Chapter 7 The Restaurant Sector: Alcohol

Copyright © 2007 by Nelson, a division of Thomson Canada Limited 2 Summary of Objectives  To identify types of liability associated with the sale and service of alcohol, including tort liability, regulatory liability, criminal liability and common law liability  To examine strategies for the safe management of disruptive behaviour by guests

Copyright © 2007 by Nelson, a division of Thomson Canada Limited 3 Alcohol Sector  As with the food sector, operators who serve alcohol owe a duty to both the public and to their employees.  The sale of alcohol requires a government licence, a breach of which results in criminal and civil liability.

Copyright © 2007 by Nelson, a division of Thomson Canada Limited 4 Alcohol Sector 2  Examples of government and non- profit programs related to alcohol consumption are R.I.D.E.R.I.D.E. Last DrinkLast Drink M.A.D.D.M.A.D.D.

Copyright © 2007 by Nelson, a division of Thomson Canada Limited 5 Alcohol Sector 3  The duty of care owed has been broadened A duty of care is owed by consumers of alcohol.A duty of care is owed by consumers of alcohol. A duty is owed by those who benefit from its provision to take positive steps to guard against potential harm.A duty is owed by those who benefit from its provision to take positive steps to guard against potential harm. oAn exception to those providers who owe this duty: provincially or territorially owned liquor outlets

Copyright © 2007 by Nelson, a division of Thomson Canada Limited 6 Liability for Alcohol Misuse  Criminal Code – consumers must not drink and drive  Liquor Licence Act – bar operators must not serve a consumer who: appears to be under age, orappears to be under age, or appears to be intoxicatedappears to be intoxicated  The injured person or the estate of a deceased person can sue the alcohol provider

Copyright © 2007 by Nelson, a division of Thomson Canada Limited 7 Liability for Alcohol Misuse 2  At common law, a plaintiff can sue for breach of contractbreach of contract breach of duty of care in negligencebreach of duty of care in negligence breach of occupier’s duty of carebreach of occupier’s duty of care

Copyright © 2007 by Nelson, a division of Thomson Canada Limited 8 Liability for Alcohol Misuse 3  Generally, the bar, lounge or restaurant operator is vicariously liable for the actions of employees with respect to service of alcohol  But the employer may avoid liability if the employee was clearly instructed not to serve a patronthe employee was clearly instructed not to serve a patron the server ignored the instructions out of friendship or infatuationthe server ignored the instructions out of friendship or infatuation the server did not charge the patron for the drinksthe server did not charge the patron for the drinks

Copyright © 2007 by Nelson, a division of Thomson Canada Limited 9 Criminal Liability  Criminal liability applies to drivers of motor vehicles and boats.  A driver’s blood alcohol content must not exceed.08 percent.

Copyright © 2007 by Nelson, a division of Thomson Canada Limited 10 Regulatory Liability  Operators must not serve patrons who appear to be intoxicated.  Those who are intoxicated should not be permitted to remain on the premises.

Copyright © 2007 by Nelson, a division of Thomson Canada Limited 11 Respondeat Superior  Vendors and servers must be trained to recognize subtle signs of intoxication: Behavioural changesBehavioural changes Changes in speechChanges in speech Loss of co-ordinationLoss of co-ordination

Copyright © 2007 by Nelson, a division of Thomson Canada Limited 12 Respondeat Superior 2  Although a duty of positive action to try to prevent an intoxicated person from driving arises if the patron is alone, a licensee is entitled to assume that a patron in the company of persons drinking no alcohol will be safely taken home by those companions.

Copyright © 2007 by Nelson, a division of Thomson Canada Limited 13 Underage Persons  The Liquor Licence Act specifies that it is an offence to sell alcohol to anyone who is underage.it is an offence to sell alcohol to anyone who is underage. the server must ask for identificationthe server must ask for identification if an adult appears to be purchasing for a minor, the vendor has a duty to refuse to sell to the adultif an adult appears to be purchasing for a minor, the vendor has a duty to refuse to sell to the adult

Copyright © 2007 by Nelson, a division of Thomson Canada Limited 14 Common Law Liability  Legislation and the tort law bypass have circumvented the privity of contract problem for injured third parties.

Copyright © 2007 by Nelson, a division of Thomson Canada Limited 15 Common Law Liability 2  Damages for negligence include special damagesspecial damages general damages for pain and sufferinggeneral damages for pain and suffering punitive damages (sometimes)punitive damages (sometimes)

Copyright © 2007 by Nelson, a division of Thomson Canada Limited 16 Common Law Liability 3  Depending on the size and layout of a bar and the common practice of people buying rounds of drinks for others, a licensee’s duty of care may not be met if staff consists of a single bartender and no servers to assist the bartender in observing patrons.

Copyright © 2007 by Nelson, a division of Thomson Canada Limited 17 Occupiers Liability  Legislation provides that occupiers have a duty to protect the person and property of guests entering their premises.  The duty includes the care of the premises themselves as well as the activities conducted on them.

Copyright © 2007 by Nelson, a division of Thomson Canada Limited 18 Occupiers Liability 2  The conduct of a patron on the premises of the licensee may result in a complete or partial loss of any award of damages.

Copyright © 2007 by Nelson, a division of Thomson Canada Limited 19 Belligerent Customers  The licensee owes customers a duty to protect them from foreseeable risks, in light of all applicable circumstances.  Establishments employing bouncers require more liability insurance than facilities without bouncers.

Copyright © 2007 by Nelson, a division of Thomson Canada Limited 20 Permitted Activities  Liability can arise from permitting an activity to continue after staff became aware of it.

Copyright © 2007 by Nelson, a division of Thomson Canada Limited 21 Duty Owed to Employees  If company parties involve the service of alcohol, the employer should provide overnight accommodationprovide overnight accommodation provide transportation to the residence of the employeesprovide transportation to the residence of the employees design and institute a designated driver policydesign and institute a designated driver policy