Liability for Drinking Establishments that over-serve Impaired Patrons

A commercial or social host who serves alcohol or any substance that can impair their customers’ or guests’ ability to act in a safe manner can be held responsible if someone comes to harm after consuming alcohol or drugs in their business or home. The majority of liability claims in Ontario involve commercial establishments, such as restaurants and bars, who are profiting from the sale of alcohol and accordingly are held to a higher duty of care. Rather than simply ejecting patrons who are obviously intoxicated, a commercial host is obligated to take away the patron’s car keys, ensure that they have a safe ride home, call a taxi, offer a place to stay or if all else fails, call the police.

In a 1974 landmark case, the Supreme Court of Canada defined the responsibility that a commercial host has, to make sure that intoxicated patrons get home safely. The Court held that commercial hosts have a common law obligation to protect patrons from personal injury, particularly when the chance of injury is foreseeable. Further, a commercial host must take reasonable steps to monitor and supervise patrons, in terms of their behaviour and consumption, while in their establishment. In effect, a commercial host can be held liable for allowing a patron to become intoxicated and subsequently causing injury to themselves or others.

In the 1974 case (which was upheld on the Appeal of an earlier trial), Jordan House Ltd. v. Menow, a regular patron of a bar became very intoxicated and then, while walking home alone on a nearby highway, the man was hit by a car and severely injured. The man subsequently sued the bar and the driver of the ‘at fault’ car for damages. The courts (trial and appellate) found the bar, the driver and the plaintiff, Mr. Menow, equally responsible and liable for the plaintiff’s damages.

The judgement of the courts in this case was that the hotel had a duty to see that the man was able to get home safely, either by placing him under the care of a responsible person, not allowing him to leave until he was in reasonable condition to look after himself, or personally taking him under their charge. The bar did not take any of these actions even though they were cognizant of Mr. Menow’s condition. The appellant judge concluded that the bar’s liability arose because the staff were well aware of the plaintiff’s propensity to act irresponsibly when intoxicated; but bar staff allowed him to drink an amount they should have known would likely result in him being unable to keep himself safe while walking home in traffic.

A commercial host’s liability for injuries caused by over-serving alcohol extend beyond the danger to their own customers. The greatest danger to public safety can occur when the impaired patron gets behind the wheel of a car and potentially causes personal injury to innocent pedestrians and other road users. This type of accident occurs all too often in Ontario and has been the basis for many personal injury claims.

In September 2015, a Barrie woman announced that she is in the process of filing a civil lawsuit for $11 million in damages against the impaired driver who hit her, the owner of the car and also, the bar that served alcohol to the driver. The 20 year old injured woman, Mallorie Wild, claims that the bar where the ‘at fault’ driver had been drinking that evening over-served him before he left. Ms. Wild asserts that she has suffered psychological as well as physical damages, and the amount of damages she is seeking include financial compensation for future loss of income and attendant care.

The accident occurred while she was walking home on the road with friends late one evening. She was hit from behind by a car, then pulled under the vehicle and dragged until the driver hit a parked car. The 21 year old driver left the scene of the accident, but was later found and charged with multiple criminal offences, including failure to remain at the scene and impaired driving causing bodily harm.

Ms. Wild has undergone 17 surgeries since her accident, including a bone graft and muscle transplant for severe injuries to her right leg. She has also spent many months in hospital. The young woman alleges that minor daily tasks such as getting dressed and walking are difficult, and that her life has substantially changed and will likely never be the same.

In Stewart v. Pettie, 1995, the Supreme Court of Canada held that commercial hosts owe a third party liability to anyone who could conceivably be injured by an intoxicated patron who was served drinks in their establishment. “The establishment may be required to prevent an intoxicated patron from driving where it is apparent that he or she intends to drive. A duty of care is also owed to third parties who might reasonably be expected to come into contact with the intoxicated patron, and to whom that patron may pose some risk”.

Ontario case law and legislation, notably the Occupiers’ Liability Act, extend the duty of care to commercial hosts with the purpose of protecting the public from injury and loss of life resulting from over-consumption of alcohol. If you or a loved one suffered injury due to negligence on the part of a drinking establishment or an impaired driving, call Kotak Law to learn about your legal rights and the strength of your claim.


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Disclaimer: This article is intended to supply general information to the public. We make every effort to ensure the accuracy of this information. However, as laws change quickly, the reader should always ensure the accuracy and applicability of such information with respect to their particular case. The information contained in this article cannot replace a thorough and complete review of the reader’s situation by competent legal counsel who has had an opportunity to review all of the facts.