Liability, Prosecution and Risk Minimization

INTRODUCTION

ARF'S* COMMITMENT TO REDUCING ALCOHOL-RELATED HARM IN ONTARIO COMMUNITIES

The Addiction Research Foundation* is an agency of the Province of Ontario committed to creating and applying research-based knowledge to reduce the harm caused by the abuse of alcohol and other drugs. To meet this goal, we work with others who share our vision of an Ontario free from the suffering caused by alcohol and other drug use.

The information in this booklet is provided to help municipal leaders understand alcohol-related risks and develop a policy strategy to reduce them. Other community stakeholders should also find this information helpful in creating healthier and safer communities.

Municipalities with policies governing the use of alcohol in their recreation facilities are reporting reductions in alcohol-related problems and little, if any, decrease in facility rentals. Those municipal officials who would like to benefit from the development of a Municipal Alcohol Policy (MAP) should contact our Community Programs Staff for assistance and information.

P.R.W. Kendall, MBBS, Msc., FRCPC
President and CEO
Addiction Research Foundation*

ACKNOWLEDGEMENTS

The Addiction Research Foundation* extends its appreciation to the Drinking/Driving Countermeasures Office, Ontario Ministry of the Attorney General for assistance in developing and producing this community resource.

This pamphlet was written by:

R. M. Solomon, Professor, Faculty of Law, University of Western Ontario
S. J. Usprich, Professor, Faculty of Law, University of Western Ontario
R. R. Douglas, Community Programs, Addiction Research Foundation
L. Kiss, LLB, Student at Law
L. Prout, LLB, Student at Law

THE GROWING RISKS

In 1989, the Metropolitan Toronto Conservation Authority was held liable for over $215,000 when several intoxicated campers attacked the McGinty family. Although the campground was advertised as a quiet family place, staff largely ignored the McGintys' complaints about the assailants' noisy party. Later that evening, Mr. McGinty was badly beaten when he rushed over to the party in response to cries for help. The court held the Conservation Authority liable for failing to take reasonable steps to control the assailants' conduct. Despite previous incidents with the assailants that summer and a violent confrontation earlier that evening, staff did not eject them or try to prevent further problems.

This case shows the expanding liability for all alcohol-related injuries. The numbers and types of these civil suits have increased dramatically across Canada, particularly in Ontario. Contrary to popular belief, it is not only taverns and businesses that are being sued. Claims have also been brought against municipalities, universities, service clubs, government alcohol outlets, private social hosts, common carriers, police, and sponsors of alcohol-related events.

This booklet is designed to help municipal officials, politicians and volunteers understand their potentail liability and the need for municipal alcohol policies- particularly for municipally-owned recreation facilities. First, we outline cases in which a municipality may be held liable. Then we briefly explain the main rights and obligations of municipalities. Finally, to help municipalities in designing their own risk minimization program, we outline a process for developing a Municipal Alcohol Policy (MAP) and suggest some measures to introduce safer practices.

WHEN CAN MUNICIPALITIES BE SUED?

LIABILITY FOR PROVIDING ALCOHOL

In the landmark case of Jordan House Ltd. v. Menow, the Supreme Court of Canada imposed a duty on alcohol providers to protect their intoxicated patrons. In this case, Hotel staff had ejected Menow, a regular patron, after he had become intoxicated and annoyed other customers. While staggering along the highway, Menow was hit by a negligent driver. Menow sued both the driver and the Hotel. The Supreme Court of Canada unanimously upheld both claims although two views emerged concerning the Hotel's liability.

One judge emphasized that the staff knew that Menow was irresponsible when intoxicated, violated provincial law in serving him when he was intoxicated, and ejected him even though they knew he had no safe way to get home. According to this judge, the staff should have tried to protect Menow by allowing him to spend the night in one of the Hotel's rooms, by calling the police or by arranging safe transportation home. Another judge defined an alcohol provider's liability more broadly. He believed that the staff neglected their common-law duty by serving Menow past the point of intoxication. Their obligation was to prevent intoxication and not just to protect patrons after they became intoxicated.

This broader definition of a provider's duty has largely prevailed. In later cases, providers have been held liable even though they did not know about the person's susceptibility to alcohol, did not know about the person's intoxication, and had not ejected the person. Providers may also be liable even though they did not provide all or even most of the alcohol that causes a customer to become intoxicated. Instead, providers must not serve alcohol to anyone past the point of intoxication or to someone who is already intoxicated. Providers who neglect this duty may be liable for any injuries that customers cause or suffer, either on or off the premises.

While there is a clear trend towards expanding liability, the exact bounds of a provider's liability are still evolving. For example, an Ontario court recently held that a tavern was not liable for serving one beer to an intoxicated patron, because the staff had not had a sufficient chance to assess his intoxication. Nevertheless, the court stated that once the staff realized that the patron was intoxicated, they had a duty to prevent him from driving even if they had to call the police.

LIABILITY AS AN OCCUPIER

A municipality can also be held liable as an "occupier" for any alcohol-related injuries that occur on its property. The Ontario Occupiers' Liability Act defines an occupier as anyone who controls the premises and has the power to admit or exclude entrants. The Act requires occupiers to take "reasonable steps" to ensure that all entrants are "reasonably safe while on the premises." Depending on the facts, several parties may be considered to be co-occupiers of a place. For example, if a dance is held at a municipal hall, the occupiers could include the club that is renting the hall, the caterer who is managing the event, and the municipality that is providing security and janitorial staff. Although it is not widely known, occupiers' liability has accounted for more alcohol-related suits than providers' liability. The following section discusses some types of situations in which occupiers may be held liable.

Physical Condition of the Premises:

Like other occupiers, licensees must ensure that their premises are reasonably safe for their patrons. In Niblock v. Pacific National Exhibition, an extremely intoxicated man was seriously hurt when he fell over a low railing on a steep staircase. The railing was several inches lower than the building code required. The injured man sued Pacific National Exhibition and the City of Vancouver, which both attributed the accident solely to the man's intoxication. In rejecting this argument, the court emphasized that the British Columbia Occupiers' Liability Act (like its Ontario counterpart) requires that occupiers ensure that their premises are reasonably safe for anyone who may foreseeably enter. Since there were three licensed premises on the grounds, some patrons could be expected to become intoxicated. In holding the Exhibition liable, the court ruled that the premises had to be reasonably safe not only for sober patrons, but also for intoxicated customers if their presence was foreseeable.

A municipality can also be held liable as a landlord under the Ontario Occupiers' Liability Act for injuries that are caused by the physical condition of its facilities. Consequently, a municipality that rents its community hall for a wedding may be held liable if an intoxicated guest falls down a poorly lit staircase, slips on a loose carpet or walks into a glass patio door.

Conduct of the Entrants:

As the McGinty case shows, occupiers may be held accountable for the conduct of people whom they have allowed to enter or to remain on their premises. Before the Occupiers' Liability Act was introduced in 1980, the courts focused on the foreseeability of the incident that is, they considered whether the assailant was known to be violent or showed signs of becoming violent. Now, however, occupiers may be held liable for simply tolerating a situation in which violent or careless behaviour is foreseeable, even if the specific incident is not.

This reasoning may have prompted the $700,000 settlement in the Munier case. In this case, an intoxicated young man became a quadriplegic after he started a fight at a large "bush party" hosted by a farmer's son. None of the 300 youths who attended the party was formally invited; nor did the farmer or his son supply them with alcohol. The farmer was sued as an occupier simply for allowing an event on his property that he knew or ought to have known posed foreseeable risks of injury. Previous bush parties had also resulted in problems. Municipalities cannot afford to ignore patrons or guests who are becoming hostile or to continue to hold events on their property that have posed problems in the past.

Activities on the Premises:

In Jacobson v. Kinsmen Club of Nanaimo, the Club sponsored a "Bavarian beer garden" in a large curling arena. During the festivities, patrons entertained the crowd twice by climbing a support beam and "mooning" those below. Later, when a patron known only as "Sunshine" tried to mimic these actions, he lost his grip and fell 30 feet onto Jacobson, knocking him unconscious. Sunshine was unharmed in the incident and left shortly afterwards. Jacobson sued the Club for allowing this unsafe activity on its premises. The court stated that the Club would not have been held liable if the injury had occurred during one of the first two climbs. However, by the time Sunshine climbed the beam, staff should have recognized the possible danger to the patrons. The court concluded that by not stopping Sunshine, the Club failed its duty as an occupier and was liable. City staff, volunteers and security must step in before foreseeably dangerous activities cause injuries and potential law suits.

ADDITIONAL BASES OF LIABILITY

Sponsoring Activities:

In 1988, the Supreme Court of Canada held a resort liable for injuries that Crocker, an intoxicated guest, suffered while participating in the resort's tube-racing contest. Although staff had tried twice to discourage Crocker from racing, the court viewed their efforts to be insufficient. The court found that sponsors of potentially dangerous events have a duty to prevent intoxicated persons from participating, even if the sponsor did not contribute to the person's intoxication. As the sponsor, the resort should have prevented Crocker from competing by disqualifying him, postponing the event or calling the police. The sponsor's obligation to take preventive actions increases with the dangerousness of the event and the participant's apparent intoxication.

Transporting the Intoxicated:

By providing transportation to the intoxicated, municipalities and those who rent their facilities have legal obligations in their role as "common carriers." First, common carriers may be held liable for ejecting an intoxicated passenger who is in a helpless condition. For example, in Dunn v. Dominion Atlantic Railway Co., the Supreme Court of Canada held the Railway liable for the death of an intoxicated passenger, who was hit by a train after he had been ejected at a closed, unlit station late at night. Second, common carriers must take reasonable care to prevent intoxicated passengers from injuring others. However, carriers will not be held accountable for every injury an intoxicated passenger causes only for those that are reasonably foreseeable and preventable.

Use of Excessive Force:

Using unnecessary or excessive force to manage intoxicated persons seems to have produced more civil suits than either providers' or occupiers' liability. In Ekblad v. Commonwealth Holiday Inns of Canada, a customer argued persistently with the doorman over whether he could have a candle on his table. When the patron followed the doorman to repeat his request, the doorman punched him in the face, knocking him unconscious. The judge said that even if the doorman was justified in using force to resolve this verbal dispute, striking the patron in the head was unreasonable in these circumstances. Consequently, both the doorman and the Inn were held liable to the patron for over $250,000. The case shows that force cannot be used to teach a patron a lesson, to settle a verbal dispute or to enforce house rules. Nor can force be used once the person has been subdued or ejected. What constitutes unnecessary force or excessive force will depend on the specific facts of the case.

Liability of Police:

Police can be sued for failing to protect and control the intoxicated in a growing number of situations. This trend is important to municipalities, which are ultimately liable for police activities. First, police may be held responsible for using unnecessary or excessive force in managing intoxicated persons. Second, they may be liable for negligently supervising intoxicated prisoners who, for example, set fires in their cells or commit suicide while in custody. Third, police have been sued for negligently enforcing laws concerning drinking and driving. For example, an officer who does not arrest an obviously intoxicated driver may be held liable if that driver later causes an accident. Finally, police may be held responsible for negligently failing to get medical help for an intoxicated suspect who they know or ought to know needs medical help.

Similar liability principles would apply to "off-duty" police officers who were hired to provide security at a municipal or private event. Thus, an officer could be held liable for not trying to stop a fight or for allowing intoxicated patrons to drive away from the event.

Liability of Volunteers, Sponsoring Clubs and Facility Renters:

The fact that municipalities' potential liability has expanded dramatically in recent years does not limit the liability of those who run, sponsor or host the event. These individuals, groups and organizations can and will be sued for alcohol-related injuries that their events cause. They will be named as defendants and can be held liable as well as the municipality. In fact, a municipality may try to reduce its own losses by naming the sponsor or organizer as co-defendants.

MUNICIPALITIES' LEGAL RIGHTS AND OBLIGATIONS

Those responsible for managing municipal facilities where alcohol may be served should understand their rights and obligations under provincial alcohol laws. First, the scope of liability is broad. Anyone who knowingly helps in an offence or directs someone to commit an offence may be found guilty along with the main offender. Also, any director or officer of a corporation who allows an offence to occur may be personally prosecuted. Thus, a server, manager, municipal officer and the municipality may all be found guilty of a single offence. Second, violations of the law may result in severe penalties and licensing consequences, including a municipality's liquor licence being suspended or revoked. Third, even if no party is prosecuted, any violation of the provincial alcohol law may undermine a municipality's legal position in a later civil suit. Finally, the legislation gives providers broad powers that can be used to eliminate many of the situations that lead to legal difficulties. Here are some of the key sections:

GENERAL PROVISIONS

REGULATORY PROVISIONS

RELATED POWERS

DEVELOPING A MUNICIPAL ALCOHOL POLICY

Municipalities traditionally have developed policies in response to problems as they arise. However, adopting isolated initiatives such as designated driver programs and waivers of liability, may do more harm than good if they provide individuals with a false sense of security. Given their broad exposure to liability and prosecution, municipalities need an effective planning process to develop a comprehensive policy. We recommend the following process for developing a MAP and also provide suggestions for implementing the policy and attaining community compliance.

BETTER POLICY FORMULATION

Involving the community in developing the policy will encourage facility users to comply with the policy. Listed below are some guidelines for developing an alcohol management policy. The process involved in developing the policy will allow the municipality to retain corporate leadership, involve community facility users, include existing good practices, and retain expert advice.

EFFECTIVE POLICY IMPLEMENTATION

Developing a MAP actually starts the implementation process since involving users in creating policy introduces them to the new regulations. Public participation should also increase the number of community members who willingly comply with the policy. Although some enforcement will be needed, the goal of implementing a policy is to gain voluntary community compliance by promoting the benefits of the policy to users. Therefore, we provide the following suggestions:

POLICY IMPACT ON FACILITY USE AND PROBLEM REDUCTION

A MAP should be sufficiently detailed to cover all facilities and programs in which a municipality allows alcohol to be served by its staff, volunteers, user/rental groups, and caterers. The policy should focus on setting effective management practices to reduce accidental deaths, injuries, liquor-licence violations, and criminal prosecution. The policy should reinforce serving alcohol responsibly to prevent intoxication and supervising the intoxicated if someone becomes intoxicated. If your municipality wishes to review a policy, samples are available from the Addiction Research Foundation's Community Programs Offices.

An ARF* survey [2] of Ontario municipalities estimated that approximately one-third of cities, towns, townships and villages with facilities that can host alcohol events had developed or were developing a formal written policy. Of those with completed policies, nearly 50 per cent reported that facility rentals have remained the same or increased since adopting an alcohol management policy. Of the remaining municipalities with policies, seven per cent indicated that they were uncertain and 23 per cent believed that it was too soon to assess the effects. Only 22 per cent experienced some rental loss.

Approximately 41 per cent of the municipalities with policies reported reductions in one or more of the following problems: under-age drinking, fights, vandalism, police interventions, public complaints, injuries, legal actions, unlicensed drinking, intoxication, LLBO penalties, and drinking and driving. The other municipalities were uncertain or indicated that their policies had not been in effect long enough to have an impact.

Generally, municipalities reported a decline in problems six months after adopting their MAPs with minimal, if any, reductions in rentals.

LIP SERVICE WON'T DO

Given the current laws, it is not enough simply to talk about "responsible serving practice" and "moderate consumption." Nor will drafting new policies have much effect by itself. Progress will not occur until the practices of staff, volunteers and groups renting municipal facilities change. To achieve this change, municipalities must take effective action to publicize, implement and enforce their policies. Unfortunately, failure to do so will be measured in alcohol-related deaths, injuries, civil suits and prosecutions.

ENDNOTES

* Now the Centre for Addiction and Mental Health

[This is an excerpt from the CAMH publication entitled "MUNICIPAL ALCOHOL POLICY: LIABILITY, PROSECUTION AND RISK MINIMIZATION, INFORMATION FOR ONTARIO COMMUNITIES", January, 1996.]