Chomicki Baril Mah LLP
Barristers & Solicitors
Commercial Host Liability:
Judicial Interpretation Since
Stewart v. Pettie
CORINNE S. PETERSEN
Chomicki Baril Mah LLP
Barristers and Solicitors
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10088 102 Avenue
Edmonton, AB
Canada T5J 4K2
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Commercial Host Liability: Judicial Interpretation Since Stewart v. Pettie
Commercial hosts have long been recognized as owing a duty of care to ensure their patrons
are reasonably safe while on the premises. The duty derives from both common law and
various provincial liquor control and occupiers liability legislation. More than thirty years
ago the Supreme Court of Canada, in Jordan House Ltd. v. Menow1, extended the duty of care
to include foreseeable harm to patrons occurring off the premises. This duty of care was
further extended to third parties who may come into contact with an intoxicated patron off the
premises in Stewart v. Pettie2.
This paper will provide an overview of Canadian cases
decided since Stewart v. Pettie that consider the principals set out by the Supreme Court of
Canada in that case. The developing law related to social hosts and employer hosts is not
covered in this paper.
I.
The Supreme Court of Canada on the Duty of a Commercial Host
Jordan House Ltd. v. Menow
Commercial host liability for injuries sustained off the premises was first recognized in the
case of Jordan House Ltd. v. Menow3. Based on the common law principles of negligence
requiring that reasonable steps be taken to prevent injury where the risk of harm is
foreseeable, the Supreme Court of Canada extended this duty to commercial drinking
establishments. The court described the relationship between Menow and the hotel as an
invitor-invitee relationship and determined that where the invitor breaches its duty of care to
the invitee, liability will result.
In this case, Menow was known have a propensity to drink and known to walk home alone.
Instructions had been given to employees not to serve him unless a responsible person
accompanied him, but he was served regardless of these instructions and in breach of the
liquor laws forbidding service to an apparently intoxicated person. The Supreme Court held
that the hotel had a duty to ensure Menow got home safely and, because he had been ejected
[1974] S.C.R. 239, 38 D.L.R. (3d) 105.
[1995] 1 S.C.R. 131.
3
[1974] S.C.R. 239, 38 D.L.R. (3d) 105.
1
2
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while intoxicated when the hotel knew that he would have to walk home along a heavily
traveled highway wearing dark clothing on a rainy night, the hotel had breached that duty.
Menow was struck by a car and seriously injured. The Supreme Court found that this harm to
Menow was reasonably foreseeable and the hotel was held one third liable for his injuries.
Stewart v. Pettie
In 1995 the Supreme Court recognized, in Stewart v. Pettie4, that establishments serving
liquor also owe a duty of care to third parties who may come into contact with the intoxicated
party. In this case, the court considered whether a commercial host, in this case a dinner
theatre, owed a duty of care (and if so whether the duty had been discharged) to a third party
user of a highway.
Mr. Pettie, his wife, sister and brother-in-law attended a dinner theatre production at the
Mayfield Inn. While there, Mr. Pettie consumed several drinks, and the evidence established
that he was intoxicated at the time of the subsequent accident, although he showed no visible
signs of intoxication. Mr. Pettie left in the company of his sober wife and sister, who knew
how much he’d had to drink. In the parking they had a discussion as to who would drive, and
Mr. Pettie’s ability to do so, and in the end the women allowed Mr. Pettie to drive. He had an
accident shortly thereafter, rendering his sister a quadriplegic.
The court devised a three-part test to determine the liability of the establishment:
1.
Does a duty of care exist?
2.
Has the appropriate standard of conduct been met?
a. Was there an obligation to take positive action?
b. Was sufficient action taken?
3.
Were the victim’s injuries foreseeable?
The Supreme Court concluded that an establishment’s duty of care did not end when the
individual left the establishment but, in fact, continued well beyond it. The court stated that
“a bar owes a duty of care to the patrons and, as a result, may be required to prevent an
intoxicated patron from driving where it is apparent that he intends to drive.” The court
4
[1995] 1 S.C.R. 131.
2
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confirmed that a duty is owed to third parties who might be using the highways on the basis
that the same situation creates the risk for the patron as for the third party and the risk to the
third party is real and foreseeable if the patron is allowed to drive.
In the result, the court determined that the dinner theatre was not required to take any action
in this case even though the server knew, or ought to have known, that Mr. Pettie was
intoxicated. The same waitress had served Mr. Pettie the entire evening, and regardless of his
lack of visible signs of intoxication, should have known by the amount he had consumed that
he was intoxicated when he left. The court found that the dinner theatre could not escape
liability solely on the basis that he did not appear to be intoxicated. However, the court found
that it was not reasonably foreseeable that Mr. Pettie would be driving and in the
circumstances it was not reasonable that the dinner theatre be required to do more. Mr. Pettie
was accompanied by (and in the care of) two sober people who knew his level of intoxication.
The court concluded that where the risk is not foreseeable, over-service is not sufficient to
establish liability and no positive action will be required by the establishment. Liability was
not imposed.
These principals were recently considered by the Supreme Court of Canada in the context of a
claim against a social host in an effort to extend the duty of care owed by commercial hosts to
social hosts. The court dismissed the claim in Childs v. Desomeaux5 and held that a social
host does not owe such a duty of care unless the host is shown to have created or enhanced the
risk. The Supreme Court of Canada has not yet considered the application of these principles
to employer hosts.
II.
Interpretation and Application of the Duty Owed by Commercial Hosts
Since the Supreme Court acknowledged the potential liability of commercial hosts to third
parties, litigation against drinking establishments has flourished, and Canadian courts have
5
[2006] 1 S.C.R. 643
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rendered a number of decisions on the issue which provide assistance in assessing claims for
potential for liability and potential exposure where liability is found.
A.
Liability Imposed
Lum (Guardian ad litem of) v. McLintock (British Columbia, 1998)
In Lum v. McLintock6, a patron of a lounge at a golf course consumed alcohol at the lounge,
drove away and struck a bicyclist. The evidence established that the patron had golfed in the
morning and then entered the lounge at the golf course with some friends to have a few
drinks. His friends left after two hours and he continued to drink for another two hours. The
same waitress served him, with the exception of his last drink, and kept a running tab. The
waitress knew to monitor his consumption, was shown to be experienced, and also knew what
to do if she determined he was intoxicated. When the second waitress came on shift she was
warned that the patron intended to get drunk and that she should watch out for him. She
testified that the patron was visibly intoxicated and was likely unable to drive. When the first
waitress left, the patron did as well and the waitress accompanied him to the parking lot where
they each got into their respective vehicles. The patron was seen to be driving erratically
before he struck the bicyclist and was later convicted of impaired driving with a blood alcohol
level three times the legal limit.
The court described the patron as “self-absorbed and self-indulgent, heedless and uncaring of
the risk to others.” The court went on to observe that the waitress had taken the path of least
resistance, choosing to serve the patron instead of cutting him off and failing to take measures
that would have prevented him from driving. The court commented that “responsibility
placed on commercial hosts is likely to be most effective as a deterrent in keeping intoxicated
drivers off the road.” The lounge was apportioned 30% liability for the accident.
D’Entremont v. Smallwood (Ontario, 1999)
Where the program implemented by an establishment for observation of its patrons is
insufficient, the establishment will be held liable for losses as a result of an intoxicated patron
leaving the establishment, driving and colliding with a third party.
6
In D’Entremont v.
(1997), 45 B.C.L.R. (3d) 303 (B.C. S.C.)
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Smallwood7, the owner of the bar argued that while she did not implement the system that was
suggested in the training manuals, the system that was in place was appropriate. The court
held that the bar could not determine exactly what each patron drank and the system was
insufficient to monitor patron consumption. Friends of the patron testified that they had each
left the bar without being detected. One had phoned his wife to pick him up and drive him
home but could not remember doing so. Another testified that he was as intoxicated as his
friend but drove home. The defendant patron attempted to drive home and in the process
struck another vehicle head on killing himself and severely injuring the other driver. The bar
was found 15% liable for the accident.
Neufeld v. Foster (British Columbia, 1999)
The court in Neufeld v. Foster8 considered the liability of a bar which arose as a result of a
single vehicle accident following a night of drinking at the bar. Four patrons left the bar
intoxicated. None could remember who was driving. The vehicle they were in left the road,
vaulted a ditch and crashed into a bank on the other side. All four were thrown from the
vehicle. Evidence established that one of the patrons was conspicuously drunk, falling asleep
at the table, waking up to drink more and then falling back asleep. At one point the bartender
asked another of the patrons (a defendant) for his keys and was advised that he had already
given them to someone. She then asked if they were driving and was told that they would be
taking a taxi home so she called a taxi for them. The bartender admitted that she did not look
outside to verify that they took a taxi even though they were the last patrons to leave and the
staff was only required to cash out and clean up after the patrons left.
The court found that the bar over served the four friends; all of them were intoxicated when
they left and none were fit to drive. The bar staff ought to have known that they were
intoxicated, and while some steps were taken to ensure they were not driving, these steps were
not sufficient. The court recognized “that perfection is not the standard” but concluded that
the bar failed to meet the standard of care required. The court found that due to the fact that
these patrons were the last to leave, it was not unreasonable to expect the staff to ask for car
keys from all four patrons and ensure that they left in the taxi. In the end the bar was
apportioned 20% liability.
7
8
1999 WL 33197584, [1999] O.J. No. 4567 (Ont. S.C.J.).
1999 WL 33185198 (B.C. S.C.)
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Dryden v. Campbell Estate (Ontario, 2001)
Dryden v. Campbell Estate9 exemplifies the courts’ consideration of the liability of a drinking
establishment where the defendant driver was consuming alcohol both at the establishment
and elsewhere. The underage defendant driver in this case was known by his friends to have a
propensity to drink and drive. On the day of the accident, his friend (a co-defendant)
proceeded to buy him alcohol, which they consumed while driving around and at various
residences. They proceeded to a large capacity nightclub (1000 patrons) and continued to
drink. The nightclub argued that it had not supplied the alcohol that effectively caused the
driver’s intoxication and as such there was no causal connection between the conduct of the
nightclub and the damages sustained by he plaintiffs. Further, the nightclub argued that it had
sufficient, properly trained staff in place and that its duty of care was met. The court found
otherwise. The nightclub did not have any wait staff, only bartenders, which was found to be
insufficient, as bartenders could not effectively monitor patrons’ consumption. In addition,
the defendant driver was under age and visibly intoxicated when he arrived at the nightclub.
Not only was he allowed admittance, but he was served while in a state of extreme
intoxication. The nightclub had failed to deal with him properly when he arrived, while he
was there and when he left.
While witnesses noted that there were obvious signs of intoxication, the staff at the nightclub
did not take any action. The defendant driver left the bar and got into his vehicle, which was
parked near the front entrance, without incident or any interference from the staff of the
nightclub. He proceeded to drive away and shortly thereafter collided with a car, killing
himself, one passenger and severely injuring another. The court held that the bar had failed to
meet the required standard of care, had made no attempt to ensure the patron got home safely
and that there was a causal connection between the negligence of the bar and the losses and
injury suffered by the plaintiffs as a result of the collision. In considering apportionment, the
court comments “[a] person who knowingly and persistently continues to drink to excess and
drive a motor vehicle on our highways behaves in a dangerous and reprehensible manner.
When others are drawn into the vortex of this conduct and are found to have been
9
(2001), 11 M.V.R. (4th) 247, [2001] O.J. No. 829 (Ont. S.C.J.).
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contributarily [sic] negligent, the lion’s share of culpability, both morally and legally, should
attach to the drinking driver.”
The nightclub was apportioned 15% of the liability for breaching its duty of care to other
users of the highway. Of note, the individual defendant who had purchased and supplied the
initial alcohol was determined to have owed and breached a duty of care to third party
highway users and was apportioned 5% liability. The defendant driver was attributed the
remaining 80%.
Haughton v. Burden (Ontario 2001)
Haughton v. Burden10 considers an application by the defendant nightclub for summary
judgment dismissing the plaintiff’s action on the basis that the nightclub had discharged its
duty of care having sent the intoxicated parties home in a taxi. Once safely home, the plaintiff
and defendant left the residence in a vehicle and were involved in a single vehicle accident.
The court considered both the common law duty of care (as established in Stewart v. Pettie)
and the statutory duty imposed by Ontario’s Liquor License Act and dismissed the
application, stating that the standard of care imposed by the liquor control legislation “is to
refrain from serving a patron who is intoxicated, as opposed to the common law duty to take
steps to prevent an intoxicated patron from injuring himself or third parties.” Putting the
patrons in a taxi might satisfy the latter duty but the court did not feel it was clear whether the
statutory standard of care had also been discharged by this action. The court stated that
“[e]ven if the person arrived safely elsewhere before subsequently causing an injury, it is
logically possible to find that, but for the over-serving of the patron, the injury would not have
occurred.” A fortuitous safe arrival home would not necessarily undo the effects of the
commercial host’s breach. The potential for liability on these facts pursuant to the Liquor
License Act was left open, but not decided. The court noted that the application would have
been successful, and the claim dismissed, if decided pursuant to common law principles as the
duty of care owed at common law was discharged by the nightclub when the intoxicated
patrons were put into a taxi.
10
2001 WL 596903, [2001] O.J. No. 4704 (Ont. S.C.J.).
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Holton v. McKinnon (British Columbia, 2005)
The British Columbia Supreme Court in Holton v. McKinnon11 concluded that the duty of a
commercial host does not necessarily end once an intoxicated patron arrives at another
destination or at home safely. In this case, the defendant driver and two friends shared a sixpack, went out to a lounge for three hours consuming beer and hard liquor, left the lounge in
favor of a nightclub and drank more there. They then drove back to the plaintiff’s residence;
each had another beer and they then decided to drive to a house party. On the way to the
house party the three men were involved in a single vehicle accident rendering the plaintiff
quadriplegic.
In addition to the driver, both drinking establishments were sued. The court found that staff at
both establishments should have foreseen that one of the visibly intoxicated patrons might be
driving and should have taken steps to enquire as to how they were getting home or if any
were driving. The court rejected the respective bars’ arguments that the plaintiff could not
establish at which bar they became intoxicated and found that they showed signs of
intoxication when they left the first bar and became further intoxicated at the second. Further,
the court found that regardless of the brief stopover at the plaintiff’s residence, the duty the
bars owed to third parties was not extinguished, although the duty to the patron himself was
discharged. Neither establishment put the driver in the charge of a responsible and sober
person, nor did they take steps to ensure either of the intoxicated passengers got home safely.
Essentially, the passengers were left in the charge of an intoxicated driver. The court held that
the risk of harm to the passengers as well as any other third parties was clearly foreseeable
and the chain of foreseeability and causation were not broken by the brief stop at home. The
cases of Salm (discussed below) and Haughton (discussed above) were distinguished because
in both cases those defendant drivers had left the drinking establishments in care of a
responsible person. In those cases, the establishment’s duty of care was satisfied when the
patron’s left in the care of a responsible sober party. Here, the defendant driver was allowed
to leave the establishments in his vehicle while clearly intoxicated.
The establishments did not discharge their duty to protect the patron from his own
intoxication by ensuring he got home safely and, in addition, did not discharge their duty to
11
2005 BCSC 41 (B.C. S.C.).
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innocent third parties who would be using the roadway. The court found each establishment
15% liable, the driver 40% liable and the plaintiff 30% contributorily negligent.
Pilon v. Janveaux (Ontario, 2005)
In Pilon v. Janveaux12 the Ontario Court of Appeal held that the trial judge had erred in not
asking the jury to quantify a tavern’s responsibility for over serving the plaintiff and
contributing to his inability to look after himself. In this case the plaintiff/appellant sustained
a serious brain injury in a single vehicle accident, after he and the defendant driver became
intoxicated at the defendant tavern. At trial the plaintiff was found by the jury to be 35.5%
contributorily negligent for failing to wear a seatbelt (17.5%) and for failing to take
precautions for his own safety by driving with an intoxicated driver (18%). The jury was not
asked to apportion liability as between the tavern and the plaintiff for the degree of
responsibility assessed against the plaintiff. On appeal, The Court of Appeal elected to do the
apportionment rather than sending the case back for re-trial. The court comments that the
case “brings into focus the distinction between the duty of care that a commercial host owes
to its patrons who become intoxicated and unable to properly look after themselves, and the
duty of care that a commercial host owes to third parties (including willing passengers)
injured by a patron who becomes inebriated in its establishment.” They held that the tavern
had contributed to the plaintiff’s failure to take precautions for his own safety and was liable
for 40% of the plaintiff’s contributory negligence.
McIntyre v. Grigg (Ontario, 2006)
The Ontario Court of Appeal in McIntyre v. Grigg13 reviewed the law of commercial host
liability and stated that commercial hosts are obligated to monitor consumption and should
have protocols in place such that reasonable precautions are taken to ensure those who cannot
safely operate a motor vehicle due to intoxication will be prevented from driving.
A
commercial host “does not escape liability simply by not knowing that the patron became
inebriated before driving” and “is liable if it or its employees knew or ought reasonably to
have known in the circumstances that the patron was in such a condition.”
12
13
(2005), 29 M.V.R. (5 th) 172 (Ont. C.A.)
(2006), 39 M.V.R. (5 th) 39 (Ont. C.A.)
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The court confirmed that in Ontario a commercial host may be liable either at common law or
pursuant to the statutory duty not to serve an intoxicated patron or over serve to the point of
intoxication.
In either case these duties turn on the situation where it is reasonably
foreseeable that the patron would drive after leaving the establishment.
In this case two
patrons had been drinking at the campus bar after stops at two other establishments earlier in
the day. Upon leaving the bar the driver was advised by a passenger that she had forgotten
her purse. As a result he turned around and started back towards the bar. He was seen to be
speeding, failed to stop at a stop sign, made a recklessly wide turn, sheered off a lamp post
and struck a pedestrian who was on her way home from the same bar.
In this situation, the Court of Appeal conceded that the testimony of the majority of witnesses
suggested that the driver displayed no outward signs of intoxication prior to the accident and
at the bar. However, there was one witness who thought the driver was intoxicated, the bar
had not followed suggested protocols and the driver’s blood alcohol level was at a level where
he would have shown visible signs of intoxication. On this basis the Court of Appeal upheld
the jury’s verdict and apportioned of 30% liability to the bar. While the Court of Appeal did
note that the apportionment of liability to the bar was at the high end, it was within the range
of other cases.
Leface v. McWilliams (British Columbia, 2006)
Leface v. McWilliams14 is indicative of the extent to which the courts are prepared to attribute
liability to a pub. In this case, a 19 year old man got into his car after drinking at a pub and
drove into a group of young people standing on the side of the road. The evidence established
that the driver was intoxicated and had showed obvious signs of intoxication in the pub
including staggering and slurred speech. Further, a friend of the driver had spoken to a
doorman about him and told the doorman that the driver was drunk and needed someone to
drive for him. Due to the pub’s failure to take any positive steps to prevent the defendant
from driving in the face of knowledge of his intoxication, the pub was held 50% liable for the
injuries to the plaintiffs, and no contributory negligence was assessed against the plaintiff.
At trial,15 the court found that the pub had “flagrantly ignored its responsibilities as a
commercial host” on numerous occasions and not just on the night in question. A private
14
15
2006 BCCA 227 (B.C. C.A.)
2005 BCSC 291 (B.C. S.C.).
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investigator, hired by the plaintiff, provided evidence that pub staff played cards while on
shift, free-poured drinks, consumed alcohol while on shift, served alcohol to intoxicated
patrons and that there were one or two drunks in the pub every night. The pub did not enforce
the serving program and “flagrantly flaunted the house rules and the Serving It Right
guidelines.” The fact that the doorman was advised of the state of the defendants intoxication
and chose to ignore it, in the face of evidence that his friend was yelling at the top of her lungs
for assistance from anyone who could assist, was seen by the court as compounding the pub’s
liability. At trial the pub attempted to shift the blame for failing to find the defendant a safe
ride home to other patrons and his friend. The court described this attempt as “despicable”.
In addition, the court was unimpressed with the testimony of the owner and manager,
describing his testimony as “unhelpful”, “obtuse” and giving the impression that he “did not
know and did not care”. The court had no confidence in the credibility of the pub owner,
manager or staff. The decision was upheld on appeal.
While this case is certainly exceptional in its facts, it shows the potential for a high
apportionment of liability against commercial hosts who do not take their duty of care
seriously and who do not use tools provided to ensure that they do everything possible to
ensure the safety of their patrons and third parties who may come into contact with them.
B.
Liability not Imposed
Reiter v. Olynyk Estate (Manitoba, 1998)
This case considered a motion by the commercial host for summary judgment dismissing the
claim against them. A family, injured in a collision which killed the defendant driver and his
passenger, commenced an action against the driver’s estate and the hotel at which the driver
had been drinking. While the evidence established that the driver had been drinking at the
hotel and was likely intoxicated when he left, it could not be shown that he was driving when
the vehicle left the parking lot. The driver was with others who were sober when he left the
hotel, as in Stewart v. Pettie, and the court found that there was no duty on the hotel to do
more. The claim against the hotel was dismissed.
Temple v. T & C Motor Hotel Ltd. (Alberta, 1998)
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The court in Temple v. T & C Motor Hotel Ltd.16 considered the application of the principles
outlined in Stewart v. Pettie to a situation involving an assault off the premises. In this case,
the plaintiff intruded into a dispute between another patron (the individual co-defendant) and
his girlfriend and a fight ensued between them outside the establishment. The fight consisted
of two punches by the co-defendant on the plaintiff and lasted seconds.
The court acknowledged that a duty of care was owed to the plaintiff and, in applying the test
set out in Stewart v. Pettie, asked “[w]hat evidence has been adduced that would support a
finding that the Defendant [hotel] ignored a foreseeable risk of the Plaintiff suffering personal
injuries from a criminal assault by the Defendant…?” The plaintiff had consumed alcohol at
the bar prior to the incident but there was no evidence that the plaintiff was impaired. He was
a regular patron for the previous 6 months, attending 3 to 4 times per week and had always
been pleasant, easy going and handled his liquor well. He had never been a source of trouble.
The defendant was not known to the bar staff and it was determined that they had no way of
knowing if he had a habit to over drink or whether he was a trouble maker. The staff at the
bar had no reason to foresee any risk or to expect the plaintiff to intrude into the dispute.
Since there was no warning and the attack lasted only a few seconds, the claim against the bar
was dismissed.
Little Plume v. Weir (Alberta, 1998)
The court in Little Plume v. Weir17 discussed the limits on a commercial host’s duty of care in
circumstances where an intoxicated patron is not served and evicted. The plaintiff in this case
had been drinking for at least 24 hours prior to entering the bar. The staff did not serve him
and asked him to leave. He was there approximately 5 or 10 minutes and sat quietly in a
booth, dozing, during that time. The owner offered to call him a cab, but the plaintiff left
without incident. After leaving the bar he crossed the roadway, not at the crosswalk, and was
struck by a car, leaving him an incomplete paraplegic. The court concluded that there was
nothing in his behavior that would have warranted the bar to do any more than they did even
though he did appear intoxicated. The actions of the bar staff and owner were found to be
reasonable and appropriate in light of the foreseeable risk. The court commented that “[t]here
is no unlimited general duty on the owner of a commercial drinking establishment to ensure
16
17
(1998), 213 A.R. 362 (Alta. Q.B.).
(1998), 220 A.R. 332 (Alta. Q.B.).
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that anyone who enters the establishment but is not served alcohol due to an appearance of
intoxication is conducted safely home.
Each of these cases must be determined on its
circumstances, including the relationship between the patron and the bar, the degree of
appearance of intoxication and the foreseeability of risk.” As a result, the bar was not held
liable for the plaintiff’s injuries.
Plett v. Blackrabbit (Alberta, 2001)
Plett v. Blackrabbit18 is not a typical commercial host liability case.
The defendant in this
case purchased off-sales liquor from the defendant hotel, while allegedly impaired.
He
continued to drink and drive, ultimately causing an accident and killing two occupants and
injuring another occupant of the other vehicle involved. The defendant driver was not a
patron of the establishment in the traditional sense. The court, in considering the hotel’s
application for summary judgment dismissing the claim against them, questioned whether in
these circumstances a special relationship and resulting duty of care arose, based on the
principles set out in Stewart v. Pettie. The court notes that “the mere existence of this special
relationship without more does not necessarily permit the imposition of a positive obligation
to act, or in other words a duty. A commercial host … can consider other relevant factors in
determining whether in the circumstances positive steps are necessary to act. Each case must
be decided on its own circumstances including the relationship between the parties, the degree
of appearance of intoxication and the foreseeability of risk.”
The evidence considered by the court suggested that prior to the defendant driver arriving at
the hotel he had consumed 4-6 beer. The driver described himself as “pretty much sober”. He
stated that he was not asked about his state of intoxication at the hotel nor was he asked
whether he would be driving.
The defendant and his friends then drove, drinking
continuously and stopping a number of other times for more liquor, approximately 120
kilometers over the next 4 hours. At some point the defendant fell asleep causing the
accident. The court found that the evidence was insufficient to establish that the defendant
driver was impaired when he entered the hotel premises for a brief period of time and made
the off-sales purchase. The court accepted the testimony of the hotel employees that the
defendant did not appear intoxicated when he came in to buy the liquor and as a result, the
18
2001 ABQB 841 (A.B. Q.B.)
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court found that “any reasonable standard of care was discharged by Bluebell on any duty of
care owed.” The claim was dismissed summarily.
Salm v. Coyle (British Columbia, 2004)
The court in Salm v. Coyle19 summarily dismissed the claim against the commercial host and
confirmed that the duty of care owed by the establishment had been discharged when the
intoxicated patron/driver left in the care of a sober responsible person and was delivered
safely home. The defendant driver in this case arrived at the pub on foot, having consumed a
half case of beer prior to her arrival and proceeded to stay all night, drinking and dancing.
She was driven home and dropped off by a sober friend. She went inside, took her father’s
car keys and proceeded to drive around, following her friend for some time until her friend
went home. She continued to drive around, with another friend as a passenger, and was
involved in a collision. The court, even after its review of the Houghton case (discussed
above), determined that all duties of care of the pub were satisfied when the defendant did not
drive away from the pub and was safely delivered home by a sober friend. Further, any risk
of injury from her intoxication “after she arrived home safely was not caused by any breach of
duty on the part of” the pub. As a result, the third party claim against the pub was dismissed.
III.
Trends and Observations
As the cases above show, Canadian courts are not reluctant to impose liability on commercial
hosts who do not take positive steps to protect third parties from foreseeable harm caused by
intoxicated patrons they come into contact with off the premises. There appears to be a
concerning trend towards imposition of an ever increasing proportion of liability against
commercial hosts (with a proportionate reduction of assessed liability against drunk drivers),
and an increasingly onerous standard of care.
Although each case is determined on its own specific facts (requiring early investigation
where possible), the decisions since Stewart v. Pettie offer some assistance in determining
what is required of the commercial host to discharge the duty. The courts, in assessing
liability and the extent of liability have looked to a number of factors related to the
19
2004 BCSC 112 (B.C. S.C.)
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1201 TD Tower, 10088–102 Ave NW, Edmonton, AB, Canada T5J 4K2
Phone 780.423.3441
Fax 780.420.1763
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A member of Risk Management Counsel of Canada
commercial host’s duties to monitor consumption, assess intoxication and intervene to prevent
driving, including the following (although the list is not exhaustive):

Was the establishment in breach of the governing liquor control legislation?

Did the establishment have a system or policy in place to monitor alcohol
consumption and patron behaviour, and was the system/policy followed?

Was the establishment adequately staffed?

Did the staff consume alcohol on shift?

Were other intoxicated patrons served on this or other occasions?

Was the staff adequately trained and able to assess intoxication and patron behavior?

What knowledge does the establishment have of the patrons drinking habits and
propensities?

Were inquiries made regarding how the patron was to get home?

Were efforts made to take the patron’s keys?

Were alternative arrangements made to take the patron home – taxi, sober friend,
family member or patron?

Were the police called?
As expected, the extension of the duty owed to patrons and to third parties has resulted in
considerable findings against commercial hosts and consequent risks to their insurers.
Unfortunately injuries sustained in motor vehicle accidents involving impaired drivers are
often catastrophic, and the monetary judgments at the upper end and often exceed limits of
motor vehicle liability policies. Increasingly, and as a matter of course, commercial hosts are
added as defendants or third parties to claims where there is some evidence or suspicion of an
intoxicated driver, resulting in increased indemnity and defence costs for insurers. Further, on
with the contributory negligence and joint tortfeasor legislation in some provinces, the
commercial host’s insurer may face exposure beyond the degree of contribution assessed by
the court.
For the most part, the courts have stayed true to the principles set out in Stewart v. Pettie,
although the standard of care may be seen as onerous, and the proportionate share of liability
increasing. Canadian courts have been more reluctant to extend the duty owed, and impose
15
1201 TD Tower, 10088–102 Ave NW, Edmonton, AB, Canada T5J 4K2
Phone 780.423.3441
Fax 780.420.1763
www.cbmllp.com
A member of Risk Management Counsel of Canada
liability where there has been little contact between the commercial host and the patron (no
actual service of alcohol, purchase of off-sales only), to situations beyond motor vehicle
accidents (such as assaults off the premises), or to social hosts.
16
1201 TD Tower, 10088–102 Ave NW, Edmonton, AB, Canada T5J 4K2
Phone 780.423.3441
Fax 780.420.1763
www.cbmllp.com
A member of Risk Management Counsel of Canada