Commercial Host Liability

Canadian courts have decidedly determined that commercial hosts can be held liable for the intoxicated actions of their patrons.¹ But what makes a commercial host?

While specific facts of an individual case weigh heavily towards a court’s interpretation of a commercial host’s liability, there are factors that are routinely considered upon the examination of a commercial host’s accountability to the patron and those affected by the patron’s actions. 

Who is a commercial host? 

A commercial host is by most simple description an individual or group that sells alcohol for a profit (most commonly a restaurant, bar, etc.). While pubs and restaurants are most often thought of as commercial hosts, it is not only licensed brick-and-mortar establishments that have a commercial duty of care to those they serve.   
For example, an Alberta 2017 decision found that a baseball team who organized a tournament and set up a tent to sell beer with a liquor licence was a commercial host, even though the volunteers were not necessarily all sufficiently trained nor instructed in alcohol serving. Because the baseball team was earning a financial profit from the sale of liquor, it was deemed to be a commercial host.²  

Another illustration is the 2002 Alberta decision, Calliou Estate, where a hockey organization arranged a pickup hockey game at a local rink and charged an entry fee which included alcohol beverages. The court commented that the relationship of the host to the guest was more than mere social, but also less than a full commercial relationship. Without solidifying the Court’s position on whether the organization was acting as a commercial host, the presiding Justice stated that since it charged an entry fee and provided alcohol as part of its organized event, there was a sufficient relationship between the parties to consider the possibility that a duty of care was owed.³ 

What makes a commercial host liable?

The duty of care of a commercial host in Canada has evolved throughout the past 50 years. The decision in Menow (1973) was one of the first Supreme Court of Canada (SCC) cases to find that a commercial host shared in the liability for injuries sustained by a patron to whom it served alcohol. In that case, the court held that the hotel had a positive duty to ensure that the intoxicated individual it had been serving made it home safely. The SCC noted that the hotel bar had a special relationship with the drinking patron, for it had knowledge as to his level of intoxication through the direct selling of alcohol to him.⁴

A further milestone decision was in Stewart in 1995, when the SCC extended the positive duty of a commercial host to prevent intoxicated guests from leaving the premises by means of a motor vehicle, as it could lead to a dangerous situation for non-involved third parties. This decision opened up commercial hosts to having a duty of care not only to the intoxicated patron, but also to third parties that become negatively impacted by the actions of that patron. The court outlined the principle of being liable to a third party for the actions of a patron in one’s establishment if that person drives a vehicle after being served drinks to the point of intoxication.   

In Stewart, an inebriated patron drove a vehicle after drinking at an establishment and got into an accident, causing significant injuries to the other driver. Even though the drinking patron did not appear visibly intoxicated, it was determined that—since the establishment had been serving him alcohol for over five hours—it ought to have known that he was inebriated. However, the intoxicated patron had been visiting the establishment with two friends (both sober) who knew he had consumed several drinks. The establishment gave evidence that its staff had expected one of the sober individuals to take him home. The court emphasized that “where no risk is foreseeable as a result of the circumstances, no action will be required, despite the existence of a special relationship.” The SCC deemed it was reasonable for the establishment to have assumed that the intoxicated patron had a safe way to get home and that it would be unreasonable for a commercial host to prepare for the unforeseeable. 

Hummel, an Ontario decision from 2019, is a more recent illustration of the state of the law in terms of the expectations of a commercial host and its duty of care. After drinking at a bar during a hockey game, the defendant was over-served to the point of intoxication and exhibited obvious signs of inebriation. He left the establishment and got into a serious motor vehicle accident. In assessing potential liability against the establishment, the court determined that any establishment that was serving such a patron ought to have known in the circumstances that he was intoxicated and should not drive. The establishment did not have in place a policy to prohibit drunk patrons from driving away, and no efforts were made to monitor the number of drinks that he was consuming. In addition, the bar did not know whether the patron had a designated driver nor how he intended to get home that evening. Further, it was found reasonable in the circumstances that the establishment ought to have assumed that the patron had driven to the bar and would be driving home that evening.⁵  

While Stewart and Hummel dealt with a commercial host’s duty of care to prevent an intoxicated person from driving, the case law outlined below expands upon the duty owed to other third parties. 

Alberta case law

Although there is not a plethora of case law in Alberta directly addressing commercial host liability, there are decisions that can help to understand how the Alberta courts approach this issue. 

In Temple (1998), a hotel guest became intoxicated onsite and later intervened between an arguing couple in the parking lot of the hotel. In the process of doing so, the guest caused injury to one of the individuals who then sued the hotel, arguing that it owed a duty of care to third parties onsite to prevent intoxicated guests from incurring harm. However, the court held that, since the plaintiff was a regular and had never caused problems in the past, it was not foreseeable that he would inflict injury as a result of his drinking at the hotel. It was further determined that the hotel had appropriate policies in place for the service of liquor and that they were actually followed. As such, the hotel was not found liable.⁶  

In Little Plume (1998), the court commented on how there was no case law clearly showing that a liquor serving establishment has a duty of care to everyone who walks in the door. Rather, the duty of care will be to those to whom the establishment sells liquor. On the facts, the plaintiff was already intoxicated when he sat down at the bar, so he was refused service and asked to leave. In doing so, the court declared that the bar acted reasonably when evicting the patron and should not be held liable for the damages that arose later.⁷ 

A recent decision on commercial host liability was rendered in the 2021 Alberta decision of Allnutt. In that decision, the patron was already intoxicated when he entered the bar but did not show obvious signs of drunkenness up to the moment when he assaulted another patron. Further, the court noted that the patron had not been served all evening and had only arrived 15–30 minutes prior to the assault. In rendering its decision, the court confirmed that while cases must be considered on their own facts, licensed establishments in Alberta will not be held liable if the injury or damage suffered was not reasonably expected or foreseeable. The establishment was expected to solely take steps to ensure its patrons’ safety, including introducing proper policies and training its staff on the implantation of those policies (which had been done).⁸ 

What can a commercial host do to prevent liability? 

A commercial host owes a duty of care to its patrons and to third parties where it is reasonably foreseeable that harm may arise through the actions of its inebriated patron. 

What can a commercial host do to protect itself from potential liability exposure? A starting place would be to look at the factors outlined by the court in Stewart. The duty of care on a commercial host will be discharged if it acts appropriately in the circumstance to ensure that the intoxicated patron has access to a safe way home. In other words, a commercial host should determine whether—on the facts—it is reasonably foreseeable that the drinking patron would be a danger to themselves and to others if left to their own devices. 

As confirmed in Allnutt, the commercial host is only required to take such steps to ensure a sensible degree of safety. This includes putting in place policies on over-serving and training staff to monitor the amount of alcohol served to the patrons, to stop serving if appropriate and to take the necessary steps to ensure the patrons will not harm themselves or others.  

Conclusion

Commercial hosts in Alberta owe a duty of care to their drinking patrons and to innocent third parties who may be harmed because of those patrons’ actions. While each case is decided on its facts, the general rule the courts look for in Alberta is whether there was a reasonably foreseeable risk of harm by the intoxicated person. If so, then the bar that served that person could be held liable for any resulting injury. To avoid liability, it is recommended that an establishment implement reasonable policies and invest in the training of its staff to ensure those policies are adhered to and enforced.

[1] Stewart v. Pettie, 1995 1 SCR 131
[2] Knibb v. Foran, 2017 ABQB 375
[3] Calliou Estate v. Calliou Estate, 2002 ABQB 68
[4] Jordan House Ltd. v. Menow, 1973 Canlii 16, [1974] SCR 239
[5] Hummel v. Jantzi, 2019 ONSC 3571
[6] Temple v. T&C Motor Hotel Ltd, 1998 ABQB 166
[7] Little Plume v. Weir, 1998 ABQB 523
[8] Allnutt v. Carter, 2021 ABQB 51