The Court of Appeal dealt with an order granting partial summary judgment as against the host of the party and the Municipality, which rented the facility used to host the party and permitted alcohol to be served, in Jonas v. Elliott, 2021 ONCA 124.
An assault took place at the party.
The appellants claim that the motion judge made a mistake in finding no duty of care on the part of the host and the Municipality.
The appeal was dismissed.
The Occupiers’ Liability Act provides that a person or organization with physical possession and/or responsibility for and control over a property is supposed to take steps to ensure that all persons on the property are reasonably safe while on the premises. This duty was correctly articulated by the motion judge.
The motion judge also noted that in order to establish a duty of care, there must be a relationship of proximity and foreseeable harm, tests which were articulated by the Supreme Court of Canada in the pivotal decision on social host liability, Childs. v. Desormeaux.
The motion judge found that the altercation was not foreseeable because:
- Experienced and trained staff were hired to serve alcohol and a friend provided security at the door;
- Both individuals involved in the altercation had consumed alcohol before attending the party but neither exhibited prior signs of aggressive behaviour or conduct that would suggest they had consumed alcohol before they arrived;
- The host was unaware of their prior alcohol consumption;
- The incident was both sudden and brief;
- There was only one other minor incident that evening involving an intoxicated patron who was appropriately removed from the party, placed in a taxi and taken home; and,
- The fact that the individual who was injured in the altercation, was let into the party by the host, was not the cause of the incident.
The trial was bifurcated and was able to proceed as against the individual defendant involved in the altercation.
The case touches upon many of the social host principles articulated in Childs. v. Desormeaux by the Supreme Court of Canada – reasonable foreseeability and proximity. The principles in social host cases are very different from a commercial host situation, where it is reasonable to expect that the provider will be monitoring the conduct of guests and be able to protect public interest.
The Court of Appeal again supports with Jonas v. Elliott, that there is a different expectation when dealing with a social host versus that of a commercial establishment.