Forget that "One for the Road"

It is not too often that the Supreme Court of Canada releases a decision that is of special interest to cottage owners. The recent case of Childs v. Desormeaux released in May 2006, is one of those cases. The main issue the court had to decide on was whether a homeowner could be held liable for the tragic consequences of an accident where the person who caused the accident became intoxicated at the homeowners' property. In this specific case, the homeowners had held a B.Y.O.B. party at their home and invited Desmoreaux. He was a known heavy drinker and following his departure from the hosts' home, heavily intoxicated, became involved in a head - on collision, which left passenger, Zoe Childs, a paraplegic.

Childs sued Desmoreaux as well as the people who had thrown the party. The Supreme Court was not prepared to hold the hosts liable for Childs' injuries, however, the case must be confined to it's specific facts. The Court drew a distinction between the liability of a commercial establishment such as a bar or restaurant, where this issue is governed by legislation. The Court also had difficulty finding a causal connection between the failure of the hosts to monitor their guests drinking at a B.Y.O.B. party and a subsequent accident on the highway.

While insurance companies across Canada no doubt breathed a great sigh of relief when this decision was released, homeowners and particularly cottage owners should know that in different circumstances you might very well be held liable.

From a reading of the case it appears that if the hosts had played a greater role in the serving of the alcohol (this being a B.Y.O.B. party) and if they were well aware of the level of the guest's intoxication and knew what activity the guest was about to embark on, there might well have been a different outcome.

The relevance of the case to homeowners and cottage owners is obvious. If you have served your guest alcohol and insist that he or she have one more 'for the road' and the guest is clearly intoxicated as he or she gets into a motor vehicle, you are putting yourself in a position where you may well be held liable for any subsequent accident. This does not only apply to motor vehicles. If you allow a guest to operate any type of device or craft whether it be a jet ski, ATV or even power tools, if anyone is hurt as a result of the guest's drunken state and you have provided the alcohol and were aware of your guest's condition, you can expect to be on the receiving end of a lawsuit. In fact, there are instances where the host is sued by the intoxicated guest who may claim "You should have realized I was too drunk to water ski - how could you have allowed me to do that in my condition."

It does look like the Supreme Court has indirectly said that in very specific circumstances, we are our brother's keeper. Have a safe and enjoyable summer.

Alf Kwinter
Singer, Kwinter