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Pickering College and the PCA proudly presents Quinn Ross ’94 (Juris Doctor)
“A Parent’s Liability: A guide to the legal guide expectations of parents,
and the possible ramifications for their children’s actions.”
Presented on February 11 at Pickering College, printed with permission.
Periodically, there will be an interesting case in the news about a court case somewhere that involves the question of whether parents should be responsible in law for the misbehaviour of their children. Depending on the jurisdiction, the outcome of these cases can vary greatly, and is usually the subject of some controversy.
In Ontario, there is actually legislation that addresses this issue to some extent: TheParental Responsibility Act, 2000 provides that where a child (i.e. under age 18) takes, damages or destroys property, the owner of that property may bring an action against the child’s parent in Small Claims Court. Furthermore, the parent is not liable for any damages the child caused, unless that parent can satisfy a court that:
1) the activity that caused the loss or damages was not intentional; OR
2) he or she was exercising reasonable supervision over the child at the time, and that he or she made reasonable efforts to prevent or discourage the child from engaging in the kind of activity that resulted in the loss or damage.
The Act provides a relatively narrow set of remedies for a narrow range of civil misconduct (it does not purport to cover criminal activity by a minor, for example). And the wording seems fairly straightforward.
So how does this legislation play out in real life? Not always as one might expect.
A decision calledShannonv.Westman (Litigation Guardian of)illustrates how this legislation is applied. In that case, a 14-year-old boy named Jeremy was paid to babysit another child, Tyler, who was 10. While under Jeremy’s supervision – and at his instigation – both children broke into the residence of a homeowner and stole several items, including some valuable pieces of jewellery that had sentimental value.
Jeremy and Tyler admitted to stealing the items, and returned several of them. However, some of the valuablesremained unrecovered.
Relying on the provisions of the Parental Responsibility Act, 2000, the homeowner brought an action in Small Claims Court against both the parents and the children, for the value of those items that could not be recovered.
Perhaps surprisingly, the court allowed the homeowner’s action against the children, but dismissed it against the children’s parents.
Since the boys had admitted to the theft, the homeowner had established the fact of the stolen property, so all that remained to find liability under theParental Responsibility Act, 2000 was for the parents to show that they were exercising reasonable supervision over the boys at the time they committed the break-in, and that they had made reasonable efforts to discourage them from participating in that type of activity.
Turning first to Jeremy’s parents, the court had to examine whether it was reasonable for his parents to allow him to be left at home during the day without supervision. Taking into account all the circumstances – such as Jeremy’s age, experience, background, and the previous history of having left him unsupervised without incident – the court found that it was.
Turning next to Tyler, the court found that at 10 years old, he was at the age when he would not have needed constant supervision; indeed, in the past he had been left with Jeremy without incident for about 7 weeks prior to the break-and-enter. Tyler’s parents had also imposed a structure on the boys’ daily activities, including set check-in-times with the parents, and permission to engage in only approved activities, and it was a structure that both boys had adhered to in the past. Considering all these factors, the court found that Tyler’s parents had also acted reasonably in this case.
In coming to these conclusions, the court noted that theParental Responsibility Act, 2000 required only that the parents act reasonably; it did not demand perfection. As such, it considered the test under the Act to have been met, and the homeowner’s action against both Jeremy’s and Tyler’s parents was dismissed. However, his action against Jeremy and Tyler was allowed, for damages of almost $20,000, though the amount was reduced to $10,000 to bring it within the jurisdiction of the Small Claims Court at the time.
Social Host Liability
First, who is a social host? A definition could include anyone who:
1. is not selling or supplying alcohol for profit;
2. is not an employer, or any position in which he or she has a unique relationship with his or her guests; and
3. is serving alcohol or condoning the service/consumption of alcohol on premises over which he or she has control.
Further, the issue of BYOB (Bring Your Own Bottle/Booze) adds a unique flavour to the concept as it implies that the social host does not necessarily have to provide the liquor, merely condone its use on the premises.
The definition is not exhaustive.
Two recent cases have come close to establishing social host liability. In one, parents of a teenager were sued when the teenager hosted a party of which the parents knew nothing because they were asleep. When the police were called the teenager woke his mother to tell her but said everything was under control and the mother fell back to sleep. One of the guests crashed her car injuring one of her passengers. In a pretrial matter, the judge suggested the fact that the parents had hosted previous parties in which there was underage drinking put them in a more vulnerable position. However, it was the fact that the teenager woke his mother who then did not check on the situation that made the parents very vulnerable to liability. The case settled before trial.
Another case involved a New Year's Eve party and a guest who left intoxicated and crashed into another car, killing one and paralyzing another. The hosts knew that the guest had a history of alcohol abuse and convictions for impaired driving. The guest was apparently visibly intoxicated when he left the party. Although the hosts were encouraging their friends to spend the night instead of driving, it was the view of the trial judge that they were relieved to see this one guest leave.
An analysis of negligence law suggested that there might be social host liability based on what the hosts knew about this guest. Further, the judge stated the fact that it was a BYOB party only created a greater responsibility on the hosts to monitor their guests more closely as they could not monitor the actual consumption of alcohol.
However, the trial judge said it was up to the provincial government to regulate social host responsibility and subtly suggested that the government should develop criteria to avoid the chaos in the courts. The case was appealed to the Supreme Court of Canada. The highest court in the land said without some other factors, merely hosting a party does not place upon the host liability for the subsequent acts or omissions of party guests.
Social Host through the Back Door
At least half of the provinces have Occupiers' Liability legislation which means that anyone who has control over premises (owners, renters, special occasions) could be responsible for injuries (or worse) to people who are invited onto the premises. This includes being responsible for the condition of the premises; the conduct of the guests; and incidents coming from the activities allowed on the premises.
The legislation is assuming that there is a duty of care owed by the person in control of the premises to all those who are invited. There still needs to be the element of foreseeability and as a result there have been few successful cases because the courts have found the risk and the injury resulting to be unforeseeable.
Further, liability is limited to incidents that occur on the premises and is not applicable to incidents occurring off the host's property.
Where Does this Leave the Social Host?
It is important for every social host to consider the consequences involved with the service of alcohol because there will continue to be lawsuits. The social host could be found to have a duty of care to guests and all those who are at risk due to the intoxication of the guests for events that could be foreseeable. Further, the host has a duty to monitor and supervise the service and consumption of alcohol during a party or event.
The best course is to take risk management measures. The social host should check his or her insurance to determine if there is coverage for any incident that may occur on the property or as a result of actions from the property. When hosting a party, plan appropriately. This includes:
1. Either don't drink or limit your own consumption of alcohol in order to track that of your guests.
2. Know your guests - it is much easier to track the changes in behaviour of those you know.
3. Try to serve all drinks yourself and avoid self-serve bars to track and monitor your guests' consumption. Consider hiring a bartender trained in alcohol service.
4. Have plenty of non-alcoholic choices.
5. Serve lots of food that has protein and fat - salt encourages more drinking and sugar does not mix well with alcohol.
6. Meet, Greet and Repeat - meet and greet all your guests as they arrive in order to determine if they have had anything alcoholic to drink before arriving. If the party is an open house or cocktail format, repeat the process as guests leave.
7. If a guest is intoxicated, encourage him or her to give you their car keys if relevant. Buddy up with a friend to assist in persuading the intoxicated person to take a cab.
8. Keep the phone numbers of cab companies handy and tell the guest that a cab has been ordered - don't give them the option to refuse.
9. If the guest is quite intoxicated, keep that person with you until they have sobered or can be left with a sober responsible person.
10. Only time will sober the person, not additional fluids or food. Offering a spare bed is a good recourse.
11. If the person refuses to give the car keys or spend the night at your house, call the police. It may seem drastic, but it could be a choice between that of an upset friend or far more tragic consequences.
Having a plan will allow you to prevent problems from happening or a least, handle the problems in the least unpleasant way and perhaps, allow you to enjoy your own party.
Cyberbullying
Bullying is not a new phenomenon, but the widespread adoption of new communications technologies has enabled the migration of bullying behaviour to cyberspace, a phenomenon widely characterized as “cyberbullying.” Cyberbullying is of growing concern to parents, police, educators and the public in general because of its increased prevalence and the fact that it has been implicated as a factor in a number of teen suicides.
Bullying behaviour involves the systematic abuse of power through unjustified and repeated acts intended to hurt or inflict some form of harm. Its impact can be direct (physical and verbal teasing) or indirect (relational, such as social exclusion and spreading nasty rumours). Bullying is increasingly a problem for young persons and educators, especially given the heightened use of new technologies which permits easy and wide distribution of communication.
Cyberbullying takes on various forms, including using emails, instant messaging, and text messages to send harassing and threatening messages or posting such messages in chat rooms, on “bash boards” and on other social networking websites. Another common method of cyberbullying is the online posting or electronic distribution of embarrassing pictures or videos.
It may also involve the creation of websites that mock, torment and harass the intended victim or victims. Some websites can even be used by cyberbullies to create online polling or voting booths, allowing users of the website to vote on things such as the “ugliest” or “fattest” classmate. A recent Quebec study reveals that 1 in 3 high school students have been subjected to some form of bullying or cyberbullying. Individuals between 15 and 24 years old were most likely to be bullied by a friend, classmate or an acquaintance (64%). Men were more likely to be bullied by a stranger than women (46% versus 34%), and women were more likely than men to be bullied by a classmate or co-worker (13% versus 6%).
The survey also asked adult respondents whether any of the children or youth (aged 8 to 17) living in their household had been the victim of cyberbullying or child luring. The results showed that 9% of adults living in a household that includes a child knew of a case of cyberbullying against at least one of the children in their household. Of these adults, 74% responded that the cyberbullying was in the form of threatening or aggressive e-mails or instant messages. This was followed by hateful comments sent by e-mail or instant messaging or posted on a website (72%), and having someone use the child’s identity to send threatening messages (16%). Most adults responded that the children were bullied by someone they knew, such as a classmate (40%), a friend (20%) or acquaintance (11%), rather than by a stranger (21%).
It is clear from recent Canadian studies on the nature and prevalence of cyberbullying, that cyberbullying occurs frequently and is a widespread phenomenon affecting predominately youth but also some adults.
The Senate Report also highlighted that youth who belong to minority groups or who are perceived to be different are at increased risk of being targeted, such as those who have a disability, are overweight, are members of ethnic minority groups and those who identify as, or are perceived to be, lesbian, gay, bisexual or transgendered.