Responsibility for Drunks

Updated December 11th, 2018

Last year, I came across an article on CBC about a terrible car accident where two teenagers lost their lives following a car accident. They, along with a couple of other friends, had been drinking at a local establishment. The Ontario Alcohol and Gaming Commission of Ontario, our version of the Liquor and Gaming Authority of Manitoba, found them responsible and suspended the establishment’s liquor licence.

The Commission investigated and determined whether the establishment took appropriate steps to verify their I.D. and whether they stopped serving them at a proper time. The restaurant initially appealed the decision but then dropped the appeal. But that is not what this blog post is about.

While reading the article, I couldn’t help but think about the establishment’s responsibility and role in the accident. Sure, the Commission will investigate, and the establishment could very possibly lose its licence. But that might be the least of the owner’s problems.

Supreme Court of Canada

Under common law and provincial statutes, drinking establishments are liable for negligence if patrons consuming alcohol injure themselves or others. The Supreme Court of Canada cited the policy reasons behind this principle:

Over-consumption is more profitable than responsible consumption. The drinkers bear the cost of over-consumption, but taxpayers who collectively pay for the added strain on related public services and, sometimes tragically, third parties who may come into contact with intoxicated patrons on the roads. Yet the benefits of over-consumption go to the tavern keeper alone, who enjoys large profit margins from customers whose judgment becomes more impaired the more they consume. This perverse incentive supports the imposition of a duty to monitor alcohol consumption in the general public’s interests.

Responsibility of the Host?

As mid-November approaches, most of us are starting to turn our minds to the festive season. We will most likely host an evening of food and wine or a holiday party. Are we, as private individuals, subject to the same standard?

Fortunately, we are not. The court distinguishes between commercial hosts and “social hosts.” The court also goes to some extent to explain hosting a party, in itself, isn’t sufficient to create liability. They also cite another policy: Common Law recognizes the autonomy of the individual. The court stated:

The law does not impose a duty to eliminate risk. It accepts that competent people have the right to engage in risky activities.

However, before you order the keg and set up the drinking games, immunity from liability is not absolute. The court will view evidence if social hosts are aware or “ought to be aware” – a phrase often found in case law. It means that a person cannot state they were unaware when all the evidence shows they must have been. For example, if one of their guests is intoxicated and knows the guest will drive, they will likely become liable. This is true not only to the guest but to anyone injured by the guest.

Social hosts can also become liable if they invite guests to engage in risky activities. If you ask someone to do something risky, knowing the person is impaired due to alcohol, you will be liable for their injury.

So I wouldn’t recommend inviting guests to race snowmobiles or participate in wrestling matches at your holiday gathering this season. However, I wouldn’t recommend these even if alcohol was not included.

Disclaimer – Legalese

This article is presented for informational purposes only. The content does not constitute legal advice or solicitation and does not create a solicitor-client relationship (this means that I am not your lawyer until we both agree that I am). If you are seeking advice on specific matters, please contact Philippe Richer at 204.925.1900. We cannot consider any unsolicited information sent to the author as solicitor-client privileged (this means confidential).

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