Ahhh… there’s nothing like the great Canadian summer to wash all your winter blues away.

For kiddies, it means no school, tons of sleepovers, cottage time and family vacations. For grown-ups, it’s an endless procession of barbecues and ball games, festivals and food fairs, graduations and weddings, not to mention the occasional…subpoena?

Yes, you heard right: subpoena. Unfortunately, those lazy, hazy, crazy days of summer can include both lemonade and litigation for those who qualify as “occupiers”. According to the Ontario Occupier’s Liability Act, 1990, an “occupier” is a person who is in physical possession of the premises, or who has responsibility for and control over its condition. It is also someone who has responsibility for or control over the activities carried on there, or control over whoever they allow there. Occupiers can be federal, provincial, municipal, commercial or private and there can be more than one per property. As per section 3 (1) of the Act, “an occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.” Subsection (2) further expands this duty by specifying that “the duty of care provided for in subsection (1) applies whether the danger is caused by the condition of the premises or by an activity carried on the premises.”

In torts, there are four types of “visitors” that an occupier owes varying levels of duty of care to: trespassers, contractual entrants, invitees and licensees. Although there’s a considerable amount of case law on the liability of commercial establishments and their obligations to their clientele or invitees, private or what personal injury lawyers call “social host liability” is more like a work in progress. For the purposes of brevity, this discussion will focus on the liability of private occupiers, specifically renters and owners. Since summertime is prime-time for everything from backyard barbecues to pool parties, we will review the duty of care “social hosts” have towards one type of “visitor”: the house guest or “licensee” attending these events.

In Ontario, licensees are not only owed a duty of care under the Occupier’s Liability Act, 1990, they are also owed one at common law. As far as case precedents go, Waldick v. Malcolm (1991), 83 D.L.R. (4th) 114 (S.C.C.) remains the starting point. In Waldick, the Supreme Court of Canada clarified the scope of the duty of care owed by occupiers to visiting licensees. Basically, the Court stated that the occupier has a duty to take “reasonable care” to make the premises safe. In this case, it was the renting occupier’s negligence that contributed to a slip and fall that left Norman Waldick [the plaintiff/licensee] with a fractured skull. The incident occurred at Marvin and Roberta Malcolm’s [the occupiers/defendants] farmhouse, and the injury was sustained when Mr. Waldick slipped and fell backwards on his sister Roberta’s icy driveway. Mr. Waldick sued the Malcolms for his grave injury and took the case all the way to the Supreme Court when they contested. Ultimately, the Court found the Malcolms liable for damages under Ontario’s Occupier’s Liability Act, 1990, making Waldick the new test for occupier liability.

Mr. Waldick also filed a cross-claim at trial against his sister’s landlords, Betty Stainback and Harry Hill, which was dismissed on consent. Although the Supreme Court’s decision only makes passing reference to it, it’s worth noting that [in this case] the Malcolm’s landlords were not found liable, event though they owned the property. Although section 8 (1) and (2) of the Act does provide some guidance on the obligations of landlords as occupiers and their duty of care towards tenants, that relationship is mainly governed by the lease. Still, the law is clear on the fact that occupiers cannot contract out of their liability to an injured party. As per section 5 of the Act, the duty of an occupier [be they landlords or tenants] cannot be restricted by the provisions of a contract to which the person to whom the duty is owed is not a party.

Needless to say, fun in the sun is often followed by a cold beer in the shade. Any lawyer in Ontario will tell you alcohol is an x-factor that adds a risky dimension to summertime socialising. To offset any potential liability that stems from drinking, hosting occupiers often turn to the doctrine of volenti embodied in section 4 of the Act. Under volenti, an occupier is absolved of liability if the loss suffered by the licensee comes as a result of “risks willingly assumed.” However, few defendants ever manage to do so successfully, since Waldick interprets it narrowly for statutory purposes.

According to the Canada Safety Council [CSC], a “social host” could include anyone who: is not selling or supplying alcohol for profit; is not an employer, or any position in which they have a ‘unique’ relationship with their guests and is serving alcohol or condoning the service/consumption of alcohol on premises they have control over. As previously mentioned, “social host liability” remains an evolving legal field, especially since there is no statutory, licensing, regulatory or contractual basis for directly finding liability. Arguably, the resulting lack of guidance represents quite a challenge for personal injury lawyers dealing with cases involving devastating catastrophic injuries or fatalities caused by the intoxication of a licensee.

One such case is Childs v. Desormeaux, [2006] 1 S.C.R. 643, 2006 SCC 18.  In Childs, the Supreme Court of Canada examined the concept of “social host liability” within the context of a terrible drunk-driving accident that occurred following a New Year’s Eve party in Ottawa in 1999. The accused Desmond Desormeaux attended a party given by hosts Dwight Courrier and Julie Zimmerman. The accused drank 12 beers at the party and then drove home with two other guests.  He ended up in a head on collision with another vehicle that resulted in 1 death, 5 injuries, including the paralysis of a teenage girl named Zoe Childs. Mr. Desormeaux pleaded guilty to several criminal charges arising from these events and received a 10-year sentence.

Ms. Childs sued Mr. Desormeaux for her losses and damages and won. She then attempted to sue the party hosts, Courrier and Zimmerman for $6 million in damages, but lost. She contested and took her case to the Supreme Court of Canada. Childs asked the Court if social hosts who invite guests to an event where alcohol is served, owe a legal duty of care to third parties who may be injured by intoxicated guests. Chief Justice McLachlan, for the court, held that as a general rule, such a duty of care does not exist for social hosts. Moreover, Ms.Childs injury was not foreseeable on the facts, as Courrier claims he had not seen Desormeaux drink and when he approached him prior to leaving did not show any signs of impairment.

It follows Childs was roundly greeted with scepticism. Civil litigation experts argued the plaintiff had proven its case and demonstrated proximity as per Jordan House and Crocker v. Sundance Northwest Resorts Ltd. (1988), 51 D.L.R. (4th) 321 and foreseeability, as defined in Waldick . To be brief, Mr. Desormeaux was friends with Dwight Courrier and both Mr. Courrier and his co-host Julie Zimmerman knew about Desormeaux history of alcohol abuse and his impaired driving convictions.  To quote the CSC: “this does not require a crystal ball, but a small level of common sense. If a guest is visibly drunk or the host knows that the guest has consumed several drinks, then if the guest drives, it is foreseeable [italics mine] that the guest will cause a crash.”

The ubiquitous summer pool party can also provide context for foreseeability of harm and social host liability, particularly when alcohol is involved. As per Ontario’s Occupier’s Liability Act or that of neighbouring provinces, home owners or renters are responsible for ensuring that swimmers are not exposed to unreasonable risks. A set of pool rules, signage indicating “shallow water “ or “no diving”, properly installed diving boards or slides, adequate lighting at night, and keeping the area clear of tripping hazards are steps occupiers should take to ensure the safety of their guests.

 Swimming pools can be dangerous when they aren’t used properly. Most backyard pools are relatively shallow, just 4 to 5 feet deep. Diving in such shallow pools can result in devastating injuries, especially when intoxicated. Just ask Jennifer Gabrysh, the paralysed plaintiff who sued her social hosts in Gabrysh v. Milenkovic, 2009 SKQB 302. In 2008, Gabrysh attended a pool party at a friend’s place in Regina Beach, Saskatchewan. At the party, the hosting occupiers provided guests with alcoholic beverages, including herself. At some point, a football was tossed her way and  the plaintiff dove for it and landed head first in the shallow end of the pool. She hit the bottom and ended up with C5 fracture, a spinal chord injury and paralysis. At trial, Gabrysh’s counsel attempted to sue her friends and their guest for negligence for an undisclosed amount of damages for pain, suffering and disability, loss of income, homemaking capacity and the costs of her care. The plaintiff claimed that the social hosts in question were negligent by failing to ensure safety procedures for the pool’s use were in place and having a clearly demarked “life line” that separates the shallow end from the deep end. She also claimed that the guest who threw her the football should have thrown it in such a way as to avoid “any foreseeable risk of injury”. In the end, the Court held Ms. Gabrysh alone caused and was responsible for her unfortunate injuries and did not find the defendant hosts liable under occupier’s liability or in negligence.

If anything, Gabrysh demonstrates the need for social hosts to be cautious and mitigate risks when it comes to entertaining at home. As a home owning or renting occupier, you owe a duty of care to any licensee/guests that crosses your threshold and must ensure their safety and secure their personal belongings while they are on your property as per the common law and under any provincial occupier’s liability statute.

In most cases, if you’re sued by say a drunk guest who hurts themselves in your home or by someone the guest in question brings harm to, your home owner’s or tenant liability policy will likely cover the claim and losses. In the spirit of the summer season, though, it may be wise to speak with your insurance broker and make sure your policy is up to date and includes perils like slip and falls, swimming pool accidents, alcohol-related incidents etc. Should you have the grave misfortune of being sued as a social host by some opportunistic house guest, please contact a qualified personal injury lawyer who specialises in occupier’s liability and spare you and your family the costly embarrassment of a frivolous lawsuit.