Alcohol Policy Update

A Bi-Monthly Newsletter of the Alcohol Policy Network
Feel free to copy & distribute
Vol. 9 Sept./Oct. 1997

"This increasingly challenging legal environment should encourage everyone who provides alcohol or is involved in alcohol-related events to fundamentally re-examine their alcohol policies and practices."
- University of Western Ontario Law Professors Robert M. Solomon and Sydney J. Usprich, Canadian Alcohol Liability, July 1994

A Catalyst for Policy Development: Alcohol Liability

The law governing liability for the intoxicated has changed dramatically since the early 1970s. Yet as dramatic as this rise in liability has been, the claims brought to date represent only a fraction of the potential suits. Statistics on alcohol-related "accidents" indicate that thousands of alcohol liability suits could be brought each year in Canada. While the exact scope of liability varies from province to province, the trend towards expanding liability is uniform. This article briefly outlines some of the bases of alcohol liability. It is an excerpt of Canadian Alcohol Liability prepared for the Insurance Bureau of Canada and the Insurance Institute of Canada in July 1994 by University of Western Ontario law professors, Robert Solomon and Sydney Usprich. To view the entire document visit the IBC web site at http://www.ibc.ca. To receive a hard copy call 416-362-2031.

Liability for providing alcohol

Although the vast majority of providers' liability cases involve bars, restaurants and other commercial licensed establishments, this type of liability applies to anyone who sells or otherwise provides alcohol to others. In the 1973 landmark case of Jordan House Hotel v. Menow and Honsberger, the Supreme Court of Canada imposed a common law duty on alcohol providers to protect their intoxicated patrons. The hotel staff had ejected Menow, a regular patron, after he became intoxicated and annoyed other customers. While staggering along the highway, he was hit by a car. Menow sued both the driver and the hotel.

The Supreme Court of Canada unanimously upheld both claims, although two different views emerged concerning the hotel's liability. The majority judgment found that the hotel had a duty not to eject Menow if doing so would expose him to a foreseeable risk of injury. Furthermore, the staff should have tried to protect Menow in his known intoxicated condition by allowing him to spend the night in one of the hotel's rooms, calling the police, or arranging for safe transportation home.

Over the past twenty-five years, the courts in common law jurisdictions have gone far beyond the narrow view voiced in Jordan House. Alcohol providers have been held liable even though they had not ejected the person, had no prior dealings with the person, had no knowledge of the person's susceptibility to alcohol or intoxication and had not supplied all or even most of the alcohol causing intoxication. Alcohol providers have a broad duty not to serve alcohol to anyone past the point of intoxication. Providers who rely on the assurance that someone else is the "designated driver" and serve an intoxicated patron do so at their peril. Apart from the foolhardiness of placing one's potential liability in the hands of a drunken stranger, there are other risks besides the patron driving away from the establishment. Even if the intoxicated guest arrives home safely, he or she might slip in the shower or fall asleep while smoking, or become a hazard to others by driving subsequently.

Occupiers' liability for alcohol-related injuries

In addition to potential liability as an alcohol provider, a person may be liable as an "occupier" for any alcohol-related injuries that occur on his or her property. An occupier includes anyone who has control of the premises and the power to admit or exclude others. Depending on the facts, several different parties may be occupiers of the same place. Although it is not widely known, far more alcohol-related suits have been brought against occupiers than against alcohol providers. Since occupiers' liability is limited to injuries that occur on the property, most claims arise from fights and falls which are not usually catastrophic or otherwise newsworthy. Occupiers and others may be held liable for alcohol-related injuries as a result of: 1) the physical condition of the premises, 2) the conduct of the entrants, and 3) activities on the premises. In one case, a building company and a municipality were held liable for over $5 million for failing to properly inspect a building and ensuring that the premises were reasonably safe, after a wall collapsed rending the plaintiff a quadriplegic. In another, a municipal conservation authority was held liable when it failed to take reasonable steps to prevent a group of intoxicated revellers from assaulting a fellow camper. In still another case, an Ontario farmer's insurer settled for $700,000 after a drunken fight at a bush party left the plaintiff paralyzed.

Other bases of liability

a) Social host liability: Social host liability is as likely to arise at private parties as it is at weddings, company picnics, or any other social event involving alcohol. Despite its potentially broad application, there appear to be few reported Canadian cases on social host liability. In Baumeister v. Drake, the defendant homeowners were absolved of liability because they had not provided any alcohol to the intoxicated driver who injured the plaintiff. However, the judge applied to the homeowners the same principles of provider liability that govern commercial establishments. Thus, from a liability perspective, responsible serving practices are as important for home hosts and company event organizers as for members of the hospitality industry.

b) Transporting the intoxicated: Those who transport passengers are required to exercise reasonable care to prevent the intoxicated from injuring themselves or others while in the vehicle and, in some cases, after being ejected. Liability is minimized in cases where the intoxicated passenger's conduct could not have been anticipated.

c) Sponsoring potentially dangerous activities: Sponsors of potentially dangerous activities have a duty to ensure that the participants are not intoxicated and do not otherwise pose a foreseeable risk of injury to themselves or others. The obligation to take preventive measures increases with the dangerousness of the activity and the participants' apparent incapacity.

d) Allowing the intoxicated to drive: Provincial highway traffic legislation typically makes the owner of a vehicle liable for third party losses caused by anyone driving the vehicle with the owner's consent. Owners can also be held liable under common law for entrusting their vehicles to a driver whom they know or ought to know is intoxicated. In these circumstances, an owner can be held liable for both third party injuries and the intoxicated driver's own injuries. Although there is no general obligation to prevent an intoxicated person from driving his or her own car, such a duty may be imposed if a special relationship exists between the parties. This duty would probably not apply to a licensed establishment that refused entry to an intoxicated patron who subsequently drove away and caused a crash.

e) Use of excessive force: Reasonable force may be used to subdue and eject a person who physically resists. However, force that is likely to cause serious injury or death cannot be used simply for the purpose of ejecting someone. For example, in Downey v. 502377 Ontario Ltd., the bouncers, managers and the corporation were all held liable for over $2 million for injuries inflicted on a patron by the bouncers.

For more info on alcohol liability, including noted cases, see Alcohol and the Law, November's Hot Issue on APOLNET. For licensee information sheets and other relevant materials, contact the Liquor Licence Board of Ontario, 416-326-0422.

7 Tips to Minimize Alcohol Liability

Alcohol Policy Round Up

"Got any local alcohol policy news you'd like to share? E-mail, fax or mail us the info and we'll get the word out."

Impaired boating in the spotlight

On September 18, a private members' bill extending drivers' licence suspensions under the Highway Traffic Act to those convicted of impaired boating or who refuse to provide a breath sample received second reading at Queen's Park. Sponsored by Conservative backbencher Bill Grimmett (Muskoka-Georgian Bay), Bill 154 has been forwarded to the Standing Committee on Resources Development for further consideration. The bill builds on ballot 96, a private member's resolution introduced by conservative MPP Allan McLean (Simcoe East) calling on the federal government to introduce mandatory boater safety certification for motor boat and personal watercraft owners/operators. The latter passed with all-party support on September 11. Meanwhile, the government is appealing an Ontario court ruling striking down the 90 day administrative driver's licence suspension (ADLS) for suspected drunk drivers. A key plank of the Ontario Road Safety Plan, ADLS continues in force pending the results of the appeal. These and other measures to reduce drinking and driving were the subject of discussion at two recent strategic planning sessions hosted by the Ministry of Transportation's Safety Policy Branch. For details of the anti-drinking and boating initiatives, including transcripts of the House debates, check out Hot Issues on APOLNET. For an update on the status of Bill 154, call Donna Bryce, Clerk of the Standing Committee on Resources Development, 416-325-3525. For more info on their efforts to improve boating safety contact MPPs Allan McLean, 705-326-3246, and Bill Grimmett 705-765-6836. For an update on the ADLS appeal and other anti-drinking and driving initiatives, call Debbie Greco at the Safety Policy Branch, 416-235-4995, or check out the Ministry of Transportation web site at http://www.mto.gov.on.ca.

Alcohol controls under review

According to published reports, the Ministry of Consumer and Commercial Relations (MCCR) appears poised to introduce Sunday alcohol sales at selected beer stores and liquor outlets across the province. This news seems to be encouraging privatization advocates to turn up the heat. On November 26, the Fraser Institute will be sponsoring a forum in Toronto entitled Privatizing Liquor: The Case for the Privatization of Liquor in Ontario. The apparent resurgence of the privatization debate is drawing some concern. On October 9, the Ontario Liquor Board Employees Union (OLBEU) issued a news release alleging that a committee of senior government and LCBO officials has been examining ways to privatize the province's alcohol retail, warehousing and distribution system under the guise of "modernization." Among the options apparently being reviewed by an independent consulting firm: whether to expand the number of outlets in "chronically underserviced" areas; whether to convert current LCBO stores into agency or franchise operations; and whether to outsource/subcontract the warehousing and distribution functions. According to the OLBEU, recommendations for action will be submitted to MCCR and the LCBO Board within the next few months. Meanwhile, new regulations to deal with u-brews and u-ferments that operate as unlicensed storefront manufacturers or ignore restrictions on sales to minors and the intoxicated are set to be introduced shortly after the provincial legislature resumes on November 17, MCCR sources say. For more info call Catherine Finlay, MCCR Policy & Agency Relations, 416-326-8876; John Coones, OLBEU, 905-712-2912; or Ian Campbell, LCBO Policy and Issues Management, 416-864-6820. To attend the Privatization Forum call the Fraser Institute at 416-363-6575 or visit its web site at http://www.fraserinstitute.ca.

Social assistance to exclude "alcoholics"

On September 29 and 30, the Standing Committee on Social Development held public hearings in Toronto on Bill 142, The Social Assistance Reform Act. Sponsored by Community and Social Services Minister Janet Ecker, the bill proposes among other things, to disqualify persons with an alcohol or other drug-related dependency from receiving benefits under the new Ontario Disability Support Program Act and potentially, from receiving basic assistance under the Ontario Works Act. Specifically, the bill excludes those whose impairment is "caused by the presence in the person's body of alcohol, a drug or some other chemically active substance that the person has ingested, unless the alcohol, drug or other substance has been authorized by prescription as provided for in the regulations." Experts such as ARF President, Dr. Perry Kendall and labour lawyer Michael McFadden note that alcohol addiction is recognized by the medical community as a chronic, relapsing clinical disease and by the Ontario Human Rights Commission as "an illness or disease creating physical disability and mental impairment and interfering with physical, psychological and social function" within the meaning of handicap, a prohibited ground for discrimination under the provincial Human Rights Code. In its submission to the Standing Committee on Social Development, the ARF notes that if the bill passes in its present state, people with addictive disorders may be left with no legitimate source of income and at greater risk of homelessness, conflicts with the law and attendant health and social problems—and costs. To make a written submission contact the Clerk of the Standing Committee on Social Development, 416-325-3519. For background info, including a copy of ARF's submission, check out Hot Issues on APOLNET, www.apolnet.org.

News & Views

Upcoming Events

On October 28, the Ontario Injury Prevention Resource Centre will be hosting a one-day meeting in Toronto to discuss the implications of the new mandatory core program guidelines for public health service delivery. For info call Bev Woods, 416-367-3313 ext. 25.

On October 29-November 1, the Northern Ontario Community Partnership will be hosting the 8th annual national conference of the Canadian Association for Suicide Prevention in Thunder Bay. CASP members $260; non-members, $340, students/seniors $120. For phone registration call Ian Cull, Lakehead University, 807-343-8934. For more info check out http://www3.sympatico.ca/masecard/index.html.

The Ontario Public Health Association will be holding its 48th annual conference in Kingston on November 24-26, 1997. Among the many interactive sessions is a panel discussion on November 26, 9 a.m., entitled To Your Health: Ontario's New Low-risk Drinking Guidelines presented by the Addiction Research Foundation and the OPHA Substance Abuse Work Group. For a conference registration package contact Ana Almeida, 416-367-3313 ext. 23 or apn@opha.on.ca. For more info on the new guidelines, including dissemination plans, call Dr. Nevin Coston, 416-595-6929 or visit APOLNET.

Useful Resources

The Alcohol Policy Network and the Injury Prevention Resource Centre are collaborating on an inventory of substance abuse and injury prevention initiatives in public health units across the province. The publication will be distributed to participating organizations in the fall. A more extensive listing of substance abuse policy and prevention initiatives will be posted on the APN web site in late November. For a copy of the.survey form, visit APOLNET or contact Ana Almeida, 416-367-3313 ext. 23. To receive a free copy of the above-noted publication, please call Kathleen Orth, 416-367-3313 ext. 22.

In June 1997, the Society for the Study of Addiction to Alcohol and Other Drugs published a special supplement of Addiction entitled "A Community Prevention Trial to Reduce Alcohol-Involved Trauma" (Vol. 92, Supplement 2) edited by internationally renowned alcohol policy researcher Harold Holder. The 310 page journal describes a 5 year US project to reduce alcohol-involved injuries and deaths in three experimental communities. The project consists of 5 components: community mobilization, responsible beverage service, drinking and driving, underage drinking and alcohol access. To find out more about Addiction or to order this special issue check out the Carfax web site at http://www.carfax.co.uk/add-con.htm.

On February 1, 1997, the new regulatory regime governing broadcast alcohol advertising came into effect. Among the changes announced by the Canadian Radio-Television and Telecommunica-tions Commission (CRTC) was the requirement that the Canadian Association of Broadcasters (CAB), CBC and specialty services submit by November 30th of each year a report on broadcaster initiatives related to alcohol education and responsible use. CAB is urging members to voluntarily run and track: 1) station-driven PSA campaigns which focus on a particular issue or event; 2) community-outreach initiatives featuring partnerships between the local station and local groups, police forces or advertisers; and 3) programming initiatives such as open-line or magazine shows, news special reports or features, and stand alone public affairs programs focusing on alcohol use and abuse. For details on these new requirements visit CAB's web site at http://www.cab-acr.ca. To find out how to get your alcohol-related issues/educational campaigns on the air call Nathalie Samson, 613-233-4035 ext. 329, or your local TV or radio stations.

Please note: Information appearing in this newsletter in no way constitutes an endorsement by OPHA or its members. Printing of submissions is subject to space availability. Future editions of Alcohol Policy Update will be published via fax only. Hard copies may be subject to a fee. To ensure your name remains on our mailing list, please send us an Alcohol Policy Network Member/Supporter Application Form.