Liquor Liability - 4

More on liability for alcohol providers. This blog contribution authored by Tara Pollitt.

An alcohol provider owes a duty of care to patrons and may be required to prevent an intoxicated patron from driving where it is apparent he intends to drive. The Supreme Court held that the duty of care that is owed to patrons is also owed to third parties:

It is a logical step to move from finding that a duty of care is owed to patrons of the bar to finding that a duty is also owed to third parties who might reasonably be expected to come into contact with the patron, and to whom the patron may pose some risk. It is clear that a bar owes a duty of care to patrons, and as a result, may be required to prevent an intoxicated patron from driving where it is apparent that he intends to drive. Equally such a duty is owed, in that situation, to third parties who may be using the highways. In fact, it is the same problem which creates the risk to the third parties as creates the risk to the patron. If the patron drives while intoxicated and is involved in an accident, it is only chance which results in the patron being injured rather than a third party. The risk to third parties from the patron's intoxicated driving is real and foreseeable. Stewart v. Pettie, [1995] 1 S.C.R. 131 at para. 28.

Commercial providers of alcohol are expected to monitor consumption of alcohol as part of the commercial transaction and are expected to possess special knowledge of intoxication. The Supreme Court has held that not only is that expected, but also relatively easy for the commercial host:

First, commercial hosts enjoy an important advantage over social hosts in their capacity to monitor alcohol consumption. As a result, not only is monitoring relatively easy for a commercial host, but it is also expected by the host, patrons and members of the public. In fact, commercial hosts have a special incentive to monitor consumption because they are being paid for service. Patrons expect that the number of drinks they consume will be monitored, if only to ensure that they are asked to pay for them. Furthermore, regulators can require that servers undertake training to ensure that they understand the risks of over-service and the signs of intoxication (see, e.g., R.R.O. 1990, Reg. 719). This means that not only is monitoring inherently part of the commercial transaction, but that servers can generally be expected to possess special knowledge about intoxication. Childs v. Desmoreaux, [2006] 1 S.C.R. 643 at para. 18.

Liability for servers of alcohol has been expanded to include establishments that serve patrons already inebriated on arrival. In Schmidt v. Sharpe, the tavern was held liable even though it did not have actual knowledge of the patrons’ intoxication. Schmidt v. Sharpe, [1983] O.J. No. 418 (Ont. H.C.)

The appropriate standard by which to assess providers of alcohol is the Smart Serve Program, or its predecessor, the Server Intervention Program (“SIP”). SIP requires the following actions of servers of alcohol: “Stop trouble at the door”, “Interview and assess”, and “Provide low risk options”. SIP provides reasonable and prudent steps to be taken by alcohol providers:
· stop trouble at the door;
· check for underage patrons;
· interview and assess for prior drinking;
· provide low risk options, serve and monitor service;
· check for driving; and
· arrange for safe transportation.

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