All Posts by Dan Coles

Williams v. Richard: Ontario Court of Appeal weighs in on Social Host Liability

In late 2018  the Court of Appeal for Ontario released its reasons for judgment in Williams v. Richard,  the latest in a series of court decisions grappling with the concept of social host liability in Canada. The decision can be read in full hereWilliams was an appeal from a summary judgment motion where the court dismissed the plaintiff’s claim for damages arising from serious personal injuries following a single vehicle incident involving a drunk driver. At issue before both the motion judge and the Court of Appeal was the state of social host liability law in Canada.

As Alcohol & Advocacy has previously reported, the law with respect to social host liability in Canada has been uncertain for some time. In another recent decision out of Ontario,  Wardak v. Froom, the court refused to determine at an early stage that a social host could not or did not owe its guests a duty of care to prevent them from driving drunk.

Williams, if it proceeds to trial, may establish precedent that firmly expands the legal liability of social hosts to include the actions of their intoxicated guests when they get behind the wheel. The facts in Williams are grim, creating a very real risk that bad facts may lead to bad law.

Continue reading

Charter Rights and Vancouver’s BarWatch Program

In the recent British Columbia Supreme Court decision R. v. Roudiani, the accused was charged with aggravated assault arising from an incident near the intersection of Granville and Smithe Streets in Vancouver – the heart of the Granville Entertainment District. Mr. Roudiani was ultimately acquitted and those reasons can be read in full here. Mr. Roudiani was successfully defended by a friend of Alcohol & Advocacy – Mr. Joven Narwal.

Of interest to readers of Alcohol & Advocacy is the unreported decision of Mr. Justice N. Smith on a voir dire relating to the admissibility of BarWatch records at trial. Mr. Roudiani asserted that the use of this information gathered by the police during its investigation was a breach of his Charter right to be free from unreasonable search and seizure.

Continue reading

BC Liquor Law: Serving after hours and drinking on the job

On November 26, 2018 the General Manager of the Liquor and Cannabis Regulation Branch released reasons for the decision in Re Oak & Carriage EH18-041. That decision can be read in full here. The Oak & Carriage is licensed as a liquor primary establishment in Duncan, BC and is operated by a third party.

In Re Oak & Carriage the Branch alleged that the licensee contravened the Liquor Control and Licensing Act by selling liquor outside the hours of service specified on the licence (being after 1:00 am) and failing to ensure that an employee did not consume alcohol while working.

Continue reading

BC Liquor Enforcement: Even police officers can be bad witnesses

When you or your establishment has been served with a Notice of Enforcement Action, it can feel like the full weight of British Columbia’s Liquor Control and Licensing regime, and its endless resources, are bearing down on you. Exacerbating matters, you may learn that police officers will be giving evidence for the prosecution. Despite your convictions, and your firm belief that the contravention alleged by the Branch did not occur, you may be tempted to sign a waiver notice – just to get the unpleasant process behind you. Resist this urge!

As the recent decision of the General Manager of the (then) Liquor Control and Licensing Branch in Re Days Inn, EH18-006 exemplifies, liquor inspectors and police officers do not always make good witnesses. Sometimes their evidence can be inconsistent and incomplete, forcing the Delegate hearing the matter to favour the evidence of the licensee and conclude that the alleged contravention has not been established. The decision in Re Days Inn can be read in full here.

Facts

On December 4, 2017 two on-duty RCMP officers sat in their patrol car near a Licensee Retail Store, the Days Inn (Inn of the West) in Terrace, BC.

“Officer 2” (as he is identified in the Branch’s reasons) observed a male cross the intersection and enter the LRS. Both officers then exited the police vehicle and observed the customer, through the LRS windows, purchase a 15 pack of Wildcat beer.  When the customer exited the store, the police spoke with the customer and observed a high degree of intoxication.The officers concluded that the customer was intoxicated.

“Officer 1” subsequently entered the LRS, spoke with the clerk who sold the customer the beer, and asked that she refund the purchase. The clerk did, and the customer was allowed to continue home on his own accord. The clerk advised police she thought the customer merely had something wrong with his leg, and was not staggering from alcohol consumption.

Officer 2 wrote his report immediately after the incident. Officer 1 did not produce a written report of the incident until the following day. The local liquor inspector learned of the incident from Officer 1 at a hockey game later that same day. The liquor inspector attended the LRS on December 8 (four days after the incident) to speak with the LRS supervisor. On December 11 the liquor inspector, having now received the RCMP reports interviewed the LRS clerk, and issued a contravention notice to the licensee for selling liquor to an intoxicated person.

Analysis

At first blush the facts in Re Days Inn are not particularly remarkable: the LRS employee denied selling alcohol to an intoxicated person, two police officers filed reports saying otherwise. However, upon closer examination, the Branch’s case against the licensee was plagued by the police officer’s poor note taking, contradictory evidence at the hearing, and tainted by the liquor inspector’s request that Officer 1 provide a supplemental report on December 27th.

The evidence of the police was as follows:

  • Officer 1’s report, written the day after the incident, confirms observing a male known to police walking in a “staggering manner”.  His first report also mentioned that the customer was in the presence of his sober brother.
  • Officer 2’s evidence was that the customer was  intoxicated and set out particulars of that intoxication in his report. However his evidence at the hearing was that the customer was alone (and not with his brother).
  • Officer 1, at the request of the liquor inspector, authored a subsequent report on December 27th that included additional observations of the customer’s “physical symptomology” made by him through the LRS’s window while the customer was inside. The subsequent report contained additional information about glossy eyes, slurred speech and odour of liquor. Officer 1 was of the view that the customer was extremely intoxicated.

In dismissing the contravention, the General Manager’s Delegate Nerys Poole set out her concerns with the Branch’s evidence as follows:

  • Officer 1’s first report did not mention any of the constellation of symptoms that Officer 2’s report contained about odour of liquor, heavily slurred speech and glassy eyes. Those details only appeared in Officer 1’s second report made three weeks later, and at the request of the liquor inspector.
  • The Branch led inconsistent evidence about the “normal gait” of the customer. The liquor inspect testified he had known the customer for 18 years and that he always walks with a “shuffle.” The police officers testified to also being familiar with the customer, but that he had a perfectly normal gait when sober. This conflicting evidence from the Branch witnesses left the Delegate with doubt as to how the customer normally walks, and whether or not his gait could be evidence of his intoxication.
  • Other points of conflict in the police officer’s evidence was whether or not the customer was alone, or with his brother, and whether or not he was “extremely intoxicated” or merely intoxicated simpliciter. Officers 1 and 2 gave differing evidence on each point.

While each of inconsistencies outlined above may not individually have been sufficient to undermine the Branch’s case against the LRS, the totality of the contradictions in the Branch’s evidence caused concern for Delegate Poole. When contrasted with the compelling evidence of the LRS store clerk on her training, and established practice of not serving intoxicated individuals, the General Manager’s Delegate had little choice but to dismiss the contravention allegations.

Liquor Control and Licensing Act contraventions related to intoxication turn significantly on the observations made by liquor inspectors, police officers, and sometimes other witnesses. When the reliability of those observations are in doubt, as they were in Re Days Inn, it is difficult for the General Manager’s Delegate to be satisfied that a contravention in fact occurred.

Conclusion

Re Days Inn is an important reminder to licensees to be cautious before signing a waiver notice – resist the urge to “plead guilty” before all the facts are known, and the Branch has made proper and fulsome disclosure of the case against you.

Being served with a Contravention Notice or Notice of Enforcement Action can be intimating especially when the police have been involved. Retaining counsel familiar with British Columbia’s liquor laws and the enforcement process can go a long way to ensuring your business makes an informed decision about signing a waiver notice, or proceeding to a hearing. If you have questions about this process please contact Dan Coles at Owen Bird.

*Alcohol & Advocacy publishes articles for information purposes only. They are not a substitute for legal advice, and persons requiring such advice should consult legal counsel.

Alberta announces changes to “modernize” liquor laws

On October 22, 2018 the Alberta Gaming and Liquor Commission announced that “effective immediately” bars and restaurants are allowed to mix liquor products with ingredients such as spices, herbs and fruits as well as create house-aged liquor products. Additional changes will allow Albertans to take liquor served at a hotel bar to their rooms or other areas within the hotel.

British Columbia’s liquor laws have permitted these practices since January, 2017.

Other key changes include:

  • Ferment-on-Premises: Albertans are able to make their own beer or wine at licensed facilities and then take it home.
  • Seniors lodges: Facility owners and operators can authorize residents to consume their own supply of liquor within other rooms and common areas.
  • Theatregoers: As the final curtain drops, guests and performers can enjoy liquor products past the final curtain within the licensed areas of the venue, should the licensee wish to provide the opportunity.

The complete news release can be read here.

Liquor Control and Licensing Branch clarifies “ID Checking Misconceptions”

In the Spring 2018 edition of Liquor Line, the Liquor Control and Licensing Branch’s biannual newsletter, the LCLB affirmed the basic principle that licensees are responsible for making sure their staff do not provide liquor to minors, but also clarified situations where it is “ok” for staff not to check ID.

The Branch clarified that staff members observed not asking a youthful looking person for ID is not itself a contravention of the Liquor Control and Licensing Act, or the terms and conditions of a licence – it is the act of selling or serving liquor to a minor that is a contravention. The Branch provided the following examples to clarify the point:

  • If your staff member happens to know that a youthful looking person is 19 years of age or older, and a liquor inspector observes them not asking that person for ID, that is not a contravention provided that the patron can satisfying the inspector they are 19 or older;
  • Staff are permitted to refuse service when they believe an individual is a minor, even if they don’t ask that person for ID.

The Branch stressed that where there is any doubt, requesting two pieces of ID remains the best practice.

As Alcohol & Advocacy has previously discussed, staff are also entitled to refuse service when they believe an individual is intoxicated, or has been previously asked to leave.

For licensees, providing ongoing training for staff on the basics of asking for and inspecting identification is of paramount importance. Not only is it the responsible thing to do, but a meaningful and thorough staff training regimen with ongoing reinforcement of the Serving It Right curriculum goes a long way towards mounting a successful defence of contravention enforcement action.

Despite the LCLB’s ongoing efforts to educate licencees on the importance of preventing the sale and service of alcohol to minors, contraventions for the same remain the leading cause of enforcement action against licensees. The penalty for a first contravention of serving a minor is a 10 day licence suspension or a $7,500 fine.

If your establishment has been served with a contravention notice, or is facing enforcement action, contact Dan Coles at Owen Bird for assistance.

*Alcohol & Advocacy publishes articles for information purposes only. They are not a substitute for legal advice, and persons requiring such advice should consult legal counsel.

Hughes v. Liquor Control Board of Ontario: 2000 Beer Framework Agreement

The trend of Canadian consumers and licensees challenging how provincial governments regulate, tax, and sell alcohol is alive and well in 2018. The anticipation in advance of the Supreme Court of Canada’s decision in R. v. Comeau, and the widespread media attention following its release, speaks for itself. From coast-to-coast Canadians are dissatisfied with the regimes in place in their respective provinces that tax and restrict the sale of alcohol. The ink spilled over Comeau tells us something else too: very few Canadians actually understand how the liquor licensing and retail regimes in their respective provinces operate.

Continue reading

Brew Street Craft and Kitchen: Permitting an intoxicated person to remain

St. Patrick’s Day is a big source of business for the liquor industry. While all owners and managers hope that the day will run smoothly, and profitably, the failure by staff to comply with the terms of the Liquor Control and Licensing Act, namely by over-service, can put a damper on the festivities. Regrettably, the Brew Street Craft and Kitchen learned this the hard way last year.

Continue reading

1 2 3 9