The Muskoka Tragedy

April 10, 2011

(Another) wake-up call for servers of alcohol

Shelley Timms, B.A., LL.B., LL.M.
Timshel Services Inc.
Alcohol Risk Management
Timshel@timshelservices.com

Editor’s Note:
Campus Recreation departments which operate golf courses with restaurant/ bar facilities attached may find this article of interest. There is a (pardon the pun) sobering message here for any recreation organization which sells or distributes alcohol at any of its venues.

On July 3, 2008, a car with 4 occupants crashed through a guard rail, and flipped into Lake Joseph in the Muskoka region of Ontario. One person was able to escape while the other three died. As information was made available to the public, it was alleged that the group had had lunch and were drinking at the Lake Joseph Club bar. Further, it was alleged that 31 drinks were served to the group.

Charges were laid in January 2009 against the bar staff — two servers and one manager – and the licencee, the Board of Directors of the corporate owner, ClubLink (operator of a network of golf courses in Ontario and Quebec). The charges included permitting drunken behaviour on the premises and serving liquor to people who were obviously intoxicated.

The media storm that followed suggested that much of the public felt that the bar should not be charged, it was not fair to expect staff to recognize when someone had had too much to drink, and in particular, not fair to expect staff to cut off a patron when he or she has had too much. Many letters expressed outrage that the members of the Board of Directors could be charged when none of them was in attendance at the relevant time.

What this revealed is that there is much that is unknown about the Liquor Licence Act and the duties and responsibilities owed by an establishment that is granted a liquor licence.

First, a liquor licence is a privilege, not a right. The establishment making application for a licence must show that the prospective licencee is of good character, has no prior criminal history that could be relevant to running an establishment, and that there is a reasonable financial base. Keep in mind, alcohol is a drug, and the only professions legally licenced to sell/or distribute drugs are pharmacists, doctors and bartenders. It is not unreasonable to expect a high level of obligation on these professions, but compare the training of the first two as against the last one. Yet as a society, we don’t impose the same level of obligation on those licenced to sell alcohol but rather treat the substance in ways similar to other groceries – until a tragedy of the magnitude of last July occurs. As it is, no provincial jurisdiction imposes an obligation to obtain liability insurance as a condition of licence.

Next, the Provincial Liquor Acts set out a number of duties and obligations owed. Each section states a variation of: “a licencee, its agent, representatives, employees, …….”. This means that a board of directors is responsible for the actions of its employees. So while an owner may not be on premises when an incident contrary to the Act occurs, the owner is still responsible. Further, the owner (in this case, the Board of Directors), is responsible for the culture that is set for the establishment. Does the owner insist on training and how extensive is the training? Is there an alcohol policy for the establishment and do the employees know it and enforce it? What are some of the basics, such as how a patron is cut off, what is done to ensure that a patron arrives home safely, etc.

A common view expressed in many letters to the editor following the charges, was that a young server cannot be expected to cut off a patron who is a member of a private club. That is clearly wrong and not supported by law. The licencee is expected to train and support its staff in the service of alcohol, including cutting off patrons who are approaching intoxication or are already so. All licencees are equal under that law and are required to follow the provincial liquor act; they need to expect that they will be treated in the same way, regardless of expense, membership, type of establishment and so on.

Further, the licencee needs to establish its “culture” — that it will follow the “rules” such as slowing service and cutting it off, prohibiting patrons from entering the premises if it appears that they are underage and/or intoxicated, confiscating illegal substances including “other alcohol” and escorting the patron out, calling cabs or insuring that patrons have the means to return home, and being clear that that they will call the police if there is a chance of an intoxicated patron driving. This begins with good training (which is ongoing, not just a one-time workshop) and reinforced with regular staff meetings. It is also supported by a good written alcohol policy which the staff knows well.

Another argument made in letters to the editor was that staff make their tips by continuing to serve, regardless of the level of intoxication. Just as stated above, this needs to be counteracted by the establishment’s culture, and the safety and enjoyment of patrons. At the end of the day, the tips made won’t be enough to pay for legal counsel to deal with charges of permitting drunken behaviour.

Finally, I want to address the issue of personal responsibility. This comes up time and time again, and the reality is that there is still personal responsibility. In this case, 3 of the alleged intoxicated people died. However, when the substance is alcohol, as consumption increases, personal judgement and responsibility decreases. Public reaction to this case and to the bar may have been very different if the car had hit innocent parties and killed them rather than going into the lake. The staff of the licencee is there and can observe the signs of intoxication, track the number of drinks and go on their instinct that may tell them someone has had too much. That is why liquor licencees and their staff are required to have some basic training (Smart Serve is now mandatory in Ontario). Smart licencees have ongoing training, policies and self audits to maintain a good environment. The courts have stated that if a bar is making money from the sale of alcohol then obligations to monitor consumption are a cost of doing business.

Due to increasing liability, many licencees have changed their business practices and become more diligent regarding tracking and monitoring of alcohol service. Initially, they may have seen a drop in business, but after a short period their business likely increased as new patrons have viewed the establishment as a location where they can have a good time – and be safe.