Updated: Aug 18, 2019
Section 39 of the Liquor Licence Act, R.S.O. c. L.19 provides under the heading “Civil liability”:
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:
2. 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.
Clearly, a commercial host could be held liable for overserving its patron(s) to the point of intoxication leading to third party damages.
In Ontario, commercial host liability may be imposed both at common law and by statute where a patron, who subsequently causes injury, has been served while intoxicated or over-served to the point of intoxication, and where it is reasonably foreseeable that the patron will drive a motor vehicle upon leaving the establishment [McIntyre v. Grigg, 2006].
Numerous interesting caselaw have resulted from commercial host liquor liability and how it is ascertained in case of an MVA.
The recent case discussed below is a reminder on what steps a commercial establishment serving liquor should take and/or what procedures they should have in place to escape liability in such incidents.
In Hummel v. Jantzi, 2019, the Ontario Superior Court of Justice discussed at length various aspects considered in determining the liability of a commercial establishment that serves liquor to its patrons.
A group of 6 friends went to a bar and had some drinks. They left together from the bar, after drinking substantial alcoholic beverages, left together in the same vehicle in which they came in. One of the friends, Philip Janzti (The defendant) was driving the vehicle. After dropping all the friends, Philip returned to the residence of the plaintiff (Wesley Hummel) and consumed some wine. Then they both left together from the home with Philip driving the vehicle.
At around 0137 on the night, after about 40 minutes leaving the bar, Philip failed to observe the stop sign at the intersection. The vehicle left the roadway, hit a tree, rotated 180 degrees and came to a rest facing west on the front lawn of the residence at 1389 Station Street. Wesley, who was sitting in the passenger seat of the vehicle at the time, suffered serious injuries including a comminuted, depressed fracture to the right rear of his skull.
The concentration of alcohol in Philip’s blood at 3:10 a.m. on the night was 192 milligrams of alcohol in 100 millilitres of blood. The concentration of alcohol in Wesley’s blood at 2:25 a.m. on June 7, 2012 was 102 milligrams of alcohol in 100 millilitres of blood. Philip was charged with, and pleaded guilty to, operating a motor vehicle while impaired by alcohol and causing bodily harm to Wesley.
The action was brought by Wesley and his family against, inter alia, All Star Tap and Grill House (“The Bar”) for serving alcohol to Philip to the point that his ability to operate a motor vehicle became impaired and failing to take steps to assure that Philip would not then operate a motor vehicle.
The court investigated the following aspects while arriving at the decision:
1. There was only one female server that served the group. She did not ask any questions of any member of the group. No other employee of the All Star spoke to the group.
2. Jovica, the bar owner, testified that the staff was required to have smart serve certification and were expected to use common sense to avoid over-serving beer. There was no procedure in place to monitor how much beer an individual patron was consuming.
3. The policy of the All Star was that if a person appeared to be drunk or intoxicated, inquiries would be made about how that person was getting home. If a person was not drunk, no inquiry would be made because of concern that the customer might be offended.
4. There was no blood alcohol chart posted at the All Star. He was not familiar with the expression “chat and check”. The bar owner saw no reason for servers to provide water to customers who were consuming beer. There was no system in place for counting the number of drinks that a person consumed.
5. The bar owner said that although the All Star did not employ security staff, sometimes there would be a person checking identification “and things like that”. There was no such person working at the All Star on the material evening, which was not a busy night.
6. The All Star did not have a sufficient complement of staff working on the material evening. There were only two servers. There was no one on the door. There was no one checking to make sure that everyone who came into the All Star was of legal drinking age.
7. No food was offered to the group. No water was served. Neither of the servers counted the number of glasses of beer any person in the group consumed.
8. No inquiries were made by any of the employees about who in the group was driving.
9. There was no policy in place at the All Star to monitor the number of glasses of beer any person in a group consumed.
Holding the bar liable for 20% of the damages, the court stated:
The All Star and its employees failed to fulfil their obligations pursuant to Smart Serve including:
a) checking the identification of persons who were barely over the age of 19 years;
b) counting drinks;
c) engaging customers in conversation for the purpose of assessing sobriety;
d) encouraging the ordering the food;
e) supplying water to the table;
f) offering the 12 for 12 special at a discounted price which made it difficult if not impossible to monitor the consumption of any individual customer; and,
g) making inquiries about the arrangements in place to assure that a group of customers would arrive home safely.
The All Star asserted that if it breached the standard of care which it owed to Wesley, nevertheless, the return of the group to the Wesley’s residence terminated its liability. The court rejected this argument relying upon The Ontario Court of Appeal decision in Williams v. Richard, 2018 ONCA 889 (CanLII) that stated:
In a social host liability case, there is no automatic rule that the duty of care expires once the intoxicated driver arrives home safely. The limits of the duty are determined by the facts of the case.
In my view, there is no reason why the passage quoted above should not equally apply to a commercial host liability case.
It was further concluded that:
…….Wesley’s contributory negligence for failing to wear a seatbelt, entering a vehicle which he knew would be operated by an impaired driver and encouraging Philip to drive faster should collectively result in a reduction of his damages by 25%.
It is submitted that as it relates to the All Star, Wesley’s contributory negligence should be reduced because the All Star was responsible for over serving Wesley so that his judgement was impaired.
The bar was held liable at 20% for over serving Wesley too.
I do not understand how do such establishments get insurance? There were absolutely no procedures, none whatsoever, in place and am not certain how such establishments get insurance and pass the risk management process. As a claim professional, I have always wondered why underwriters don’t put specific warranties in place that would make such establishments take such matters more seriously.
And yes, its not only stupid, but also insanely dumb to be driving impaired. In fact, I came across this statement in the case where one of Philip’s friend addressed him as their “professional drunk driver”. Seriously?! I have no words and no compassion for such *******. It makes me angry, VERY VERY ANGRY!!