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Commercial Host Liability

Commercial host liability refers to the responsibility of establishments (e.g. restaurants and bars) that sell alcohol. Because the commercial host profits from selling alcohol to its customers and therefore has an incentive to sell a large quantity of alcohol, it is under a duty to protect its customers from foreseeable injuries.

This duty has been extended by the Supreme Court of Canada to include third parties who might reasonably be expected to come in contact with an intoxicated patron, and to whom the patron poses a foreseeable risk. Such third parties include other patrons of the establishment, and in some cases, motorists and pedestrians the intoxicated patron may encounter after leaving the premises.

To be successful against a commercial host, the Plaintiff must prove that:

  1. The commercial host owed a duty of care to the plaintiff
  2. The commercial host breached that duty
  3. The breach of that duty caused the plaintiff’s injury
  4. The plaintiff’s injury was a reasonably foreseeable consequence of the breach

Common grounds for commercial host liability claims include failing to eject disorderly and visibly intoxicated patrons, ejecting patrons in unsafe circumstances, and over-serving patrons where there is a foreseeable risk that they may injure themselves or a third party.

Failing to Eject Disorderly and Visibly Intoxicated Patrons
A commercial host has a statutory duty to remove disorderly and visibly intoxicated patrons who may pose a threat of harm to themselves or others. A commercial host that does not comply with this duty may be liable where a disorderly and visibly intoxicated patron assaults another patron within the establishment.

Ejecting Patrons in Unsafe Circumstances
An establishment may be liable for ejecting a visibly intoxicated patron in unsafe circumstances, even where the establishment has not served the patron any alcohol. The establishment has a duty to take reasonable steps to ensure that the ejected patron is reasonably safe. Liability will depend on the knowledge that the employees of the commercial host had about the individual patron. For example, a commercial host may be liable for ejecting a patron if they are known by staff to make reckless decisions when intoxicated, and without taking reasonable steps to ensure that the patron had a safe means of traveling home. A commercial host may also be liable for ejecting two fighting patrons at the same time.

Over-Serving Patrons
The mere act of over-service is not necessarily a breach of duty. The over-service must create a foreseeable risk. For example, it may not be a breach to over-serve a non-violent patron who is accompanied by a designated driver. It is not essential that the patron be visibly intoxicated to ground a breach of duty. Bars have a duty to have a monitoring system in place and will often know how much alcohol has been served to patrons. Visible intoxication is important in the case of a patron who arrives at an establishment already intoxicated. The establishment may be liable for serving that patron one drink if the patron was already visibly intoxicated at the time of service.

To establish that the breach of duty caused the plaintiff’s injury, counsel must prove on a balance of probabilities that if the commercial host had acted in accordance with its duty, the injury suffered by the plaintiff would have been prevented. In answering this question, the plaintiff must consider what intervention was appropriate for the commercial host to take, and what the probable results of that intervention would have been.

The plaintiff must also prove, on a balance of probabilities, that the injury ultimately suffered by the plaintiff was of the type that a reasonable person would predict as a possible consequence of the commercial host’s breach.

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