Warren Berg: 0:00

Good morning and welcome to the December 2024 edition of Ask the Lawyer Across Alberta on Windspeaker Radio CFWE and CJWE. I'm your host, warren Berg, and joining us again this month is Cynthia Carels of Weir Bowen LLP in Edmonton.

Cynthia Carels: 0:13

Thanks very much for having us back, warren, and I'm pleased to be able to introduce you to our listening audience and to one of our associates, mr Mark Miller.

Mark Miller : 0:22

Good morning. Thanks for having me.

Warren Berg: 0:29

It's great to have you both here. Mark, tell us a little bit about yourself and your law practice.

Mark Miller : 0:31

Well, I grew up in Edmonton. Here, I went to the University of Alberta for my undergraduate studies and then on to the University of Calgary for law school. I've been working at Weir Bowen since graduating law school in 2020. I articled with the firm and in a couple weeks I'll be a fifth-year associate, which seems crazy to say. I have a fairly broad civil litigation practice, which includes work in medical malpractice, motor vehicle and personal injury and disputes over disability benefits or other types of insurance, and I do work for both plaintiffs and defendants, which makes me somewhat unique at the firm. And one last thing I wanted to say I played a lot of music growing up and, as a kid, had dreams of being interviewed on the radio. Now, this isn't exactly what I was picturing as a teenage guitar player, but it's still pretty cool and I appreciate you having me on.

Warren Berg: 1:24

Well, next time we'll do a jam session in here. It's very nice to meet you, Mark, and thanks for being here today. Weir Bowen is an Edmonton-based law firm. However, their lawyers have represented clients right across Alberta, in BC, Saskatchewan and the Northwest Territories, and their lawyers have been counsel in precedent-setting cases all the way up to the Supreme Court of Canada. So over the last few years I've met a number of Weir Bowen lawyers who have appeared on the show. But, Cynthia, what stands out to you about the firm?

Cynthia Carels: 1:57

Well, this is actually the third firm that I've worked at throughout the course of my career and, I have to say, at Weir Bowen we really do have an impressive roster of lawyers at the firm. We have some newer lawyers, like Mark, but also lawyers who've been practicing since like the 1980s and for many of our senior lawyers, they're very well recognized within the legal industry for their ethics, for their professionalism and, of course, with just their exceptional legal competence. And, in fact, five of our partners at Weir Bowen have been named to the best lawyers in Canada list pretty consistently for as long as I've been with the firm. And while Weir Bowen is best known for medical malpractice and personal injury law, we do have lawyers who work across the board in terms of different areas of civil litigation.

Mark Miller : 2:40

I'll just add. One more kind of unique aspect of our firm is that we have a number of lawyers with extensive trial experience, which is actually quite rare for civil lawyers in Alberta, given that the vast majority of cases settle out of court. I was actually given the opportunity to assist some of our senior lawyers on two trials in the last year and I can certainly attest to the impressive trial advocacy of the Weir Bowen lawyers.

Warren Berg: 3:09

So what are we going to be discussing today?

Cynthia Carels: 3:10

Well, with this being the month of December, we thought it would be a good time to discuss some of the legal issues that arise during the holiday season. So this is talking about holiday parties and including impaired driving and motor vehicle accidents, as well as the responsibilities of party hosts, including both commercial as well as non-commercial hosts. So these issues touch upon both the actions of the party hosts as well as party visitors that cause harm to people, and it does get heightened in December, during the holiday season. But we're also going to be talking about the responsibilities that hosts have to keep their properties safe for visitors that actually show up at their parties during the holiday season.

Warren Berg: 3:49

Very interesting. I'm looking forward to getting deeper into that. But before we get started, let's touch upon how our listeners can get in touch with you. If somebody needs to talk to a lawyer about a personal injury claim, whether it's a motor vehicle accident or medical malpractice or some other type of injury, how can they connect with you?

Mark Miller : 4:06

There's a couple ways to contact the firm. The easiest way is to go to our website, weirbowendotcom, so that's W-E-I-R-B-O-W-E-N dot com. There is a contact us tab on our website where you can fill in a quick form which will put you in touch with our reception and intake team. Once that's filled in, our reception staff will transfer your inquiry to a lawyer who will review and then contact you. You also have the option of just calling our main phone line and speaking with our receptionist. They'll again get your information and put you in touch with one of our team members, and the phone number for our office is 780-424-2030.

Cynthia Carels: 4:49

You know, and even if you don't necessarily need to speak to a lawyer about a particular issue today, feel free to check out our website anyways, because there is a lot of information on there regarding legal processes, profiles of the various lawyers that you've heard on Ask the Lawyer and also a blog that we regularly update regarding legal issues. And, of course, you can also access previous episodes of Ask the Lawyer at our website under our podcast tab.

Warren Berg: 5:14

This is Ask the Lawyer on Windspeaker Radio CFWE and CJWE. I'm your host, Warren Berg, and joining us today are Mark Miller and Cynthia Carels of Weir Bowen LLP in Edmonton. That's W-E-I-R-B-O-W-E-N. Their phone number is 780-424-2030. Online at weirbowendotcom Now. Cynthia, you were saying that this month's topic relates to impaired driving and motor vehicle accidents. Why is that our particularly relevant topic in December?

Cynthia Carels: 5:43

Well, you know, there's a few reasons why this topic is magnified in December and, of course, starting just with weather, weather itself can be cold and dreary at this time of year, which leads to people driving more instead of using other transportation options like walking or biking, or even public transit, and the weather can make the roads simply less safe. For example, drivers might require greater stopping distances due to ice and snow or poor visibility, things like that. So just the simple mathematical likelihood of collisions is increased at this time of year. But then, on top of all of that, compounding this, there's that influx of parties and social gatherings during the holiday season, which can unfortunately result in people driving when they're impaired and, of course, whenever there are impaired drivers on bad roads. This creates a very high risk situation and can increase the chances of motor vehicle collisions turning into devastating tragedies.

Warren Berg: 6:41

So, in terms of legal issues, how does being in a collision with somebody who is impaired differ from being in a collision with somebody who's not?

Mark Miller : 6:50

In any civil lawsuit we need to prove liability or fault for the collision and resulting injuries. But we also need to prove damages, and damages refer to the actual consequences of the collision and injury. So that would include the actual injury suffered as well as the impact of the collision and injury. So that would include the actual injury suffered as well as the impact of the injury on a person's ability to work, complete household tasks and financial losses due to the injury. So from that perspective, generally speaking, our assessment is the same regardless of whether the at-fault driver was impaired. But when it comes to liability for a collision, that impairment changes our assessment quite a bit.

Mark Miller : 7:28

Determining liability is quite it's highly fact dependent. But when a driver is impaired it is very likely that they will be found liable for causing a collision. When a case involves an impaired driver, there will usually be a police investigation and criminal or administrative charges against the driver for their impairment and whatever findings come out of those charges, those findings can be used to support a finding of fault in a civil case. So, for example, if an impaired driver was charged and found guilty in a criminal trial or entered a guilty plea, that would be used as very strong evidence of fault in the civil lawsuit. This is especially useful because criminal law in Canada has a beyond reasonable doubt burden of proof, while civil law cases are decided on a balance of probabilities, which is a lower threshold of proof. So to have a finding of guilt at the criminal level weighs very strongly in a civil case.

Warren Berg: 8:24

So that answered the liability side of things. What about calculating the value of somebody's damages?

Cynthia Carels: 8:31

So while impairment factors heavily into that assessment of liability, it doesn't weigh as heavily on the damages assessment.

Cynthia Carels: 8:38

And it's because the primary goal of injury law in Canada is to compensate the plaintiff for their injuries and it's not so much to punish the defendant. We leave that up to the criminal side to put people in jail and to levy fines against them. And standard motor vehicle liability policies even cover damages caused when a driver is impaired, so it doesn't take you outside of the coverage for your insurance. So the damages analysis is largely going to look the same, as we're assessing the plaintiff's injuries and the impact on their specific day-to-day life. However, there's a caveat to that. In a case involving an impaired driver, under the right set of facts, we might ask the court to award something called punitive damages over and above compensatory damages. Now, this is fairly rare in personal injury cases, but punitive damages can be awarded when a court feels that a defendant's actions were so egregious that they should be punished, and so they can award punitive damages to try and deter others from committing that type of behavior.

Warren Berg: 9:38

And you had previously mentioned that sometimes a party host might be liable for one of their guests leaving a party and causing a collision. How does that work?

Mark Miller : 9:48

Well, when we're discussing holiday parties and social gatherings, the people or entities hosting those parties often have some responsibility over the people attending and leaving their gatherings. And when we're talking about impaired drivers who are leaving holiday parties, there are some instances where the hosts can be held responsible for damage the drunk driver causes, even though the host wasn't the one behind the wheel. This is a fascinating area of law that we are going to delve into more deeply a bit later on in the show.

Warren Berg: 10:19

Okay, so let's start with the basics regarding what our listeners should do if they're involved in a collision with a drunk driver this holiday season.

Cynthia Carels: 10:26

Okay. So, of course, safety is always the first priority. So if anyone is involved in a collision, they should first make sure that they and anyone else involved in the collision are safe, that they've been moved out of the path of oncoming traffic, and then, obviously, to call 911 for any emergency medical assistance and to report the matter to the police as soon as possible. And obviously, if you expect that somebody is impaired, you should be reporting this information to the emergency responders right away. Impaired drivers have already exhibited some pretty bad judgment simply getting behind the wheel in the first place, and so it's not unusual for them to try to make some attempts to flee the scene when they're confronted with the sobering situation of being in a collision and, of course, knowing police are on their way.

Mark Miller : 11:12

So if you can safely get a quick snapshot of their vehicle and license plate number, that would be ideal. Also, if any witnesses stop to help, try to remember to take a moment to get their contact information too.

Cynthia Carels: 11:23

Yeah, that's a good point, mark.

Cynthia Carels: 11:24

I cannot tell you how many times I've had clients in my office who can vividly describe kind souls who have pulled over, stopped to help them out after their accidents, but then, when I asked them if they got the witness name and contact information, they just didn't think to get it in the moment, and many times it can end up being impossible to find those Good Samaritans after the fact.

Cynthia Carels: 11:45

And these independent witnesses can be so critical in these kinds of cases, as they might have things like dash cam footage or they might have even seen the impaired driver's recklessness in action leading up to the time of the collision. With you, you know we see a lot of this kind of footage being uploaded to social media as well these days, and it is truly wild how some impaired drivers will maneuver their vehicles while under the influence or even after crashes. So, in addition to any statements that you end up making to the police as well, those witnesses are so important for the police to speak with. But if they don't stick around until the investigators arrive, their evidence might not ever be discoverable by the police or by us to use and in support of your version of what actually caused the collision.

Mark Miller : 12:32

That's right, cynthia. And then, once everyone is safe and the emergency is over, it's still not necessary to make your next call to a personal injury lawyer, it's much more important to seek medical assessment and treatment personal injury lawyer, it's much more important to seek medical assessment and treatment.

Cynthia Carels: 12:47

Yeah, I have had people call me from the scenes of accidents and I'm, like you, know what we got to focus on, what needs to be focused on first. But there are a few reasons that it is important to go and seek medical assessment and treatment. Number one in the aftermath of a collision, there is a lot of adrenaline pumping through the body and in that collision, even though we might be the ones who are hurt, we can be terrible at assessing the extent of our own injuries. And if that is combined with something like a head injury, a traumatic brain injury, our judgment can be even further impaired. So it is far better to be on the safe side and to get checked out than it is to make a poor assumption that puts yourself and possibly others at risk of further harm.

Cynthia Carels: 13:22

Now the second thing. The second reason why it is so important to go for medical assessment is that these kinds of cases do rely heavily on documentation. So it's helpful to have medical records generated contemporaneously with the injuries that you sustained. So we want to be able to see what your complaints were at the time of the accident, because, as time goes by, certain things can fade with your memory, injuries can change and evolve and, of course, the sooner you can start into appropriate treatment, the better your outcome generally will be.

Warren Berg: 13:53

Okay, so, with all of that said, how soon should a person contact a lawyer after a collision?

Mark Miller : 13:58

Good question, Warren. There's no absolute, correct answer to this question and, as Cynthia said, a person should absolutely prioritize their safety and receive any necessary medical treatments before anything else. But a good rule of thumb would be to contact a law firm as soon as possible once your health and safety allows. This could be in the next day or two for a person who suffered less serious injuries, or it could be in a matter of weeks for someone who had suffered more significant injuries and were, for example, in the hospital for some time.

Cynthia Carels: 14:28

Although I can say from experience that there have been some times that the specifics of a circumstance have actually warranted a call from the hospital. I can think of a number of times where families have reached out to me in the aftermath of very serious accidents, and I've gone to the hospital to meet with them and their loved ones so that we can help them navigate all the paperwork they're going to need in order to get accident benefits up and running, or even to get experts involved to help with planning for someone's care once they're well enough to be discharged. So, for example, if someone has sustained a spinal cord injury and they're likely to be discharged from the hospital in a wheelchair, they might not ever be able to go back to their home again and at some point they are going to be discharged from the hospital. So the families are frequently going to need help with figuring out the logistics, as well as the finances, to create a safe and accessible place for their loved one to live once they're out of hospital.

Mark Miller : 15:24

So, as Cynthia has explained, there is no perfect time frame to make the first phone call, but there definitely is a wrong answer to the question of when people should start reaching out. There is yes, indeed. Well, it's never too soon to call. If you wait too long, it could be too late.

Cynthia Carels: 15:40

Yeah, as we've discussed on the show previously, there are limitation deadlines that a person has to sue by, which often ends up being two years from the date of the injury.

Cynthia Carels: 15:50

And by suing I don't mean just calling a lawyer and, you know, having an initial consultation, I mean actually formally filing a statement of claim at the courthouse. And we have been known to be able to whip together a last minute statement of claim, like on the eve of that limitation clock dinging and rapidly approaching that deadline. It's not super ideal. So if there are any quirks associated with the facts of your claim, we would appreciate having a bit more time. So please don't wait until the last minute to contact us. So please don't wait until the last minute to contact us, and I especially have to stress that even more if you are involved in an accident during the end of your holiday season, because the courthouse is typically closed the last week of December and even into the first few days of January. So if the courthouse is closed for the holidays, when you call, we're not going to be able to file a last minute claim for you.

Mark Miller : 16:42

However, as we always say on Ask the Lawyer, limitation periods are fact-specific and there are a number of exemptions and nuances to these deadlines. So anyone with a potential claim should certainly contact a lawyer to be certain of any potential deadlines or whether there might be an exemption we can put to work for you in order to save a claim that might otherwise be too late.

Cynthia Carels: 17:03

Yeah, and just to underscore this as well, everything that we say here on Ask the Lawyer is for information purposes only, should not be construed as specific legal advice to your case. And, as Mark said, you do want to talk to a lawyer before it's too late, and if you haven't, then talk to a lawyer to find out if your specifics might fit into one of those exemptions.

Warren Berg: 17:24

And I'm pretty sure we talk about limitation deadlines in every single one of the shows we've ever done on the Ask the Lawyer show with the we're Bowen team.

Cynthia Carels: 17:32

Yeah, I'd be pretty happy to take that bet, because missing limitation periods it's every lawyer's nightmare, so it is always top of mind. We have set up some pretty elaborate systems in our firm, I know, to make sure that we are repeatedly reminded of upcoming limitation dates and if we don't respond, our systems are even set up to tattle on us to the other lawyers in the firm so they can come personally knock on our door to find out if the claim is getting filed before that deadline.

Mark Miller : 17:59

And in addition to limitations deadlines, it is also important to review the collision and what happened with a lawyer. While your memory is fresh and while you likely have a lot of questions about police involvement, how the insurance process works, whether you can be reimbursed for treatments such as physiotherapy, and so on, lawyers can be very helpful in answering those questions, guiding you through what can be a very stressful process. So there's certainly no harm to contacting a lawyer too soon after being involved in a collision.

Warren Berg: 18:27

Very good to know and, speaking of contacting a lawyer, this is probably a very good time to remind our listeners of how they can get a hold of one of you.

Cynthia Carels: 18:35

Yeah for sure. So if anyone wants to get a hold of us today, they can find us on our website. That's we'rebowencom, again, w-e-i-r-b-o-w-e-ncom, and there's a contact us tab just right off that homepage. That will take you to a form you can fill in and that's going to get diverted to one of our lawyers. But I know the Internet is not everyone's friend and reliable Internet may not even be an option for some people. So for anyone who would prefer to call us directly, our main reception line is open Monday to Friday at 780-424-2030. And we have a fantastic intake team that can get you set up with our preliminary information form, and they can also make sure to connect you with the right people at our firm as well.

Warren Berg: 19:19

This is Ask the Lawyer on Windspeaker Radio across Alberta on CFWE and CJWE. I'm your host, warren Berg. Joining us once again today are Mark Miller and Cynthia Carrolls of we're Bowen LLP in Edmonton. That's we're Bowen W-E-I-R-B-O-W-E-N. 780-424-2030 or online at we'rebowencom. Now, mark, for anybody who's considering giving you a call. What does a consultation with Weir Bowen look like?

Mark Miller : 19:51

Well, the first thing is that you don't need a special referral or anything like that. Anyone can contact us at any time. It is important to also mention that the consult is at no cost and will remain entirely confidential, and we are very flexible with email or phone consults or even in-person consultations whatever is preferred by the person reaching out. As Cynthia mentioned, we do have a really great intake team that will make sure they have all the relevant information we are going to need, after which that information will be reported to one of our lawyers, who will contact you directly to discuss the matter.

Cynthia Carels: 20:24

Yeah, and while those conversations frequently lead us to working together, sometimes we might recommend taking a bit of a wait and see approach, if the circumstances warrant and, of course, if there's enough time to give potential clients a chance at pursuing recovery and maybe avoid getting involved in a lawsuit at all. But even then, you know, it was still a good idea for people to call early for that free consult, because then you're going to have a better understanding of what to watch for, who to talk to, who not to talk to, and what sorts of timelines and evidentiary issues that are likely to apply to your case. And speaking of evidentiary issues, it's probably time we get into the legal weeds a little bit, as promised, regarding the potential liability of party hosts when a drunk driver leaves one of their gatherings.

Warren Berg: 21:11

Right Now. I'm sure this will be of interest to a lot of different people who are hosting holiday parties during the season.

Cynthia Carels: 21:17

Yeah, it's. You know, not the type of case that we see too often, but the most common example of this is when a person leaves a bar or a company holiday party intoxicated. Then they get behind the wheel and cause a collision and it is possible that, legally, a host could be partially liable for that collision, even though they were not the person behind the wheel. But, as we're going to get to in this section of this complicated piece of legal topics, it doesn't apply to all hosts and this type of liability is largely dependent on the facts of the situation as well as the specific type of host.

Mark Miller : 21:57

And it's important here to differentiate between social hosts and commercial hosts, as the level of responsibility differs between the two.

Warren Berg: 22:05

Okay, let's start with what's a social host.

Mark Miller : 22:09

A social host would refer to someone who, on an informal basis, organized a gathering, and for a social or interpersonal motivation, as opposed to operating a social space as a business. In contrast, a commercial host usually involves some sort of business arrangement. For example, a commercial host could be a bar or restaurant. Usually it would be a corporation which owns the establishment, and that corporation would be responsible for the actions of its employees, such as servers and bartenders.

Warren Berg: 22:38

So let's say I invite a few friends to my house, we'll watch the Oilers play on a hockey night in Canada. What would I be?

Mark Miller : 22:46

You would be a social host in that situation. It would be a gathering of friends for a social purpose. You wouldn't have a liquor license or be selling food and alcohol to your friends, and it would be at your private residence. If, however, you and your friends went to watch the game at a local restaurant or sports bar, the owner of that establishment would be the commercial host. The owner of that establishment would be the commercial host, and the standard of care for a social host versus the standard of care for a commercial host is very different.

Warren Berg: 23:13

And I've heard the term standard of care in previous episodes, but can you explain for our listeners what that means?

Cynthia Carels: 23:20

I know you don't need the explanation.

Warren Berg: 23:21

Thank you.

Cynthia Carels: 23:24

But yes, we'll review that for sure. So standard of care refers to the reasonable level of caution or prudence required of a person in a certain situation, and the term reasonable carries a lot of weight here, because the courts do not expect people to be perfect or outstanding, but simply to uphold a reasonable level of caution relative to the risks of the situation level of caution relative to the risks of the situation, and I actually had a law professor who often repeated this, saying that reasonable people disagree about what reasonable means it's a little subjective.

Mark Miller : 23:55

And it's so much of what our job as civil lawyers is is to make persuasive arguments about whether a person's actions in a certain situation were reasonable or not.

Warren Berg: 24:04

What would the reasonable standard of care be for commercial hosts then?

Mark Miller : 24:09

So, in the context of social versus commercial hosts, the standard of care for commercial hosts would be that they have a responsibility to not serve alcohol to customers to the point of intoxication and to not serve customers that are already intoxicated. Certain measures are taken to uphold this standard, which would include municipal alcohol licensing and having servers with pro-serve designations, who are therefore educated on alcohol and its effects and when to stop serving a patron. If a bar, restaurant or pub breaches this responsibility, allowing a person to become over-intoxicated and they end up suffering an injury as a result, the bar could be held liable. This has been seen in cases where a person becomes intoxicated and is no longer in a position to get home safe, where the courts have actually held that the bar must take steps to get that person home safely.

Cynthia Carels: 25:04

There's also situations where a customer has been over-served and the customer then goes on to drive and causes a collision with a third party. So this is somebody who wasn't at the bar and in this situation the bar could even be held liable for the injured third party. That person was not their customer, they weren't even on the premises that evening. So an example of this happened in a case out of Hamilton, ontario, from about 20 years ago, and the case is called McIntyre and Greig. In this case a professional football player had been drinking at a bar at the McMaster University campus. The bartenders continued to serve him despite his becoming intoxicated. Then he left the bar, attempted to drive home and unfortunately hit a pedestrian with his car.

Cynthia Carels: 25:51

So the plaintiff the pedestrian in that case sued both the intoxicated driver but also the bar where he had been over-served, and what the court decided in that case was similar to the duty that Mark was articulating a moment ago, that the employees of the McMaster Bar had a duty not to over-serve Mr McIntyre, but once they were aware of his impairment, they also had a duty to make sure that he had a safe method of getting home, both for his own safety but also for the safety of other people on the roads who would be at risk if Mr McIntyre was permitted to drive. And once they were aware of his impairment, the court determined that it was foreseeable that he might leave the bar and attempt to drive. And of course that is what he did. And so they said if it was foreseeable that he would drive, it's foreseeable he would create a massive risk to other users of the road as well. So in this situation the court determined that the plaintiff's injury was foreseeable to that commercial host and that resulted in the court finding them liable.

Mark Miller : 26:55

And I should note here that the court didn't absolve the driver himself of responsibility, but actually ended up splitting liability, with the defendant driver being found 70% responsible for the injuries and the bar 30% responsible- this might be a bit of a sidetrack, but I didn't know that a court could split liability.

Warren Berg: 27:15

How does that work?

Cynthia Carels: 27:16

It actually is fairly common, especially in motor vehicle cases where there might be multiple drivers, multiple car owners and multiple insurance companies involved, and the courts are quite comfortable apportioning liability in cases involving multiple potentially at-fault parties, so splitting up liability can even happen before a case gets to court. Oftentimes, in cases where there are multiple potential defendants, those defendants can negotiate amongst themselves about which party is responsible or most responsible or how much each party should be responsible, and they can sometimes reach an agreement as to what percentage of the settlement that their specific client should cover.

Mark Miller : 27:55

This would be a good time as well to point out that the plaintiff can also be apportioned responsibility for their own injuries, and this is referred to as contributory liability. A very common example of contributory liability in motor vehicle collision cases is where the defendant driver causes the collision but the plaintiff is not wearing a seatbelt while in the car. The lack of a seatbelt may cause the injury suffered to be worse than had the plaintiff been wearing a seatbelt, and the court may recognize that by finding them contributily liable, often to as much as 25%.

Warren Berg: 28:28

Okay, that makes a lot of sense.

Cynthia Carels: 28:29

Yeah. So if we have people listening today who have suffered an injury but they haven't contacted a lawyer because they think their own negligence was a part of the problem here and contributed to their injuries, I don't want people to despair. I have run plenty of claims for people who weren't wearing seatbelts and although that's not great or you know if they've done something else that they are blaming themselves for in many cases we have been able to get these people some compensation for their losses. Now, it might not be as much as we would have gotten for them had they been wearing their seatbelt, but these cases are not always hopeless.

Warren Berg: 29:03

Okay, well, thanks for that quick sidetrack down the rabbit hole of split liability. Let's get back to the topic about social host liability. How does the law differ for situations involving social hosts?

Mark Miller : 29:15

Social host. Liability generally applies to people hosting friends or family in a non-commercial setting. But to start with, a social host, of course, still has a duty to keep their visitors safe from foreseeable harm.

Cynthia Carels: 29:27

Yeah, so if you're planning to have a party at your house over the holiday season, if you're having the family over, just you know, do those standard things like making sure the sidewalks are clear and all your stair railings are securely attached. But you know, we'll save the nagging for the next segment here, when we're going to circle back around to the occupier liability cases.

Mark Miller : 29:46

Okay, back to the standard of care which a social host will be held to. This is not as clearly defined as it was for the commercial hosts and it will change depending on the circumstances. For example, if a person is hosting a party where no alcohol is being served or consumed, the host wouldn't be expected to be on the lookout for guests being impaired, served or consumed, the host wouldn't be expected to be on the lookout for guests being impaired. In contrast, if the host is providing alcohol to their guests, then the courts may impose a duty to keep guests from leaving and getting in their cars to drive home. The standard of care in that instance may require a social host to provide rides home, to appoint a designated driver or to even let their visitors stay the night and sober up.

Warren Berg: 30:26

Now that seems pretty aligned with what a commercial host has to do. What's the distinction?

Cynthia Carels: 30:32

So you'll recall, in that McIntyre case that we discussed earlier, the court decided that the McMaster University bar was not only responsible for Mr McIntyre's intoxication but also for the responsibility for an injury to a third party. But that was in a commercial setting. When we're looking at social hosts, liabilities for injuries to third parties are much less likely but not totally impossible, and this issue was discussed by the Supreme Court of Canada in a case back in 2006 called Childs and DeSormo. So this case dates back to some events in 1999 where two homeowners hosted a New Year's Eve party at their house and the defendant, a friend of the family, mr DeSormo, was one of the guests at the party and he became intoxicated, and in the early hours of the morning Mr DeSormo left the party, attempted to drive home and caused a collision with another vehicle, and the collision very tragically killed one person and injured three other people, including the plaintiff named Zoe Childs, who was rendered paralyzed in the collision.

Warren Berg: 31:37

So this situation sounds quite similar to what happened in the McMaster University case. Did the Supreme Court find that the social hosts were liable at all in this situation, Actually?

Mark Miller : 31:48

no Through three levels of court.

Mark Miller : 31:50

So the trial, appeal and then further appeal to the Supreme Court. Each level held that the hosts were not responsible and the key difference here is that they were social hosts and not commercial hosts. Chief Justice McLaughlin, in her decision at the Supreme Court, concluded that social hosts of an event where alcohol was consumed did not owe a duty to third-party road users who could be injured by an intoxicated guest. Now this position relied on a couple of specific facts. The party had been a BYOB, so a bring-your-own-booze party, a bring-your-own-booze party, so each guest was responsible for supplying their own alcohol and the hosts would not be aware of who was consuming alcohol and how much. This is a significant contrasting detail from commercial host cases where a bartender or server manages the provision of alcohol and actually keeps a running tab. Now the second factor was that one of the hosts had walked Mr DeSormo out and had actually made inquiries of his ability to drive, and the evidence at trial was that DeSormo showed no signs of impairment and had told the host that he was all good to drive.

Cynthia Carels: 32:58

And it's that second detail that the driver didn't show signs of impairment, because that is a very important factor. And again, each case is going to be decided on the specific set of facts, and changing one detail can vastly change the outcome of a case. And so it's arguable that had this driver, had Mr DeSormo, shown some signs of impairment, then the danger to third-party road users would have become foreseeable to the host. And at that point, with that element of foreseeability being established, a reasonable social host could be expected to take precautions to stop the intoxicated person from driving. So compare this to a commercial setting where patrons might be leaving an establishment and again not showing signs of impairment at all to their buddies, but the servers themselves have been specifically trained to monitor a patron's consumption. They are supposed to know when somebody shouldn't be getting behind the wheel.

Warren Berg: 33:54

Very interesting and while we're talking about legal responsibility here, it might be worth taking a second to remind our listeners to be careful and safe this time of year and, of course, always. Every one of us has a role in keeping each other safe and we ask that everybody plan ahead and be responsible on the roads this holiday season.

Cynthia Carels: 34:12

Yeah, indeed, that is an excellent reminder, Warren.

Warren Berg: 34:14

This is Ask the Lawyer on Windspeaker Radio CFWE and CJWE. I'm your host, warren Berg. Joining us today are Mark Miller and Cynthia Carrolls of we're Bowen LLP in Edmonton. That's Weir Bowen, w-e-i-r-b-o-w-e-n. 780-424-2030 is their phone number online at weirbowencom. Today we've been mainly discussing the liability of hosts as it relates to motor vehicle collisions. Are there any other areas where hosts might be liable for causing or contributing to a person's injuries?

Mark Miller : 34:50

Great question, warren. There are a few other cases that we see come up. We have unfortunately seen a few cases involving commercial hosts and over intoxicated customers where the customer has assaulted another customer of the establishment. This type of case again comes down to the commercial host's responsibility not to over serve alcohol to its patrons. If the customer had been showing signs of intoxication and aggressive behavior, the establishment then had a duty to stop serving alcohol to that person and, in the case where a person has seemed aggressive or potentially violent, to actually ask that person to leave the bar or to escort that person out of the bar.

Mark Miller : 35:31

We also had a case a few years ago where our own client was over-served at a bar to the point that they were off-balance and had difficulty walking. The bar was located on the second floor of a building and unfortunately the plaintiff fell down a large set of stairs and was severely injured. This is another example of how fact-specific each case is. The fact that a person could only leave the bar by walking down this large staircase put a greater onus on the bar employees to make sure patrons could safely exit, especially after exhibiting signs of impairment.

Cynthia Carels: 36:03

One of the key factors in these cases that support a finding of liability against a bar, and what largely sets these apart from social host cases, is that it's the bar's entire business to sell alcohol to patients, and because of that the bar should have quite an accurate knowledge of how many drinks a person has purchased and consumed, as the bartender or server should be keeping a tab.

Cynthia Carels: 36:27

And this obviously is quite a contrast from that tragic Childs and DeSormo case where the party had been a BYOB gathering and thus the host really had a little idea of how many drinks or what kind of drinks even variety in the alcohol content that their guest had consumed before leaving. But, as I alluded to earlier, there's also another entire area of law called occupier's liability law, and that refers more to the physical condition of the house or establishment and keeping people protected from hazards, regardless of whether alcohol is involved or not. So when people are talking about things like slip and fall cases or trip and fall cases, those cases are typically decided under this rubric of occupier's liability law, which Mark actually has quite a bit of experience in.

Warren Berg: 37:15

So can you tell us about occupier's liability, Mark?

Mark Miller : 37:19

Occupier's liability refers to the responsibility an occupier has for lawful visitors to the property. So occupier refers to the person or party who is in control of a property. That typically refers to the property owner or someone renting a property and it applies to both residential dwellings but also to commercial spaces such as restaurants and shops. In most provinces, including Alberta, this duty is codified by a provincial statute. Ours is named the Occupiers Liability Act, but the name would be the same or similar in the other provinces and territories.

Cynthia Carels: 37:54

But surprisingly not in Saskatchewan. I've recently learned Just a little sideline detour bit of trivia about Saskatchewan. Their occupiers liability legislation is kind of all over the map depending on what kind of visitor you are to different properties. So they actually have occupiers liability styles of legislation. Specific to snowmobilers, for example. They actually literally have the Snowmobilers. For example, they actually literally have the Snowmobilers Act. They have it for ATVers. They have another act specifically for hunters and trappers.

Cynthia Carels: 38:24

But if you're visiting a property just as a normal person walking around on foot, the only law that applies to you in Saskatchewan for occupiers liability is case law, not legislation. A little bit of trivia there for you. But in any event, in provinces that do have legislation that specifically prescribes the occupier's duty of care to visitors, it typically reads very much like Section 5 in the Occupier's Liability Act. Now, warren, I know when we've done shows about the Occupier's Liability Act in the past I have had the honour of reading that legalese out loud. But just for fun, let's mix it up a bit. You want to try a crack at it this time?

Warren Berg: 38:59

Okay, so what exactly is this?

Cynthia Carels: 39:02

So this is section five of the Alberta Occupiers Liability Act that sets out specifically what an occupier's duty of care is to their visitors. So you ready.

Warren Berg: 39:12

All right, I'm going to give this a whirl.

Cynthia Carels: 39:14

Take a big breath.

Warren Berg: 39:17

All right. An occupier of premises owes a duty to every visitor on the occupier's premises to take such care as, in all 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. Good grief, I certainly wouldn't want to say that five times fast and I'm certainly not a lawyer. Thankfully we have you here. But does this mean that the occupier basically has to keep the property safe for visitors with an eye to the reason or purpose the visitors are going to be there?

Cynthia Carels: 39:54

Very well done.

Warren Berg: 39:55

Thank you, very well done, thank you.

Cynthia Carels: 40:02

Yes, there are further provisions in the statute about how occupiers can mitigate this duty by providing, say, warnings to visitors, like you know, setting out a wet floor sign, or you know, putting down bright hazard sticky tape or something like that. But it also goes on to set out how visitors can voluntarily assume some obvious risks themselves as well, such as you know an example of people visiting a community rink to go for a skate. Of course they're going to be, you know, assuming some risk that there's going to be some slippery ice there.

Mark Miller : 40:29

And then going back to our discussion of social and commercial hosts, the occupier's liability duties are an additional area in which we see lawsuits relating to hosts. One of the most common examples of this type of lawsuit, especially at this time of year, would be slip and falls occurring on wet, uneven or icy surfaces, and this would include areas such as parking lots, the sidewalks and entrances to stores, but also those areas for private residences. So there is a legal responsibility for homeowners or renters, especially during these weird freeze and thaw Edmonton winters, we've been having to clean up snow and ice on their walkways, and that duty is no different for a homeowner than what you would expect at a place of business.

Warren Berg: 41:13

And that makes sense about the outside of a property, especially in the winter. What about the inside of a property?

Cynthia Carels: 41:19

Yeah, so the duty to keep a property safe for its visitors is the same inside as it is outside, though you won't have to do as much snow shoveling inside, I hope but cases where an injury occurs inside often involve things like wet floors, tripping hazards or unsafe staircases, for example. And, Mark, you had an interesting case a couple of years ago involving a trip and fall around this time of year, didn't you?

Mark Miller : 41:41

That's right, good memory.

Mark Miller : 41:43

I represented the property owner of an indoor skating rink, and what happened in this case was the rink was rented out to host a New Year's celebration, where a surface was actually installed over the ice for vendors, musicians and food stands to be put up, and in order to access the surface, the owners had installed a temporary ramp leading to the surface.

Mark Miller : 42:05

Unfortunately, the carpet covering on the ramp became bunched up and a person tripped over the carpet and injured themselves. They sued my client, who again was the property owner, as well as the group which had rented out the premises for the event. Now, one interesting takeaway from that case was that both the property owner and the renter were considered occupiers and both had a responsibility to keep the premises safe. There are many cases where only the renter would be responsible for the premises, but in this case, because the owner had provided and installed the ramp, they also became partly responsible for the injury. Another interesting aspect of that case was that the plaintiff also took some responsibility, so all three parties involved acknowledged some liability for the injuries. For the plaintiff, he admitted to having noticed the uneven surface of the ramp prior to using it and that he had noticed there were handrails, but declined to use those handrails, despite the uneven surface.

Warren Berg: 43:07

Thanks, mark. Very interesting case, and again that points to how each case that we talked about is very fact-specific and how one party being liable doesn't necessarily rule out the other party or parties having a degree of liability as well. Very good to know.

Cynthia Carels: 43:23

Another kind of case that we see at this time of year is corporate and corporate Christmas parties, corporate holiday parties, where a business will rent out a space for their staff to have a big end-of-year bash, possibly even with an open bar and professionally trained bartenders. So we're Bowen just had our big bash a couple weekends ago and it was indeed a good party. Somehow there ended up being push-up contests. I will never understand, but I'm pleased to report we appeared to have cleared the night without any injuries, except perhaps to a few people's pride. But before the party even happened, we expressly communicated to all of our staff that the firm would be paying for everyone's safe transportation, not only from the venue home but also to the venue from their homes, to make sure that nobody would be in a position where they would even be tempted to drive.

Warren Berg: 44:14

But I know that many employers have considered, let's say, considerably less formal office parties. Sometimes they even have these parties in the office. So in cases involving work-related parties, is the employer a social host or a commercial one?

Mark Miller : 44:30

That's a really interesting question. As far as I know, we haven't actually had a case go through a Canadian court with that specific fact pattern and, quite frankly, I hope we don't see one anytime soon. More and more businesses are thankfully becoming proactive about ensuring their employees have safe rides home from social functions so they don't hurt themselves or anyone else, and that's really great to see.

Cynthia Carels: 44:52

Yeah, but an example of this it wasn't the case for a work-related Christmas party in Ontario for Sutton Group Realty Team in Barrie. So back in 1994, the Sutton Group held an office party on their premises for their employees, their agents, their brokers and customers, and the guests were just invited to serve themselves drinks from an open bar that night drinks from an open bar that night. So a lady that we'll call Ms Hunt attended that party both as an employee of Sutton Group but also as a party guest, and after the party wound up at the office she helped with the cleanup and then left with several other people from the office around 6.30 pm she then went to a pub again with people who had been at the office party and those people saw her leave in her own vehicle around eight o'clock, knowing full well she lived in a rural location and was going to be driving home, and she did end up in a very serious accident about 12 kilometers from the pub en route home after the party.

Mark Miller : 45:52

So a case like this has a lot of moving parts, because obviously Miss Hunt is an adult who should have known better than to drink and drive, so she's not blameless here. However, the trial judge determined that Sutton, as her employer, owed her an extensive duty of care following that party, and their obligations to her did not end when she left the party for the pub and she left the party for the pub. The trial judge actually found that Sutton, as Ms Hunt's employer, should have insisted that she leave her keys at the office, take a taxi, call her husband or, if all else failed, they should have telephoned the police rather than let her drive drunk.

Warren Berg: 46:29

So how did the liability for this mess get all sorted out?

Cynthia Carels: 46:33

So at the trial Ms Hunt was found to be 75% responsible for her own injuries and I think anybody who's listening today is probably going to think that that's fair. But it did put 25% of the blame jointly and severally, upon Sutton Group, as well as the pub, for their breaches of the duties that they owed to Ms Hunt. And now, for a bunch of reasons, the Court of Appeal actually sent the matter back down for trial. But when it came before them on appeal, the matter ultimately actually settled out of court. So we don't have a good solid finding on this, but regardless, this case did make it clear that employers do owe special duties to their employees to ensure that they can get home safely after an office party.

Warren Berg: 47:13

Very fascinating but honestly, if I was Ms Hunt I probably wouldn't have even thought that I could sue somebody, let alone my employer, if I was the one driving drunk.

Mark Miller : 47:24

Certainly, and it's not like personal injury lawyers are suggesting drunk drivers should widely be able to bring lawsuits if they end up hurting themselves. However, every once in a while, a set of facts can make us scratch our heads and consider whether there is an angle worth pursuing, even when a potential client had a big hand in their own demise. In this case, ms Hunt was very badly hurt, and so the significance of her damages, combined with the events of the evening, made her sympathetic enough for her lawyer to take a run at the employer and the pub for failing to appropriately watch out for this lady.

Warren Berg: 48:01

Now, besides the risks associated with impaired driving after a work party, people can still get hurt at social functions in the office, and I presume that those risks increase significantly when alcohol is involved.

Cynthia Carels: 48:15

Oh yes, yep, Most businesses actually do maintain general liability insurance that provides coverage for injuries that are sustained by their employees or guests who are injured on their premises. However, you might be surprised to know that many of these policies can exclude activities conducted outside the course and scope of the employment or the business outside the course and scope of the employment or the business. So if you're an employer considering hosting a function, especially a function with alcohol on your premises, take a moment to check your insurance policies first, because the last thing anyone would want is for someone to get hurt at the office party but have their claim denied because of one of those exclusions.

Mark Miller : 48:51

And although we are by no means insurance brokers, given the kinds of cases we have seen, we would encourage employers to make sure they understand their risks and to proactively take steps to mitigate those risks before hosting a party on their premises.

Cynthia Carels: 49:07

Yeah, and the general recommendation is that it is best practice to host alcohol-related events at a third party restaurant or a banquet hall that actually hires pro-serve certified staff who are going to be responsible to monitor alcohol consumption. And, of course, you always want to make sure that there's plenty of non-alcoholic beverage options available, as well as lots of food. It's also a good idea to strictly prohibit alcohol related you know, drinking games and contests and, and, of course, to provide everyone with vouchers or funds to ensure they have safe rides again, not only home but also to the venue, which completely alleviates the temptation for someone to get behind the wheel when their judgment is impaired.

Warren Berg: 49:47

Oh, great advice and good food for thought as we wrap up 2024.

Mark Miller : 49:52

That's right, and these can be really heavy topics, but they are very, very important, especially at this time of year.

Cynthia Carels: 49:58

Yeah, honestly, there is nothing more devastating than meeting with families whose lives have been forever impacted by impaired drivers. But for some reason, it just feels a million times worse when these preventable accidents happened during what's otherwise supposed to be the festive and fun holiday season.

Warren Berg: 50:12

And hopefully our topic today gives everybody a reason to think carefully about the parts that we all play in preventing impaired driving so everyone can have a safe and happy holiday season and successful parties without injuries.

Cynthia Carels: 50:26

Without injuries exactly, and even though that ultimately results in less work for personal injury lawyers, it's definitely the best way to put a festive bow on 2024. I would very much like to have a quiet phone in the beginning of January.

Warren Berg: 50:38

But in the event that anyone does need to reach out to Cynthia or Mark or any of the lawyers that we've heard here at we're Bowen LLP, check out their websites at we'rebowencom that's W-E-I-R-B-O-W-E-Ncom, or give them a call at 780-424-2030. This wraps up our December 2024 edition of Ask the Lawyer. Thank you, cynthia and Mark, for all of the information you've shared today, and thanks to Cynthia and all of her Weir Bowen colleagues who have presented on our monthly shows throughout 2024.

Cynthia Carels: 51:14

You are most welcome, warren. It has been indeed a great year for Ask the Lawyer and I'm looking forward to seeing you and bringing along many more of my colleagues in 2025.

Warren Berg: 51:23

Thanks again for having us on. We look forward to learning much more through this series, which takes place here on the last Saturday of every month, and it can also be found on demand on our website. So in the meantime, we wish everyone a safe and happy holiday season. This has been Ask the Lawyer on Windspeaker Radio CFWE and CJWE.