Introduction

Social host liability is a legal concept most commonly associated with injuries caused or contributed to by the negligence of a social host.

The following article is part two of a two-part series looking at the issue of social host liability.  The first article looked at social host liability in a non-commercial setting.  This second article provides a brief overview of the current state of the law with respect to social host liability in a commercial setting.

Determining whether a commercial establishment may be held liable under the circumstances is often of vital importance for the injured party and their family.  Seriously injured individuals require significant care and often run into severe financial difficulties as a result of an inability to work and earn a wage. Commercial establishments often carry liability insurance policies that can assist an individual and their families should the commercial establishment be responsible or be found to have contributed to the accident-related impairments.

Common Law and Statute

In Ontario, liability can be established against a commercial enterprise through both the common law and by statute. When we speak of the “common law” we are referencing the legal principles that have been established through our historical caselaw.  When we speak of “statutory law” in the commercial social host liability setting we are referring to Ontario’s Liquor License Act.  A commercial host’s liability will be determined by considering both common law principles and the statutory responsibilities set out in the Liquor License Act.

Key considerations include the following:

1. Was there a foreseeable risk of harm?
2. Under the circumstances would a reasonably prudent commercial establishment have recognized the risk?
3. Should the commercial host have been aware of the intoxicated condition of their patron?
4. Was the commercial host aware that their intoxicated patron was driving?

The commercial host is under a duty to not place another person in a position where it is foreseeable that the person could cause or suffer injury.

Additionally, the commercial establishment has a positive duty to take affirmative action to prevent intoxicated patrons from driving.

Contributory Negligence

In closing, it is also worth mentioning that in Ontario the Negligence Act allows for the sharing of liability between responsible parties. For example, depending on the facts of the case, responsibility can be apportioned between the commercial establishment and any other parties that may have contributed to the injuries sustained.

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