Tavern Claims: Intoxication Does Not Equal Liability

Tort claims against tavern owners in the province of Ontario are typically advanced as a breach of the common law duty of care and a breach of the Liquor Licence Act1 provisions in relation to the service of alcohol. The Act provides as follows at s. 39:

The following rules apply if a person or an agent or employee of a person sells liquor to or for a person whose condition is such that the consumption of liquor would apparently intoxicate the person or increase the person's intoxication so that he or she would be in danger of causing injury to himself or herself or injury or damage to another person or the property of another person:

1. If the person to or for whom the liquor is sold commits suicide or meets death by accident while so intoxicated, an action under Part V of the Family Law Act lies against the person who or whose employee or agent sold the liquor.

2. If the person to or for whom the liquor is sold causes injury or damage to another person or the property of another person while so intoxicated, the other person is entitled to recover an amount as compensation for the injury or damage from the person who or whose employee or agent sold the liquor.

The prohibition against the service of alcohol to a person who appears to be intoxicated is found at s. 29:

No person shall sell or supply liquor or permit liquor to be sold or supplied to any person who is or appears to be intoxicated.

Several cases illustrate the point that the statutory provisions include an element of foreseeability.

In Rudderham v. Folkes2, the plaintiff was injured after he attended a bar known as TJ's. He alleged that he was served alcohol to the point of intoxication. However, the evidence of staff at the bar established that the plaintiff arrived, consumed a portion of one drink, then left the bar. He later returned and appeared to be intoxicated. He requested a drink, was refused and left. The plaintiff had no recollection of the events of the evening of the accident. The plaintiff advanced the argument that the staff owed a duty of care to the plaintiff not to put him out into the street without seeing to his safe return home. In response to this allegation, the court observed that the staff at TJ's did precisely what the law requires: they refused to serve him alcohol when he returned on the second occasion and told him to leave.

A bar is not negligent merely because a patron is intoxicated, leaves and suffers injury.

As the court noted in Menow v...