Back to the Memo: 2022 BCCA Decision Sheds Light on a 2021 LRW Hypothetical
Daryn Tyndale, 2L, Senior Forum Editor
The UofT Law class of 2024 will likely recall (perhaps with some dismay) the plight of our old friend Dr. Emmett “Doc” Brown, his grandson Marty (no, not that duo), and one infamous 19th birthday party gone awry. That’s because those of us who took Legal Research and Writing (LRW) in fall 2021 were tasked with writing our first memorandum of law on the issue of whether Doc owed a duty of care to guests, some of whom were underage, attending a party at his house where alcohol was served.
Like any good hypo, there were strong arguments to be made on both sides. But for those who have spent every waking moment since handing in their assignment agonizing over whether they got it right, fear no more! In June 2022, the British Columbia Court of Appeal (BCCA) weighed in on a case whose facts closely mirrored the ones we were given for our fateful memo. McCormick v Plambeck, 2022 BCCA 219 (CanLII) (McCormick BCCA) was a case in which two teenagers stole, and later crashed, a parked, unlocked vehicle after leaving a house party where some attendees were drinking underage while the adult homeowners were present. The verdict: the homeowners did not owe a duty of care to the two affected teens.
So now that the BCCA has spoken, how might we expect Doc’s case to turn out?
Facts
To begin, let’s review the facts of the (fake) case given for the LRW assignment – Lorraine v Doc (Lorraine):
In July 2021, Doc Brown allowed his grandson, Marty, to throw his 19th birthday party at Doc's home. After learning that uninvited guests had arrived, Doc told Marty he would monitor the party to ensure things did not “get out of control.” Doc had purchased a keg of beer for the party, and also learned that some guests brought their own alcohol. As the party grew larger, Doc suspected that some of the guests drinking alcohol might be underage. After discovering one of his own bottles of alcohol had apparently been emptied by guests, Doc told everyone to leave.
As people filed out, Doc saw one guest, Lorraine, attempt to forcibly take car keys from another guest, Biff. Doc heard Lorraine say, “You can't drive!” to Biff, who stumbled as the two left on foot. Doc said it “looked like they might be joking around.” Soon after, Biff and Lorraine got into an unlocked car that was parked on the street with the keys inside. (This was common in Doc's neighbourhood; Doc himself often left his car this way.) While driving the stolen car, Biff hit a tree and Lorraine was severely, permanently injured. Biff was deemed an impaired driver at the time. Both Biff and Lorraine were 18 years old.
Now, we’ll turn to the facts of the recent BCCA case.
McCormick v Plambeck
Stephen and Lydia Pearson agreed to let their daughters host a party at their Salt Spring Island, B.C. home in September 2012. Though the Pearsons did not supply alcohol to any of the guests, they knew that attendees were consuming alcohol and cannabis. At 1:00 am, as planned, the Pearsons signalled the party was over by turning off the music and turning on the lights. Some guests left on foot, some were picked up, and some were driven home by Ms. Pearson. Elise Pearson, one of the daughters, heard Calder McCormick, then 17, and Ryan Plambeck, then 18, talking to a group of people about walking to a nearby house. At trial, Elise testified that both Plambeck and McCormick “seemed fine to her” while standing outside the house shortly after the party ended (McCormick BCSC at para 124).
McCormick and Plambeck left the party on foot, but at some point, they stole an unlocked car that was parked on the street with the keys inside. At trial, several witnesses testified that leaving vehicles unlocked with keys inside was not uncommon on Salt Spring Island. With Plambeck (who had only an expired learner’s permit at the time) in the driver’s seat, the two went for a “joy ride.” Travelling too fast to navigate a critical bend in the road, the car veered and crashed into the woods, killing Plambeck and leaving McCormick with life-altering injuries.
By the time the case reached the Supreme Court of British Columbia in McCormick v Plambeck, 2020 BCSC 881 (CanLII) (McCormick BCSC), McCormick’s claims against Plambeck’s estate and the owners of the stolen vehicle had been settled. The main issue at trial was whether the Pearsons could be held liable in negligence for McCormick’s injuries.
Issue
To establish a claim in negligence, a plaintiff must first prove that a duty of care existed between the plaintiff and the defendant. This first step was the main issue in both McCormick and Lorraine. As the trial judge put it, the duty that McCormick was attempting to establish was
… that duty of care that exists between adults and minors who such adults invite or knowingly allow to be invited to their homes, when it is or becomes known that the minors’ attendance is for the purpose of consuming alcohol or drugs or participating in activities in the course of which alcohol or drugs will be, or are consumed, to take reasonable steps so that the minors do not injure themselves and are not injured by other partygoers. (McCormick BCSC at para 176)
Since such a duty of care had not previously been found to exist, the trial judge conducted an “Anns/Cooper” test to determine whether it should be recognized. The Anns/Cooper test requires the plaintiff to first prove that there was a prima facie duty of care, based on (a) the degree of proximity in the relationship between the plaintiff and defendant, and (b) whether the defendant’s harm was a foreseeable consequence of the plaintiff’s (in)action. If this prima facie duty is found, the Anns/Cooper test then considers whether overriding policy concerns should preclude recognition of the duty of care (Cooper v Hobart, 2001 SCC 79).
The McCormick ruling and its implications for Doc
The BCSC and BCCA both found that the proximity requirement of the Anns/Cooper test was made out. The fact that the Pearsons invited minors into their home, knowing they would consume alcohol and marijuana, and made efforts to supervise and control the party was sufficient to bring them into a paternalistic relationship with the guests—one of the categories sufficient to establish the requisite degree of proximity considered in Childs v Desormeaux, 2006 SCC 18, the leading case on social host liability in Canada.
However, McCormick’s claim failed at the foreseeability stage. The BCSC found, and the BCCA upheld, that “when the appellant [McCormick] and Ryan [Plambeck] left the Pearsons’ home on foot, it was not foreseeable that they would suffer personal injury or that they would steal a car and drive it unsafely” (McCormick BCCA at para 12). The BCSC decision stressed that while “any harm that has occurred is by definition possible,” finding that harm was foreseeable requires a higher threshold than mere possibility (McCormick BCSC at para 210).
The trial judge’s conclusion that the plaintiff’s injury was not foreseeable rested heavily on his finding that, although the Pearsons were aware that many underage guests had been drinking, neither McCormick nor Plambeck were actually intoxicated when they left the party (McCormick BCSC at paras 159, 230). Thus, neither would have been showing any symptoms of intoxication, which meant “there were no obvious signs that the plaintiff would suffer injury by walking home from the party” (McCormick BCSC para 230).
The appellate judge took this point a step further. Writing for a unanimous court, Fenlon JA concluded that, even if the trial judge had determined it was “foreseeable that minors, whose judgment and capacities were impaired by alcohol, could be physically injured if they were allowed to walk home in the dark,” this would still be insufficient to establish a duty of care in this case (at para 26). Fenlon JA relied on Rankin (Rankin’s Garage & Sales) v J.J., 2018 SCC 19 (Rankin), which endorsed a narrow interpretation of what constitutes “foreseeable” harm. The Rankin Court held that while theft is a foreseeable consequence of leaving keys inside an unlocked car, the subsequent risk of personal injury resulting from that theft is not. A commercial garage owner was thus found not to have owed a duty to prevent injury to an intoxicated minor who stole an unlocked car from his garage because it was not foreseeable that a thief would drive dangerously. The case was lacking “something in the factual matrix that could connect the theft and the subsequent unsafe driving of the stolen car” (Rankin at para 40).
In a similar vein, the BCSC in McCormick reasoned that holding the Pearsons liable for McCormick’s injury would ignore that the way McCormick was injured—crashing a stolen car—was unforeseeable. In the language of Rankin, the factual matrix did not suggest a sufficient connection between letting the two teens leave the party on foot and the subsequent unsafe driving of a stolen car. Fenlon JA emphasized that a “free-floating foreseeability of personal injury” in the abstract is insufficient to establish a duty of care: “Although the precise mechanism of injury need not be foreseeable, I conclude that the general mechanism must be” (at para 28, emphasis in original). In McCormick, the “general mechanism” of injury was the dangerous operation of a vehicle. The Court found that this general mechanism was not a foreseeable consequence of allowing the two teens, neither of whom were intoxicated (visibly or otherwise), to leave a party on foot. The Pearsons, then, could not have owed a duty of care to prevent harm that was not reasonably foreseeable.
Turning back to the LRW memo, the McCormick decision seems to be good news for Doc. The facts are almost identical. However, one key difference could distinguish the two cases: in McCormick, the trial judge concluded that neither of the two teens were intoxicated when they left the party. In Lorraine, however, not only was Biff, the driver, indeed over the legal BAC limit at the time of the crash, Doc also saw Biff stumbling as he left the party and overheard Lorraine try to confiscate his car keys. This arguably ought to have alerted Doc to the fact that Biff was significantly intoxicated, and both the BCSC and BCCA agreed that a person’s outward signs of impairment are relevant factors to assessing the foreseeability of harm to that person: “A minor who leaves a party ‘falling down drunk’ is patently more likely to suffer harm than a minor who has consumed very little and is in control of his faculties and reasoning processes” (McCormick BCCA at para 21). Nevertheless, the BCCA made it clear that a “general mechanism” of harm must be foreseeable, significantly narrowing the scope of what constitutes reasonable foreseeability. In this context, Lorraine would have difficulties establishing a duty of care.
Of course, until Lorraine v Doc, with its own nuances and factual details, reaches an Ontario court, we can’t know for sure how these characters might fare. As Doc Brown’s namesake famously said, “your future hasn’t been written yet. No one’s has.”