Date: Mon, 8 May 2006 08:41:55 -0400

From: David Cheifetz

Subject: Childs v Desomeaux

Israel

Granted. But, in this case, can't we say that the host actively, deliberately, chose to create the unreasonable risk of a particular somebody becoming drunk on his premises and driving home through the consumption of alcohol he actively, deliberately, invited that somebody bring onto the premises (because he didn't want to incur the expense of paying for all of the alcohol his guests might consume), by actively, deliberately making sure he did not know how much that somebody drank.

If that's still technically nonfeasance, it's technically nonfeasance.

But, for those of us who labour in the trenches, distinctions at that level of fineness - if we (in Canada) now have an absolute misfeasance / nonfeasance divide for social host liability - simply won't be workable out of court in settlement discussions. So, for the most part, they'll be ignored. And, out of court is where most of law is applied.

And how usable will that sort of distinction be at trial, with or without jury? Rest assured the jury will ask itself, no matter what it's told not to do: how much inaction do we permit before we deem it to be action? And, as often as not, we'll get jury answers which might be legally questionable. Some judges who conclude the plaintiff should win will search very hard for a way to characterize the conduct as misfeasance.

Did the SCC really mean to imply that, absent legislative change, nothing short of a "frat party" or its equivalent is going to expose a social (non-commercial) host to liability for the drunken driving of guests? We are going to get that argument in Canada, now, though probably not put quite that crudely.

Let me pose the question this way. Does it make sense to suggest the result in this case would have been different if the only difference on the facts was that the hosts had supplied the alcohol. [Supply and serve makes it easy to distinguish]. In my experience, the point of the ordinary "BYOB" party is to free the host of the expense of paying for everybody's alcohol, nothing more, nothing less. Beyond that, the alcohol is shared so there's no difference from the situation where the host supplies the alcohol. If so, there's room to argue that the SCC's distinctions are on the level of casuistry (in its pejorative sense) - or the pejorative use of 'pilpul' for those with some knowledge of an older tradition.

David Cheifetz

-----Original Message-----
From: Israel Gilead
Sent: May 8, 2006 7:43 AM
Subject: Re: RE: Childs v Desomeaux

In response to David - the mental state of the actor is one thing and the nature of his conduct (misfeasance/nonfeasance) is another thing. The fact that a failure to protect others was deliberate may justify liability but it does not change the nature of the conduct - it remains a nonfeasance if it does not involve an active creation of risk.

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