Canada: Tavern Claims: Intoxication Does Not Equal Liability

Last Updated: September 15 2017
Article by Chris T.J. Blom

Tort claims against tavern owners in the province of Ontario are typically advanced as a breach of the common law duty of care and a breach of the Liquor Licence Act1 provisions in relation to the service of alcohol. The Act provides as follows at s. 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:

1. If the person to or for whom the liquor is sold commits suicide or meets death by accident while so intoxicated, an action under Part V of the Family Law Act lies against the person who or whose employee or agent sold the liquor.

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.

The prohibition against the service of alcohol to a person who appears to be intoxicated is found at s. 29:

No person shall sell or supply liquor or permit liquor to be sold or supplied to any person who is or appears to be intoxicated.

Several cases illustrate the point that the statutory provisions include an element of foreseeability.

In Rudderham v. Folkes2, the plaintiff was injured after he attended a bar known as TJ's. He alleged that he was served alcohol to the point of intoxication. However, the evidence of staff at the bar established that the plaintiff arrived, consumed a portion of one drink, then left the bar. He later returned and appeared to be intoxicated. He requested a drink, was refused and left. The plaintiff had no recollection of the events of the evening of the accident. The plaintiff advanced the argument that the staff owed a duty of care to the plaintiff not to put him out into the street without seeing to his safe return home. In response to this allegation, the court observed that the staff at TJ's did precisely what the law requires: they refused to serve him alcohol when he returned on the second occasion and told him to leave.

A bar is not negligent merely because a patron is intoxicated, leaves and suffers injury.

As the court noted in Menow v. Honsberger3 ("Menow"):

The result to which I would come here does not mean (to use the words of the trial judge) that I would impose "a duty on every tavern owner to act as a watchdog for all patrons who enter his place of business and drink to excess". A great deal turns on the knowledge of the operator (or his employees) of the patron and his condition where the issue is liability and negligence for injuries suffered by the patron.

In Dickerson v. 1610396 Ontario Inc.4, the plaintiff and his friends attended a school pub and, thereafter, a bar known as Carey's Pub and Grill in London. After leaving Carey's, Dickerson and his friends got into a minor scuffle with another group of patrons. The staff at Carey's noticed this and separated the two groups. Shortly thereafter, the two groups crossed paths again, a fight ensued and Dickerson was struck, suffering a brain injury. At trial, the jury found no negligence resting the Carey's.  The finding was appealed to the Ontario Court of Appeal. Justice Goudge wrote as follows:

I cannot agree with the appellant that this language [s.39 of the Liquor Licence Act] sets out a standard that is breached by simply over-serving a patron to the point of intoxication.

The tavern owner only breaches the provisions of the statute if they serve a patron to the point of intoxication "where it is reasonably foreseeable that the patron's condition was such that he might harm himself or someone else". The appeal was dismissed as there was no evidence to suggest that it was reasonably foreseeable Dickerson would be involved in a fight and suffer injury.

The plaintiff in the case of Stewart v. Pettie5 attended a dinner theatre with three others, including the defendant driver. The same waitress served their table all evening. The plaintiff and one other person did not consume alcohol. The defendant driver consumed 10 to 14 ounces of alcohol over five hours and became intoxicated. At the end of the evening, the plaintiff, a passenger in a car driven by the defendant, was seriously injured when the defendant crashed the car. The case proceeded through the courts in Alberta and reached the Supreme Court of Canada where the plaintiff argued that the waitress should have taken positive action in the circumstances, even though she knew that the driver was with three other people. Justice Major concluded that the presence of the two other patrons at the table was sufficient to relieve the tavern owner of liability. He emphasized the findings in Menow where the court observed that the duty to the customer could be discharged by making sure that the customer gets home safely "by taking him under its charge or putting him under the charge of a responsible person". Justice Major assessed the circumstances as follows:

How, then, can Mayfield be liable when Pettie was already in their charge, and they knew how much he had had to drink?  While it is technically true that Stuart Pettie was not "put into" the care of his sober wife and sister, this is surely a matter of semantics. He was already in their care, and they knew how much he had to drink. It is not reasonable to suggest in these circumstances that Mayfield had to do more.

It was therefore not reasonably foreseeable that Pettie would drive when his sober wife and sister were present with full knowledge of the circumstances.

The New Brunswick Court of Queen's Bench addressed a similar situation in Feaver Estate v. Briggs6. Feaver was struck by a car driven by Briggs when he, his wife and another couple were walking from Barbie and Ken's Bar and Eatery to another restaurant known as Minglers. Barbie and Ken's was operated by Barbara and Kenneth Farley. The evidence revealed that Barbara Farley interacted with Feaver in the course of the evening. Indeed, when the four patrons left, she called a taxi for them. She cancelled the taxi when she was asked by the group to do so, as they were going to walk to Minglers for something to eat. Feaver consumed alcohol to the point where his blood alcohol level was 204-247 mg/100 mL. The other three people in the group were not impaired. There was a sidewalk from one bar to the other. The court concluded that, even if Feaver had been visibly intoxicated, he had been placed in the hands of three other people, including his wife, who were responsible for him.

The plaintiff in Temple v. T & C Motor Hotel Ltd.7 consumed alcohol to the point of intoxication when he stepped outside the bar to purchase a hotdog. He was involved in a fight at the hotdog stand. The court concluded that there was no reason to anticipate any risk to the plaintiff when he went out to purchase the hot dog. There was no evidence to suggest that the assault was foreseeable.

These cases highlight the fact that tavern liability cases are driven by the facts arising from the evidence. Where the evidence establishes that the patron was intoxicated to the point that the employees in the tavern knew or ought to have known of the intoxication, that, in itself, does not end the liability analysis. The surrounding circumstances must be considered to assess whether it was reasonably foreseeable that the patron would cause injury. If not, liability does not follow.

This review of the law reinforces the importance of retaining the appropriate adjuster or investigator at first knowledge of any incident in order to conduct a thorough investigation at the early stages of a claim, to obtain any evidence including witness statements, videotape evidence and all other sources of information to provide the best defence available to the insured.


1 R.S.O. 1990, c.L.19.

2 2011 Carswell Ont. 15979.

3 [1974] S.C.R. 239.

4 2010 ONCA 894.

5 [1995] 1 S.C.R. 131.

6 2009 NBQB  305.

7 77 A.C.W.S. (3d) 217.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions