Party hosts should do their due diligence as the pandemic eases and social gatherings return to calendars, says Toronto personal injury lawyer Rohan Haté.

Low COVID-19 case counts and high vaccination rates have allowed the provincial government to loosen restrictions on household mixing that have been in place for more than a year, but hosts shouldn’t go too wild, he cautions.

“With Ontario opening up, people are going to be eager to get together in bigger groups,” Haté says. “Most people don’t think about potential liability when they invite family and friends to their home for a backyard barbeque or a poolside birthday celebration, but it’s something to consider.”

Landmark legal decision
While the law is still developing, a landmark decision by the Supreme Court of Canada set the parameters for social host liability back in 2006, in a judgment known as Childs v. Desormeaux. Despite dismissing the case before it, the nation’s top court opened the door for the first time to claims by injured guests, in certain situations where harm was foreseeable.

“The most important thing for people to know is that there has to be something more than a simple host-guest relationship to create a legal duty,” Haté explains.

For example, the threshold could be crossed when the host is engaging in commercial enterprise or a public function, he adds. But situations involving a social host who intentionally invites third parties into “inherent and obvious” risks of their own making, or those with a paternalistic relationship to guests could also trigger a positive duty of care.

No clear formula to determine duty of care
Indeed, minors were involved in the Childs case considered by the Supreme Court of Canada, when the hosts of a bring-your-own-booze event were sued by an injured passenger whose vehicle was struck head-on by an intoxicated guest.

“There’s no clear formula for determining if a duty of care exists,” Haté says, which means that judges will make their decisions based on the specific circumstances of the case in front of them, considering things like the size and character of the party, and whether alcohol was served to guests.

Factors such as the host’s knowledge of guests’ levels of intoxication and their plans for getting home will also play into the judge’s ruling on whether harm was foreseeable, he adds.

Haté’s firm was involved in a more recent Ontario Court of Appeal case that helped develop the law even further in the area of social host liability.

The plaintiffs in Williams v. Richard were the injured children of a drunk driver who died when he crashed his vehicle following an after-work drinking session at the home of his friend.

As part of their lawsuit, the children sued their father’s friend as the host of the gathering, but the first judge to hear the case summarily dismissed the claim, finding that the hosts owed no duty of care to the father.

However, the Court of Appeal reinstated the claim, ruling a full trial was needed before the duty-of-care issue could be decided one way or the other. As they did so, the three-judge appeal panel also highlighted a few useful examples from real cases of the sorts of situations that could help a social gathering cross the line from relatively innocuous to one inviting “inherent and obvious risk.”

Issues for hosts to consider
At the low end of the spectrum, the court wrote that reasonably sized parties, after-work dinner and drinks, as well as bring-your-own alcohol parties where minimal alcohol is provided by the host are generally not seen as inherently risky.

At the other extreme, the judges wrote that a teenager throwing a house party for 100 mostly underage drinkers when their parents were out of town or a young adult providing alcohol at a wild Halloween party where some attendees were using illegal drugs, would be exposing themselves to significantly more risk.

While many social hosts will have thought about the dangers associated with alcohol or swimming pools, they also have a new risk to consider this year: the chance that guests will contract COVID at the party. Although no case tackling the issue has worked its way through the courts so far, Haté says potential plaintiffs would likely have a tough time proving liability.

“Unless you were at a wedding or another major event where a bunch of people got COVID, it’s going to be difficult to establish that the party was where the person contracted the virus,” he says.

And the bar to a successful claim would be even higher if the host took sensible precautions to address the risk of transmission, such as setting up sanitizing stations, mandating mask wearing and frequent surface cleaning.

“These would be novel issues for a court, but it’s still important for the general public to understand the current state of the law,” Haté says.