- Written by Mark Hicken Mark Hicken
- Category: Liability Issues Liability Issues
- Published: 12 December 2008 12 December 2008
The holiday season is upon us. While most of the season generally revolves around a spirited (pardon the pun) and responsible celebration involving wine and other liquor, the issue of legal liability for alcohol service always crops up at this time of year as businesses of all kinds become aware that good times can turn into a problem if someone ends up injuring themselves or others following a seasonal party at which they have consumed alcohol.
I have received a number of inquiries about this issue in the past few weeks so here is a quick (non-comprehensive) summary of the applicable law as well as a few ideas for limiting your liability.
There is one set of rules that I will call "commercial host liability" for restaurants, bars etc... most situations where a business is making money serving drinks. This would definitely include wineries or agencies in situations where they are either charging for wine, running a tasting room/event, or selling or promoting wine as an adjunct to an event. On the commercial host side, the rules are pretty strict in that the business has a fairly high duty of care toward a patron who has had too much to drink and they can be found liable if they don't do enough to prevent that person from injuring either themselves or someone else. All wineries and agencies should have staff trained to recognize liability and alcohol service issues for these types of events. You can read more on commercial host liability in the Supreme Court of Canada decision of Stewart v. Pettie (2005) which is the leading decision in this area.
On the other side, there are a set of rules for "social host liability" which basically apply to private parties. A more recent (2006) Supreme Court of Canada decision, Childs v. Desmoreaux, has found that, for the most part, social hosts do not have a duty of care to their guests and those guests are responsible for their own behaviour. If you are interested, you can read about this decision in this article or here.
However, there are a number of grey areas aside from these two sets of rules. The grey areas include situations where employers (such as a winery or wine agency) are hosting a staff party and would likely also include situations where a winery or agency is hosting a private party. There have been some cases, one in particular from Ontario, which have found liability on employers for accidents happening after an employee had consumed alcohol at an employer function. However, that case was decided before the more recent decision in Childs and it is, unfortunately, simply not clear what the applicable standards are for employer hosts. One lawyer put it succintly when he said "it's as clear as mud" for employer hosts.
Generally, lawyers hate it when the law is confused like this because it makes it very difficult to provide sensible advice. Some lawyers are taking an extremely conservative view and basically assuming that any future court decisions will come down totally against the employer's interests. If a lawyer gives advice based on these presumptions, he or she is likely to recommend draconian preventative measures which may destroy the celebration completely or put such a legal straightjacket on it that the effect is the same. Although it is possible that future court decisions will be adverse to employer or winery interests, many lawyers do not share this dark view. For example, the following article is more moderate in tone and I think the recommendations contained within it are fairly sensible:
Here's an excerpt from the article of the recommendations ...
Some of the steps an employer can take to avoid host liability include:
- Hiring a bartender to serve the drinks;
- Holding the function away from the place of employment;
- Holding the function outside working hours;
- Providing non-alcoholic beverages and food;
- Limiting the amount of alcohol available and avoiding open bars;
- Making attendance voluntary;
- Arranging for taxi vouchers or alternative transportation;
- Reminding guests not to drink and drive;
- Enlisting employees who will not be drinking to act as monitors; and
- Not allowing anyone who is obviously inebriated to drive.
I personally think that it is advisable to do as many of the above things as are reasonably possible and it is absolutely essential to provide taxi vouchers or alternative transportation to guests who have consumed alcohol at an employer sponsored event. In the unlikely event that you are interested in the details, most of the relevant cases are discussed in this paper (although it was written before the recent Supreme Court of Canada case):
One final caveat, because wine and spirit agencies and wineries are in the liquor business, a court may assume that you should be more aware of the dangers than other non-liquor businesses. As a result, it's a good idea to take as many of the steps listed above as possible to limit your liability.
This article is necessarily general in scope. Please contact either myself or your own legal counsel if you require specific recommendations or advice.