Serving It RightServing It Right

BC’s Responsible Beverage Service Program

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Alcohol and the Law

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Duty of Care

Apart from the statutory obligations and penalties discussed above, a licensee and its management and staff owe a “duty of care” to both patrons and innocent third parties.

In the context of alcohol sales and service, this means that both the licensee and servers have a legal obligation to protect patrons and others from harm that can result from the activity of drinking, whether that harm occurs on or off the premises.

This duty of care is imposed by the “law of negligence” and the British Columbia Occupiers Liability Act.

Lack of knowledge of a patron's level of intoxication is not a defense. A licensee must conduct its business in a way that allows it to monitor its patrons' consumption and behaviour so that the licensee knows when to suspend service and/or make arrangements to get an at-risk patron home safely. Given this, licensees need to be aware of the effect of cannabis use and watch for patrons arriving at bars and restaurants already intoxicated by drugs like cannabis. To meet their duty of care, licensees must monitor not only alcohol consumption, but consumption of other intoxicants as well.

Generally speaking, the duty of care (responsibility and legal liability) ends only when the patron is put into the care of a sober and responsible person or arrives at their own home where they are able to sober up. When the duty is not met, an injured party may take legal action against the licensee, manager or server.

If an intoxicated patron drives away from the premises, the duty may continue until that patron reaches his or her own home. However, one recent court decision has suggested that, in certain cases, the duty can continue even after the guest arrives at home. In that case, the guest drove home and stayed there for "a few minutes" before getting back into his vehicle and causing a road accident. The court said that, the circumstances of the case, the guest's arrival at home did not extinguish the establishment's liability. This case reinforces the importance of a server's duty to take steps to see that an intoxicated patron does not leave the premises without a safe way home.

This issue most often arises when a patron who over-consumes alcohol at a licensed establishment is subsequently involved in a motor-vehicle accident. There have been many legal judgments that illustrate the wide-ranging duty of care that licensees are subject to.

Whether or not a licensee has lived up to this duty always depends on the particular facts of the situation.

At least one case in Ontario already suggests that commercial establishments should be watching their patrons for consumption of other potential intoxicants such as cannabis, inside and outside their premises.

Establishments must therefore be more vigilant in taking into account whether or not a patron has consumed cannabis and if so, whether they should be served or continue to be served. Establishments must watch for patrons who are not using alcohol, but appear to be intoxicated from cannabis, and take reasonable steps to ensure they do not leave the premises and operate a motor vehicle.