Saturday, August 29, 2009


Liquor Liability - 6

Here are a couple more comments on the standard of care of a tavern/bar to monitor alcohol consumption of its patrons:

"I recognize that it is not often possible for an establishment to assess whether a patron is intoxicated and, in many cases where there is not heavy consumption of alcohol in the establishment nor symptoms of intoxication, it would be unreasonable to expect an establishment to make that determination. On the other hand, service to a patron of the equivalent of between 16 1/4 and 19 1/2 fluid ounces of rye for his own consumption over a two-hour period carries obvious risks, and I am of the opinion that organization of service of alcoholic beverages, in the circumstances of this case, in a fashion which eliminated the opportunity to monitor the plaintiff's consumption constituted contributory negligence on the part of the hotel to the extent of five percent. Hotels are in the business of serving alcohol for a profit and it is not unreasonable for it to bear a portion of the risk caused by gross over-consumption." Goudge v. Three Top Investment Holdings Inc., [1994] O.J. No. 751 (Gen. Div.) at para. 52.

And here is comment from another case:

"I feel that they are liable both under the Liquor License Act and at common law. There is a high standard of care imposed on a tavern and its staff. The Squire Tavern people were oblivious to their duty. They knew these people were driving. They knew or should have known that they were intoxicated. They added to the level of intoxication by serving them more. I think that the standard maintained by the Squire was too low. Drinks would only be refused if the person was "too loud, starting arguments, knocking over drinks or falling down". Sambell v. Hudago Enterprises Ltd., [1990] O.J. No. 2494 (Gen. Div.).
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Monday, August 24, 2009


Judicial Review of Municipal By-Laws: Courts are not to interfere based on reasonableness

In a recent decision, Marsh v. Chatham-Kent, [2009] O.J. No. 3314, Leitch J. reviewed the law on the jurisdiction and scope of judicial review of municipal by-laws.

The application was for an order declaring a by-law invalid on procedural irregularities or alternatively void on the basis that its provisions are discriminating, arbitrary, unfair, vague and uncertain.

Leitch J. dismissed the application.

The case arose after a rural Ontario municipal counsel, after some deliberation and input, decided to proceed with installing a new sewage system. The application against the by-law was perhaps not surprising given that participation was made mandatory and for most owners the tax bill is $15,500.

Leitch J. reviewed section 273(1) of the Municipal Act, 2001, which sets forth the jurisdiction of the court on this application by providing as follows: Upon the application of any person, the Superior Court of Justice may quash a by-law of a municipality in whole or in part for illegality. However, it is important to note that the reasonableness of the By-law cannot be the issue before the court. Section 272 of the Municipal Act provides as follows: A by-law passed in good faith under any Act shall not be quashed or open to review in whole or in part by any court because of the unreasonableness or supposed unreasonableness of the by-law.

Leitch J. cited the Supreme Court of Canada in Nanaimo (City) v. Rascal Trucking Ltd., [2000] 1 S.C.R. 342 at para. 36, quoting McLachlin J., as she then was, in Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 S.C.R. 231: Recent commentary suggests an emerging consensus that courts must respect the responsibility of elected municipal bodies to serve the people who elected them and exercise caution to avoid substituting their views of what is best for the citizens for those of municipal councils. Barring clear demonstration that a municipal decision was beyond its powers, courts should not so hold. In cases where powers are not expressly conferred but may be implied, courts must be prepared to adopt the "benevolent construction" ... Whatever rules of construction are applied, they must not be used to usurp the legitimate role of municipal bodies as community representatives. [Emphasis added]

Tuesday, August 18, 2009


Liquor Liability - 5

Establishments that serve alcohol have a positive duty to intervene to limit alcohol consumption or risk liability.

Here is the classic formulation:

"I agree that establishments which serve alcohol must either intervene in appropriate circumstances or risk liability, and that this liability cannot be avoided where the establishment has intentionally structured the environment in such a way as to make it impossible to know whether intervention is necessary. Such was the situation in Canada Trust Co. v. Porter where the alcohol was served from behind a bar and it was impossible for the establishment either to monitor the amount consumed or to determine whether intervention was necessary. A similar situation arose in Gouge v. Three Top Investment Holdings Inc., [1994] O.J. No. 751 (Ont. Ct. (Gen. Div.), where the plaintiff attended a company Christmas party which had a "cash bar", over-indulged, and then was involved in an accident. In such circumstances, it would not be open to the establishment to claim that they could not foresee the risk created when the inability to foresee the risk was the direct result of the way the serving environment was structured."

Stewart v. Pettie, [1995] 1 S.C.R. 131 at para. 56.

Friday, August 14, 2009


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.

Tuesday, August 11, 2009


Liquour Liability - 3

Further to my past post on the liability that can be imposed on taverns (bars, restaurants, etc.), he is the relevant statute and regulations.

The Liquor Licence Act, R.S.O. 1990, c. L.19, states:

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.

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 regulations under this statute include:

A licence holder must not engage in or permit practices which may tend to encourage patrons’ immoderate alcohol consumption.

A licence holder must inspect an item of identification before serving liquor to a person apparently under the age of nineteen years.

A licence holder must not permit drunkenness, or riotous, quarrelsome, violent or disorderly conduct to occur on the licenced premises or in the adjacent washrooms, liquor and food preparation areas and storage areas.

Thursday, August 6, 2009


Worker's Compensation - 4

An issue which has arisen in previous years is whether the Tribunal has jurisdiction to determine a section 31 application where the worker has received statutory accident benefits (SABs) under the Insurance Act but no court action has been commenced. While early cases found there was no jurisdiction, two decisions in 2007 considered more extensive submissions and found that the Tribunal has jurisdiction. Decision No. 1288/08, 2008 ONWSIAT 2572, agreed with the more recent cases that the Tribunal has jurisdiction to consider a SABs insurer’s section 31 application. Decision No. 1288/08 applied the reasoning in Decision No. 14/06, 2007 ONWSIAT 339, 81 W.S.I.A.T.R. (online), in finding that the insurer had standing to bring an application under section 31(1)(a). The phrase in section 31(1)(a) “right to commence an action”, includes situations in which the right has been conferred but has not been acted upon or triggered. (from WSIAT news website)

Monday, August 3, 2009


Worker's Compensation - 3

The WSIA and earlier Workers’ Compensation Acts are based on the “historic trade-off” in which workers gave up the right to sue in exchange for statutory no-fault benefits. The Tribunal has the exclusive jurisdiction to decide whether a worker’s right to sue has been removed by the Act. Right to sue applications may raise complicated legal issues, such as the interaction between the WSIA and other statutory schemes.


Decision No. 2126/07, 2007 ONWSIAT 2689, 84 W.S.I.A.T.R. (online), illustrates the type of disputes which the Tribunal may be called on to resolve under section 31 of the WSIA. While receiving treatment in hospital for a compensable condition, a worker fainted and sustained injuries to different parts of his body. Tribunal decisions have generally found that, where further injury results from negligent medical treatment, the additional injury is generally foreseeable; the worker is entitled to compensation and the right of action is removed. Decision No. 2126/07 held that the arguments that the new areas of injury were remote from the original injury and that the hospital was negligent in failing to warn the worker and supervise him following treatment, did not distinguish the case from prior Tribunal cases. (from WSIAT news website)