Commercial Host Liability in British Columbia
On March 8, 2017 Mr. Justice Kent of the Supreme Court of British Columbia released his reasons in Widdowson v. The Cambie Malone’s Corporation – British Columbia’s most recent decision on commercial host liability. The court found the Cambie Malone’s liable for over-serving a patron who later struck Mr. Widdowson with his truck, causing him severe injuries, including brain damage.
The court found the Cambie Malone’s 25% at fault for Mr. Widdowson’s injuries.
The Facts
In the afternoon of February 17, 2012 Bradley Rockwell, a sheet metal worker working on a project in downtown Vancouver, met three co-workers for drinks at the Cambie Bar & Grill. They were having “good bye” drinks for Mr. Sahanovitch who was leaving the construction company the following week to go to “sheet metal school”.
Although the evidence on exactly when the men arrived at the bar, how long they stayed, and how many drinks they consumed was not consistent between the witnesses who gave evidence at trial, the court found as a fact that:
- Rockwell and his co-workers spent about two hours at the bar between 12:30 and 2:30 pm;
- Rockwell consumed 5-6 drinks at the bar, comprised of a combination of beer and liquor; and
- Rockwell was “significantly intoxicated by alcohol” by the time he left the establishment and his ability to drive safely was significantly impaired.
After leaving the Cambie Malone’s Mr. Rockwell got into his truck, along with the highly intoxicated Mr. Sahanovitch in the passenger seat, and drove down Hastings Street towards Mr. Rockwell’s home in Port Moody. They stopped at one point so that Mr. Sahanovitch could purchase a six-pack of beer and a “mickey of whiskey” which he drank along the way.
Upon arrival at Mr. Rockwell’s home the two men proceeded to drink some flavoured vodka that Mr. Rockwell had on hand. They left Mr. Rockwell’s home after a span of about 15 to 20 minutes so that Mr. Rockwell could drive Mr. Sahanovitch to the Coquitlam Centre Mall where his mother would meet him and take him home.
At approximately 5:00 pm (2.5 hours after leaving the Cambie Bar & Grill) at a blind turn on Guildford Way, Mr. Rockwell “gunned” his truck to get ahead of an approaching vehicle, causing his truck to fishtail in the then pouring rain. Mr. Rockwell lost control of the vehicle, mounted the sidewalk, and struck Mr. Widdowson.
The RCMP arrested Mr. Rockwell at the scene. The arresting officer described Mr. Rockwell as rambling and profane with slurred speech; he was literally falling down drunk. Although Mr. Rockwell’s blood alcohol content (BAC) was not tested at the roadside, the court accepted as a fact based on later bloodwork that at the time of the accident Mr. Rockwell’s BAC was .334, more than four times the legal limit.
Mr. Rockwell has no memory of the accident.
Inadequate Evidence by Bar Staff
In commercial host liability cases the pertinent questions are:
- Where did the intoxicated individual consume alcohol?
- How much alcohol did he or she consume; and when?
Unfortunately for the Cambie Malone’s the evidence of their manager, bartenders and waitresses was given little weight by the court. In short, their recollection of the Rockwell party was extremely limited. Moreover, when the barstaff were cross-examined on their earlier sworn statements about their “usual practices” when it came to dealing with and identifying intoxicated patrons, their evidence was inconsistent and contradictory.
Exacerbating matters for the Cambie Malone’s was that when the police attended the establishment following the accident to secure a copy of the security camera footage from earlier that day, no one on staff (including a manager) knew how to download the video without corrupting it in the process.
Collectively these are considerable shortcomings by the staff and management of the bar. With no evidence to rebut the allegations that Rockwell and his co-workers drank heavily at the bar, the court had little difficulty drawing the inference that Rockwell consumed the alcohol necessary to achieve his high level of intoxication at the Cambie Malone’s.
Commercial Host Liability
Neither British Columbia’s current Liquor Control and Licensing Act, or the version of the Act then in force in 2012, impose civil liability on commercial hosts who serve intoxicated patrons that later get behind the wheel and cause injury to people or property. Accordingly, in British Columbia commercial host liability is determined by principles of common law and the tort of negligence.
Though the Liquor Control and Licensing Act does not expressly impose civil liability on commercial hosts, it does prohibit serving intoxicated patrons, or serving patrons to the point of intoxication.
The seminal case on commercial host liability in Canada is Jordon House Ltd. v. Menow, a 1974 decision of the Supreme Court of Canada. In that case the court confirmed that the hotel where Mr. Menow was drinking was under a duty to see that he got home safely. This duty could be met by putting the patron under the charge of a responsible person.
Later in the 1995 Supreme Court of Canada decision Stewart v. Pettie the court addressed the liability of a commercial host to third persons (people other than the intoxicated patron himself). There the court held that commercial vendors of alcohol did owe a duty of care to third parties who might reasonably come into contact with the intoxicated patron. In Stewart the court confirmed:
- A licensed establishment can not escape liability simply because the patron did not “appear” drunk; and
- Licensed establishments have a duty to “intervene” in appropriate circumstances or risk liability.
In later decisions the duty to intervene in British Columbia has meant that bars and restaurants must have protocols in place to ensure that individuals who have been served alcohol to the point of intoxication are prevented from driving.
Is Arrival at Home a complete defence?
Citing Jordon House, and other more recent BC and Ontario decisions, the Cambie Malone’s argued that a commercial host’s duty of care ends when the intoxicated patron arrives at his own home safely.
The court rejected the submission, and the supporting line of authorities, that once an intoxicated patron arrives home the “chain of causation” is broken, and the pub has discharged its duty of care owed to the patron regardless of what adverse event happens next.
The trial judge put it this way: “ought it really matter whether the pub-induced intoxication triggers a fall while walking home as opposed to a fall once the drunken patron has successfully crossed the threshold into his house?”
On the facts in Widdowson the court found that it would be artificial to say that Rockwell’s intoxication, which was caused at least in part by excessive consumption at the bar, was not a cause to the subsequent accident simply because he spent a few minutes at home before venturing out on the road again.
The court, in passing, acknowledged that that delivery of the intoxicated patron into the hands of a sober and responsible person might permit the elimination of otherwise indeterminable liability, but as that did not happen in this instance, the court did not rule on the issue.
Conclusion
The Widdowson decision represents a significant departure from earlier cases that suggested ensuring an intoxicated patron gets home safely was sufficient for a bar to satisfy its duty of care.
Though each case is decided on its facts, Widdowson represents a shift in judicial thought on commercial host liability in British Columbia that bar owners must take seriously. In light of Widdowson it is now considerably less clear when a licensed establishment has met its duty of care to an intoxicated patron, and what event or events must take place to sever a commercial host’s liability for the actions of an intoxicated driver.
For licensees the focus post-Widdowson must remain on training and supervision of staff. Had the Cambie Malone’s been in a position to lead evidence that Mr. Rockwell consumed fewer than 5-6 drinks while in the establishment, or that staff took measures to ensure he was not driving, the bar’s liability and Mr. Widdowson’s injuries may have been avoided.
If you or your establishment requires assistance understanding or applying the Widdowson decision, or have related questions about liquor law in British Columbia 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.
