormeaux was Ray Sauvé, who was also a heavy
drinker and, according to Desmond Desormeaux's evaluation, an alcoholic. Desmond Desormeaux and Ray Sauvé
had been friends since they were teenagers and had worked doing landscaping for the National Capital Commission.
17
In 1992 after Dwight Courrier separated from his wife, he moved into a house on Albion Road with Ray
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2002 CarswellOnt 2885, 217 D.L.R. (4th) 217, 13 C.C.L.T. (3d) 259, [2002] O.T.C. 628
Sauvé and Desmond Desormeaux. Dwight Courrier lived with them for two or three months and was working at the
time. It would appear from the evidence that there was a continuous party every weekend at the Albion Road house.
18
Although Ray Sauvé, Desmond Desormeaux and Dwight Courrier all down played activities at the Albion
Road house, Emilia Farina, the former girlfriend of Dwight Courrier, painted a different picture. Emilia Farina was
only 17 years of age at the time and Dwight Courrier was 29 years old. She used to visit the Albion Road house on
weekends two or three times a month. Emilia Farina described Dwight Courrier drinking a 26-ounce bottle of rye
and Desmond Desormeaux and Ray Sauvé drinking 24 beers on the weekend and sometimes 24 beers in a day. She
described Desmond Desormeaux as falling down drunk and urinating in his pants and in the bed and occasionally
losing consciousness.
19
Emilia Farina eventually moved in with Dwight Courrier and they lived at various locations around Ottawa.
During that time, Dwight Courrier would see Desmond Desormeaux at least twice a month usually at their house.
Each occasion would be a drinking session, with Desmond Desormeaux drinking as many as 24 beers during one
visit. Emilia Farina described Desmond Desormeaux, after he had consumed large doses of alcohol, as having
slurred speech, bloodshot eyes and sometimes being rude and obnoxious. She was aware that Desmond Desormeaux
had lost his licence and she had never seen Desmond Desormeaux drive a motor vehicle. Dwight Courrier or she,
Emilia Farina, drove him places from time to time. She described Dwight Courrier and Desmond Desormeaux as
buddies.
20
Of the group, Dwight Courrier was the only one that had steady employment and worked on a regular basis.
He was a truck driver and was very concerned about his licence and would not drive if he had been drinking. Emilia
Farina identified sports as being the common interest between Dwight Courrier and Desmond Desormeaux. She
described Desmond Desormeaux as having a tremendous capacity to tolerate alcohol, sometimes showing impairment, but not always.
21
Ray Sauvé was injured in the motor vehicle accident and has a claim against Desmond Desormeaux, Julie
Zimmerman and Dwight Courrier. Ray Sauvé's evidence has to be weighed very carefully as there were many contradictions between his evidence at trial and previous answers given on discoveries. Most of these contradictions
related to the description of Desmond Desormeaux when he was drinking. The evidence at trial was that you could
tell when Desmond Desormeaux had been drinking because he showed signs of intoxication. At discovery, he indicated he had a hard time detecting when Desormeaux was drinking because Desmond Desormeaux could handle his
booze. At trial he described Desmond Desormeaux as getting loud and obnoxious and on discovery he described
him as being cool and calm.
22
In 1990, Desmond Desormeaux was living at home with his parents, but did stay with Ray Sauvé from time
to time. In 1997, Grant Stevens rented the Albion Road property and Ray Sauvé and Desmond Desormeaux lived
with Grant Stevens. Ray Sauvé described how Grant Stevens would put plastic on the couch and chairs because
Desmond Desormeaux would sometimes urinate on them. Grant Stevens wanted Desmond Desormeaux to move out
because of his excessive drinking.
23
Julie Zimmerman and Dwight Courrier started living together around Christmas of 1996. At that time they
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lived on Baseline Road and subsequently moved to the Anderson Road property in October of 1998. Between 1997
and 1998, Desmond Desormeaux attended their house on at least six occasions where Dwight Courrier and Desmond Desormeaux would watch football games. Apparently, Dwight Courrier would pick Desmond Desormeaux up
or he would ride to their house on a bicycle. If Dwight Courrier was drinking he would not drive Desmond Desormeaux home. Desmond Desormeaux would sleep over at their house on these occasions.
24
Ray Sauvé had been to Julie Zimmerman and Dwight Courrier's house on Anderson Road on two previous
occasions. The invitation to attend the party was extended by Desmond Desormeaux to both his girlfriend Maureen
O'Brien and Ray Sauvé. It was arranged that they were going to stay over that night, according to Desmond Desormeaux.
25
On the evening of the party, they bought a case of 24 beers, a bottle of Amaretto and wine for Desmond Desormeaux's girlfriend, Maureen O'Brien.
26
Ray Sauvé admits he had two beers before Desmond Desormeaux arrived to pick him up to go to the party
and they each had a pint of beer at his house. They then drove to Maureen O'Brien's place on Limebank Road where
they had another beer and Maureen O'Brien had a drink of Amaretto. Maureen O'Brien's children were staying with
her mother.
27
They drove to the party in Desmond Desormeaux's car, which had been given to him from his father's estate.
Ray Sauvé was not aware that there was no insurance on the motor vehicle.
28
Ray Sauvé describes arriving at the party around 9:30 p.m. Desmond Desormeaux was carrying the beer and
someone took the case of beer from him at the door. He thought the beer was put into the refrigerator downstairs and
any time he wanted a beer he went over and asked someone for one. He estimates he had 7 or 8 pints of beer while
at the party. During the evening he described Maureen O'Brien as being loud, obnoxious, and having an attitude and
he avoided her. He described Desmond Desormeaux as socializing with other guests. Ray Sauvé felt that he and
Maureen O'Brien were too drunk to drive. He did not pay much attention as to how much Desmond Desormeaux
drank that evening.
29
was.
Ray Sauvé was insistent that someone was serving the beer at the party, however, he did not recall who it
30
A glass of champagne was served at midnight and shortly after that Ray Sauvé went outside and passed out
in the back of the car.
31
Maureen O'Brien first met Desmond Desormeaux in August 1998 while frequenting bars around Ottawa. By
December of that year she was seeing Desmond Desormeaux on a regular basis. As she worked during the week she
would normally only see him on weekends. She saw Desmond Desormeaux drink to excess on two or three occasions. This would cause him to slur his speech and eventually pass out. She did not find it easy to tell if Desmond
Desormeaux had been drinking to excess. On cross-examination by Mr. Williams, she admitted that on discovery
she had said that she had never seen Desmond Desormeaux impaired.
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32
Maureen O'Brien also has an action against Desmond Desormeaux, Julie Zimmerman and Dwight Courrier
for damages arising from injuries suffered in the accident.
33
Maureen O'Brien's recollection of events on the evening of December 31, 1998, are somewhat different from
Ray Sauvé and Desmond Desormeaux. On that date, her children were at her home and she took them over to her
mother's place in Manotick. Desmond Desormeaux had been at her home cutting firewood for her and left to pick up
Ray Sauvé. They bought Kentucky Fried Chicken for the potluck dinner. There was no discussion about staying
overnight as she had no interest in doing so. She did not particularly want to go to the party as she felt there would
be a group of young people there. Before leaving for the party she had a drink of Amarillo and milk. She had purchased the Amaretto and wine and Desmond Desormeaux had purchased the beer. She also took Fiorial, which was
prescribed, for her migraine headaches. She took a total of six pills that day; two while at the party which would
account for the barbiturates which were shown in her blood alcohol test. She arranged for her children to stay with
her mother in Manotick overnight and return the next day. She intended to come home with Desmond Desormeaux
to her own house.
34
According to Maureen O'Brien, Desmond Desormeaux carried the beer into the house and put it behind the
bar. If you wanted a beer you asked the person at the bar. She did not know the name of the person at the bar, but
could only identify the person as a male. Maureen O'Brien did not spend much time with Desmond Desormeaux as
she described him as being in a "bad mood". She indicated that she was in no position to make an assessment of
Desmond Desormeaux's intoxication at the time they left the party. Desmond Desormeaux appeared to have no
trouble talking or walking to the car.
35
Ray Sauvé got into an argument after he wiped his hands on Peter Sagos' suede jacket. After this altercation
they all decided to leave. Ray Sauvé walked to the car with them. When they were leaving Dwight Courrier asked
Desmond Desormeaux "are you ok brother" to which Desmond Desormeaux responded "no problem". Dwight Courrier did not ask Desmond Desormeaux to stay overnight as he had done before nor did he offer to call a taxi.
36
After they got into the car, Ray Sauvé fell asleep and Maureen O'Brien and Desmond Desormeaux had a
discussion about returning to her home. When they arrived at Albion Road, Desmond Desormeaux turned right instead of left and, therefore, was going the wrong direction. Maureen O'Brien had no recollection of events after the
discussion in the car about where they were going.
37
I prefer the evidence of Maureen O'Brien to that of Desmond Desormeaux and Ray Sauvé as to the events
leading up to the party and the party since her memory of details seems better.
38
There were a number of witnesses who attended the party and provided their observations. Some have better
recollection than others.
39
One such witness was Peter Sagos. He arrived between 11:15 and 11:30 p.m. He did not know the host or
hostess and knew very few people at the party.
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40
Peter Sagos remembers seeing Desmond Desormeaux with two women, one being his girlfriend, and he observed them going from room to room. He described Desmond Desormeaux as "weird" looking and indicated that he
looked drunk. Peter Sagos was not happy to be at the party. When Ray Sauvé wiped his hands on Peter Sagos' suede
coat, an altercation took place and someone broke it up however, he does not recall whether it was Randy Courrier
or not.
41
Peter Sagos was the designated driver for his group of three people and they were not invited to stay overnight although other family members were invited to stay overnight.
42
Marco Ortis, is a friend of Dwight Courrier and shares a common interest in motor vehicles. He describes
Dwight Courrier as being a very responsible person who would not drink and drive.
43
Marco Ortis was also a guest at the New Years Eve party. He was interested in seeing Dwight Courrier's
older brother, Randy, who was visiting from Vancouver.
44
A friend drove Marco Ortis to the party and he was greeted by Randy and Dwight Courrier when he arrived.
He placed his beer in the refrigerator upstairs and a bottle of Jack Daniels on the table. He served himself all evening. He saw Desmond Desormeaux at the party but talked to him very little. He spoke to Desmond Desormeaux
shortly after midnight. At that time he did not notice anything unusual about him and when asked, he did not know
how much alcohol Desmond Desormeaux had consumed. He was invited to stay overnight if he did not get a ride
home. He acknowledges that he had no real reason to make any observations as to Desmond Desormeaux's condition, as he was not driving with him. He did not observe anything unusual about Maureen O'Brien or Ray Sauvé. In
his opinion, there was no one at the party who was too drunk to drive home which is inconsistent with the evidence
of the other witnesses. He estimated he had consumed three or four beers and one-half of the bottle of Jack Daniels.
His friend picked him up at around 1:30 a.m. at which time Desmond Desormeaux and his group had already departed.
45
Christine Courrier, the daughter of Randy Courrier and the niece of Dwight Courrier, was a Carleton University student at the time of the party. On the night in question she arrived at the party with some of her friends. She
had never met Desmond Desormeaux before the party.
46
Most of the evening Christine Courrier was preoccupied with a new puppy she had just bought and placed in
Dwight Courrier's son's room. That evening she spent most of her time in the room with the puppy. She did not
overhear any conversations between Desmond Desormeaux and anyone else. Her observations were rather limited.
She did acknowledge that Maureen O'Brien appeared to be intoxicated. She was also present when Ray Sauvé wiped
his hands on Peter Sagos' jacket and when the verbal altercation took place, which was broken up by her father,
Randy Courrier. She left the party at approximately 12:20 a.m. with her group and Peter Sagos was their designated
driver.
47
George Courrier, the younger brother of Dwight Courrier, had met Desmond Desormeaux on approximately
half a dozen occasions. He had never observed Desmond Desormeaux drunk. When George Courrier and his wife,
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Wendy, arrived at the party they had intended to stay overnight. During the course of the evening, he consumed beer
from the downstairs refrigerator which he served himself as no one was serving alcohol. He saw Maureen O'Brien
and Ray Sauvé, but did not know whether they were drunk or sober. He made no observation as to Desmond Desormeaux's condition that evening.
48
Wendy Courrier had worked as a customer service representative with the LCBO and had been trained to
observe signs of impairment in people. She was familiar with the brochure of suggestions and tips for hosts, which is
normally distributed by the LCBO with special occasion permits.
49
Wendy Courrier met Maureen O'Brien at the party and felt that Maureen O'Brien was intoxicated, but Desmond Desormeaux was not showing any signs of intoxication. She also concluded Ray Sauvé was intoxicated but
made no observations of Desmond Desormeaux's condition at the time he was leaving.
50
On occasions, Julie Zimmerman had seen Desmond Desormeaux drink to excess where he would slur his
words, fall down, be fidgety and loud. When he was not drinking he was a quiet, relaxed individual. Although Julie
Zimmerman played down her knowledge of Desmond Desormeaux's drinking habits, I find, as a fact, that she knew
Desmond Desormeaux was a problem drinker and often drank to excess.
51
Julie Zimmerman described Dwight Courrier as not drinking very often as he worked a very tight schedule.
52
Dwight Courrier drives tractor-trailers for a living and works long hours. Due to the nature of his occupation
and the need to maintain his driving privileges, Dwight Courrier is very careful not to drive if he has had anything to
drink.
53
Dwight Courrier and Julie Zimmerman planned to have a New Years party for family and close friends. In
preparation she purchased three bottles of Champagne. She describes consuming three Margueritas in the afternoon
before the guests arrived and only one beer during the party.
54
Julie Zimmerman had gathered up blankets and pillows in order that the guests could stay overnight if they
wished. She had only met Ray Sauvé and Maureen O'Brien on one other occasion. During the evening she saw
Maureen O'Brien and Ray Sauvé and felt that both of them were intoxicated.
55
Of the three bottles of champagne they only used three-quarters of one and it was served in one and one-half
ounce glasses. Julie Zimmerman was completely sober that evening.
56
Julie Zimmerman heard the commotion between Ray Sauvé and Peter Sagos and saw Randy Courrier go to
break it up.
57
During the course of the trial a pamphlet directed to hosts, which was prepared by the Addiction Research
Foundation and distributed by the Liquor Control Board of Ontario, was filed as an exhibit. Julie Zimmerman was
cross-examined on the ten suggestions set out in the pamphlet as to how to avoid problems when having a party in a
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home. These tips or suggestions were as follows:
(1) Don't drink too much yourself;
(2) Plan ahead so that it's easy to try some of these tips;
(3) Stop serving alcohol a few hours before the party is over;
(4) Find out how guests will be going home from your party;
(5) Plan to deal with guests who drink too much;
(6) Serve drinks yourself instead of having an open bar;
(7) Be prepared for overnight guests;
(8) Serve snacks;
(9) Have low-alcohol and alcohol-free cocktails and drinks available too; and
(10) Don't plan physical activities, like swimming, skiing, snow-mobiling and skating when your serve alcohol.
58
On cross-examination, Julie Zimmerman had complied with seven of the ten recommendations.
59
Julie Zimmerman admits she did not pay much attention as to how much alcohol people brought to the party
nor did she check on how much was being consumed.
60
Julie Zimmerman denies that she was pleased to see Desmond Desormeaux, Maureen O'Brien and Ray
Sauvé leave after the incident with Mr. Peter Sagos' coat. While in the kitchen just before they left, she offered to
have Desmond Desormeaux and his guests stay overnight and continue the party. She believes they refused because
Maureen O'Brien wanted to pick up her children at her mother's place. She believes Dwight Courrier was there at the
time, but could not remember. She is positive she made the offer to them notwithstanding that Desmond Desormeaux said that no offer had been made. She observed Desmond Desormeaux when he was leaving and he
seemed fine.
61
Julie Zimmerman knew that Maureen O'Brien and Ray Sauvé were too intoxicated to police Desmond Desormeaux's driving. She never thought of it at the time and did not feel he was too drunk to drive. Julie Zimmerman
did not know how much Desmond Desormeaux drank that night and did not ask him before he left.
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62
I am satisfied on the evidence that Julie Zimmerman was more than pleased to see the trio of Desmond Desormeaux, Maureen O'Brien and Ray Sauvé leave her home. According to Julie Zimmerman's evidence, Maureen
O'Brien and Ray Sauvé were intoxicated and causing trouble. Considering the background knowledge she had of
Desmond Desormeaux and his drinking problems it should have been apparent, or at least caused an inquiry as to his
ability to drive. For the same reasons, I am also satisfied that Julie Zimmerman did not extend an invitation for the
trio to stay over that night.
63
Dwight Courrier played down the knowledge of Desmond Desormeaux's drinking habits and did not admit
that Desmond Desormeaux had an alcohol problem. He was very guarded in giving his evidence.
64
Dwight Courrier did acknowledge that when Ray Sauvé, Maureen O'Brien and Desmond Desormeaux arrived at his party that both Maureen O'Brien and Ray Sauvé were intoxicated. Although he observed Desmond Desormeaux during the evening, he did not observe any signs of intoxication on his part. He did not know how much
alcohol Desmond Desormeaux brought to the party nor did he know how much he had consumed. When being
pressed by Mr. Laushway on cross-examination about his observations that evening and as to how much alcohol his
guests had consumed, Dwight Courrier's response summed up his attitude. He said "people are responsible for their
own actions".
65
Dwight Courrier believes that he asked Desmond Desormeaux and his guests to stay overnight however, he
is not positive.
66
I am satisfied on all of the acceptable evidence that Dwight Courrier was well aware of Desmond Desormaux's past drinking problems including his previous convictions. When Desmond Desormeaux arrived at the
party along with Maureen O'Brien and Ray Sauvé, who were obviously intoxicated, it should have put Dwight Courrier on red alert that Desmond Desormeaux had been with them and probably had consumed as much alcohol, if not
more, than the other two.
67
I am also satisfied on the evidence that Dwight Courrier deliberately did not pay any attention to how much
alcohol was brought in by the Desormeaux group or how much was consumed while on the premises.
68
Dwight Courrier's test for Desmond Desormeaux's sobriety appears to be that when he falls asleep, he has
had too much to drink. As long as he is vertical there is no problem. Dwight Courrier appears to have a difficult time
distinguishing between falling asleep and passing out.
69
I give very little weight to the evidence of Dwight Courrier.
70
Dr. Howard Cappell is a psychologist who has spent his career in the field of Psychology and Pharmacology.
He has done extensive research and publications as to the effects of alcohol on human behaviour. He is an expert in
the field.
71
Dr. Cappell reviewed all of the materials relating to Desmond Desormeaux's behaviour on the night of De-
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cember 21, 1998 and, in particular, the blood sample and its analysis for alcohol content.
72
Based upon a blood alcohol concentration of 183 mg/100ml at 4:00 a.m. on January 1, 1999, he concluded
Desmond Desormeaux would have had a blood alcohol concentration of 225 mg/100ml at 1:35 a.m., the time of the
accident.
73
It was Dr. Cappell's evidence that Desmond Desormeaux had consumed twelve beers within the two and half
hours. In reaching that conclusion he took into consideration that Desormeaux was a seasoned drinker and this
would affect his elimination rate. It was Dr. Cappell's opinion, which I accept, that Desormeaux would have a blood
alcohol reading of 235 at the time he left the party. This is almost three times the legal limit. This high consumption
over a short period of time would cause the blood alcohol content to rise at a very high rate and cause impairment. I
am satisfied on all of the evidence Desmond Desormeaux would be showing obvious signs of impairment when he
left the party.
Issues:
Do Dwight Courrier and Julie Zimmerman, as social hosts, owe a duty of care to Zoe Childs, a passenger in a
motor vehicle who was seriously injured as a result of the negligence of Desmond Desormeaux whose ability to
operate a motor vehicle was impaired by alcohol which was consumed at the Courrier/Zimmerman residence?
If there is such duty, are there grounds rooted in policy which would limit or negate the finding of a duty?
Analysis:
74
At the start, I must express my gratitude to all counsel who have provided me with extensive research on this
issue. They have not only provided me with the relevant Canadian authorities, but authorities from many other countries as well.
75
There have been a number of Canadian cases where social hosts have been sued. None of these previous
cases have found liability on the social hosts and all of the cases turn upon their own fact situation, which are far
different than the facts in this case. None of the previous cases have considered the legal issues, which are put forth
in this action. The citation for these cases are as follows: Baumeister v. Drake, [1986] B.C.J. No. 3008 (B.C. S.C.);
Wince (Guardian ad litem of) v. Ball, [1996] A.J. No. 496 (Alta. Q.B.); Alchimowicz v. Schram, [1997] O.J. No. 135
(Ont. Gen. Div.) appeal dismissed [1999] O.J. No. 115 (Ont. C.A.), leave to appeal denied [1999] S.C.C.A. No. 127
(S.C.C.); Broadfoot v. Ontario (Minister of Transportation & Communication), [1997] O.J. No. 759 (Ont. Gen.
Div.); Haggarty v. Desmarais, [2000] B.C.J. No. 186 (B.C. S.C.); Hunt (Litigation Guardian of) v. Sutton Group
Incentive Realty Inc., [2001] O.J. No. 374 (Ont. S.C.J.); Dryden (Litigation guardian of) v. Campbell Estate, [2001]
O.J. No. 829 (Ont. S.C.J.); John v. Flynn, [2001] O.J. No. 2578 (Ont. C.A.) rev'g [2000] O.J. No. 128 (Ont. S.C.J.),
leave to appeal dismissed with costs May 2, 2002 (without reasons) S.C.C. Bulletin, 2002, p.716 [2002 CarswellOnt
1463 (S.C.C.)]; Calliou Estate (Trustee of) v. Calliou Estate, [2002] A.J. No. 74 (Alta. Q.B.); Prevost (Committee
of) v. Vetter, [2002] B.C.J. No. 60 (B.C. C.A.) rev'g [2001] B.C.J. No. 495 (B.C. S.C. [In Chambers]).
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76
The first question to be considered is whether this is a new duty of care or merely an extension of an existing
duty of care. In my view, the duty of care urged upon me by counsel for the Plaintiffs is new and novel. It is not
merely an extension of existing tort law.
77
As such, there must be a careful analysis to determine if the harm suffered by Zoe Childs was foreseeable
and, if so, whether there was a direct relationship of proximity or neighbourhood to Courrier/Zimmerman.
78
The starting point is found in the decision of the House of Lords in McAlister (Donoghue) v. Stevenson,
[1932] A.C. 562 (U.K. H.L.). In that case the court had to determine if the manufacturer of a bottle of ginger beer
owed a duty to a consumer who suffered injury as a result of finding a decomposed snail in the bottle after consuming part of the contents of the bottle. Lord Atkin in finding liability against the manufacturer established the principle of negligence. His reasons have been followed and adopted in all the common law countries. In looking at the
relationship between the parties he states as follows at p.580:
The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour ? receives a restricted reply. You must take reasonable care to avoid acts
or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is
my neighbour ? The answer seems to be — persons who are so closely and directly affected by my act that I
ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or
omissions which are called in question.
79
In defining the question of proximity Lord Atkin states as follows at p.581:
I think that this sufficiently states the truth if proximity be not confined to mere physical proximity, but be used,
as I think it was intended, to extend to such close and direct relations that the act complained of directly affects
a person whom the person alleged to be bound to take care would know would be directly affected by his careless act. ...
80
In the decision of Anns v. Merton London Borough Council (1977), [1978] A.C. 728 (U.K. H.L.), the court
sets out the test that must be applied in considering a duty of care and proximity. At p.751 Lord Wilberforce states:
Through the trilogy of cases in this House — Donoghue v. Stevenson, [1932] A.C. 562, Hedley Byrne & Co.
Ltd. v. Heller & Partners Ltd., [1964] A.C. 465, and Dorset Yacht Co. Ltd. v. Home Office, [1970] A.C. 1004,
the position has now been reached that in order to establish that a duty of care arises in a particular situation, it
is not necessary to bring the facts of that situation within those of previous situations in which a duty of care has
been held to exist. Rather the question has to be approached in two stages. First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may
be likely to cause damage to the latter — in which case a prima facie duty of care arises. Secondly, if the first
question is answered affirmatively, it is necessary to consider whether there are any considerations which ought
to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages
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to which a breach of it may give rise.
81
The Supreme Court of Canada in two recent decisions clarified the application of the Anns' test.
82
In Cooper v. Hobart (2001), 206 D.L.R. (4th) 193 (S.C.C.), the court applied the Anns' test to determine
whether the Registrar of Mortgage Brokers owed a duty to an investor who lost monies as a result of the unauthorized use by a mortgage broker.
83
McLachlin C.J.C. and Major J. on behalf of the court analyzed the test in Anns v. Merton London Borough
Council, supra. At p.200 they state as follows:
[21] Canadian courts have not thus far recognized the duty of care that the appellants allege in this case. The
question is therefore whether the law of negligence should be extended to reach this situation. While the particular extension sought is novel, the more general issue of how far the principles of liability for negligence
should be extended is a familiar one, and one with which this Court and others have repeatedly grappled since
Lord Atkin enunciated the negligence principle in Donoghue v. Stevenson, [1932] A.C. 562 (H.L.), almost 70
years ago. That case introduced the principle that a person could be held liable only for reasonably foreseeable
harm. But it also anticipated that not all reasonably foreseeable harm might be caught. This posed the issue with
which courts still struggle today: to what situations does the law of negligence extend? This case, like so many
of its predecessors, may thus be seen as but a gloss on the case of Donoghue v. Stevenson.
[22] In Donoghue v. Stevenson the House of Lords revolutionized the common law by replacing the old categories of tort recovery with a single comprehensive principle — the negligence principle. Henceforward, liability
would lie for negligence in circumstances where a reasonable person would have viewed the harm as foreseeable. However, foreseeability alone was not enough; there must also be a close and direct relationship of proximity or neighbourhood.
[23] But what is proximity? For the most part, lawyers apply the law of negligence on the basis of categories as
to which proximity has been recognized in the past. However, as Lord Atkin declared in Donoghue v. Stevenson, the categories of negligence are not closed. Where new cases arise, we must search elsewhere for assistance in determining whether, in addition to disclosing foreseeability, the circumstances disclose sufficient
proximity to justify the imposition of liability for negligence.
[24] In Anns, supra, at pp.751-52, the House of Lords, per Lord Wilberforce, said that a duty of care required a
finding of proximity sufficient to create a prima facie duty of care, followed by consideration of whether there
were any factors negativing that duty of care. This Court has repeatedly affirmed that approach as appropriate in
the Canadian context.
84
After reviewing the policy component and the stage of application the Court summarized the Anns test at
p.203:
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[30] In brief compass, we suggest that at this stage in the evolution of the law, both in Canada and abroad, the
Anns analysis is best understood as follows: At the first stage of the Anns test, two questions arise: (1) was the
harm that occurred the reasonably foreseeable consequence of the defendant's act? and (2) are there reasons,
notwithstanding the proximity between the parties established in the first part of this test, that tort liability
should not be recognized here? The proximity analysis involved at the first stage of the Anns test focuses on
factors arising from the relationship between the plaintiff and the defendant. These factors include questions of
policy, in the broad sense of that word. If foreseeability and proximity are established at the first stage, a prima
facie duty of care arises. At the second stage of the Anns test, the question still remains whether there are residual policy considerations outside the relationship of the parties that may negative the imposition of a duty of
care. It may be, as the Privy Council suggests in Yuen Kun Yeu, that such considerations will not often prevail.
However, we think it useful expressly to ask, before imposing a new duty of care, whether despite foreseeability
and proximity of relationship, there are other policy reasons why the duty should not be imposed.
85
The court then applies the test to the facts in the case. In answer to the first question they find the case does
not fall into a category of cases in which a duty of care has been previously recognized.
86
They then proceed to the second question and that is "whether this is a situation in which a new duty of care
should be recognized".
87
In the Cooper case, the proximity must be established through the provisions of the statute. After a review of
the statute the court concluded it did not impose a duty of care on the Registrar specific to investments with the
mortgage broker. Therefore, there was no finding of proximity, which would have invoked the second part of the
Anns' test, namely, policy consideration.
88
In Edwards v. Law Society of Upper Canada (2001), 206 D.L.R. (4th) 211 (S.C.C.), the court had to determine whether the Law Society of Upper Canada owed a duty to an investor who invested money in a company
through his lawyers' trust account. McLachlin C.J.C. and Major J., on behalf of the court, concluded there was no
duty owed by the Law Society to the plaintiff investor, after applying the test in Anns.
Application of the Test:
89
As indicated earlier, counsel for the Plaintiffs puts forth two alternatives. One is that this case falls into an
analogous category of cases in which a duty of care has previously been recognized. The other is that if a similar
duty of care has not been recognized, then, it is novel and a new duty of care should be established.
90
The court in Cooper v. Hobart, supra, considered various categories at p.205:
[36] What then are the categories in which proximity has been recognized? First, of course, is the situation
where the defendant's act foreseeably causes physical harm to the plaintiff or the plaintiff's property. This has
been extended to nervous shock (see, for example, Alcock v. Chief Constable of the South Yorkshire Police,
[1991] 4 All E.R. 907 (H.L.)). Yet other categories are liability for negligent misstatement: Hedley Byrne & Co.
v. Heller & Partners Ltd., [1963] 2 All E.R. 575 (H.L.), and misfeasance in public office. A duty to warn of the
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risk of danger has been recognized: Rivtow Marine Ltd. v. Washington Iron Works, [1974] S.C.R. 1189, 40
D.L.R. (3d) 530. Again, a municipality has been held to owe a duty to prospective purchasers of real estate to
inspect housing developments without negligence: Anns, supra; Kamloops, supra. Similarly, governmental authorities who have undertaken a policy of road maintenance have been held to owe a duty of care to execute the
maintenance in a non-negligent manner: , [1989] 2 S.C.R. 1228, 64 D.L.R. (4th) 689; , [1994] 1 S.C.R. 445, 112
D.L.R. (4th) 18; etc. Relational economic loss (related to a contract's performance) may give rise to a tort duty of
care in certain situations, as where the claimant has a possessory or proprietary interest in the property, the general average cases, and cases where the relationship between the claimant and the property owner constitutes a
joint venture: Norsk, supra; , [1997] 3 S.C.R. 1210, 153 D.L.R. (4th) 385. When a case falls within one of these
situations or an analogous one and reasonable foreseeability is established, a prima facie duty of care may be
posited.
91
In this case the most analogous situation would be the commercial host case. Such cases are: Menow v.
Honsberger (1973), [1974] S.C.R. 239 (S.C.C.); Crocker v. Sundance Northwest Resorts Ltd., [1988] 1 S.C.R. 1186
(S.C.C.); Hague v. Billings (1993), 13 O.R. (3d) 298 (Ont. C.A.); Stewart v. Pettie, [1995] 1 S.C.R. 131 (S.C.C.).
With the exception of Crocker v. Sundance, supra, all of the other cases involve commercial establishments. A
breach of duty of care was found based upon a number of factors. One was the relationship of invitee/invitor. The
other was the legal licensing legislation, which required the establishment to refuse to serve an intoxicated patron.
The employees of the licensed establishment are trained to observe intoxication in their patron and to refuse them
further service. The courts have found they also owe a duty to the public and the patron to actively intervene and
arrange transportation for the patron.
92
In Crocker v. Sundance, supra, it is a different situation from the commercial host. In that case, the plaintiff
was seriously injured when he was involved in a competition at the defendant's ski hill. The competition involved a
two-person team to slide down a mogulled portion of a steep hill in an oversized tube. The plaintiff was visibly intoxicated at the time.
93
Wilson J. at pp. 1196-1198 defined the duty of care as follows:
The general approach taken in Jordan House has been applied in a number of cases. Car owners who have permitted or instructed impaired persons to drive their cars have been found liable (see: Hempler v. Todd (1970),
14 D.L.R. (3d) 637 (Man. Q.B.), and Ontario Hospital Services Commission v. Borsoski (1973), 54 D.L.R. (3rd)
339 (Ont. H. Ct.)) as has the owner of a motorcycle who allowed a young unlicensed driver to use it (see: Stermer v. Lawson (1977), 79 D.L.R. (3d) 366 (B.C.S.C.)) The common thread running through these cases is that
one is under a duty not to place another person in a position where it is foreseeable that that person could suffer
injury. The plaintiff's inability to handle the situation in which he or she has been placed — either through
youth, intoxication or other incapacity — is an element in determining how foreseeable the injury is. The issue
in the present appeal is whether the relationship between Sundance and Crocker gave rise to this kind of duty.
The trial judge concluded that it did. He characterized this duty alternatively as a "duty to warn" or a "duty to
rescue". I find Dubin J.A.'s approach to the issue analytically clearer. The question, in his view, was (p. 623):
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... whether Sundance Northwest Resorts Limited, the defendant, owed a duty of care to take all reasonable
measures to prevent the plaintiff from continuing to participate in the very dangerous activity which was
under its full control and supervision and promoted by it for commercial gain when it became apparent that
the plaintiff was drunk and injured ....
He concluded that such a duty of care did arise. I agree with Dubin J.A. that the relationship between Crocker
and Sundance gave rise to such a duty.
Sundance set up an inherently dangerous competition in order to promote its resort and improve its financial future. Sundance employees were in charge of the way in which the event was to be conducted. Sundance provided liquor to Crocker during the event and knew of Crocker's inebriated and injured condition before the start of
the second heat. Sundance officials were well aware that Crocker's condition heightened the chance of injury.
Both Beals and Durno questioned Crocker's ability to continue. It is clearly not open to Sundance to characterize itself as a stranger to Crocker's misfortune. The nexus between Sundance and Crocker is much too close for
that. Sundance must accept the responsibility as the promoter of a dangerous sport for taking all reasonable
steps to prevent a visibly incapacitated person from participating. ....
94
In my view, the various categories of duty of care referred to can be distinguished from the duty of care in
the case at bar. As such, I find the proposed duty of care in this case to be new and novel. As such, a prima facie
duty of care does not arise.
Foreseeability:
95
In view of finding there is no prima facie duty of care the next consideration is foreseeability. In other words,
were the injuries suffered by Zoe Childs, and others, reasonably foreseeable by Dwight Courrier and Julie Zimmerman when they allowed Desmond Desormeaux to leave their home and drive onto the highway?
96
In Stewart v. Pettie, supra, Major J. addresses the issue of reasonably foreseeable risks and at p.150 he states:
[50] One of the primary purposes of negligence law is to enforce reasonable standards of conduct so as to prevent the creation of reasonably foreseeable risks. In this way, tort law serves as a disincentive to risk-creating
behaviour. To impose liability even where the risk which materialized was not reasonably foreseeable is to lay a
portion of the loss at the feet of a party who has in the circumstances, acted reasonably. Tort law does not require the wisdom of Solomon. All it requires is that people act reasonably in the circumstances. The "reasonable
person" of negligence law was described by Laidlaw J.A. in this way in Arland v. Taylor, [1955] O.R. 131
(C.A.), at p. 142:
He is not an extraordinary or unusual creature; he is not superhuman; he is not required to display the highest skill of which anyone is capable; he is not a genius who can perform uncommon feats, nor is he possessed of unusual powers of foresight. He is a person of normal intelligence who makes prudence a guide to
his conduct. He does nothing that a prudent man would not do and does not omit to do anything a prudent
man would do. He acts in accord with general and approved practice. His conduct is guided by considera-
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tions which ordinarily regulate the conduct of human affairs. His conduct is the standard "adopted in the
community by persons of ordinary intelligence and prudence."
97
Looking at the facts in this case, Desmond Desormeaux and his two friends, Maureen O'Brien and Ray
Sauvé, arrive in a vehicle driven by Desmond Desormeaux. Dwight Courrier observes both Maureen O'Brien and
Ray Sauvé are intoxicated upon arrival. Knowing Desmond Desormeaux's propensity to drink it should have put
Dwight Courrier on alert that Desmond Desormeaux also may have been drinking. Even if he did not inquire of
Desmond Desormeaux if he and Maureen O'Brien had been drinking, he should have monitored Desmond Desormeaux's consumption while on the premises. The fact this was a BYOB party does not relieve Dwight Courrier
and Julie Zimmerman from monitoring and making inquiries of Desmond Desormeaux. The BYOB situation places
more of a duty on the host because they do not know how much their guests are consuming.
98
Considering Desmond Desormeaux's previous convictions for impaired driving, and other offences, and
Desmond Desormeaux's previous conduct when drinking, it is reasonably foreseeable that Desmond Desormeaux
was not capable of driving and was putting his passengers, and other users of the highway, at grave risk. The reasonably prudent person would have taken some action to see that Desmond Desormeaux did not drive that evening.
Relationships:
99
Lord Atkin in McAlister (Donoghue) v. Stevenson, supra, described the "close and direct" relationship necessary to find a duty of care.
100
Major J. in Cooper v. Hobart, supra, states:
[33] As this Court stated in Hercules Managements Ltd. v. Ernst & Young, [1997] 2 S.C.R. 165 at para. 24, per
La Forest J.:
The label "proximity", as it was used by Lord Wilberforce in Anns, supra, was clearly intended to connote
that the circumstances of the relationship inhering [sic, inherent] between the plaintiff and the defendant are
of such a nature that the defendant may be said to be under an obligation to be mindful of the plaintiff's legitimate interest in conducting his or her affairs. [Emphasis added.]
[34] Defining the relationship may involve looking at expectations, representations, reliance, and the property
or other interests involved. Essentially, these are factors that allow us to evaluate the closeness of the relationship between the plaintiff and the defendant and to determine whether it is just and fair having regard to that relationship to impose a duty of care in law upon the defendant.
[35] The factors which may satisfy the requirement of proximity are diverse and depend on the circumstances of
the case. One searches in vain for a single unifying characteristic. As stated by McLachlin J. (as she then was)
in Canadian National Railway Co. v. Norsk Pacific Steamship Co., [1992] 1 S.C.R. 1021, at p. 1151:
"[p]roximity may be usefully viewed, not so much as a test in itself, but as a broad concept which is capable of
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subsuming different categories of cases involving different factors" (cited with approval in Hercules Managements, supra, at para. 23). Lord Goff made the same point in Davis v. Radcliffe, [1990] 2 All E.R. 536 (P.C.), at
p. 540:
... it is not desirable, at least in the present stage of the development of the law, to attempt to state in broad general propositions the circumstances in which such proximity may or may not be held to exist. On the contrary,
following the expression of opinion by Brennan J. in Sutherland Shire Council v. Heyman (1985), 60 ALR 1 at
43-44, it is considered preferable that the law should develop categories of negligence incrementally and by
analogy with established categories. ...
101
I have already found, as a fact, Julie Zimmerman knew of Desmond Desormeaux's background and his
problems related to alcohol, including the impaired driving charges.
102
Although it was Dwight Courrier who extended the invitation to Desmond Desormeaux to attend the New
Years Eve party, it was on behalf of himself and Julie Zimmerman.
103
Desmond Desormeaux was a longtime friend of Dwight Courrier. Dwight Courrier had lived with Desmond
Desormeaux for a short period of time. He was well aware of Desmond Desormeaux's problems with alcohol.
104
I have no difficulty finding the relationship between Desmond Desormeaux and Dwight Courrier meets the
test of "Proximity". As such, Dwight Courrier and Julie Zimmerman had a duty not to turn Desmond Desormeaux
loose on the highway where he could cause injury or death to others.
Contributory Negligence:
105
Desmond Desormeaux was clearly the negligent driver who caused the injuries to Zoe Childs, and others.
Dwight Courrier and Julie Zimmerman's breach of duty would be by way of contributory negligence. I would assess
Desmond Desormeaux's negligence at 85% and Dwight Courrier and Julie Zimmerman's negligence at 15%.
Policy Considerations:
106
In my view, this is the most difficult area. Major J. in Cooper v. Hobart, supra, describes the second part of
the Anns test at p.206 as follows:
[37] This brings us to the second stage of the Anns test. As the majority of this Court held in Norsk, at p. 1155,
residual policy considerations fall to be considered here. These are not concerned with the relationship between
the parties, but with the effect of recognizing a duty of care on other legal obligations, the legal system and society more generally. Does the law already provide a remedy? Would recognition of the duty of care created the
spectre of unlimited liability to an unlimited class? Are there other reasons of broad policy that suggest that the
duty of care should not be recognized? Following this approach, this Court declined to find liability in Hercules
Managements, supra, on the ground that to recognize a duty of care would raise the spectre of liability to an in-
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determinate class of people.
[38] It is at this second stage of the analysis that the distinction between government policy and execution of
policy falls to be considered. It is established that government actors are not liable in negligence for policy decisions, but only operational decisions. The basis of this immunity is that policy is the prerogative of the elected
Legislature. It is inappropriate for courts to impose liability for the consequences of a particular policy decision.
On the other hand, a government actor may be liable in negligence for the manner in which it executes or carries out the policy. In our view, the exclusion of liability for policy decisions is properly regarded as an application of the second stage of the Anns test. The exclusion does not relate to the relationship between the parties.
Apart from the legal characterization of the government duty as a matter of policy, plaintiffs can and do recover.
The exclusion of liability is better viewed as an immunity imposed because of considerations outside the relationship for policy reasons — more precisely, because it is inappropriate for courts to second-guess elected legislators on policy matters. Similar considerations may arise where the decision in question is quasi-judicial (see
Edwards v. Law Society of Upper Canada, 2001 S.C.C. 80).
[39] The second step of Anns generally arises only in cases where the duty of care asserted does not fall within a
recognized category of recovery. Where it does, we may be satisfied that there are no overriding policy considerations that would negative the duty of care. In this sense, I agree with the Privy Council in Yuen Kun Yeu that
the second stage of Anns will seldom arise and that questions of liability will be determined primarily by reference to established and analogous categories of recovery. However, where a duty of care in a novel situation is
alleged, as here, we believe it necessary to consider both steps of the Anns test as discussed above. This ensures
that before a duty of care is imposed in a new situation, not only are foreseeability and relational proximity present, but there are broader considerations that would make imposition of a duty of care unwise. ....
107
The onus shifts to the Defendants to clearly establish that public policy should be a bar to recovery.
108
In Hall v. Hebert, [1993] 2 S.C.R. 159 (S.C.C.), Cory J. compared the court's obligation to develop new tort
law with that of public policy consideration. At p. 205 he makes the following comments:
[92] In sum it can be seen that the remedy provided by the law of tort is a flexible one. It is based upon a desire
to achieve fairness by compensating, in appropriate cases, those who have been injured by the conduct of others. It must remain flexible and be permitted to grow with a changing society.
[93] Similarly tort cases, which would necessarily involve the consideration of public policy as a bar to recovery, should determine the applicable principles on a case by case basis. These principles, like those applicable in
the law of tort, should be flexible and evolve with our ever changing society. What may be contrary to public
policy in our decade may be perfectly acceptable in the next.
109
It is with these principles in mind that I now turn to the case at bar.
110
The policy consideration is like a two-sided coin. On one side, you have Zoe Childs and the other injured
Plaintiffs who have suffered death and serious injury as a result of the intoxicated Desmond Desormeaux's negligent
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conduct. This has been contributed to by the failure of Dwight Courrier and Julie Zimmerman to properly monitor
Desmond Desormeaux's alcohol consumption and further by not stopping him from driving his motor vehicle. Although Dwight Courrier and Julie Zimmerman's contributing negligence is small in comparison with Desmond Desormeaux, they would be jointly and severally liable with Desmond Desormeaux if Desmond Desormeaux was uninsured at the time of the accident. Although there are a number of Ontario statutes, which will provide benefits and
compensation to Zoe Childs, and the other injured parties, in all likelihood, they would not provide the full and
proper compensation to which they are entitled.
111
A finding of liability, no matter how small, against Dwight Courrier and Julie Zimmerman would bring into
play their homeowners policy of insurance and would make available to the victims the policy limits.
112
On the other side of the coin a finding of liability against the social hosts, Dwight Courrier and Julie Zimmerman, would place an inordinate burden on all social hosts. This would apply whether in ones home, cottage, or
elsewhere. The social host would be obligated to inquire of his or her guest whether they had consumed any alcohol
or medicine before arriving. The social host would then have to measure the effects of such consumption. During the
course of the social event, the host would have to monitor this amount of alcohol consumption by the guest.
113
At the time of the guest's departure, if the guest is driving a motor vehicle, the social host would have to
make a further inquiry into the guest's ability to operate a motor vehicle. The social host would also have to make
his own independent assessment of the guest. This may be very difficult, especially if the social host had also consumed alcohol.
114
If the social host determined the guest was impaired, to any degree, then the social host would be required
to take the positive step to stop the guest from driving. If unsuccessful, the social host would have to resort to the
final and drastic step of reporting the guest to the police. Failure to take any of these steps could result in the social
host being sued if the guest was involved in an accident.
115
Mr. Williams, in his submissions, has pointed out that no Canadian Court has found liability against a social
host. In Canadian cases where social host liability has been considered they have merely relied upon the American
decision in Kelly v. Gwinnell, 476 A.2d 1219, 96 N.J. 538 (U.S. N.J. Sup. Ct. 1984), 96.
116
Mr. Williams' research also established that there are no cases in England, Australia or New Zealand finding social host liability.
117
Although in Kelly v. Gwinnell they find social host liability, this case has not been followed by other states.
It would appear that some states have found social host liability where the social host has served the alcohol to a
person who was intoxicated and the host was aware the guest was going to drive a motor vehicle.
118
care.
Most American jurisdictions have left it to the state Legislature rather than to impose a common law duty of
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119
In Kelly v. Gwinnell, supra, the majority of the court found the social host liable to the victim of an automobile accident caused by the drunken driving of the guest. In that case, the host served liquor to the guest beyond
the point to which the guest was visibly intoxicated.
120
Chief Justice Wilentz at p.14 of his reasons notes as follows:
[14] We therefore hold that a host who serves liquor to an adult social guest, knowing both that the guest is intoxicated and will thereafter be operating a motor vehicle, is liable for injuries inflicted on a third party as a result of the negligent operation of a motor vehicle by the adult guest when such negligence is caused by the intoxication. We impose this duty on the host to the third party because we believe that the policy considerations
served by its imposition far outweigh those asserted in opposition. While we recognize the concern that our ruling will interfere with accepted standards of social behavior; will intrude on and somewhat diminish the enjoyment, relaxation, and camaraderie that accompany social gatherings at which alcohol is served; and that such
gatherings and social relationships are not simply tangential benefits of a civilized society but are regarded by
many as important, we believe that the added assurance of just compensation to the victims of drunken driving
as well as the added deterrent effect of the rule on such driving outweigh the importance of those other values,
Indeed, we believe that given society's extreme concern about drunken driving, any change in social behavior
resulting from the rule will be regarded ultimately as neutral at the very least, and not as a change for the worse;
but that in any event if there be a loss, it is well worth the gain. ....
121
Justice Garibaldi dissented in Kelly v. Gwinnell, supra. In his dissent he reviewed the difference between
the social host and the commercial host. He is concerned about the tremendous obligation a finding of liability
would place upon all social hosts. Also whether the social host would have proper insurance or may face financial
expenses. I share similar concerns. At p.59 he makes the following observations:
[59] The nature of home entertaining compounds the social host's difficulty in determining whether a guest is
obviously intoxicated before serving the next drink. In a commercial establishment, there is greater control over
the liquor; a bartender or waitress must serve the patron a drink. Not so in a home when entertaining a guest. At
a social gathering, for example, guests frequently serve themselves or guests may serve other guests. Normally,
the host is so busy entertaining he does not have time to analyze the state of intoxication of the guests. Without
constant face-to-face contact it is difficult for a social host to avoid serving alcohol to a person on the brink of
intoxication. Furthermore, the commercial bartender usually does not drink on the job. The social host often
drinks with the guest, as the Zaks did here. The more the host drinks, the less able he will be to determine when
a guest is intoxicated. It would be anomalous to create a rule of liability that social hosts can deliberately avoid
by becoming drunk themselves.
[60] The majority suggests that my fears about imposition of liability on social hosts who are not in a position to
monitor the alcohol consumption of their guests are "purely hypothetical" in that the present case involves a
host and guest in a one-to-one situation. It is unrealistic to assume that the standards set down by the Court today will not be applied to hosts in other social situations. Today's holding leaves the door open for all of the
speculative and subjective impositions of liability that I fear.
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[61] A more pressing distinction between the social host and commercial licensees is the host's inability to fulfill the duty the majority has imposed even if the host knows that a particular guest is intoxicated. It is easy to
say that a social host can just refuse to serve the intoxicated person. However, due to a desire to avoid confrontation in a social environment, this may become a very difficult task. It is much easier in a detached business relationship for a bartender to flag a patron and either refuse to serve him or ask him to leave. We should not ignore the social pressures of requiring a social host to tell a boss, client, friend, neighbor, or family member that
he is not going to serve him another drink. Moreover, a social host does not have a bouncer or other enforcer to
prevent difficulties that may arise when requesting a drunk to stop drinking or not to drive home. We have all
heard of belligerent drunks.
[62] Further, it is not clear from the Court's opinion to what lengths a social host must go to avoid liability. Is
the host obligated to use physical force to restrain an intoxicated guest from drinking and then from driving? Or
is the host limited to delay and subterfuge tactics short of physical force? What is the result when the host tries
to restrain the guest but fails? Is the host still liable? The majority opinion is silent on the extent to which we
must police guests.
122
The majority in Kelly v. Gwinnell, supra, based their decisions on providing proper compensation to the
innocent plaintiff and deterrence.
123
I doubt that a finding of social host liability would serve as much of a deterrent. The deterrence is the penalties provided for under the Highway Traffic Act, R.S.O. 1990, c. H.8 and the Criminal Code of Canada, R.S.C. 1985
c. C-46.
124
The fact that Desmond Desormeaux was convicted of a number of criminal offences, arising from his drunk
driving, and was sentenced to ten years in jail would be a significant deterrence.
125
Andrew Murie, National Executive Director of Mothers Against Drunk Driving (MADD), gave evidence as
to the effect of their campaigns. They have been successful in obtaining changes to legislation to increase penalties
for drunk driving. Their campaigns have also created a significant shift in the public's attitude towards drinking and
driving, which is now considered socially unacceptable.
126
MADD identified the social host as a potential problem. In 1998 they prepared and distributed a pamphlet
entitled "Being Sued Can Ruin a Good Party". At the time of this trial, Mr. Murie indicated that MADD was in the
process of developing new pamphlets on social host's responsibility.
127
Dr. Cappell, who gave evidence as to the blood alcohol count of Desmond Desormeaux also testified about
the use of alcohol in social settings. He identified alcohol as a drug which is used in social settings with its consumption and use widely accepted by society.
128
In the Province of Ontario and, likewise, in most of the Provinces and territories in Canada, the government
has legalized and licenced the use of alcohol. The Province of Ontario has a monopoly on the importation and sale
of alcohol. There are various statutes, which regulate the importation, sale and consumption of alcohol; the Liquor
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Control Act, R.S.O. 1990, c. L.18; the Liquor Licence Act, R.S.O. 1990, c. L.19; and the Importation Intoxicating
Liquors Act, R.S.C. 1985 c. I.3.
129
The Ontario Government, through the Liquor Control Board of Ontario (LCBO) promotes the consumption
of alcoholic beverages. Their promotions portray alcohol consumption as part of our day-to-day living, always
stressing moderation and responsibility. They have also prepared commercials on the "Social Hosts Responsibility".
130
Andrew S. Brandt, Chair and CEO of the LCBO, in its Annual Report 2000-2001, makes the following
comments relating to how they promote the sale of alcohol:
Retailing in the new millennium is all about making life easier for time-starved customers, and providing them
with the information they need to make informed shopping decisions.
Whether they are looking for the right wine to match tonight's meal; seeking out a gift for a friend or family
member; planning a wedding or other large gathering; or simply eager to learn more about beverage alcohol, today's LCBO is determined to become their Source for Entertaining Ideas. And we will do so while upholding
our high standard of corporate citizenship, through our Challenge and Refusal Program, and our social responsibility advertising campaigns and our fundraising on behalf of MADD Canada and other organizations. ...
131
Mr. Brandt also describes the financial profits involved in the sale of alcohol. The net sales in 2000-2001
was 2.7 billion a 7.1% increase over the previous year. The provincial government profited from these sales. Mr.
Brandt states:
Thanks to their efforts, and aided by effective retailing and merchandising and a robust economy, we also recorded the highest dividend transfer in our history: $850 million to the provincial government. That is $50 million more than last year and $200 million more than my first year as Chair and CEO in fiscal 1990-1991.
We have also collected $255 million in Provincial Sales Tax in fiscal 2000-2001, which means the LCBO gave
its owners — the people of Ontario — a total of $1.105 billion. This is the third straight year our combined dividend and tax contribution has topped $1 billion. ...
132
This profit does not include the sale of beer by the Brewers Retail.
133
The Ontario Government regulates liability and compensation for victims of motor vehicle accidents. These
statutes and regulations are as follows: Insurance Act, R.S.O. 1990; Statutory Accident Benefits, O.Reg. 462/96 S.2;
Ontario Standard Automobile Policy, S.P.F. No. 1; Family Protection Endorsement, O.P.C.F. 44; and the Motor
Vehicle Accident Claims Act, R.S.O. 1990, c.17.41.
134
The purpose of this review of the LCBO and the legislation, along with the various Legislation relating to
the compensation for victims arising out of motor vehicle accidents, is to show the role of government.
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2002 CarswellOnt 2885, 217 D.L.R. (4th) 217, 13 C.C.L.T. (3d) 259, [2002] O.T.C. 628
135
The policy in this case is whether the courts should expand the tort law to include social host liability, or
whether this is best left to the government. It is obvious that the government has both the financial resources and
legislative ability to regulate social host responsibility, if they so desire.
136
It would be a simple task to provide the criteria as to when a social host is liable. This would avoid the chaos which would develop if left to the common law. Then every time an accident occurred and the driver had been
drinking at a private party, the social host would be joined as a defendant. Social hosts would have to obtain insurance. If social hosts' liability were expanded by the courts then the insurance companies would face financial expenses resulting in increased premiums to all clients.
137
If the legislature determined through appropriate clearly understood criteria when a social host would be
responsible this would limit the actions. They could also provide a fund whereby the innocent accident victim could
be compensated when all other insurance coverage is exhausted. This would limit the involvement of government,
but provide a fund to compensate these victims who have exhausted all insurance limits. This fund could be established from the profits relating to the sale of alcohol by the LCBO.
138
In conclusion, I find there is good policy reason not to expand tort law to include the social host. In my
view, it should be left to the legislature to determine a social host liability and also to properly compensate the innocent victims. As such, the action is dismissed.
139
Hopefully, the Defendants will not seek an order of costs against Zoe Childs. If the Defendants seek costs, I
will receive written submissions on the issue of costs and quantum.
Action dismissed.
END OF DOCUMENT
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KEYCITE-HIST
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KEYCITE
Childs v. Desormeaux, 217 D.L.R. (4th) 217, 2002 CarswellOnt 2885, 13 C.C.L.T. (3d) 259, [2002] O.J. No.
3289, [2002] O.T.C. 628 (Ont. S.C.J., Aug 30, 2002)
History
Direct History
=>
1 Childs v. Desormeaux, 217 D.L.R. (4th) 217, 2002 CarswellOnt 2885, 13 C.C.L.T. (3d) 259, [2002]
O.J. No. 3289, [2002] O.T.C. 628 (Ont. S.C.J. Aug 30, 2002)
Additional reasons in
2 Childs v Desormeaux, 2003 CarswellOnt 799, [2003] O.J. No. 831 (Ont. S.C.J. Mar 10, 2003)
Reversed by
3 Childs v. Desormeaux, 239 D.L.R. (4th) 61, 187 O.A.C. 111, 2004 CarswellOnt 2001, 23 C.C.L.T.
(3d) 216, 71 O.R. (3d) 195, [2004] O.J. No. 2065, 4 M.V.R. (5th) 1 (Ont. C.A. May 19, 2004)
Leave to appeal allowed by
4 Childs v. Desormeaux, 206 O.A.C. 394 (note), 334 N.R. 195 (note), 2005 CarswellOnt 603, 2005
CarswellOnt 604 (S.C.C. Feb 17, 2005)
AND Affirmed by
5 Childs v. Desormeaux, 266 D.L.R. (4th) 257, [2006] 1 S.C.R. 643, [2006] R.R.A. 245, 210 O.A.C.
315, 347 N.R. 328, 2006 CarswellOnt 2710, 2006 CarswellOnt 2711, 39 C.C.L.T. (3d) 163, 80 O.R.
(3d) 558 (note), 2006 SCC 18, J.E. 2006-986, [2006] S.C.J. No. 18, 30 M.V.R. (5th) 1 (S.C.C. May
05, 2006)
=>
6 Childs v. Desormeaux, 217 D.L.R. (4th) 217, 2002 CarswellOnt 2885, 13 C.C.L.T. (3d) 259, [2002]
O.J. No. 3289, [2002] O.T.C. 628 (Ont. S.C.J. Aug 30, 2002)
Affirmed by
7 Childs v. Desormeaux, 239 D.L.R. (4th) 61, 187 O.A.C. 111, 2004 CarswellOnt 2001, 23 C.C.L.T.
(3d) 216, 71 O.R. (3d) 195, [2004] O.J. No. 2065, 4 M.V.R. (5th) 1 (Ont. C.A. May 19, 2004)
© 2013 Thomson Reuters. All rights reserved.
Leave to appeal allowed by
8 Childs v. Desormeaux, 206 O.A.C. 394 (note), 334 N.R. 195 (note), 2005 CarswellOnt 603, 2005
CarswellOnt 604 (S.C.C. Feb 17, 2005)
AND Affirmed by
9 Childs v. Desormeaux, 266 D.L.R. (4th) 257, [2006] 1 S.C.R. 643, [2006] R.R.A. 245, 210 O.A.C.
315, 347 N.R. 328, 2006 CarswellOnt 2710, 2006 CarswellOnt 2711, 39 C.C.L.T. (3d) 163, 80 O.R.
(3d) 558 (note), 2006 SCC 18, J.E. 2006-986, [2006] S.C.J. No. 18, 30 M.V.R. (5th) 1 (S.C.C. May
05, 2006)
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Childs v. Desormeaux, 217 D.L.R. (4th) 217, 2002 CarswellOnt 2885, 13 C.C.L.T. (3d) 259, [2002] O.J. No.
3289, [2002] O.T.C. 628 (Ont. S.C.J., Aug 30, 2002)
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KEYCITE
Childs v. Desormeaux, 217 D.L.R. (4th) 217, 2002 CarswellOnt 2885, 13 C.C.L.T. (3d) 259, [2002] O.J. No.
3289, [2002] O.T.C. 628 (Ont. S.C.J. Aug 30, 2002)
Citing References
Positive & Neutral Cases (Canada)
Considered in
1 Kim v. Thammavong, 2007 CarswellOnt 7848, [2007] O.J. No. 4769 (Ont. S.C.J. Dec 04, 2007)
Referred to in
2 Andersen v. St. Jude Medical Inc., 334 D.L.R. (4th) 529, 2011 CarswellOnt 2883, 84 C.C.L.T. (3d)
113, 201 A.C.W.S. (3d) 443, 2011 ONSC 2178, 12 C.P.C. (7th) 195 (Ont. S.C.J. Apr 06, 2011)
3 Irvine v. Smith, 2008 CarswellOnt 723, 54 C.C.L.T. (3d) 307, 160 A.C.W.S. (3d) 199, 166 A.C.W.S.
(3d) 199, [2008] O.J. No. 547 (Ont. S.C.J. Feb 15, 2008)
4 Childs v. Desormeaux, 231 D.L.R. (4th) 311, 177 O.A.C. 183, 2003 CarswellOnt 3696, 67 O.R. (3d)
385, 44 C.P.C. (5th) 5, [2003] O.J. No. 3800 (Ont. C.A. [In Chambers] Oct 01, 2003)
Court Documents (Canada)
5 [Pleading Document Collection] Amended Statement of Claim; Statement of Defence; Statement of
Defence & Crossclaim of the Defendant, Julie Zimmerman (Ont. S.C.J. 1999)
6 [Pleading Document] Claim or Originating Document, Amended Statement of Claim (Ont. S.C.J.
2002)
7 [Pleading Document] Defence or Responding Document, Statement of Defence (Ont. S.C.J. 2002)
8 [Pleading Document] Claim or Originating Document, Statement of Defence & Crossclaim of the
Defendant, Julie Zimmerman (Ont. S.C.J. 2002)
Secondary Sources (Canada)
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9 Annual Review of Civil Litigation, D The Emergence and Evolution of Social Host Liability in Canada Christine A. Zablocki
10 ICLL/IDJC 255673, Host liquor liability in Canada
11 ICLL/IDJC 212497, Social host liability in Canada
12 ICLL/IDJC 226900, The Emergence and evolution of social host liability in Canada
Positive Cases (Australia)
Considered by
13 Parissis v Bourke, 2004 WL 2730760, [2004] NSWCA 373 (NSWCA Nov 23, 2004) (NO. 40925 of
2003)
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