When an impaired driver in Canada causes an accident that results in death, injury, and/or property damage, the long arm of the law strives to punish the offender with criminal charges that carry stiff penalties upon conviction. Sections 738 -741 of the Criminal Code also allow courts to order the offender to pay restitution to victims in compensation for a range of damages, including:
Convicted offenders also face the likelihood that their victims will file civil suit against them, which tends to seek and recover damages far greater than those covered by criminal court restitution orders. While the offender’s insurance company typically covers the negotiated or court-ordered damages award, the offender is on the hook for any awarded punitive damages.
“Combined with criminal penalties upon conviction, criminal court-ordered victim restitution and potential civil lawsuits should serve as further deterrence to anyone who might consider driving while impaired,” says DUI criminal defence lawyer Jeff Mass , of the Greater Toronto Area’s Mass Tsang law firm. “If legal threats of driver’s license suspension, fines, and possible imprisonment don’t deter impaired drivers, they should also consider that if their impaired driving injures or kills someone, it might financially ruin them.”
Jeff’s co-managing partner, Robbie Tsang , notes that an impaired driver isn’t the only one who might be subject to a significant financial hit if a related traffic accident causes death, injuries, or property damage. “Bar and restaurant owners and managers, along with anyone serving alcohol in them, face the potential for civil liability anytime they overserve a patron who subsequently drives impaired,” he says. “If their customer gets into an accident that kills or maims people, or causes extensive damage, they might find themselves in the legal crosshairs of civil litigation."
With a keen interest in all elements of Canadian DUI law, we’re going to divert our usual attention from criminal law to focus on this unique element of civil law. That is, when can Ontario bars and restaurants be held liable for drunk driving accidents?
Under Ontario’s Liquor License and Control Act (LLCA), bars, restaurants, and any operation licensed to sell alcohol can be held liable for any harm caused by patrons they overserve. In the case of a drunk driving accident that causes injuries, death, and/or property damage, the impaired driver is the initial focus of liability. However, if a commercial drinking establishment significantly contributed to the driver’s inebriated state, they can be held partially liable, typically up to 50%. A drunk driver can even sue such establishments for their own injuries and damages. However, courts usually hold the impaired driver primarily or entirely at fault for the accident and reject damages, or at most apportion 10% of the liability to the establishment.
Based on language in the LLCA and court precedents, a commercial host’s liability is based on negligence, as evidenced by obviously breaching its duty of care to serve alcohol responsibly. Duty of care breaches under which commercial hosts can be found liable for a drunk driving accident include:
| Party Involved | Type of Liability | Legal Basis | Maximum Potential Liability | Notes |
|---|---|---|---|---|
| Drunk Driver | Criminal + Civil | Criminal Code + Civil Suits | 100% (criminal), varies civil | Faces criminal penalties, restitution, and lawsuits |
| Bar/Restaurant (LLCA licensee) | Civil Only | Liquor License and Control Act (LLCA) | Up to 50% | If overserving directly contributed to accident |
| Bartender/Server | Civil (Personal) | LLCA Section 52 | Case dependent | Can be named in suits if knowingly served intoxicated person |
| Social Host (non-commercial) | Generally not liable | No applicable commercial statute | Rare exceptions | Exceptions: served minors or charged guests for alcohol |
| Employer (at events) | Civil | Duty of care if alcohol served at work events | Case dependent | Especially liable if employee was overserved and drove after event |
A commercial operation’s liability in a drunk driving accident must have a proximate cause, in that the accident must have been reasonably foreseeable and linked to over-serving the driver. Delays between the last drink served and the accident, along with intervening events such as the patron drinking elsewhere, typically weaken liability claims.
To prove liability, plaintiffs must show that overserving the drunk driver increased the risk of the accident. Evidence in such cases typically includes witness statements, security camera footage, bar receipts, and blood alcohol concentration test results.
Yes, under Section 52 of the province’s LLCA, a bartender can be sued and found liable if:
Ontario’s no-fault insurance system ensures that those who are not at fault in a traffic accident will be compensated for their injuries and damages, even if the at-fault driver was intoxicated. Coverage is typically provided by a combination of the victim’s and the offending driver’s insurance companies, up to policy limits. However, the impaired driver’s insurer can sue the offender to recover its payout costs. Additionally, insurers can legally deny claims for the impaired driver’s injuries and damages because driving under the influence violates the insurance policy terms.
Ontario’s LLCA generally limits liability to commercial hosts who serve alcohol. Anyone with a liquor license or special occasion permit has a duty of care to prevent obviously intoxicated people from hurting themselves and others. Social hosts are typically not liable for serving alcohol to adult guests who later cause injuries due to their intoxication. Exceptions can be made to social hosts who knowingly serve minors alcohol or are clearly hosting a commercial operation (i.e., charging guests admission or for their drinks). Additionally, employers can be held liable in such situations if they serve alcohol to their employees (e.g., company parties).
Alcohol laws covering commercial operations — like Ontario’s LLCA — are often referred to as dram shop laws, a term that originated in the 18th-century English-speaking world. A dram was a historic measurement of alcohol equal to about 3.7 millilitres, and taverns, pubs, bars, and inns commonly sold alcohol by the dram. Thus, “dram shop” became a popular name for any establishment that sold alcohol for on-site consumption, and laws regulating them became known as dram shop laws.
Mass Tsang does not practice civil law, so we can’t help defend a bar or restaurant against liability for a drunk-driving accident involving one of its patrons. However, for those reading this article, we hope it helps reinforce the reasons why one should never drive while impaired. That said, if your good judgment has failed you and led to your arrest by Greater Toronto Area police for impaired driving, we suggest you contact us today for a free initial consultation.
