In wake of a recent BC Supreme Court decision determining that the Steveston Hotel in Richmond was 50% liable for a drunk driving accident, go2 in conjunction with the Alliance of Beverage Licensees (ABLE BC), BARWATCH, and the BC Restaurant and Foodservices Association (BCRFA), organized an information session on June 2nd explaining how pubs and bars can reduce the risk of a lawsuit.
What the courts say
Lorne Folick, a lawyer who specializes in defending bars and restaurants in British Columbia, began the session by talking about BC’s Liquor Control and Licensing Act. The act itself states that it is an offense to serve intoxicated individuals, permit individuals to become intoxicated and permit intoxicated individuals to remain on the premises. "This legislation is old," said Lorne. "It basically says that you need to get rid of intoxicated people. But because of liability issues, you also need to do something further."
What got the ball rolling, according to Lorne, was the 1973 Supreme Court of Canada's decision in the Jordon House v. Menow and Honesberger case. "The Supreme Court concentrated on what you do with someone who's intoxicated," said Lorne. The decision imposed a "duty of care" on commercial providers of alcohol to protect intoxicated patrons. "Your responsibility extends not just to the intoxicated person, but to their potentially endangering others."
But how far must an establishment go in order to avoid liability?
In 1995, the Supreme Court of Canada’s decision in the Stewart v. Pettie case implied that it is not necessary for establishments to prevent intoxicated individuals from driving if the individual is accompanied by sober patrons. "In this case, it was reasonable for an establishment to assume that the intoxicated person was in the care of others," said Lorne. He called the decision an "injection of common sense." But since then, from an alcohol provider’s perspective, things have taken a turn for the worse through recent court decisions.
First, the Neufeld decision suggested that at closing time bars must make sure intoxicated patrons physically enter cabs. Then, Holton v. McKinnon, implied that a bar can only escape liability if the patron makes it to his or her own home upon leaving the premises. Finally, Laface v. McWilliams (the Steveston Hotel case already mentioned) granted an abnormally high percentage of responsibility to the establishment. The hotel was found 50% liable when the drunk defendant left the pub and drove into a crowd of bystanders. Most allocation of fault percentages range between 15-25%.
Lorne called these recent decisions disheartening. "Where do you draw the line? You can see how inconsistent these results are. It makes it difficult for me to defend my clients." And it stresses how important it is, now more than ever, for alcohol providers to take steps to minimize the risks of litigation.
Reducing the risks of lawsuits
Lorne gave a number of tips for managers and bar owners to help reduce these risks:
- Prepare written policies governing alcohol service
- Distribute and publicize these policies to avoid the misunderstanding of your expectations
- Have employees sign written polices to confirm they have reviewed and understood them
- Avoid combining alcohol and potentially dangerous activities
- Have a plan to ensure that intoxicated guests can be taken home safely (i.e. hire a driver service or have a direct line to cab company with a "house" credit account)
- Ensure that servers have experience and training—they should be able to identify signs of intoxication and understand that they could be held civilly liable
- Don’t give alcohol to people who are intoxicated
- Give servers the authority to refuse service to intoxicated guests. Supervisors should support servers' decisions
- Prepare to have a friendly word with anyone becoming intoxicated
Other tips Lorne mentioned: ask if the person has a designated driver or alternate means of transportation, ask the person to surrender car keys and, if necessary, call the police. "The legal landscape has changed," he said. "In this legal environment, you have to be bold."
Reducing your insurance premiums
David Green, an insurance broker with Jardine Lloyd Thompson Canada, provided an overview about how pubs, bars and restaurants can reduce their risks for insurance claims and get better rates.
"An insurance company sees you as a client," he said. "So there's good clients and bad clients." To become a good client, establishments must identify, evaluate and then minimize their risks. Risk factors range from the condition of the premises and whether the establishment has shooter bars or special events, to the percentage of alcohol served in relation to food. "The key is to minimize and eliminate as many risks as possible. This will lower your premiums," he said.
David echoed Lorne's concerns about the changing legal climate. It's no longer enough for pubs and bars to simply have guidelines and polices. "A system must be in place that demonstrates the programs are being followed," he said. Insurance companies look for qualitative measures that show establishments minimizing their exposure to risks.
David asked a number of important questions:
- Do you have regular meetings with your staff to keep them updated on policies?
- Do you encourage them to further their training and education?
- Do you have a manager on duty at all times? Do you have guidelines in place provided to staff—in writing?
He spoke about the importance of reporting incidents. Log or incident reports should be completed in pen as soon as possible. They should include all information, the originals should be left intact, and entries should be witnessed by a manager.
He also stressed the importance of reporting events early to your insurance company. "This is a huge factor," said David. "The insurance company is not unhappy if they get incident reports every other week. It tells them that this person is active in following their safety procedures and they are helping us help them."
Other tips included using video surveillance and keeping the footage as long as possible, having well-trained employees, using fire and crime prevention programs and making sure that communication between staff and management is effective and open.
David reminded the group that in the insurance industry, the premiums of the many pay for the losses of the few. "A few bad apples in the group will cost you money. Everyone needs to be on board with reducing the risks."
Serving It Right Plus
While BC’s Serving It Right program was designed to encourage a responsible, caring and professional approach to serving alcohol, Arlene Keis, CEO of go2, questioned whether that was still enough. "We’ve relied on these principles in some of the lawsuits. However, we know that with the changing legal landscape, we need to do more now. We need to show a program in action, show how a program is actually implemented in our workplace," she said.
To run and operate a successful responsible beverage service program, establishments should have:
- A stated commitment from senior management
- Clear policies concerning serving and selling of alcohol
- Clear roles and responsibilities for employees
- Procedures for monitoring patrons and intervention tactics
Establishments should promote in-house choice-management programs such as driving alternatives or Get Home Safe programs. They need an effective communication strategy, ongoing training, adequate supervision systems, ways of increasing public awareness and consistent evaluation of the success of their procedures.
Arlene put forward the idea of a more extensive Serving It Right ‘Plus’ program. go2 would need the help and expertise of BC’s alcohol providers in developing such a plan. "It has to come from you," she said, speaking to pub, bar and restaurant owners. "We think it's time to organize and formalize this. We’ll be coming after you to get your thoughts and ideas."
An augmented, more effective responsible beverage service program would be of great benefit to pubs, restaurants and bars. And it will push BC to the forefront of responsibility and prudence when it comes to serving alcohol. Arlene acknowledged that our province has always had a strong sense of responsibility. "It’s time for British Columbia to reclaim our leadership position in this area," she said.
