‘Tis the season to be aware of social host liability

People planning to host a holiday party have legal responsibilities to ensure their guests stay safe, says Toronto civil litigator Stephany Mandin.

Mandin, principal of Mandin Law, says there are a few common-sense steps that hosts can take to mitigate liability.

“As a host, you want to be aware and alert. You don’t want to host a party that puts your guests in an inherently risky situation — like we’re all going to go snowmobiling in cottage country after consuming alcohol,” she tells AdvocateDaily.com.

As a way to mitigate liability, Mandin suggests establishing some rules for the holiday shindig, so no one drives away from the party after drinking.

“If you take those steps in your invite or email — say we’re having a party and here are the rules — you can certainly help mitigate against liability, but you still want to be aware of what’s happening and the condition of your guests because wilful blindness is not a defence for social host liability,” she says.

Mandin says hosts should be diligent and exercise some common sense.

“Especially now with the cannabis laws coming into play. It would be more difficult to detect, but for driving, there’s a zero tolerance,” she says.

“The waters are murky, and it hasn’t played out in the courts yet because of the newness of the cannabis legislation,” Mandin says. “But I would expect there is some diligence imported upon hosts to ensure guests are not drug-impaired.”

The courts have been very clear that simply having or hosting a party is not an invitation to participate in high-risk activities, nor will liability simply flow from that, she says.

There is no clear legal formula in determining whether there is a duty of care owed by social hosts to their guests or to third parties, such as a victim injured or killed by a guest after leaving the event, Mandin explains.

The Supreme Court of Canada found in 2006 that there “needs to be something more than just hosting a party where alcohol is involved,” she says. But two cases from October and November of this year apparently open the door to further exploration of the issue.

“But what all these cases centre on is whether a duty of care can be said to exist between a social host and either the guest or the third party,” Mandin says. “The duty of care analysis is based on two factors, the foreseeability and the proximity.”

She says foreseeability involves knowing or having ought to have known the level of intoxication of the guest or guests.

“The foreseeability test is focused on the social hosts’ knowledge of their guests’ level of intoxication and the likelihood that the guest may engage in risky or dangerous activity,” Mandin says.

She says if a guest is visibly impaired and grabs their keys to leave, that could import some liability to the host.

“It’s a duty of awareness and knowledge of potential risk,” Mandin says.

The proximity test involves exploring the facts of the case that could create a duty of care, such as between a teacher and student or parent and child, she says.

“The courts have identified a spectrum of potential liability where just having adults at arm’s length at a social gathering where alcohol might be served is going to be at one end of the spectrum and that’s less likely to attract liability,” Mandin says.

“If you’re having a wild party where you know there will be underage persons present, that could be at the other end of the spectrum, and in terms of the proximity analysis, a parent who is hosting the party for the child is in a more inherent duty-of-care situation.

“There is an element of control, of responsibility,” she says. “It’s the same thing if you’re an employer having employees at your home or if you’re a teacher that’s hosting students or teaching assistants.”

Mandin says where there is an element of a “paternalistic” relationship, there likely is a duty to act and a duty of care, and the courts lean towards expecting responsibility and accountability if such a relationship of control or special vulnerability exists.

For example, if an underage child invites similarly aged friends to join the parents’ New Year’s party, the parents would be wise to ensure alcohol is kept away from the youths, that there is a taxi policy in place, the youths show no signs of intoxication, and that the youths’ parents know they are at the party, she says.

“It’s common sense, but it’s an additional burden of applying that common sense to try to insulate yourself from possible legal liability,” Mandin says. “And this is where there is a disconnect between the legal and the social — if you’re having a fun gathering you don’t want to be that stick in the mud.

“You want to be fun and casual, but at the same time, what the reasonable person is required to do is to satisfy themselves that the foreseeability and proximity tests fall in their favour,” she says.

Mandin suggests erring on the side of caution.

“You want to make sure that anyone who may be imbibing — whether it’s alcohol or marijuana — that they’re not driving home, that there are taxis for them, and that you’re looking for visible signs of intoxication,” she says.