Written By Chella Turnbull | Law Times

With the holiday season approaching, it’s a good time for a reminder about the liability issues facing commercial establishments for the actions of their drunk patrons. The issue is a source of amazement to many foreigners. If you tell people from Germany or Australia that a bar can be liable when a patron drives drunk, they’ll assume you’re kidding.

In 1974, the Supreme Court of Canada held in Jordan House Ltd. v. Menow that a commercial establishment serving alcohol has a duty not to serve patrons past the point of intoxication. The plaintiff was a pedestrian struck while walking home. The court held that the accident was foreseeable because the bar had served him too much. In practical terms, bars do make significant profits and, therefore, it’s reasonable to transfer some of it to the costs of those injured as a result of alcohol consumption.

The court hasn’t however, extended the duty not to serve guests to excess to the private homeowner. In 2006, the Supreme Court of Canada held in Childs v. Desormeaux: “A social host at a party where alcohol is served is not under a duty of care to members of the public who may be injured by a guest’s actions, unless the host’s conduct implicates him or her in the creation or exacerbation of the risk.” That’s still the law in Canada.

But Canadian courts, in obiter dicta, have held that if a homeowner serves alcohol to minors, actively encourages consumption or allows drinking in dangerous circumstances, the potential for liability remains a risk. The B.C. case of Chretien v. Jensen held the defendant homeowner 60-per-cent liable for allowing guests to drink on a bridge that had no handrails. In Sidhu v. Hiebert, the B.C. Supreme Court, holding that the issue required a full trial, dismissed a summary judgment application brought by a homeowner whose guest had driven and allegedly killed a third party.

These and other cases leave the door open for a decision establishing social host liability. As a result, social hosts would be wise to take steps such as holding back keys and calling cabs.  Nobody wants to be the defendant in a test case.

For company holiday parties, which are a sort of hybrid between the commercial and social-host situations, foreseeability is a crucial part of the analysis. Liability of an employer likely requires specific knowledge of impairment plus a lack of any policy to help employees get home. The duty to employees would be more significant in rural or suburban settings where people are more likely to be driving as opposed to urban centres. One way to avoid liability is to hold office parties at a commercial establishment.

Based on Hunt (Guardian of) v. Sutton Group Incentive Realty Inc. and Jenkins v. Muir, there’s a positive duty of care between employer and employee; however, the employer must have specifically foreseen that the particular employee would be driving in an impaired state. In Hunt, the Ontario Court of Appeal wouldn’t dismiss the case against the employer even though there was evidence that the plaintiff wasn’t drunk when she left the company party. It held that the issue was one that required a trial. The Court of Appeal did opine, however, that there must be a clear chain of causation between the employer’s knowledge of the employee’s impairment and the accident. Given that comment, it’s likely wise to ensure that employees are aware of available transportation assistance when it comes to parties that take place at an employer’s office without trained servers to oversee consumption.

While the courts have assigned liability to commercial establishments, they’ve so far been reluctant to intrude into the realm of private parties. As the court stated in Childs: “A host is entitled to respect the autonomy of a guest. The consumption of alcohol, and the assumption of the risks of impaired judgment, is in almost all cases a personal choice and an inherently personal activity.”

Chella Turnbull, a lawyer practising personal injury litigation at Zuber & Co. LLP, is available at 416-646-3129

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