LAWS 1002

Introduction to Legal Studies II

Session III

Prof. Umut Özsu

Childs v. Desormeaux (Supreme Court of Canada, 2006)
Facts: Zimmerman and Courrier host a party. Guests are invited to bring their own alcohol.
Desormeaux, the defendant, is one of the guests. They drink a large amount of alcohol during
the party, after which they leave to drive home.

Unfortunately, Desormeaux collides with another car while driving home. As a result of this
collision, one passenger in the other car, Childs, is paralyzed. Another passenger in the other
car, Dupre, is killed.

The case goes to trial, where the judge holds that the injury to Childs was reasonably
foreseeable—in other words, that a reasonable person in the position of Zimmerman and
Courrier would have foreseen that Desormeaux could injure a third party in the position of
Childs. However, the trial judge also holds that no duty of care existed here due to
considerations of public policy.

On appeal, the Ontario Court of Appeal upholds the trial judge’s decision not to impose a duty
of care in situations of this type. The Court of Appeal holds that the relationship between
Zimmerman and Courrier on the one hand and Desormeaux on the other was not sufficiently
close, or “proximate”, to justify the imposition of a legal duty of care toward Childs.
Zimmerman and Courrier did not serve alcohol to Desormeaux; they were not aware that
Desormeaux was intoxicated; and there is no legislation specifically requiring that hosts of
parties monitor alcohol consumption.
Childs v. Desormeaux (cont’d)
Issue: The core legal issue in this case concerns what is called “social host liability”—the
legal responsibility of party hosts toward persons who may be harmed by actions of their
guests. In other words, the key legal question is whether Zimmerman and Courrier owed a
duty of care toward people in the position of Childs (and Dupre). As the court itself puts it, the
question is “[w]hat, if anything, links party hosts to third-party users of the highway?”

Decision: The Supreme Court of Canada upholds the Court of Appeal’s decision, affirming
that the relationship between Zimmerman and Courrier on the one hand and Desormeaux on
the other was not sufficiently close, or “proximate”, to justify the imposition of a legal duty of
care toward Childs.

Reasoning: Hosts of parties where alcohol is consumed do not owe a duty of care to public
users of highways. The injury to Childs was not reasonably foreseeable. It was not established
that Zimmerman and Courrier knew, or ought to have known, that Desormeaux was impaired
when leaving the party. And there is no statute specifically imposing a legal duty of care on
party hosts toward persons who may be harmed by actions of their guests.

Principle: “[H]osting a party at which alcohol is served does not, without more, establish the
degree of proximity required to give rise to a duty of care on the hosts to third-party highway
users who may be injured by an intoxicated guest.”
Resolving disputes legally: adjudication and its alternatives
The key to adjudication is the adversarial process. The adversarial process works on
the assumption that the parties are adversaries, or “enemies”, each advancing the
strongest possible arguments on the basis of the relevant law in order to “win the
case”. In the adversarial process, the aim of the parties, whether public or private, is
not to facilitate the discovery of truth, at least not directly or primarily. Rather, the
aim of the parties is to make the best possible case, either on behalf of the action or
in defence against the action. To the extent that the truth “comes out”, that is
incidental to the process. It is not the explicit goal or purpose of the process.

What is generally called “alternative dispute-resolution” (“ADR”) involves the use

of conflict-resolution mechanisms different from, and less adversarial than, legal
adjudication. These mechanisms are known by different terms—terms like
“arbitration”, “mediation”, “negotiation”, and “conciliation”. These mechanisms do
not necessarily assume that the parties are “enemies”. Rather, they assume that the
parties will at least make an effort to work together to resolve their dispute without
having to resort to formal adjudication in a court of law. An “arbitrator”, “mediator”,
etc. oversees the process, ensuring that the parties work toward a mutually
acceptable settlement.
Alternative dispute-resolution
The two most common forms of alternative dispute-resolution are arbitration and
mediation.

Arbitration: A neutral third party hears arguments and considers evidence from the
relevant sides before determining how best to resolve the dispute. Arbitration is less
formal than trial, and its rules of evidence are generally more relaxed than those of
adjudication. In binding arbitration, parties agree to accept the arbitrator’s decision as
conclusive, and there is generally no right to appeal the decision. In non-binding
arbitration, the parties may request a trial if they do not accept the arbitrator’s decision.

Mediation: A neutral third party helps the parties arrive at a mutually acceptable
resolution of the dispute. The mediator does not decide the case, but instead helps the
parties communicate so that they can settle the dispute. Mediation may be especially
useful when the dispute involves children, neighbours, family members, or business
partners. Mediation is less formal than arbitration.

See here and here for detailed background information on the similarities and differences
between “arbitration”, “mediation”, and other forms of alternative dispute-resolution.
Alternative dispute-resolution (cont’d)

See here for a brief video demonstrating what mediation may look like in practice.
Stewart Macauley’s “Non-Contractual Relationships in Business”
Why do people choose not to enter into contracts under certain circumstances?

In order to answer this question, consider the role of contracts in economic and commercial
relations.

Macauley tells us that “while detailed planning and legal sanctions play a significant role in some
exchanges between businesses, in many business exchanges their role is small”.

Why? Well, there are a lot of reasons, but some of the most important reasons are that:

— contracts are not needed to promote business or reinforce commercial relations in many
circumstances, and may in fact weaken trust and good faith between the parties;

— many businesses adopt risk-avoidance measures to plan for possible interruptions in sales
and purchases, so they do not need to rely to the same degree on contracts to provide predictability;

— reputational considerations, of vital importance for success in commercial life, obviate the
need for formal arrangements: commitments are typically honoured and business relations
conserved because one’s reputation as a “respectable businessperson”—and thereby one’s capacity
to make a profit—requires it.
Neil Brooks’ “The Judge and the Adversary System”

Party autonomy: “The adversary system rests on the principle of party-autonomy.

That is to say, that the parties have the right to pursue or dispose of their legal
rights and remedies as they wish.”

Party prosecution: “The adversary system rests on the principle of party-

prosecution. This principle holds that the parties have the primary responsibility to
choose without interference from the judge the manner in which they will go
forward with their case and the proofs they will present for the judge’s
consideration in adjudicating the dispute.”

Law and liberalism: “[T]he adversary system can be seen as reflecting the political
and economic ideology of classic English liberalism in three ways: by its emphasis
upon self-interest and individual initiative; by its apparent distrust of the state; and
by the significance it attaches to the participation of the parties.”

See here for a brief introduction to the basic history and theory of liberalism and
the liberal tradition. For a longer and more critical introduction for those of you
with interests in philosophy and political theory, see further here.