Justice Pollak's recent decision in Matthew Linton et al
v. Tholos Restaurant et al.1 raises the old issue
of the extent to which a restaurant must take positive steps to
keep an intoxicated patron from hurting himself.
In my opinion, Justice Pollak's decision could extend the
liability of a restaurant and make it an insurer of its
patrons' safety. This could increase the risk of taverns and
their insurers, and expose them to near-unlimited liability.
The lawsuit arose as a result of a bachelor party on May 22,
2009, in Collingwood. The Plaintiff, Matthew Linton, consumed
alcohol over the course of the day and evening, including on the
premises of the defendant Tholos Restaurant and the defendant
Kaytoo Restaurant and Bar. Afterwards, the Plaintiff and his
friends walked back to their rented chalet. At the chalet, the
Plaintiff fell down an exterior stairwell and suffered a severe
traumatic brain injury.
An expert toxicologist concluded that the Plaintiff consumed
between 13 and 21 bottles of beer between 6:00 pm and the time of
the fall (1:00 to 1:30 am). The toxicologist noted that this amount
of alcohol consumption would have caused the Plaintiff to suffer
obvious and marked levels of impairment. This expert evidence stood
in contrast to the evidence provided by the factual witnesses,
which was that the Plaintiff showed no signs of intoxication.
Tholos Restaurant and Kaytoo Restaurant moved for summary
judgment. The restaurants argued that their liability turned not on
the facts of the case, but rather on the legal limits of the duty
of care that they owed to the Plaintiff.
The restaurants agreed that commercial hosts owe a duty of care
to a customer who cannot take care of himself as a result of
intoxication. That said, they argued that the duty of care ends
after the customer leaves the bar and arrives safely at his
destination. This formulation of the duty of care was upheld by the
Ontario Superior Court in Schryer (Litigation Guardian of) v.
1232215 Ontario Ltd.,  179 ACWS (3d) 1226.
In contrast, the Plaintiff argued that it is not an established
principle of law that the duty always ends when the patron arrives
at his final destination. Instead, the Plaintiff claimed that the
duty of care depends on the facts of each case. The Plaintiff
argued that the commercial host's duty to protect its patrons
should “logically end only when the patron is no longer
exposed to injury by reason of his intoxication.” Therefore,
this duty would not necessarily end simply because the Plaintiff
arrived home safely.
Justice Pollak did not grant summary judgment because she lacked
important evidence about the sequence of events and the
Plaintiff's level of intoxication. She emphasized the
expert's evidence that the Plaintiff must have consumed between
13 and 21 beers, and must have been observably and heavily
intoxicated. Justice Pollak did not, however, rule on the issue of
the scope of the restaurants' duty to ensure that the Plaintiff
did not harm himself as a result of his intoxication.
It appears to me that the restaurants in this case took
reasonable steps to ensure the Plaintiff's safety. It was clear
that he was not going to drive and he walked out of the bar with a
group of his apparently responsible friends who should have looked
after him. In Stewart v. Pettie,2 the Supreme
Court of Canada noted that a bar's responsibility could be
discharged by making sure that the patron “got home
safely”. Justice Pollak's decision, however, suggests
that a tavern will not meet its standard of care simply by ensuring
that a Plaintiff gets home. This raises the question of what action
a tavern should take when it has an intoxicated patron on its
hands. Are taverns to keep patrons on the premises until they sober
up? Should taverns hire employees to escort patrons home, tuck them
into bed, kiss them on the forehead, and sing lullabies until they
I believe tavern owners can learn two lessons from Justice
Pollak's decision. First, beware when overserving patrons,
because your liability may extend beyond the tavern door, even when
you take steps to ensure that intoxicated patrons are reasonably
safe. Second, motions for summary judgment should be brought only
in cases of an undisputed evidentiary record regarding
intoxication. I am interested to see what Justice Pollak decides at
1 2016 ONSC 4167.
2  1 S.C.R. 131.
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