Childs v. Desormeaux, (2003) 177 O.A.C. 183 (CA)

• Judge: McMurtry, C.J.O.
• Court: Court of Appeal (Ontario)
• Case Date: September 19, 2003
• Jurisdiction: Ontario
• Citations: (2003), 177 O.A.C. 183 (CA)

Childs v. Desormeaux (2003), 177 O.A.C. 183 (CA)

MLB headnote and full text

Temp. Cite: [2003] O.A.C. TBEd. OC.005

Zoe Childs, Andrew Childs, Pauline Childs, Heather Lee Childs and Jennie Khristine Childs (plaintiffs/appellants) v. Desmond Desormeaux, Julie Zimmerman, The Dominion of Canada General Insurance Company, The General Accident Assurance Company of Canada and Dwight Courrier (defendants/respondents)

(M30222; C38836)

Indexed As: Childs v. Desormeaux et al.

Ontario Court of Appeal

McMurtry, C.J.O.

October 1, 2003.

Summary:

The issue in an action was whether hosts of a social party were partially responsible for injuries caused in a motor vehicle accident by a drunk driver who had attended the party.

The Ontario Superior Court, in a decision reported at [2002] O.T.C. 628, dismissed the action. The court found that there was good policy reason not to expand tort law to include the social host. The plaintiffs appealed. Mothers Against Drunk Driving Canada sought leave to intervene in the appeal as a friend of the court.

The Ontario Court of Appeal, per McMurtry, C.J.O., granted leave to intervene.

Practice - Topic 687

Parties - Adding or substituting parties - Intervenors - Amicus curiae - The issue in an action was whether hosts of a social party were partially responsible for injuries caused in a motor vehicle accident by a drunk driver who had attended the party - The trial judge dismissed the action, finding that there was good policy reason not to expand tort law to include the social host - The plaintiffs appealed - Mothers Against Drunk Drinking Canada (MADD Canada) sought leave to intervene in the appeal as a friend of the court - One of MADD Canada's public policy activities related to alcohol related civil liability - It proposed to make submissions as to whether tortious liability of social hosts existed or should exist in Canadian law - The Ontario Court of Appeal, per McMurtry, C.J.O., granted the application - The case involved broad policy issues - Although MADD Canada's position was generally aligned with the plaintiffs' position, it could make a useful contribution to the argument of the issues before the court - Their intervention would not cause injustice to the defendants - The fact that the Executive Director of MADD Canada testified at trial was not a bar to its participation as a friend of the court on the appeal.

Cases Noticed:

Authorson v. Canada (Attorney General) (2001), 147 O.A.C. 355 (C.A.), refd to. [para. 3].

Anns v. Merton London Borough Council, [1978] A.C. 728; [1977] 2 W.L.R. 1024; [1977] 2 All E.R. 492 (H.L.), refd to. [para. 7].

Cooper v. Hobart - see Cooper v. Registrar of Mortgage Brokers (B.C.) et al.

Cooper v. Registrar of Mortgage Brokers (B.C.) et al. (2001), 277 N.R. 113; 160 B.C.A.C. 268; 261 W.A.C. 268; 206 D.L.R.(4th) 193 (S.C.C.), refd to. [para. 7].

Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 74 O.R.(2d) 164 (C.A.), refd to. [para. 15].

Louie v. Lastman (2001), 152 O.A.C. 341 (C.A.), refd to. [para. 16].

Authors and Works Noticed:

Krislov, Samuel, The Amicus Brief: From Friendship to Advocacy (1963), Yale Law Journal, vol. 72, p. 704 [para. 13].

Scriven, David, and Muldoon, Paul, Intervention as a Friend of the Court: Rule 13 of the Ontario Rules of Civil Procedure (1985-1986), Adv. Q., vol. 16, pp. 456, 457 [para. 14].

Counsel:

Barry D. Laushway, for the appellants;

Eric R. Williams, for the respondents, Zimmerman & Courrier;

Earl A. Cherniak, Q.C., and Kirk F. Stevens, for the proposed intervenors, Mothers Against Drunk Driving Canada.

This motion was heard in Chambers, on September 19, 2003, by McMurtry, C.J.O., of the Ontario Court of Appeal, who released the following decision on October 1, 2003.