03 Oct The Liability of Commercial Hosts That Serve Alcohol

A commercial establishment has obligations with respect to serving liquor to an intoxicated patron.  The law requires commercial hosts:

  • To refrain from selling or giving liquor to an intoxicated person;
  • To refrain from selling or giving liquor to a person apparently under the influence of liquor;
  • To not permit a person to become intoxicated; and
  • To take a variety of positive steps (discussed below), based on the circumstances, to prevent reasonably foreseeable risks.

These requirements are found both in statute (Liquor Control and Licensing Act, RSBC 1996, c. 267) and at common law (see the Supreme Court of Canada case of Stewart v. Pettie, [1995] 1 SCR 131).

Common steps to be taken by a commercial host may include, but are not limited to, the following:

  1. Implement a program for monitoring alcohol consumption by patrons to ensure they do not become intoxicated;
  2. Ensure the such program is maintained with sufficient and properly trained staff;
  3. Cut the patron off from any further alcohol and prevent them from driving; and
  4. Demand car keys from the patron or group of patrons and ensure they are placed in a taxi.

The following are some cases that the courts in British Columbia and Ontario have considered the commercial host’s responsibilities:

Commercial hosts are obligated to monitor consumption and should have protocols in place such that reasonable precautions are taken to ensure those who cannot safely operate a motor vehicle due to intoxication will be prevented from driving (McIntyre v. Gigg, (2006), 39 M.V.R. (5th) 39 (Ont. C.A.)).

A commercial establishment ought to have sufficient, properly trained staff in place to monitor patrons’ consumption and take further positive action if necessary to ensure that the patron gets home safely (Dryden v. Campbell Estate, [2001] O.J. No. 829 (Ont. D.C.J.)).

If a commercial establishment implements a program for the observation of drinking patrons but the program is insufficient, the establishment may be held liable for losses which result when an intoxicated patron leaves the establishment, drives and collides with a third party (D’Entremont v. Smallwood, [1999] O.J. No 4567 (Ont. S.C.J.).

When a commercial host knows a patron is intoxicated, or ought to know that a patron is intoxicated, it should take positive steps to cut the patron off and prevent the patron from driving (Lum (Guardian ad litem of) v. McLintock, (1997), 45 BCLR (3d) 303 (BCSC)).

If a commercial host serves a group of patrons and the commercial host knows or ought to know that the group is intoxicated, taking some but insufficient steps, or not a reasonable number of steps, can lead to liability.  Requesting the keys from one patron and asking if they are driving and calling a taxi for them is insufficient.  The commercial host should have, at closing when it is relatively quiet, looked outside to verify that the group left by way of taxi.  It was not unreasonable to expect the staff to ask for car keys from all members of the group and ensure that they left in a taxi (Neufeld v. Foster, 1999 WL 33185198 (BCSC)).

The common law duty to prevent an intoxicated patron from injuring himself or third parties is in addition to the statutory duty to refrain from serving a patron who is intoxicated.  Putting a patron into a taxi may satisfy the common law duty but may not satisfy the statutory duty.  Over serving the patron contrary to the statutory duty may be a cause of injury to the patron or a third party after the patron arrives home (Haughton v. Burden, [2001] O.J. No. 4704 (Ont. S.C.J.)).

The duty of a commercial host does not necessarily end once an intoxicated patron arrives at another destination or at home.  A commercial host ought to take steps to put a patron-driver in the charge of a responsible and sober person, and take steps to ensure that patron-passengers get home safely (Holton v. McKinnon, 2005 BCSC 41).