From the local pub, the Jones’ annual Christmas Party to the beer in the locker room after a hard fought old-timers hockey game, any amount of alcohol sets off a ticking time bomb of liability.
Bars, taverns, pubs, cabarets, inns, lodges – by whatever names they go by, commercial premises which serve alcohol have a very real yet much ignored responsibility which comes with their lucrative liquor serving license.
And private alcohol parties are teasing themselves into the cross hairs of tort law as well.
In a 2006 UBC law review article written by Fiona Kelly, she wrote:
"In Canada, an average of 205,156 crashes are caused by impaired driving each year, resulting in 1,211 deaths, 74,181 injuries, and 45,174 damaged vehicles. In turn, this costs Canadians an average of $1.8 billion a year. Impaired driving is also by far the single largest criminal cause of death in Canada."
In Canadian Hospitality Law: Liabilities and Risk, authors Longchamps and Wright state that "more North-Americans have died as a result of accidents caused by drunk drivers than in the First World War, Second World War, Korean War and Vietnam War combined".
Increasingly, as we become aware of the dangers of alcohol and the transformation of consumer’s physical and emotional abilities, the Courts and law-making bodies are exposing servers to liability for damages caused by their service of alcohol to intoxicated patrons.
Commercial establishments are often added as defendants not only because they likely have deeper pockets, but also because they, too, have been found to be liable to the injured party.
Because of the money that can be made selling alcohol, the tendency of some bars seems to be that exposure to liability is just a risk of doing business, or something they can contain by incorporation. In some clubs, inebriation seems also like a cherished sign of merriment, with young, inexperienced servers carousing tables of just-as-young inexperienced drinkers, some with vehicle keys dangling in their pockets, with trays filled with high-alcohol content shooters, while alcohol companies vie with each other to promote their brand as hip, cool and sexy (see pix below).
The Commercial Establishment
Bars and pubs are required by legislation and the common law to exercise care and judgment in the service of alcohol. Indeed, most provincial liquor licensing agencies make it a condition of the service license.
Liquor licensing legislation typically requires that liquor not be sold to any person "apparently under the influence of alcohol" or "apparently in an intoxicated state". In addition, they are usually required to cause the removal of any "intoxicated" person.
This is a statutory duty which, if not complied with, would be considered with great interest by a Court later asking itself whether a commercial establishment did its duty.
In Ontario, the message to alcohol establishments is clear and unequivocal. As set out in the Liquor License Act at section 39:
"The following rules apply if a person or an agent or employee of a person sells liquor to or for a person whose condition is such that the consumption of liquor would apparently intoxicate the person or increase the person’s intoxication so that he or she would be in danger of causing injury to himself or herself or injury or damage to another person or the property of another person:
- "If the person to or for whom the liquor is sold commits suicide or meets death by accident while so intoxicated, an action ... lies against the person who or whose employee or agent sold the liquor.
- "If the person to or for whom the liquor is sold causes injury or damage to another person or the property of another person while so intoxicated, the other person is entitled to recover an amount as compensation for the injury or damage from the person who or whose employee or agent sold the liquor."
At common law, there is no standard for "drunkenness" but in regards to motor vehicles, statutes such as Canada’s Criminal Code have filed the void, at ¶253:
"Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not, while the person’s ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood."
Occupier's liability statutes also generally require that an operator of a place frequented by the public, must keep the premises safe. This means keeping patrons of bars and taverns safe from other, intoxicated patrons and their antics.
In Niblock v Pacific National Exhibition, the BC Supreme Court had to consider the fall of James Niblock over a low railing, occurring after Niblock had consumed three glasses of wine, and as a result of which he suffered serious injuries. Blood tests revealed an intake equivalent to over 7 bottles of beer. The defendants argued that they had no liability because the accident was not foreseeable. To prove it, they said, no one had ever fallen there before. But the Court concluded that the defendants were 75 per cent liable. Since there were three premises on the fair ground serving alcohol, the PNE should of considered the risk of their premises from the limited abilities of a person who consumed alcohol. Referring to the "inadequacy of the rail", it concluded that PNE:
"... should have foreseen danger from having a railing which came only to the fulcrum point for people of average height" in circumstances "where people, in a carnival atmosphere, might be carefree and careless. Liquor was served at three locations on the grounds, and it was to be expected that some persons would be under the influence of liquor.
"I do not think that an occupier can be relieved of responsibility for a failure to keep his premises reasonably safe by saying that he turned a blind eye to the danger because no one had yet been hurt, and because no one else had warned him of the danger. If the unsafe condition was there to be seen by someone who was applying his mind to the relevant risks, then it was a duty of that occupier to take reasonable steps to remedy the problem"
In Stanton v Twack, Justice Murray of the British Columbia Supreme Court was faced with facts that disclosed that staff at Angie’s Bar had done nothing when observing a patron, Judy Whittaker:
"… came over to the table where the Plaintiff and Judy Whittaker were sitting and commenced hurling abuse at Judy Whittaker in a very loud and noticeable tone of voice. She challenged Judy Whittaker to go outside and fight and threatened to kill her. The Plaintiff and other members of the group asked the Defendant, Twack, to go away and she eventually did."
Moments later, the situation escalated and Ms Whittaker threw a glass at the plaintiff’s face.
"The Plaintiff requested the bartender and the tap-man to call an ambulance, as her face was covered in blood. The Corporate Defendant's servants callously ignored her requests and pleas for assistance and it was left to a good Samaritan who proceeded to rush her to the hospital."
In awarding $13,000 in general damages, the Court found that the bar staff had exposed the plaintiff to unnecessary risk by ignoring the warning sign of a possible threat to Janice Stanton’s safety.
In Jacobson v the Kinsmen Club of Nanaimo, some men had twice climbed onto the 40-feet high ceiling beams while attending a beer garden event and staff did not intervene. On the third event, one fell and hit the plaintiff causing injury. The Court found the Kinsmen liable for the injuries and obliged to pay $25,000 in damages, plus costs, as "having had two prior warnings of hazardous activity being indulged in, by that time there was a duty upon the defendant to take steps to prohibit or prevent recurrences of any I-beam climbing".
Commercial establishment liability for torts caused by the alcohol-related actions of their patrons may be demonstrated by three cases which contrast exemplary and negligent conduct.
In Schmidt v Sharpe, the Ontario Court had to consider the shocking facts of Arlington House Hotel staff who carried an intoxicated and minor patron to his car and assisted him in getting behind the wheel. When the drunk patron had a accident leaving his passenger quadriplegic, the restaurant was found liable for damages totaling $1,992,664. The Hotel was held to be 15% liable (the driver Sharpe 55% and the plaintiff, 30%) but tried to plead that the plaintiff accepted the risks by voluntarily getting into the defendant’s vehicle but the judge negated that defence noting that as the Hotel had violated its license by serving alcohol to an intoxicated minor, "the defence of volenti is unavailable to a defendant which is itself in violation of a statute".
In Sambell v. Hudago Enterprises Ltd., the Court said:
"The law is clear that at common law a tavern owner also owes a duty to take positive action to protect patrons and others from the dangers of intoxication."
But in Skinner v Barker Estate, Ontario judge Dunnet had to consider the tragic case of Paul Baker, who died in a motor vehicle accident occurring after he had left the Legion in Stoufville, Ontario on March 11, 1983. Baker had an illegal level of alcohol in his blood at the time of the accident. But the Court found the Legion not liable because Baker had exhibited no signs of intoxication, adding that: "the positive duty owed by a tavern owner to protect patrons and others from the dangers of intoxication does not arise in this case where there was no evidence of obvious or apparent signs of intoxication.
In Picka Estate v Porter and the Royal Canadian Legion, the latter defendant was held as liable for $400,000 in damages when a patron was served "from nine to eleven and a half bottles of beer", then drove away and caused a fatal accident which killed three. The Ontario Court of Appeal noted that:
"The Royal Canadian Legion's premises were not open to the public. Entry was restricted to members. Inside the club beer was dispensed from behind a bar by a bartender; no waiters were employed. A person who wished beer could buy his own in this manner and could buy for others as well. It was common for those wishing to buy a "round" to go to the bar and obtain the beer for all.
"The Royal Canadian Legion was under a duty not to supply Porter with so much beer as would apparently intoxicate him or increase his intoxication to the point where he would be in danger of causing harm to others. In my respectful view, it is implicit in the answers given that the jury found that Porter was supplied with sufficient beer to render him apparently and visibly intoxicated and a danger to others. It is apparent that the jury is saying that the Royal Canadian Legion failed in its duty by making no effort to see Mr. Porter's condition and by having a system of distributing the beer which made seeing the condition of Porter extremely difficult. The only "condition" to which these answers can refer is Porter's apparent intoxication."
Social host liability is a work-in-progress, especially since there is no statutory, licensing, regulatory or contractual basis to find liability.
In Childs v. Desormeaux, the facts were straight forward and bear repeating given the similarity to circumstances of so many such similar house parties:
"This case arises from a tragic car accident in Ottawa in the early hours of January 1, 1999. At 1:30 a.m., after leaving a party hosted by Dwight Courrier and Julie Zimmerman, Desmond Desormeaux drove his vehicle into oncoming traffic and collided head-on with a vehicle driven by Patricia Hadden. One of the passengers in Ms. Hadden's car was killed and three others seriously injured, including Zoe Childs, who was then a teenager. Ms. Childs' spine was severed and she has since been paralyzed from the waist down. Mr. Desormeaux and the two passengers in his car were also injured.
"Mr. Desormeaux was impaired at the time of the accident. The trial judge found that he had probably consumed 12 beers at the party over two and a half hours, producing a blood-alcohol concentration of approximately 235 mg per 100 ml when he left the party and 225 mg per 100 ml at the time of the accident - concentrations well over the legal limit for driving of 80 mg per 100 ml. Mr. Desormeaux pleaded guilty to a series of criminal charges arising from these events and received a 10-year sentence.
"The party hosted by Courrier and Zimmerman at their home was a "BYOB" (Bring Your Own Booze) event. The only alcohol served by the hosts was three-quarters of a bottle of champagne in small glasses at midnight. Mr. Desormeaux was known to his hosts to be a heavy drinker.... (W)hen Mr. Desormeaux walked to his car to leave, Courrier accompanied him and asked, "Are you okay, brother?" Desormeaux responded "No problem", got behind the wheel and drove away with two passengers."
The Supreme Court then stated the law:
"... hosting 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. The injury here was not shown to be foreseeable on the facts....
"No duty to monitor guests' drinking or to prevent them from driving can be imposed having regard to the relevant cases and legal principles. A social host at a party where alcohol is served is not under a duty of care to members of the public who may be injured by a guest's actions, unless the host's conduct implicates him or her in the creation or exacerbation of the risk."
The law set out in Childs was aptly re-stated by Justice Kennedy of the Manitoba Court of Queen’s Bench in Manufacturers Life Insurance Co. v. Pitblado & Hoskin:
"(T)he host of a private party did not owe a duty of care to a party injured by the defendant's intoxicated guest while driving home. The principal reason being a combination of a number of factors differentiating it from the responsibility of a bartender who was schooled in the dangers of over serving its customers and being more aware of consequences of drinking too much which created an obligation to act. The bar tender was also paid where the host was not. In the former situation the host did not take action because of a lack of appreciation of the consequences or able to recognize the full danger, while the bar tender is aware of the danger and obligated to act."
This decision reverses a trend in Canadian law. As one lawyer (Kelly, op. cit.) wrote:
"The Supreme Court's suggestion (in Childs) that the risks associated with hosting a party where alcohol is served are ‘a far cry from inviting participation in a high-risk sport or taking people out on a boating party’ is simply not true.... It is thus safe to say that we remain a long way from social host liability being the law of Canada."
Research and Further Reading:
- Childs v. Desormeaux, 2006 SCC 18 published at canlii.org/en/ca/scc/doc/2006/2006scc18/2006scc18.html
- Duhaime, Lloyd, Tort & Personal Injury Law
- Duhaime, Lloyd, Tort & Personal Injury Law Dictionary
- Jacobson v Kinsmen Club of Nanaimo, 71 DLR (3d) 227 (1976)
- Kelly, Fiona, Before You Host a Party, Read This: Social Host Liability and the Decision in Childs v. Desormeaux, 39 UBC Law Review 371 (2006)
- Liquor Control and Licensing Act, RSBC 1996 Chapter 267
- Liquor Licensing Act, RSO 1990 L-19, published at canlii.com/on/laws/sta/l-19/index.html
- Longchamps, D. and Wright, B., Canadian Hospitality Law: Liabilities and Risk, 3rd Edition, Thomson-Nelson Publishers, 2007
- Manufacturers Life Insurance Co. v. Pitblado & Hoskin, 2007 MBQB 72, published at canlii.org/en/mb/mbqb/doc/2007/2007mbqb72/2007mbqb72.html
- Niblock v Pacific National Exhibition and the City of Vancouver 30 BCLR 20 (1981)
- Occupiers’ Liability Act, RSO 1990 Chapter O-2, published at canlii.com/on/laws/sta/o-2/index.html
- Picka Estate v Porter and the Royal Canadian Legion 1980 OJ 252
- Sambell v. Hudago Enterprises Ltd. 24 ACWS (3d) 266 (1990)
- Schmidt v Sharpe, 27 CCLT 1 (1983)
- Skinner v Barker Estate, 29 ACWS (3d) 1016 (1991)
- Stanton v Twack, 1982 BCJ 599