Commercial Hosts & Overserving Alcohol: How Far Does Liability Extend?


By Written on behalf of Campbell Bader LLP

U.S. Case: Bartender Charged 

In September 2017, a U.S. man got drunk at a bar close to his ex-wife’s home in Texas. He then went to her home with a pistol, a semi-automatic rifle and a knife and killed his ex-wife and seven other people who were attending a party at the home. He was then shot and killed by police.

Last week, police arrested and charged the bartender who served the ex-husband alcohol on the night he subsequently killed eight people. 

The ex-husband’s blood alcohol level was four times the state’s legal limit when he drove to his estranged wife’s house. In 2018, the Texas Alcohol and Beverage Commission issued a report concluding the bartender had violated the “Sale to Certain Persons” law by serving the ex-husband.

Under the Texas law, a person is guilty of the offense if he or she negligently “sells an alcoholic beverage to an habitual drunkard or an intoxicated or insane person.” The misdemeanour carries up to a year in jail or fine of up to $500, or both.

Even though the bartender did attempt to stop the ex-husband from driving, a court filing shows that the bartender told a colleague that the ex-husband appeared drunk, but served him anyways.

Ontario Law on Serving Alcohol

In Ontario, under the Liquor Licence Act, it is illegal to serve customers to the point of intoxication, promote practices that may encourage customers to become intoxicated, or serve someone who is showing signs of intoxication. Licensees who do so can have their liquor sales licence suspended or lose their liquor sales licence permanently. 

Beyond these penalties, licensees are also subject to civil litigation if they serve liquor to someone whose subsequent intoxication causes harm. Licensees have been found liable for the actions of intoxicated customers both inside and outside their establishments. 

An Ontario case explained that it is settled law that a commercial vendor of alcohol owes a duty of care to its patrons. In relation to motor vehicle accidents, the court cited previous case law that set out:

“[A] duty of care will be imposed on the commercial host where the host has served alcohol to a patron and knows or should know that a patron is intoxicated and about to drive. At that stage, the commercial host should reasonably foresee that his act in serving alcohol to a patron to the point of intoxication could result in an accident, unless he dissuades the patron from driving or ensures that the patron is in the care of a responsible person…

A commercial host has a statutory obligation to monitor consumption of alcohol by patrons, but there will be no liability at common law if the host fails to do so in the absence of foreseeability that the patron will drive.” 

Liability flows from the fact that the commercial host creates and controls the risk of harm to patrons and third parties. The Liquor Licence Act says that if a person who was sold liquor dies, commits suicide, or causes harm to another person while drunk, the injured person can claim damages from the establishment that sold the alcohol. Section 39 sets out: 

“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.”

Get Advice

Being criminally convicted can have a significant impact on your life, leading to a permanent record, significant fines, and/or jail time. This can seriously impact your reputation, your employment opportunities, and even your ability to travel outside of Canada. If you have been charged with a criminal offence, it is imperative to consult with a knowledgeable criminal defence lawyer as soon as possible to learn about your options and to protect yourself.

At Campbell Bader LLP, we can help. Our team of exceptional Mississauga criminal defence lawyers has been representing clients charged with criminal offences since 1999. We are highly skilled litigators and have conducted trials in the Superior Court and Ontario Court of Justice. We have the knowledge, experience, and skill-set to effectively defend clients charged with even the most serious of offences. We will listen, consider, and provide you with practical options. Contact us online or at 905-828-2247.


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