Drunkenness and the Liquor Licence Act - What a Licensee Should Know

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The Ontario Liquor Licence Act and Regulations govern all aspects of liquor licencing in the Province of Ontario. In addition to establishing the process by which a business may acquire a liquor licence, the legislation also regulates the manner in which alcohol is distributed and served in licenced establishments. The failure of a licensee to comply with the legislation can lead to an imposition of a condition on a licence, a suspension of a licence for a prescribed amount of time or worse, the revocation of a licence.

Under the Act, a licensee is prohibited from “permitting drunkenness” on their licenced premises. If a patron is suspected to be “drunk”, a licensee is required to take steps to have that patron removed from the licensed establishment. “Drunkenness” however is not defined in the Act or its regulations. Instead, whether a patron was or is “drunk” is to be determined on a case-by-case basis having regard to all the circumstances and context of each case.

Canadian courts have accepted that the effect of alcohol consumption on a human exist on a continuum ranging from no effect, to feeling effects, to being under the influence, to impairment, to intoxication, finally, to loss of consciousness. “Drunkenness” has been held to exist at the high end of this continuum (R v Hagarty, 2005 ONCJ 317). Traditionally accepted indicia of drunkenness include; glassy or droopy eyes, staggering, unsteadiness on ones feet, slurred speech, loud or disruptive behaviour, vomiting or loss of consciousness. To determine whether a licensee permitted drunkenness within the meaning of the Act, a Tribunal must be satisfied that the balance of the behaviour observed in a patron support a finding that a patron was, in fact, drunk while on the licenced premises.

The potential business consequences of the loss or suspension of a liquor licence to a licensee are obvious. Licensee’s that are faced with potential liquor licence violation should take steps to immediately seek the advice of legal counsel familiar with the options that are available to the licensee for the full resolution of their matter. Our office provides advice and representation on the full range of liquor licencing matters. If you have a liquor license issue, we would be happy to assist you.

A recent case handled by our office is illustrative. In Joe Kool’s Restaurant v Registrar of Alcohol and Gaming 2012 CanLII 83860 the Registrar sought the suspension of a liquor license on the basis that the licensee permitted drunkenness. In that case, a liquor inspector gave evidence that he was in the process of a routine inspection when he observed what he believed to be a drunk patron in the licensed premises. According to his evidence, the patron exhibited symptoms including slurred speech and staggering. A police officer testified that later in the evening, the same patron was charged with impaired driving while attempting to get into her vehicle outside.

Evidence was lead on behalf of the licensee which established that neither the persons who were at the restaurant with the patron or the bar staff observed any signs of drunkenness during the course of the evening. Further evidence was lead which established that the licensee took immediate steps to have the patron removed when the liquor inspector identified the patron to bar staff.

Simon Dann, Member of the License Appeal Tribunal, appropriately identified the two critical questions at issue in the case: was the patron drunk and exhibit behaviour or conduct which should have been apparent to the licensee’s staff or bartenders? Did the licensee permit the allegedly drunken patron to remain at the establishment?

In assessing the evidence, Member Dann concluded that there was insufficient evidence to support a conclusion that the patron exhibited symptoms of drunkenness during her time at the establishment. He further found that the licensee took immediate steps to remove the patron once they were identified as a potential issue by the inspector.

For further information John Brennan can be contacted at 519.640.6336 or jbrennan@lerners.ca.