April 12, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
DECISION ON A MOTION TO DISMISS CLAIM ABOUT SOCIAL HOST LIABILITY -are parents of teen who host party liable;
Wardak v Froom
Date of Decision: February 17, 2017
Heard Before: JUSTICE W. MATHESON
REASONS FOR DECISION
This is a motion for summary judgment brought by Frooms under Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The claim against them is focused on social host liability and arises from a 19th birthday party that they held for their son in their home. Dean Wardak was seriously injured after he left the party impaired and on foot, then drove and ended up in a single car accident. He was 18 years old at the time.
The Frooms submit that the claim against them is bound to fail both as a matter of law and on the facts. The Wardaks submit that this action is not defeated by law and that the necessary facts should not be found on this motion for summary judgment.
Although there are some facts that can be found on the record, the relevant factual matrix quickly becomes complicated and cannot fairly and justly be determined on this motion. Nor is the claim bound to fail on the law. This motion is therefore dismissed.
Evidence on motion
The nature of the evidence is significant to the issue of whether the facts can be fairly and justly determined on this motion. The evidence put forward by both sides has certain frailties that would not always stand in the way of summary judgment but are problematic in the circumstances of this case.
The Frooms have sworn affidavits in support of their motion, which are proper evidence on this motion. They each give their accounts of the events surrounding the party. The Frooms also attach copies of their transcripts from their examinations for discovery as exhibits. These transcripts are not, themselves, proper evidence from the Frooms.
The Frooms’ affidavits attach a number of witness statements provided to the Peel Regional Police. Specifically, statements from both of Frooms as well as their daughter Emelia and their son Graeme are attached. None of these statements are sworn statements. Neither Emelia nor Graeme has sworn an affidavit on this motion and they both appear to be important witnesses.
The transcript of the examination for discovery of Dean Wardak is also attached as an exhibit. Under Rule 31.11, the Frooms could read into evidence any part of an opposite party’s examination for discovery. However, that Rule applies only to trials. This is of little significance in this instance because the only part of the transcript relied upon is otherwise admitted. As indicated at discovery, Dean has no recollection of the events that day.
The Frooms’ evidence also includes an affidavit of a lawyer. That affidavit, among other things, recounts certain facts about the events that this affiant does not have personal knowledge of, without necessarily indicating the source of the information.
In response to this motion, the Wardaks have also put forward discovery transcripts and various documents under the cover of a lawyer’s affidavit. That lawyer’s affidavit also contains facts regarding the events at issue that are not properly put forward by that affiant. The transcript from Dean Wardak’s examination for discovery is also attached as an exhibit to the affidavit and is not proper evidence from the Wardaks.
The Wardaks have included the Frooms’ examinations for discovery transcripts. Also attached are witness statements given to the police, including the statements from the Frooms, Emelia and Graeme Froom. The Wardaks’ affiant also attaches witness summaries produced by the Frooms in answer to undertakings arising from the examinations for discovery of the Frooms. The summaries contain information from nine people who attended the party. The summaries are unsigned and unsworn, are double hearsay and would ordinarily not be proper evidence. However, the Frooms have not objected to their use in this way.
The Wardaks’ affiant also attaches a document described as the “anticipated evidence of” a police officer, attaching his or her handwritten notes made at the time of the accident. Both sides have also included the police accident report.
Neither side has objected to the other side putting their evidence forward in the above fashion. For the most part, they have taken a similar approach to the evidentiary record for this motion. On that basis the Justice overlooked many of the technical problems with the record on this motion.
On close examination of the evidence by both sides, the Justice concluded that while aspects of the events giving rise to this action can readily be found on the evidence, there are also considerable differences and gaps in the evidence during two critical periods of time. Those areas are highlighted below.
In April 2011, Mr. and Mrs. Froom had a party in their home for their son Graeme on his 19th birthday. Dean Wardak walked to the party.The Frooms did not serve alcohol, but they were aware that there would be drinking at the party. The party was “bring your own booze”.
Dean was one of the first guests to arrive at the party. Dean was 18 years old and therefore underage from the standpoint of drinking. The Frooms were aware that several of the guests were underage. The Froom family was at the party. Apart from the family members, there were at least five guests who were under 19 years of age, including Dean. The Frooms have admitted that they were hosting the party and that throughout the party they supervised their guests. Some guests were playing a drinking game called “Beer Pong”, including Dean.
The Frooms were in the kitchen and family room area on the main floor for most of the party, which gave them a view of people coming and going. They also went down to the basement, about four times each, through the evening. There was no washroom in the basement, so they would also see the guests when they came upstairs to use the washroom.
The first critical time is the party itself – a few hours leading up to the second critical time period around 11PM. There are different accounts from the witness summaries about to what extent Dean showed signs of becoming drunk. Party guests did see Dean drinking, as did Graeme Froom. There is evidence that Dean brought and drank vodka and also had beer. Various guests said that Dean was a bit drunk or quite intoxicated. One witness said Dean was the “most drunk” of the party guests. Witness summaries regarding other party guests who were 18 years old say that they were drinking too.
The Frooms made a total of about eight trips down to the basement over the course of the evening. Mr. Froom said that when he spoke to Dean downstairs Dean seemed fine, coherent and sober, and that he did not see Dean drinking. Mrs. Froom also attested that she had spoken to Dean in the kitchen before the end of the evening and he seemed perfectly fine. Thus, there are differences in the accounts of when and how much Dean was showing the effects of his drinking. The evidence lacks pertinent detail regarding timing, among other things.
There is no evidence that Frooms attempted to get Dean or any of the other underage party guests to stop drinking at any point in time. The second critical time is just before 11PM. Dean came up from the basement and headed to the front door. Mr. Froom noticed that Dean was wobbling and his behaviour was odd, and he offered to walk him home. Mr. Froom’s evidence is that Dean replied that he wanted to use the washroom; Dean did so and went back downstairs.
Mr. Froom’s affidavit indicates that he asked his daughter Emelia and her boyfriend to keep an eye on Dean. Emelia did not swear an affidavit on this motion and did not mention this in her statement to the police. There is no evidence from the boyfriend.
A short time later, Dean came back upstairs and headed toward the front door again. Mr. Froom offered to walk Dean home again. His evidence is that Dean yelled at him, said he was going to the washroom and he “stomped” and “growled” into the washroom where he continued to make noise. According to Mr. Froom’s discovery, at that point he did not think Dean was going to walk home – he thought Dean was out to do something. Mr. Froom was concerned that Dean might do something dangerous to himself.
Mr. Froom’s evidence is that during this time another guest needed to use the washroom and he decided to leave Dean and show the other guest up to the washroom on the second floor. When Mr. Froom was upstairs, Dean left. He first fumbled around at the front door looking for his shoes. According to Emelia’s police statement, there were a number of people around the front door at the time. Dean ultimately left without his shoes and, as was later determined, without his jacket.
Emelia saw Dean leave and said in her police statement that he was “completely zoned out” and looked like he was going to be sick. She was leaving at around the same time with her boyfriend. As set out in her police statement, as they drove away they decided to put on the high beams and look for Dean. When they approached his house, she saw the brake lights on the car in Dean’s driveway. Emelia got out of the car to try and talk to Dean as he reversed out of the driveway. He drove away. She called 911 and reported that Dean was driving and was “visibly” intoxicated. She and her boyfriend tried to follow him in their car, but lost him.
When Mr. Froom came down from the second floor, Dean was gone. Mr. Froom looked for Dean in the basement. He and his son Graeme then went on foot to look for Dean. When they got to Dean’s house, they noticed that his car was not in the driveway. Ultimately, they knocked on the door and spoke with Dean’s father, who went out to look for him too.
Dean was driving only a short time before he drove over a fire hydrant and hit a tree. He was taken to hospital and a blood alcohol test showed .274 (274 mg. of alcohol to 100 ml. of blood), more than three time the legal limit. As a result of the accident, Dean is now a quadriplegic with cognitive impairments.
This action was commenced in 2013. In addition to defending the action, the Frooms served a jury notice requiring that this action be tried by a jury.
The Frooms move for summary judgment under Rule 20. Under subrule 20.04(2), summary judgment shall be granted if the Court is satisfied that there is no genuine issue requiring a trial with respect to, on this motion, the Wardaks’ claim.
On a motion for summary judgment, the judge should first determine if there is a genuine issue requiring a trial based only on the evidence before him or her without using the fact-finding powers in subrule 20.04(2.1). The motion judge is also permitted to use the expanded powers under Rule 20(2.2) to direct a procedure such as a mini-trial, rather than a full trial.
The responding parties may not rely on the prospect of additional evidence that may be tendered at trial; the respondents must put their best foot forward on the motion for summary judgment. The delivery of a jury notice does not automatically preclude summary judgment. However, a jury notice must be considered when deciding whether to use the expanded fact-finding powers under Rule 20.
The Frooms submit that this summary judgment motion should be granted for two reasons: because the established law precludes finding a duty of care; and, in any event, because the Frooms met the applicable standard of care.
The Frooms submit that they owed no duty of care under the Social Host Liability Law because they did not serve alcohol. The starting point for any consideration of social host liability is the Supreme Court of Canada decision in Childs. The central legal issue in Childs was whether social hosts owed a legal duty of care to third parties who may be injured by intoxicated guests. This was the first time the Supreme Court had considered the duty owed by social hosts. In Childs, the injured person was a third-party, not a party guest. The Chief Justice, for the Court, held that there was no duty on the Childs facts, but left the door open for other cases.
The Wardaks submit that the facts of this case are the “more” that the Supreme Court allowed for in Childs, and more specifically, that this case falls within the contemplated paternalistic duty. The Childs facts did not involve under-age drinking. Although Dean was 18 and therefore formally an adult, he was not legally permitted to drink. Perhaps most significantly, Dean was a guest, not a third-party.
It is apparent that the Supreme Court’s ruling in Childs does not preclude finding a duty of care where there is a paternalistic relationship or where the injured party is a guest rather than a third-party.
The Justice conclude that neither Childs nor other cases preclude a finding of a duty of care in this case, indeed, the other cases put forward by the parties illustrate the importance of the factual context in the determination of whether a duty is owed.
The Justice then went on to review the law, and the evidence presented, in the Standard of care.
The Frooms submit that even if they had a duty of care, they met the standard of care and the claim should be dismissed. They maintain that they did not serve Dean drinks or encourage him to drink, they did not see Dean drink, they did not see Dean act in a suspicious manner in advance of his two attempts to leave just before 11PM, and once they suspected something was wrong, the Frooms did “everything they could to get him home safely”. They offered to walk Dean home twice, they watched him, and Emelia followed Dean home and attempted to stop him from driving.
The Justice noted that there is countervailing evidence regarding most of the above propositions:
- although not serving or encouraging Dean to drink, the Frooms knew that there would be drinking at the party and that a group of the guests were underage;
- between the two defendants, they went down to the basement about eight times and there is evidence from partygoers that there was drinking and Beer Pong going on in the basement and Dean was intoxicated;
- there is an inconsistency between the accounts of Dean’s behaviour in the basement, where he appeared very drunk at least to some people, and Mr. Froom’s evidence that Dean was fine, coherent and sober;
- nothing was done by the Frooms to stop Dean from drinking after the first occasion when he came upstairs to leave and Mr. Froom saw him wobbling and acting odd;
- the suggestion that Mr. Froom asked Emelia and her boyfriend to keep an eye on Dean is not mentioned in her police statement and there is no affidavit from either Emelia or her boyfriend;
- the suggestion that Mr. Froom left Emelia in charge when he took another partygoer to the upstairs washroom is not mentioned in Emelia’s police statement and again there is no affidavit from her;
- on the evidence before me, Emelia and her boyfriend were leaving anyway – they did not leave to see Dean home; and,
- Dean’s father was home; after Dean first refused a walk home and Mr. Froom began to suspect Dean was up to something, the Wardaks submit that the Frooms ought to have called Dean’s father for assistance.
The frailties in the evidence have an impact on the determination of these factual issues. The evidence of partygoers who were in the basement is relevant to what actually transpired in the basement and whether the Frooms’ evidence that they saw nothing amiss should be accepted. While the Justice does not suggest that affidavits from everyone are required, it is unsatisfactory to have only double hearsay, unsigned, unsworn summaries of what several of those people said when interviewed by an unnamed person. Similarly, the evidence of Emelia (and her boyfriend) is relevant to the steps taken by Mr. Froom when he became concerned that Dean was going to do something that would put him in danger.
At the hearing, the Frooms’ counsel submitted that even if the facts were taken from the standpoint of the Wardaks, this action should be dismissed. This can be a good strategy on this type of motion, and a strategy that could overcome frailties in the evidentiary record. However, the Justice concluded that it would not be fair and just to do so in this case.
The justice noted that he must first determine whether there is a genuine issue requiring a trial based only on the evidence, without using the fact-finding powers in subrule 20.04(2.1). For the reasons set out above, the Justice concluded that there are genuine issues requiring a trial on the facts needed to reach a decision on the merits.
This motion is therefore dismissed. In accordance with Skunk v. Ketash, 2016 ONCA 841 (CanLII), at para. 62, the Justice specifically considered to what extent he made determinations of law that are intended to be binding on the parties at trial. Justice Matheson noted he does not intend to make any such determinations, and therefore does not invoke subrule 20.04(4).