Top court to decide if hosts liable for drunken guest's deadly crash
By Cristin Schmitz
The Ottawa Citizen
February 18, 2005

A Kemptville woman who was paralysed by a drunk driver will get her chance to convince the Supreme Court that Canadians who allow people in their homes to consume too much alcohol should be held financially responsible for the devastation wreaked by their impaired guests.

The top court agreed yesterday to hear a groundbreaking appeal by Zoe Childs, 23, who became paraplegic at 18 when the car she was riding in was slammed head-on by a drunk driver on Jan. 1, 1999. Her spine was severed in the crash.

Desmond Desormeaux, an alcoholic with two previous impaired driving convictions, veered into the wrong lane on Albion Road, killing Ms. Childs' boyfriend, Derek Dupre, and seriously injuring three passengers.

Mr. Desormeaux's blood alcohol was nearly three times the legal limit.

He was found guilty of several charges, including impaired driving causing death, and sentenced to 10 years in prison. In 2002, he was remanded to a halfway house in Ottawa.

Mr. Desormeaux had just left a New Year's Eve "bring your own booze" potluck party at the home of his friends, Dwight Courrier and Julie Zimmerman. Mr. Desormeaux was uninsured and had no assets.

But Ms. Childs, who claims $3.2 million in damages, sued the two hosts of the party, who have $1 million in tenant's insurance.

She argued the pair ought to be held at least partly responsible for the catastrophic injuries she suffered because they should have prevented the known heavy drinker from getting behind the wheel.

The Ontario lower courts dismissed her case. "Social hosts" have never been held liable in Canada for damages caused by their inebriated guests. But Ms. Childs' appeal might be heard as soon as next fall when the Supreme Court could choose to open that door. No decisions have held social hosts liable in England, Australia or New Zealand, but a few American states do impose such liability.

If Ms. Childs wins, the ruling would affect the social behaviour of Canadians across the country, predicted her lawyer, Barry Laushway.

"People would have to take some ownership if they have a drunk who comes to their property and gets seriously intoxicated while there," he said. "A host would have to take some reasonable precaution, or some reasonable steps, to prevent that person from leaving and killing people, or putting them in a wheelchair."

He acknowledged "I don't know what (those steps) would be except it has to be more than what this host did. He didn't ask how much the drunk had to drink. He didn't offer him a ride home. He didn't offer to call a taxi. He did nothing. So the test is higher than that, we would argue."

Ms. Childs, who now runs a spa called Petite Retreat in Kemptville with her sister, Jenny, said she was glad the Supreme Court would hear the appeal.

"It think it's something that needs to be changed in the world," she said.

"A lot of the news focuses on the money aspect. They lose the big picture of what we're trying to fight for. It could possibly save someone's life in the end. We have to take steps that people are not driving drunk on the roads."

Mothers Against Drunk Driving will ask the Supreme Court for permission to participate as an intervener in the appeal, said the group's Toronto lawyer Earl Cherniak.

MADD believes courts should impose a "duty of care" on social hosts, as they did in 1974 on commercial establishments that serve alcohol, said Mr. Cherniak.

"It's an important principle."

He suggested a social host's responsibility would vary with the circumstances, including whether their guest appeared to be inebriated.

"You probably could not forcibly confine someone, but as long as you do what you can, that would probably satisfy the duty -- but doing nothing is not an option," Mr. Cherniak said.

Ottawa lawyer Eric Williams, who represents Mr. Courrier and Ms. Zimmerman, warned that the creation of social host liability in Canada would have far-reaching consequences.

"I would say that most of these claims arise out of motor vehicle accidents, and that for someone who makes what might be an innocent mistake -- their home, their RRSP, everything -- will be lost, whereas in a commercial host situation, those people insulate themselves from that kind of loss by incorporating a company that runs the commercial premises. Everyday people can't do that."

Mr. Williams also contended that homeowner insurance premiums would go up; otherwise insurance companies would opt to exclude coverage for social host liability.

"People will likely have to get insurance, if it's available, to cover other types of gatherings, such as weddings, picnics, being on a private boat or otherwise where alcohol may be served and the host may become liable," Mr. Williams said. "I think the concept of social host liability walks the line between moral responsibility and financial responsibility and, in my view, it is moral, and not financial."

When the Ontario Court of Appeal unanimously dismissed Ms. Childs' case last year, the judges said the decision did not immunize social hosts from liability for their intoxicated guests. But the appeal court said it rejected Ms. Childs' case because the hosts did not provide alcohol to Mr. Desormeaux, nor was there evidence that the hosts knew how much he had to drink or that they knew he was impaired when he drove away.

In 2002, the trial judge, Ontario Superior Court Justice James Chadwick, ruled that given Mr. Desormeaux's known alcohol abuse, the hosts should have been "on red alert" when he arrived at their home in the company of two "obviously intoxicated" friends. Despite his sympathy for Ms. Childs, the trial judge concluded it was not his place to rewrite the common law to impose a new duty on social hosts.

"In my view it should be left to the legislature to determine a social host liability and also to properly compensate the innocent victims," he wrote.

Ms. Childs's parents welcomed the high court's decision to hear their daughter's case. "We are glad, obviously, that it's going through, because I think it's time," said Pauline Childs.