Civil Liability
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 meaning of this section is considered by the Court below:
[25] Despite the existence of this statutory liability for over sixty years, it has received surprisingly little attention in the jurisprudence compared to the common law of negligence applicable to commercial establishments.
[26] Section 39 has two parts. First, the first paragraph defines the standard of care required of a seller of liquor. Its meaning is the focus of the appellant's argument in this appeal.
[27] The second part is Rules 1 and 2, which describe the circumstances in which consequences will follow when the standard of care is breached. Rule 2 asks simply whether the patron who was served in breach of the seller's standard of care caused injury to another person while so intoxicated. If so, compensation follows.
[28] To repeat, the standard of care set out in s. 39 is as follows:
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.
[29] I cannot agree with the appellant that this language sets out a standard that is breached by simply over serving a patron to the point of intoxication. That would render the words "…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" devoid of legal meaning. I do not agree that the legislature intended these words to be without legal effect but merely descriptive of the kind of harm that may follow from over-service. Legislatures are not in the habit of writing legislation that is purely descriptive but without legal meaning.
[30] More importantly, the plain and ordinary meaning of these words does carry legal significance. These words describe the level of over-service that attracts liability because of the risk it creates. In the factual context of this case, the over-service must produce the patron's intoxication or increase it sufficiently that the patron would be in danger of injuring another person. It requires a risk assessment by the commercial establishment. That assessment is aptly captured in the language of the common law: if the patron is over served to the point of intoxication or beyond, such that it is reasonably foreseeable that the patron may injure another, the commercial establishment breaches the statutory standard of care required by s. 39.
[31] Not only is this the plain and ordinary meaning of the language in s. 39, it faithfully serves the policy of the Act, which is to place significant responsibilities on the commercial seller of liquor to act in the protection of the public. It calibrates the degree of over-service needed to trigger the statutory liability of the commercial establishment, thereby defining the responsibility placed on that establishment by the legislature to protect the public while pursuing its own commercial interest in the sale of liquor.
[32] Given this statutory liability imposed on Carey's by s. 39, I can see no error in the question (question 3) that the trial judge put to the jury on this issue, nor in the charge he gave to the jury explaining it. He correctly told them that the mere fact of over-service does not attract liability. He then instructed the jury by reading the language of s. 39 to them, adapting it to the facts of this case, and telling them that Carey's breached its standard of care if it served a patron to or beyond the point of intoxication where it was reasonably foreseeable that the patron's condition was such that he might harm himself or someone else. These instructions properly charge the jury with the task required of them by s. 39 of the Act.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
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