Bar Fights, Social Host Liability, & BC Personal Injury Law.
“If Mr. X arrives at a pub at around 12:40 a.m. and leaves at or about the 2 a.m. closing time after being served “four beers and four or five shots” and then gets in his car to drive home, could the pub be found to be contributorily negligent if a collision ensued causing injury?”
This was the main question posed by Mr. Justice Funt in Garisto v Goudie, 2021 BCSC 1257 (CanLII).
Firstly, in such circumstances, the pub will be found liable unless its staff took reasonable steps to prevent Mr. X from driving while intoxicated such as by ensuring Mr. X left the pub in the care of a sober person, by placing him into a cab, or by calling the police.
In Garisto (CanLII), the defendant, Ronald Goudie, unlike Mr. X, drove home without causing injury. As the Court noted:
[4] However, the plaintiff, Andrew Garisto, says that he left the Dublin Crossing Irish Pub (“Dublin Crossing”) at closing time and within minutes of leaving, he encountered Mr. Goudie whom he had not previously met. The plaintiff then says, without warning, Mr. Goudie punched him, which caused him to fall to the ground hitting his head on the pavement.
[5] The plaintiff says that he suffered significant injuries, including a skull fracture and a traumatic brain injury.
[6] Mr. Goudie has pleaded guilty to a charge of aggravated assault under s. 268(2) of the Criminal Code, R.S.C. 1985, c. C-46.
[7] In the case at bar, the defendant, Craic Holdings No. 2 Limited dba Dublin Crossing Irish Pub applies to have the action against it dismissed under the summary trial rule: Supreme Court Civil Rules, Rule 9-7.
[8] While not admitting that on August 14, 2016 Mr. Goudie was over-served, Dublin Crossing says, arguendo, if Mr. Goudie had been over-served, it cannot be found liable because, unlike intoxicated driving causing injury, a sudden assault of another patron was not reasonably foreseeable. On this basis, Dublin Crossing seeks to sever the question of liability from damages and seeks to have the action dismissed as against it because, even if over-serving were proven, it would, as a matter of law, not be liable.
[9] For the reasons that follow, I will dismiss Dublin Crossing’s application for a summary trial (including the severance of liability). The standard of care is determined, in large measure, based on the factual context, which includes whether the specific risk of harm was reasonably foreseeable.
[10] In the case at bar, justice requires that the factual context be determined by way of a conventional trial.
As such, Mr. Justice Funt dismissed the Application and remitted the matter for a conventional trial to be ruled on to determine liability and damages.
In this case, the Chambers Judge canvassed the law pertaining to the duty and standard of care required by social hosts, among other things. Justice Funt noted as follows:
DUTY OF CARE AND STANDARD OF CARE
[11] In Donaldson v. John Doe, 2009 BCCA 38, Justice Frankel, writing for our Court of Appeal, notes the importance of separating the duty of care and standard of care analysis. Justice Frankel states:
[26] By focussing on how Mr. Donaldson sustained his injury, the parties have conflated the concept of foreseeability in a duty of care analysis, and foreseeability in a standard of care analysis. A similar error was committed by the trial judge. These are two different legal concepts. In determining whether A owes a duty of care to B, foreseeability is a factor with respect to whether the relationship between them warrants imposing such a duty. The question is whether B falls within a class of persons who could reasonably be expected to be harmed by A’s conduct. If a duty of care is found to exist, then foreseeability with respect to the specific risk of harm is considered in determining whether A was negligent, i.e., whether there has been a breach of the standard of care. [Emphasis in original.]
[12] In the case at bar, the focus is on the standard of care. The parties recognize that “a commercial host owes a duty to third-parties to protect them from alcohol-related injuries caused by intoxicated patrons”: Donaldson at para. 31.
[13] In Widdowson v. Rockwell, 2017 BCSC 385, Justice Kent provides a particularly useful summary of commercial host liability at common law:
[66] The seminal case respecting a commercial host's liability is generally considered to be Jordan House Ltd. v. Menow, [1974] S.C.R. 239. In that case, a frequent patron of the hotel's beverage room, well known for his propensity to become intoxicated, was ejected from the premises after consuming beer over several hours. He was struck by a vehicle while walking home on the center line of the highway. The Court concluded that by virtue of Menow's intoxication on the premises:
…the hotel came under a duty to Menow to see that he got home safely by taking him under its charge or putting him under the charge of a responsible person, or to see that he was not turned out alone until he was in a reasonably fit condition to look after himself. ... The harm that ensued was that which was reasonably foreseeable by reason of what the hotel did (in turning Menow out) and failed to do (in not taking preventive measures) (at 249).
[67] Jordan House dealt with the duty of care owed to the patron. It was not until Stewart v. Pettie, [1995] 1 S.C.R. 131, that the Supreme Court addressed the liability of a commercial host to third persons other than the intoxicated patron himself. In that case a sober passenger in a car driven by her intoxicated brother was rendered a quadriplegic when he lost control of the vehicle and collided with a light pole and wall. The Court held there was "no question" that commercial vendors of alcohol owed a general duty of care to third parties who might reasonably be expected to come into contact with their intoxicated patron and to whom that patron may pose some risk.
[68] The Court also emphasized that the existence of the duty of care must not be confused with the standard of care. As well, at paras. 60–65, the Court emphasized that, in order for liability to flow, there must be proof that the breach of the standard of care “actually caused the loss complained of”. [Emphasis in original.]
[69] Insofar as the standard of care was concerned in the circumstances of the case, the Court noted:
the establishment could not escape liability simply because the patron was apparently not exhibiting any visible signs of intoxication. The waitress knew or ought to have known that the patron was becoming intoxicated by virtue of the number of drinks he had consumed regardless of whether he was exhibiting visible symptoms (at para. 52);
as in Menow, the establishment could discharge its duty of care by putting the patron "under the charge of a responsible person" such as his sober wife and sister with whom he had come to the event (at paras. 53–55);
while "establishments which serve alcohol must either intervene in appropriate circumstances or risk liability", the presence of sober companions with whom the patron was travelling precluded the need for intervention in this case (at paras. 53–57); and
in any event, there was no proof that intervention would have made any difference (because the two sober women had concluded that the patron was competent to drive) (at paras. 54–55).
[70] In Childs v. Desormeaux, 2006 SCC 18, the Court addressed the question of social host liability, i.e., whether a social host owed any duties of care to third parties who may be injured by their intoxicated guests. In dismissing such a cause of action, the Court made a point of emphasizing the differences between a social host and commercial host situation and why the latter was required to take "positive steps to protect" third-party members of the public:
monitoring consumption is relatively easy for a commercial host and servers can generally be expected to possess special knowledge about intoxication (at para. 18);
the sale and consumption of alcohol is strictly regulated and these regulations impose special responsibilities (to reduce the risk associated with the trade) on those who would profit from the supply of alcohol (at para. 19);
commercial hosts had a "perverse incentive" not only to serve many drinks, but to serve too many in order to increase profit … this supports the imposition of a duty to monitor alcohol consumption in the interest of the general public (at para. 22).
[71] In Donaldson v. John Doe, 2009 BCCA 38, our Court of Appeal expressly agreed with the following proposition from McIntyre v. Grigg (2006), 83 O.R. (3d) 161 (C.A.), at para. 49:
Commercial vendors of alcohol have an obligation to monitor a patron's consumption of alcohol and should have protocols in place to ensure that all reasonable precautions are taken to prevent such patrons who subsequently drive from becoming intoxicated to the point where they cannot safely operate a motor vehicle. Moreover, a commercial host does not escape liability simply by not knowing that the patron became inebriated before driving; the commercial host is liable if it or its employees knew or ought reasonably to have known in the circumstances that the patron was in such a condition.
[Frankel J.A.’s emphasis.]
[72] In Haughton v. Burden, [2001] O.J. No. 4704 (S.C.J.), cited in Salm v. Coyle and ICBC et al, 2004 BCSC 112, at para. 17, the court stated:
The common law imposes a duty on a commercial host to take steps to see that intoxicated patrons do not cause injury to themselves or others upon leaving the premises. The standard of care required will vary depending on the circumstances, but may include actions such as putting the patron into a taxi or into the care of sober persons, or calling the police. …
[73] In this particular case the affidavits from the pub employees all referred to the employees having successfully completed the "Serving It Right", which is British Columbia's mandatory "Responsible Beverage Service Program". This is a program sponsored by the provincial government and the hospitality industry which offers information about intoxication, as well as guidelines and suggestions for, as the tagline suggests, "responsible beverage service". Rather cleverly, none of the employee affidavits expressly disclosed the information and conduct guidelines suggested in the "Serving It Right" program. Instead, all that was proffered was what was said to be Cambie Malone's written "Policies and Procedures" which included the following paragraph:
It is your responsibility to ensure patrons do not become intoxicated while in the establishment. You must refuse entrance and/or service to any person who is apparently under the influence of alcohol or drugs. Moreover, persons visibly under the influence of drugs or alcohol may not be permitted to remain in the establishment. You must refuse the person service, have the person removed and see that they depart safely. Intoxicated persons must NOT be permitted to drive. It is your duty to ensure that a safe ride home is used. This is a crucial responsibility of everyone in the alcohol service industry.
[74] While the standard of care expected of a commercial host will, in large part, be governed by the particular circumstances of any given case, there are several general standards of conduct that could well apply simply as a matter of common sense, including:
ensure there are adequate supervision, monitoring and training systems in place so employees know and abide by responsible serving practices;
ensure there is a sufficient number of serving staff on duty so that effective monitoring of alcohol consumption by patrons is possible;
ensure employees know the signs of intoxication and the various factors that influence intoxication (gender, weight, rate of consumption, food, et cetera);
inquire if the patron is driving and identify any "designated driver" for groups of patrons;
know how to estimate blood-alcohol concentrations and ensure any driver does not consume more than the appropriate number of drinks to stay on the "right side" of the legal limit;
display "tent cards" on tables, posters on walls and washrooms, and menu inserts with easy-to-read charts and information about blood-alcohol concentration;
ask apparently-intoxicated patrons if you [can] contact anyone to assist them or if you can get them a taxi and, if necessary, offer to pay for it;
display posters advertising free ride-home services available in the neighbourhood; and
if the patron rejects alternative options and insists on driving, despite being urged otherwise, contact the police to seek assistance and/or provide whatever information might encourage their intervention.
[14] In Ryan v. Victoria (City), [1999] 1 S.C.R. 201, Justice Major, in writing for the Supreme Court of Canada, summarized the standard of care and the relevance of legislative standards. Justice Major stated:
[28] Conduct is negligent if it creates an objectively unreasonable risk of harm. To avoid liability, a person must exercise the standard of care that would be expected of an ordinary, reasonable and prudent person in the same circumstances. The measure of what is reasonable depends on the facts of each case, including the likelihood of a known or foreseeable harm, the gravity of that harm, and the burden or cost which would be incurred to prevent the injury. In addition, one may look to external indicators of reasonable conduct, such as custom, industry practice, and statutory or regulatory standards.
[29] Legislative standards are relevant to the common law standard of care, but the two are not necessarily co-extensive. The fact that a statute prescribes or prohibits certain activities may constitute evidence of reasonable conduct in a given situation, but it does not extinguish the underlying obligation of reasonableness. See R. in right of Canada v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205. Thus, a statutory breach does not automatically give rise to civil liability; it is merely some evidence of negligence. See, e.g., Stewart v. Pettie, [1995] 1 S.C.R. 131, at para. 36, and [The Queen in right of Canada v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205] at p. 225. By the same token, mere compliance with a statute does not, in and of itself, preclude a finding of civil liability. See [Linden, Allen M., Canadian Tort Law, 6th ed. (Toronto: Butterworths, 1997)] at p. 219. Statutory standards can, however, be highly relevant to the assessment of reasonable conduct in a particular case, and in fact may render reasonable an act or omission which would otherwise appear to be negligent. This allows courts to consider the legislative framework in which people and companies must operate, while at the same time recognizing that one cannot avoid the underlying obligation of reasonable care simply by discharging statutory duties.
STANDARD OF CARE – PARTICULAR CIRCUMSTANCES
[15] Plaintiff’s counsel submits that a conventional trial is required in order to show the particular factual context in order to determine the standard of care.
[16] In addition to noting paragraph 74 of Widdowson, plaintiff’s counsel submits, among other matters, he wishes to show:
a) Mr. Goudie’s level of intoxication;
b breaches by Dublin Crossing’s staff of the Serving It Right program;
c) breaches by Dublin Crossing’s staff of Dublin Crossing’s own policies;
d) breaches of the former Liquor Control and Licensing Act, R.S.B.C. 1996, c. 267 [repealed S.B.C. 2015, c. 19 s. 92, effective January 23, 2017 (B.C. Reg. 24/2016).]; and
e) statistics and expert evidence regarding a causal link between intoxication (including the degree of such) and aggression (including assaults).
[17'] Dublin Crossing’s counsel, Mr. D. Richardson, submits that the over-serving of alcohol is an innocuous act. In support, Mr. Richardson emphasizes the Supreme Court of Canada’s decision in Stewart v. Pettie, [1995] 1 S.C.R. 131 at paras. 34–36, and 49. These paragraphs read:
[34] Laskin J. said in Jordan House Ltd. v. Menow, [[1974] S.C.R. 239], at p. 247, "The common law assesses liability for negligence on the basis of breach of a duty of care arising from a foreseeable and unreasonable risk of harm to one person created by the act or omission of another." The respondents argued, and the Court of Appeal agreed, that Mayfield was negligent because they (a) served Stuart Pettie past the point of intoxication, and (b) failed to take any steps to prevent harm from coming to himself or a third person once he was intoxicated.
[35] I doubt that any liability can flow from the mere fact that Mayfield may have over-served Pettie. To hold that over-serving Pettie per se is negligent is to ignore the fact that injury to a class of persons must be foreseeable as a result of the impugned conduct. I fail to see how the mere fact that an individual is over-imbibing can lead, by itself, to any risk of harm to third parties. It is only if there is some foreseeable risk of harm to the patron or to a third party that Mayfield and others in their position will be required to take some action. This standard of care is the second "duty" identified by the respondents and the Court of Appeal.
[36] It is true that applicable liquor control legislation in Alberta, and across the country, prohibits serving alcohol to persons who are apparently intoxicated. Counsel for the respondents pressed that point in argument. There are, however, two problems with this argument. The first is that it is not clear that there was any violation of liquor control legislation in this case, given the fact that Pettie was apparently not exhibiting any signs of intoxication. Moreover, even if it could be said that Mayfield was in violation of legislation, this fact alone does not ground liability: The Queen in right of Canada v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205. Without a reasonably foreseeable risk of harm to him or a third party, the fact of over-serving Pettie is an innocuous act. Therefore, liability on the part of Mayfield, if it is to be found, must be in their failure to take any affirmative action to prevent the reasonably foreseeable risk to Gillian Stewart.
…
[49] The existence of this "special relationship" will frequently warrant the imposition of a positive obligation to act, but the sine qua non of tortious liability remains the foreseeability of the risk. Where no risk is foreseeable as a result of the circumstances, no action will be required, despite the existence of a special relationship. The respondents argue that Mayfield should have taken positive action, even though Mayfield knew that the driver was with three other people, two of whom were sober, and it was reasonable to infer from all of the circumstances that the group was travelling together.
[18] In my view, the circumstances in Stewart are distinguishable. First, in Stewart, the liquor licensee knew that the relevant patron had been in the presence of two sober women throughout the evening and the patron left with them and his brother-in-law.
[19] Second, the legislative backdrop was different. As plaintiff’s counsel notes the relevant legislation required only that no licensee or employee of a licensee shall “sell or provide liquor to a person apparently under the influence of alcohol or drug” (emphasis added): Liquor Control Act, 1980, S.A. 1980, c. 74, s. 95(2)(b). I read para. 36 of Stewart as a reference to this provision.
[20] Under the relevant British Columbia legislation, the requirement is more strict. It is also mandatory. Section 43(2)(a) of the former Liquor Control and Licensing Act in effect as of the date of the assault, August 14, 2016, reads:
43 (2) A licensee or the licensee’s employee must not permit
(a) a person to become intoxicated, …
[Emphasis added.]
[21] Statutory standards may be highly relevant: Ryan at para. 29.
[22] Mr. Richardson submits that the law concerning “the foreseeability of assaults in a commercial host context is well-settled”. I understand him to say that the assault must have been reasonably apprehended or anticipated and such is not the law where the assault was without warning.
[23] In Jonas v. Elliott, 2021 ONCA 124, the Ontario Court of Appeal stated:
[6] The motion judge held that, in this case, there was a relationship of proximity. However, he held the altercation was not reasonably foreseeable because:
a) Experienced and trained staff were hired to serve alcohol and a friend provided security at the door;
b) Both Messrs. Jonas and Elliott had consumed alcohol before attending the party but neither exhibited prior signs of aggressive behaviour or conduct that would suggest they had consumed alcohol before they arrived;
c) Ms. Goudy was unaware of their prior alcohol consumption;
d) The incident was both sudden and brief;
e) There was only one other minor incident that evening involving an intoxicated patron who was appropriately removed from the party, placed in a taxi and taken home; and,
f) The fact that Mr. Jonas was let into the party by Ms. Goudy, was not the cause of the incident.
[7] These findings of facts about the activity at the party are sufficient to demonstrate that the harm was not reasonably foreseeable, and these findings are owed deference. In any event there is no evidence that the altercation was caused or contributed to by intoxication.
[24] I read Jonas as illustrating the need to determine the standard of care in the factual context of the particular case. In Jonas, the Ontario Court of Appeal reviews the factual context, as found by the motion judge, “to demonstrate that the harm was not reasonably foreseeable”. The fact that “the incident was both sudden and brief” was just one factor. In sum, there is not a bright line rule that all sudden and brief assaults are not reasonably foreseeable.
[25] The fact that there is not a bright line rule is consistent with negligence law. As Justice Major in Stewart states:
[50] One of the primary purposes of negligence law is to enforce reasonable standards of conduct so as to prevent the creation of reasonably foreseeable risks. In this way, tort law serves as a disincentive to risk-creating behaviour. To impose liability even where the risk which materialized was not reasonably foreseeable is to lay a portion of the loss at the feet of a party who has, in the circumstances, acted reasonably. Tort law does not require the wisdom of Solomon. All it requires is that people act reasonably in the circumstances. The "reasonable person" of negligence law was described by Laidlaw J.A. in this way in Arland v. Taylor, [1955] O.R. 131 (C.A.), at p. 142:
He is not an extraordinary or unusual creature; he is not superhuman; he is not required to display the highest skill of which anyone is capable; he is not a genius who can perform uncommon feats, nor is he possessed of unusual powers of foresight. He is a person of normal intelligence who makes prudence a guide to his conduct. He does nothing that a prudent man would not do and does not omit to do anything a prudent man would do. He acts in accord with general and approved practice. His conduct is guided by considerations which ordinarily regulate the conduct of human affairs. His conduct is the standard "adopted in the community by persons of ordinary intelligence and prudence."
[26] “Considerations which ordinarily regulate the conduct of human affairs” would, in most cases, require the reasonable person to take action to mitigate the possible consequences of the breach of the law. Where a commercial host over-serves a patron, as noted, reasonable steps may include ensuring the patron leaves in the care of a sober person, placing the patron in a cab, or calling the police.
[27] Our Legislature intends that enactments and the common law will work harmoniously together to “best [ensure] the attainment of [the enactment’s] objects”: Interpretation Act, R.S.B.C. 1996, c. 238, s. 8.
[28] In support of its argument that a sudden assault by an intoxicated patron is not reasonably foreseeable, Dublin Crossing referred to the following authorities:
Allnutt v. Carter, 2021 ABQB 51;
Baron v. Clark, 2017 ONSC 738;
Brown v. Wilson et al., [1975] B.C.J. No. 1177 (S.C.);
Duncan v. Braaten, 1980 CanLII 588 (BC SC);
Ferguson v. Quock (1997), S.C.B.C. 9632;
Hesse v. Laurie, 1962 CanLII 412 (AB QB);
Jonas v. Elliott et al, 2020 ONCSC 354;
Jonas v. Elliott, 2021 ONCA 124;
McKenna v. Greco et al. (No. 2) (1985), 52 O.R. (2d) 85 (S.C.), upheld on appeal (1986), 58 O.R. (2d) 63 (C.A.);
Memory v. Cyr & Sportsman’s Club, [1972] N.B.J. No. 211 (S.C.);
Penney v. Fort Nelson Hotel, [1988] B.C.J. No. 2506 (S.C.);
Wandy v. River Valley Ventures Inc., 2013 SKQB 309; and
Wandy v. River Valley Ventures Inc., 2014 SKCA 81.
[29]In the foregoing authorities, only in Allnutt does it appear that expert evidence was tendered to show a causal link between a high level of intoxication and sudden aggression. In Allnutt, the trial judge declined to admit expert evidence that may have demonstrated “a strong nexus between intoxication/alcohol consumption and violent and physical aggression”. The trial judge stated:
[62] While I do not question Leonard's [the psychologist tendered as an expert] expertise or literature review I do find that his evidence does not satisfy the necessity aspect of the [R. v. Mohan, [1994] 2 S.C.R. 9] test and I decline to admit it. The determination of reasonable foreseeability in the present case does not involve the examination of technical or complicated scientific evidence or matters that are outside the ordinary knowledge of an individual. While it is relevant, interesting and somewhat helpful it does not meet the necessity test for the reasons that I have outlined.
[30]As noted by the Ontario Court of Appeal in Jonas, there was “no evidence that the altercation was caused or contributed to by intoxication”.
[31] In my view, a trial judge may find expert evidence as to the causal link between a high level of intoxication and sudden aggression to be necessary, especially where the chemical aspects of alcohol and the effects on the workings of the brain may be shown. Brain imaging and scientific knowledge in areas such as biochemistry, pharmacology, toxicology, and neurology, continue to advance at a significant pace.
[32]The assault in Allnutt occurred on February 18, 2012. As of that date, the relevant legislative provision was s. 75.1 of the Gaming and Liquor Act, R.S.A. 2000, c. G-1. Section 75.1 read:
75.1 No liquor licensee may
(a) sell or provide liquor in the licensed premises to a person apparently intoxicated by liquor or a drug,
(b) permit a person apparently intoxicated by liquor or a drug to consume liquor in the licensed premises, or
(c) permit a person apparently intoxicated by liquor or a drug to take part in a gaming activity or provincial lottery that is conducted in the licensed premises.
[Emphasis added.]
[33] In the case at bar, unlike the facts in Allnutt, assuming it is established at trial that Mr. Goudie was served “four beer and four or five shots” between 12:40 a.m. and the 2 a.m. closing time, Dublin Crossing would have known that Mr. Goudie was grossly impaired as he left its premises.
[34] As noted, the relevant legislation in the case at bar is strict and mandatory.
[35] In my view, a commercial host’s knowledge (or that which it ought to have known) of the degree of intoxication of a patron may be a relevant factor in determining whether there is a reasonably foreseeable risk of a sudden assault by that patron.
[36] As to the existence of a causal link between intoxication and aggression, I note that in Childs v. Desormeaux, 2006 SCC 18, Chief Justice McLachlin, in describing situational aspects of a commercial host, stated (at para. 21):
… The imposition of a "cut-off" at the bar is understood, and expected, as part of the institutionalization of these responsibilities. Similarly, in many establishments, "bouncers" both enforce admission and assist other members of the staff who might have to deal with patrons who may have become intoxicated. ...
SUMMARY VERSUS CONVENTIONAL TRIAL
[37] In Greater Vancouver Water District v. Bilfinger Berger AG, 2015 BCSC 485, Justice Griffin, then sitting in this Court, summarized the considerations for proceeding by way of a summary trial (on some issues) rather than a conventional trial. Justice Griffin stated:
[110] In summary, the authorities in BC, including Hryniak [v. Mauldin, 2014 SCC 7], make clear that the factors the court must consider on applications to determine by summary trial only part of the issues in the lawsuit are:
a) whether the court can find the facts necessary to decide the issues of fact or law;
b) whether it would be unjust to decide the issues by way of summary trial, considering amongst other things:
i. the implications of determining only some of the issues in the litigation, which requires consideration of such things as:
(1) the potential for duplication or inconsistent findings, which relates to whether the issues are intertwined with issues remaining for trial;
(2) the potential for multiple appeals; and
(3) the novelty of the issues to be determined;
ii. the amount involved;
iii. the complexity of the matter;
iv. its urgency;
v. any prejudice likely to arise by reason of delay; and
vi. the cost of a conventional trial in relation to the amount involved.
[38] I do not find this matter to be suitable for a summary trial. Most of the salient facts cannot be determined solely through affidavit evidence. For example, the factual context for determining the standard of care may include:
a) was Mr. Goudie over-served?
b) if so, by how much? by whom?
c) was the Serving It Right program disregarded? by whom?
d) were the relevant liquor laws disregarded? by whom?
e) were Dublin Crossing’s policies disregarded? by whom?
f) were other patrons over-served? how many? by how much?
g) was there a rowdy atmosphere?
h) were there other events and circumstances around closing time?
i) were Dublin Crossing’s staff trained and experienced? and
j) what are the industry practices?
[39] Plaintiff’s counsel also notes that the servers (and a musician) will need to be subpoenaed in order to obtain their evidence. In my view, a conventional trial is the only practical forum for obtaining and receiving such evidence.
[40] Plaintiff’s counsel has also retained an expert who he anticipates will be able to provide opinion evidence on the correlation between intoxication (including the degree of such) and aggression (including assaults).
[41] While I do not wish to rule on the relevance of such opinion evidence at this stage, I do not wish to possibly stunt the development of the common law by effectively rejecting a novel argument or recent scientific evidence. In my view, a conventional trial is required in order to hear the proposed expert evidence.
[42] Plaintiff’s counsel also argues that society’s standards as to alcohol and drug consumption are evolving. I understand him to say that a full record as that provided by a conventional trial is required in order for the Court to consider fully this aspect. In this sense, the case at bar may have particular novelty. I agree.
[43] In Widdowson, Justice Kent refers to the “Serving it Right” program.
[44] Section 43 of the former Liquor Control and Licensing Regulation, B.C. Reg. 244/2002, which was in effect on the date of the assault, defines the Serving it Right program as follows:
43 (1) In this section: …
“SIR Program" means the training program “Serving it Right: The Responsible Beverage Service Program”, provided by a person or organization approved by the general manager.
[45] Section 1 of the former Liquor Control and Licensing Act defines “general manager” as “the general manager of a branch appointed under section 3”. Section 1 defines “branch” as “the Liquor Control and Licensing Branch continued under section 2”.
[46] Section 3 of the former Liquor Control and Licensing Act reads:
3 (1) The minister, under the Public Service Act, must appoint a general manager of the branch and set his or her remuneration.
(2) The general manager must, subject to the orders and direction of the minister on matters of general policy,
(a) administer this Act, and
(b) supervise all licensed establishments and manufacturers of liquor.
[47] In sum, the general manager was generally tasked with administering the Liquor Control and Licensing Act. The “SIR Program” was a training program approved by the general manager.
[48] Under s. 43(2.2) of the former Liquor Control and Licensing Regulation, a server must have successfully completed the SIR Program.
[49] In the materials before me, I have portions of a copy of the “Serving it Right”, B.C.’s Responsible Beverage Service Program” manual (“SIR Manual”) published under the 2011 copyright of the Province of British Columbia.
[50] Page 8 of the SIR Manual reads (in part):
The effects of too much alcohol
While the majority of alcohol consumers in the province drink responsibly most of the time, there are occasions where people drink in ways that put their health and safety at risk.
According to the Centre for Addictions Research of BC:
40% of British Columbians admit to drinking in ways that could lead to falls, accidents or incidents of violence;
Almost 20% of British Columbians drink in a risky way at least once a month.
[Emphasis added.]
[51] Page 33 of the SIR Manual reads (in part):
Your legal duties
Only serve or sell to patrons legally old enough to drink
Serve no one to the point of intoxication
Refuse entry or service to intoxicated people
Remove intoxicated people from the premises responsibly and safely
Control the environment in the establishment
Take responsible steps so that if patrons become intoxicated, they do not pose a threat to other patrons or the public
Take care to see that if patrons became intoxicated, they have a safe way home or to another place where they can sober up
[Emphasis added.]
[52] In the case at bar, assuming Mr. Goudie was over-served, there was certainly a reasonably foreseeable risk (i.e., intoxication to the point that Mr. Goudie could not safely operate a motor vehicle) warranting the imposition of a “positive obligation to act”. If Dublin Crossing had discharged its positive obligation to act (for example, ensuring Mr. Goudie left the pub in the care of a sober person, was placed in a cab, or the police were called), the subsequent assault arguably may not have occurred.
[53] The mandatory statutory requirement placed on a commercial host to not over-serve a patron may support the plaintiff’s argument that society’s standards as to drugs and alcohol are evolving and illustrates the possible novelty of the matter.
[54] Dublin Crossing submitted that s. 43(2)(a) of the former Liquor Control and Licensing Act does not impose strict liability. I agree. However, where a commercial host server permits a patron to become intoxicated does, in many situations, give rise to a positive duty to act.
[55] Some years ago, Professor P.S. Atiyah, in his lecture, Common Law and Statute Law, The Modern Law Review, January 1985, Vol. 48, No. 1, observed:
The question concerns the relationship between the common law and statute law. Does our law constitute, in some sense, a single coherent, integral body of law, or does it consist of two separate entities, two streams running on parallel lines one of which occasionally feeds into the other, but which are destined for ever to retain their separate identities? In posing this question, I must make it clear that I am not concerned with the question how well common law and statute law fit together, but with the logically prior question, of how they fit together. All lawyers, of course, know that large areas of both the common law and the statute law are a shambles, but is it one shambles or are there two? This may seem a very theoretical, or even metaphysical question, but there are a number of important practical issues involved here, particularly when it has once become accepted that the common law is a dynamic, developing body of law just as much as statute law. It may well be that the reason these issues have attracted so little attention hitherto is that until very recently the prevailing orthodoxy of English law was that the judges had no power to change the law. But now that this fairy tale has been abandoned, the relationship between common law and statute law must be seen as the relationship between two developing and moving bodies of law; and the way in which they interact on each other becomes a matter of no little importance. [Emphasis in original.]
[56] In my view, the law is, or at least is moving towards, a “single coherent, integral body of law”. With this in mind, the fact the general manager approved the SIR Program which included the SIR Manual, which, in turn, identifies “incidents of violence”, may be a factor considered by a trial judge in determining whether a sudden and brief assault is foreseeable where a commercial host over-serves a patron, especially if the patron is flagrantly over-served.
[57] Having regard to the pleaded injuries, the damages involved may be significant. This factor also weighs in favour of a conventional trial.
[58] The plaintiff also seeks punitive damages. In my view, the consideration of whether punitive damages are to be awarded and the amount are best determined by way of a conventional trial. “[P]unitive damages straddle the frontier between civil law (compensation) and criminal law (punishment): Whiten v. Pilot Insurance Co., 2002 SCC 18, para.36.
[59] As noted, in the case at bar, the relevant legislation mandates that commercial hosts do not over-serve patrons. Depending on all of the facts determined at trial, the relevant legislation may be a factor to be considered in determining whether an award of punitive damages is appropriate.
[60] Again, I do not wish to foreclose a possibly novel matter by proceeding by way of a summary trial.