It has been a while, so some of us may have forgotten just how great the holidays can be when long-lost friends and family reunite, share food and drinks and stories, and hopefully a laugh or two. After nearly two years of lockdowns, gathering limits, and cancelled get-togethers, much of the country is in some stage of opening up (cautiously!). With the Canada-US border restrictions starting to ease in recent months, even bi-national families and friends from the south have renewed hopes of joyously reuniting for the holidays.
In Alberta, as of October 2021, indoor gatherings of two households and up to 10 people (plus kids under 12) are permitted as per the current public health guidelines. If getting together for fun winter outdoor activities are more your style, up to 20 can meet up as long as social distancing is maintained. This will be welcome news to many who spent last Christmas without close family, or those friends with whom the holidays are best shared.
The intense focus many have had on keeping our neighbours and communities safe from COVID-19 since the pandemic arrived in Canada in the spring of 2020 does not seem to be abating. New variants are still being discovered regularly, vaccinations for children under twelve are starting to roll out, and many public health measures intended to slow the spread of COVID-19 remain in place. For those planning to host or attend a safe holiday party this year, it is important to remember that in addition to making sure COVID-19 protocols are followed, hosts and guests have other legal obligations to make sure fun times do not turn into lawsuits.
OCCUPIERS’ LIABILITY AND THE SOCIAL HOST
Alberta, like many Canadian jurisdictions, has an Occupiers’ Liability Act which sets out the responsibilities of those who invite others to visit their home. These obligations to protect guests and their property from harm apply whether or not someone owns or rents the place where the gathering happens. Section 5 of the Act makes it clear that the duty to hosts must provide their guests with a safe setting to have fun is a broad one that courts interpret based on the facts of each particular case:
An occupier of premises owes a duty to every visitor on the occupier’s premises to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which the visitor is invited or permitted by the occupier to be there or is permitted by law to be there.
Hosts’ expectations for how the party will unfold – sitting, standing, or dancing; eating, drinking, and smoking – will determine what matters they need to consider in injury-proofing their spaces. Hosts are not expected to anticipate every potential scenario before, during and after the gathering, but risks that are easy to foresee, like those posed by an icy walkway or an open fire (it is winter in Alberta, after all), are within the ability of a host to anticipate and mitigate, and can attract legal liability if they result in harm or damage.
Occupiers’ liability is not a new concept, as causes of action in Alberta that have arisen since the 1970s have been covered by the Act and its predecessors. The liability of the “social host,” an individual who does not have a commercial relationship with those invited onto the host’s property, is a relatively new concept, and as with all areas of law, subject to change with evolving social norms and attitudes. Many may be surprised to know that presently, unlike owners of restaurants or bars where alcohol is served, social hosts who serve alcohol at a party are not liable in Canada if guests become intoxicated and cause harm by getting behind the wheel of an automobile after leaving the party. The Supreme Court of Canada’s 2006 Childs v. Desormeaux decision distinguished social hosts from commercial operators of establishments where alcohol is served based on the private nature of the party and the public nature of the bar.
WHAT’S MY LEGAL RESPONSIBILITY?
The Childs case sets out three types of situations where liability might ensue, that hosts may find instructive in deciding upon the kinds of activities they want to invite their guests to participate in on their property:
- If the host invites guests to participate in an inherently dangerous activity, the host has a positive duty to ensure that guests do not suffer harm while engaging in that activity. Eating, drinking, dancing, etc. do not meet the definition of “inherently dangerous” such that the host would have a positive duty to ensure the absolute safety of guests enjoying themselves;
- If a paternalistic relationship exists between the host and guest, like a teacher-student relationship, liability for failing to ensure safety could result if harm occurs; and
- If the party is a public gathering or commercial activity (e.g., if tickets are sold). Relevant to whether liability will result from harm in such circumstances would be the benefit the host receives from the endeavour (e.g., ticket sales revenue) and whether the activity was accessible to members of the public at large.
Whether or not a party host is legally liable for damage that occurs during or after their event is a fact-based inquiry that may take into account the host’s knowledge and understanding of the risks inherent in attending, and the characteristics of their guests that make them particularly susceptible to those risks.
It is clear from Childs and more recent decisions on social host liability that adult Canadians are, in normal circumstances, expected to take responsibility for their own actions. Being a party guest does not give rise to duties on the part of a host to assume responsibility for a person’s choices. Adults remain responsible for their own conduct and the consequences of it, even when they are out having fun at someone else’s home. While the smart host will want to make sure that guests enjoy themselves responsibly and have a safe way home, it is the guest who in the end must judge what they should and should not do while enjoying themselves at a social gathering.
Where it comes to guests that are under eighteen, hosts have a heightened responsibility to ensure that the kids are all right. If a party involves the supervision of children with the use of a babysitter, giving some thought to that person’s training and experience is important. The use of a babysitter contract is becoming more common, as it can help the parties understand each other better and clearly lay out what the expectations are for both sides. It is important to remember that a babysitter under 18 years old remains a minor, and therefore is owed the same duty of care as any other child attending a private event.
PARTIES IN THE TIME OF COVID-19
Unsurprisingly, not everyone will be comfortable with gathering this year, and even those who do opt to host or attend an in-person gathering may have some apprehension about safety while the pandemic situation continues to evolve. According to an online survey conducted by a Canadian retailer of rapid tests, nearly half of Canadians plan to request that guests visiting their homes during the holidays take a COVID-19 test prior to attending. Safety concerns aside, hosts and guests may be wondering whether or not they could be held liable should someone become ill following attendance at a holiday party. Canadian courts have yet to be called upon to decide personal injury claims based on community spread of COVID-19. Speculation surrounding criminal liability for disease transmission suggests that one’s knowledge of their COVID-19 status, and whether or not they are in compliance with public health directives regarding self-isolation, quarantining and social distancing are relevant consideration. A review of Canadian law and legislation regarding civil and criminal liability for AIDS transmission may help predict how courts will handle future lawsuits involving person-to-person transmission of COVID-19.
GETTING TOGETHER THIS HOLIDAY SEASON? KNOW THE RISKS AND YOUR RIGHTS
The experienced personal injury lawyers of Cumming & Gillespie are ready to assist you, if a good time turns dangerous and you are injured at a social gathering. Contact us as soon as possible to ensure you know the facts and can make a timely decision about pursuing a legal remedy, by calling 403-571-0555.