Eastwood v. Walton: Liquor Law and the Importance of Preserving Evidence
On November 24, 2012 Desjardins held a Christmas party at the Versailles Convention Centre in Mississauga, Ontario.
Constance Walton, a longtime employee of the credit union, consumed enough alcohol at the party to put her two-to-three times over the legal limit (although she could not recall exactly how many drinks she had that evening). Ms. Walton decided to drive home and became involved in an accident with the plaintiff Whitney Eastwood who suffered a traumatic brain injury.
Ms. Eastwood alleges that Versailles, the commercial host on the evening in question, was responsible for the sale, service and monitoring of alcohol consumption by guests and was negligent in the performance of that duty.
Versailles, in a summary judgment motion heard June 25, 2019, sought to have Ms. Eastwood’s claim against it dismissed in advance of trial on the basis that it could not be held liable as a commercial host for Ms. Eastwood’s injuries.
Mr. Justice Sloan declined to decide the issue on a summary basis and the motion was dismissed. The reasons can be read in full here.
Alcohol & Advocacy has explained the basic principles behind commercial host liability here.
Polices and Procedures are Important
In the liquor industry we often talk about policies, best practices, and procedures – all shorthand for having systems in place to prevent contraventions of the Liquor Control and Licensing Act, terms of licence, or potentially tortious conduct. Indeed, there is a whole industry of consultants who market these products.
Having proper policies in place also serves another valid purpose in the administrative law context: they facilitate a “due diligence” defence. In British Columbia a licensee facing enforcement action is able to avoid being penalized for a contraction of the Act if it can demonstrate that it:
- exercised all reasonable care by establishing a proper system to prevent the contravention at issue from occurring; and
- it took all reasonable steps to ensure the effective operation of the system.
Actual Evidence is Better
All too often licensees appear before courts or tribunals without actual evidence of what occurred on the night in question. Judges like evidence. They like to hear from witnesses, review photos, videos, contemporaneous notes, and other reliable sources of information about what actually happened, as opposed to policy documents that merely explain what was supposed to have happened.
In Eastwood v. Walton the licensee gave the following evidence, based largely on information and belief:
- All staff members who were serving alcohol had taken the mandatory Smart Serve course in addition to in-house training by managers on alcohol service;
- No staff member would serve alcohol to someone they observed to be intoxicated;
- The staff would notify the organizer of the event if a visibly intoxicated person had been observed;
- Taxi stickers were placed on the entrance and exit doors, advertising the phone number of a local taxi service, to encourage guests to use public transportation options;
- The manager and his partner were monitoring guests at the exit doors and were advising guests of the taxi services which were available; and
- Versailles has no record of over serving a patron, a patron being intoxicated or any disruptive behaviour on November 24, 2012.
In Versailles’s submission its duty of care as a commercial host was limited to stepping in only if a patron appeared intoxicated. There is no evidence Ms. Walton appeared outwardly intoxicated. Moreover, Versailles says its Smart Serve trained staff, and its signage promoting local taxi services, met any ancillary duties of care it may have had.
Versailles’s conference centre staff were casual employees. It was unable to contact and obtain evidence in support of its motion from any of the almost 30 staff who were working that evening. So although there was evidence of what the policies “on the books” may have been, no one testified to what actually occurred on the evening in question. That was a problem for the motions judge, and will always be a problem for licensees facing administrative penalties.
Good Employees make for Good Witnesses
The Ontario Superior Court of Justice Decision in Eastwood v. Walton highlights the importance of maintaining employment records. Notice of lawsuits, and to a lesser extent regulatory investigations or prosecutions, is often received months and sometimes years after the event at issue occurred. By that time the relevant members of staff may have moved, returned to school, or found other employment. While that probably makes contacting them more difficult, that is the licensee’s problem.
Alcohol & Advocacy recommends that all licensees maintain organized and complete personnel files, and also keep records of staffing schedules. If your establishment is served with a lawsuit alleging commercial host liability for a motor vehicle accident that happened two years ago, will you be able to determine who was behind the bar that night?
If you have questions about commercial host liability, or British Columbia’s liquor laws more generally 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.