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.
Footnotes
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.
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