Defence & Indemnity - June 2017 : II. LIABILITY ISSUES B. Widdowson v. Rockwell [2017] B.C.J. No. 457, per Kent, J. [4233]

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B. A commercial host’s liability with respect to an intoxicated patron will not necessarily end when the patron arrives safely home – it is not necessarily a break in the chain of causation.
  Widdowson v. Rockwell  [2017] B.C.J. No. 457, per Kent, J. [4233]

The Defendant Rockwell spent an afternoon drinking at Cambie Bar and Grill (“Cambie”), a popular Vancouver bar. He and a friend (Sahanovitch) then drove to Rockwell’s house and arrived safely. The trip took 50 minutes. They stayed in the house for 30 minutes, during which time they drank some more alcohol. Then Rockwell proceeded to drive Sahanovitch to an appointment. He lost control of his vehicle while attempting a right turn and injured the Plaintiff Widdowson (who was a pedestrian on the sidewalk). Widdowson sued both Rockwell and Cambie. The matter was dealt with by way of a summary trial, in which the evidence before the Court consisted of affidavits and transcripts of discovery and cross-examination on affidavit. 
In particular, all three servers of the Defendant Cambie deposed to affidavits which contained the following identical paragaraphs:
Moreover, upon being hired by the Cambie, I reviewed, and agreed to abide by the Cambie's written policies and procedures for serving alcohol (the "Policies and Procedures"). In particular, the Cambie's written Policies and Procedures require all serving staff, including myself, to take care that patrons do not become intoxicated at the establishment. The Cambie's Policies and Procedures further require all serving staff to immediately stop serving an intoxicated patron and take steps to ensure that an intoxicated patron is provided with a safe means of transportation home ..."
I would never serve a patron who was slurring her words, staggering, unable to count their money or exhibiting any other signs of intoxication.
I did not observe any patrons exhibiting signs of intoxication on February 17, 2012 or serve alcohol to any patrons at the Cambie who were exhibiting signs of intoxication during my shift on February 17, 2012. Had I observed patrons exhibiting signs of intoxication, I would not have served them further alcohol, and I would have taken steps to ensure that the intoxicated patron had a safe ride home, by calling a cab if necessary.

How should fault for the accident be allocated as between the impaired driver and the commercial host? Did the fact that the Defendant Rockwell arrived home safely before going out again and getting into the accident break the chain of causation?

III. HELD: The defendant was found liable and allocated 25% of the fault for Widdowson's injuries

The Law

1. Liability of a Commercial Host

(a)    The Court found that commercial hosts have a responsibility as well as a positive duty to patrons (and the people they come in to contact with) to ensure they remain safe. If that duty is not properly discharged, establishments can find themselves significantly liable: Stewart v. Pettie [1995] 1 S.C.R. 131

(b)    It was also emphasized that the existence of a duty of care must not be confused with the standard of care. In order for liability to flow, there must be proof that the breach of the standard of care "actually caused the loss complained of."

(c)    An establishment cannot avoid liability just because a patron is not exhibiting visible signs of intoxication. The server must keep track of how many drinks have been served to the patron regardless of the visible symptoms they may or may not be exhibiting. A commercial host does not escape liability simply by not knowing that the patron became inebriated before driving; the commercial host is liable if it or its employees knew or ought reasonably to have known in the circumstances that the patron was in such a condition.

(d)    It was noted that a duty of care may be discharged if the intoxicated person is put under the care of a ‘responsible person’ such as a sober family member or friend. The need to intervene may be reduced if there are sober companions to the intoxicated patron: Jordan House Ltd. v. Menow [1974] S.C.R. 239

(e)    The standard of care required by the commercial host will vary depending on the circumstances, but may include actions such as putting the patron into a taxi or into the care of sober persons, or calling the police: Haughton v. Burden, [2001] O.J. No. 4704 (S.C.J.).

(f)    There is also a marked difference between a ‘social host’ and ‘commercial host’ regarding liability to a third party. Only the latter has a responsibility to take ‘positive steps to protect” the third party members of the public: Childs v. Desormeaux, 2006 SCC 18. The Court held that it would be unrealistic to expect a ‘social host’ to keep track of alcohol consumed during a party at home, for example. There is also an economic benefit to commercial hosts serving as many drinks as possible. There should therefore be some responsibility on the host regarding excessive intoxication.

2. The Court enunciated guidelines regarding a commercial host’s liability:

[74]    While the standard of care expected of a commercial host will, in large part, be governed by the particular circumstances of any given case, there are several general standards of conduct  [emphasis added] that could well apply simply as a matter of common sense, including: 
  • Ensure there are adequate supervision, monitoring and training systems in place so employees know and abide by responsible serving practices;
  • Ensure there is a sufficient number of serving staff on duty so that effective monitoring of alcohol consumption by patrons is possible;
  • Ensure employees know the signs of intoxication and the various factors that influence intoxication (gender, weight, rate of consumption, food, et cetera);
  • Inquire if the patron is driving and identify any “designated driver” for groups of patrons;
  • Know how to estimate blood-alcohol concentrations and ensure any driver does not consume more than the appropriate number of drinks to stay on the “right side” of the legal limit;
  • Display “tent cards” on tables, posters on walls and washrooms, and menu inserts with easy-to-read charts and information about blood-alcohol concentration;
  • Ask apparently-intoxicated patrons if you contact anyone to assist them or if you can get them a taxi and, if necessary, offer to pay for it;
  • Display posters advertising free ride-home services available in the neighbourhood; and
  • If the patron rejects alternative options and insists on driving, despite being urged otherwise, contact the police to seek assistance and/or provide whatever information might encourage their intervention.
3. The Court held that little weight should be given to the affidavits of the servers which contained identical paragraphs on the main issues in the case. Kent, J. held that the paragraphs in question were drafted in “lawyer speak” by their counsel, did not represent the deponents’ words and were untrue. They had been “manufactured by counsel”:
44  These paragraphs deserve little if any weight. They were drafted by a lawyer and purportedly adopted by the witnesses. They clearly do not represent the witnesses' own words. The content is "lawyer speak" not "ordinary person speak." Having observed these various witnesses being cross-examined, it is clear that if asked proper questions on direct examination, none of them would have given this evidence in the same words or syntax found in these paragraphs. These paragraphs are in effect testimony manufactured by counsel, and the use of such identical language in multiple affidavits from different witnesses is simply not an acceptable method of adducing evidence (let alone credible evidence) on a summary trial.
45  Furthermore, the cross-examination of the employees revealed that some of the assertions in the affidavits are not true or, at least, did not represent the actual conduct of the employees on the day in question. For example, the waitress Kennedy stated that if she saw a person drunk in the bar she would "give them water and wait for them to leave on their own." The bartender Wyse stated that if four people in the space of two hours consumed eight beers, four double vodkas, and six shooters, this is something that would not attract his attention. He also stated what I consider to very likely be the reality of day-to-day practice in this establishment, namely, that intervention depends on how the patrons are behaving and would not likely occur if they do not act like they are drunk.

4. The Court ultimately concluded that Rockwell was “quite literally, falling-down drunk” at the time of the accident (para. 3).

5. The Court held that the fact that the intoxicated patron arrived home safely before venturing out again to become involved in an accident does not necessarily break the chain of causation. Kent, J. applied the “but for” causation test to note that the pub’s negligence could still be a contributing cause to the ultimate accident, even if the patron’s arrival home dictates that it is no longer the proximate cause.

(a)    The Court held as follows:

81  In my view, there is little logic to the bald proposition that a safe arrival home "breaks the chain of causation" or otherwise discharges the pub's duty of care. Ought it really matter whether the pub-induced intoxication triggers a fall while walking home as opposed to a fall once the drunken patron has successfully crossed the threshold into his house? Does it make any sense that liability can be imposed for alcohol-caused injury to third parties before arrival at home but not if same injury occurs after leaving the home a few minutes later?
82  The test for causation in tort is set out in Athey v. Leonati, [1996] 3 S.C.R. 458; Resurfice Corp. v. Hanke, 2007 SCC 7; Blackwater v. Plint, 2005 SCC 58; and Clements v. Clements, 2012 SCC 32: causation is established when the plaintiff proves on a balance of probabilities that the defendant's tortious conduct caused or contributed to the plaintiff's injury. The general, but not necessarily conclusive, test for causation is the "but for" test, which requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant. Causation is essentially a practical question of fact which can best be answered by ordinary common sense. And it is not necessary for the plaintiff to establish that the defendant's negligence was the sole cause of the injury ... as long as it is part of the cause of an injury, the defendant is liable: Athey at para. 17
83  In the present case it would be artificial in the extreme to say that Rockwell's intoxication, which was caused at least in part by the excessive consumption of alcohol at the pub, was not a cause of the subsequent accident simply because he spent a few minutes at home before again venturing onto the road. I have found as a fact that the pub's breach of duty led to Rockwell being substantially impaired when he first left the pub and got into his vehicle. That intoxication still existed at the time of the accident, albeit increased by subsequent alcohol consumption, and hence it was clearly part of the cause of the accident and of the resulting injuries sustained by the plaintiff. Applying the causation principles referred to above, that is sufficient to found liability on the part of the pub in this case.
84  I recognize the argument that because of Rockwell's attendance at home, the pub's breach of duty might no longer have been a "proximate cause" of the accident or:
... in other words, that the damage was not too remote from the factual cause. ... The remoteness inquiry assumes that but for the defendant's wrongful act, the plaintiff's loss would not have occurred, but places legal limits on the defendant's liability: Hussack v. Chilliwack School District No. 33, 2011 BCCA 258 at para. 54. 
(b) The Court expressly declined to follow case law going the other way on this point as not binding upon it, including Salm v. Coyle and ICBC et al, 2004 BCSC 112 and Schryer (Litigation Guardian of) v. 1232215 Ontario Ltd. (Lakeview Beachbar), [2009] O.J. No. 3578 (S.C.J.).

(c) His Lordship noted that the Court of Appeal may overrule him to conclude that a patron’s safe arrival home eliminates the commercial host’s liability, but until it does he is not bound by that proposition:

85  It may well be that our Court of Appeal will determine, as a matter of general principle, that arriving safely home should limit (or eliminate) a pub's liability for damage thereafter caused to third parties by an intoxicated patron. Thus far at least, there is no authority to that effect that is binding upon me and I decline to make such a ruling in the circumstances of this particular case. In my view, delivery of the intoxicated patron into the hands of a sober and responsible person might arguably permit the elimination of otherwise indeterminable liability, but that did not occur here.
6. Allocation of Fault

(a)    The Court held that fault is to be determined by assessing the nature and extent of the departure from the standard of care of each of the parties. Apportionment of liability under the Negligence Act is not based on assessing degrees of causation but rather assessing degrees of "fault": Matkin v. Hogg, 2015 BCSC 560.

(b)    Relevant factors that courts have considered in assessing relative degrees of fault were summarized as follows, quoting from Aberdeen v. Langley (Township), 2007 BCSC 993:

[62] Thus, fault is to be determined by assessing the nature and extent of the departure from the standard of care of each of the parties. Relevant factors that courts have considered in assessing relative degrees of fault were summarized by the Alberta Court of Appeal in Heller v. Martens, supra, [2002] A.J. No. 638 at [para.] 34 as follows:
1.    The nature of the duty owed by the tortfeasor to the injured person...
2.    The number of acts of fault or negligence committed by a person at fault...
3.    The timing of the various negligent acts. For example, the party who first commits a negligent act will usually be more at fault than the party whose negligence comes as a result of the initial fault...
4.    The nature of the conduct held to amount to fault. For example, indifference to the results of the conduct may be more blameworthy... similarly, a deliberate departure from safety rules may be more blameworthy than an imperfect reaction to a crisis...
5.    The extent to which the conduct breaches statutory requirements. For example, in a motor vehicle collision, the driver of the vehicle with the right of way may be less blameworthy...
[Authorities omitted.] 
[63] Many of the above-noted factors are discussed in Chiefetz, Apportionment of Fault in Tort, supra, at pp. 102-104. Considering that, I conclude it would be appropriate to add the following as relevant factors:
1.    The gravity of the risk created;
2.    The extent of the opportunity to avoid or prevent the accident or the damage;
3.    Whether the conduct in question was deliberate, or unusual or unexpected; and
4.    The knowledge one person had or should have had of the conduct of another person at fault.
[66] Another important factor in assessing the relative degree of blameworthiness of the parties is the magnitude of the departure from the standard of care. For example, in Alberta Wheat Pool, supra, the plaintiff's grain loading facility was destroyed by a fire caused by molten slag from the defendant's welding activities. The defendant was negligent in not thoroughly wetting the area in which welding was taking place. The plaintiff was contributorily negligent in having a fire protection system which did not meet recommended standards. On the issue of apportionment, Finch J.A. for a majority of the Court of Appeal found that both parties exhibited a substantial or significant departure from the standard of reasonable care expected of each. He noted at [para.] 55 that "[w]hile the fault of the two is different in kind, I do not see how one can justify a conclusion that their faults differ in degree." Thus, liability was apportioned equally pursuant to s. 1(2) of the Negligence Act. McEachern C.J.B.C. in dissent found the owner's fault to be higher: the owner's failure was considered and deliberate, while the contractor's fault was accidental and unexpected. The contractor had failed to water sufficiently, but it did not fail to water at all.
[67] Thus, the key inquiry in assessing comparative blameworthiness is the relative degree by which each of the parties departed from the standard of care to be expected in all of the circumstances. This inquiry is informed by numerous factors, including the nature of the departure from that standard of care, its magnitude, and the gravity of the risk thereby created.
(c)    The Court held that usually the drunken patron will bear the most liability as a matter of principle:
90  Each case will, of course, turn upon its own facts. However, as a matter of general principle, it seems to me that the responsibility for damages in commercial host cases should lie primarily with the drunk driver and particularly so where, as here, the driver's conduct is completely inexcusable and resulted in reckless endangerment of the public. Such deliberate misconduct is much more blameworthy than negligence simpliciter.
As a matter of general principle, the responsibility for damages in commercial host cases should lie primarily with the drunk driver and particularly so where the driver's conduct is completely inexcusable and results in reckless endangerment of the public. Such deliberate misconduct is much more blameworthy than negligence simpliciter.

7. Kent, J. concluded that the pub was liable. For the purposes of contribution and indemnity, fault was allocated 75% to Rockwell/Ridge and 25% to Cambie.

(a)    The fact that Cambie’s bar staff could remember very little about the Rockwell party meant their evidence was given little weight and they were unable to lead evidence rebutting that much of Rockwell’s drinking took place at the bar. Furthermore, staff were unclear when discussing policies relating to intoxicated customers. Post-Widdowson licensees should focus on the clear delivery of training and supervision of staff to ensure liability is avoided where possible.

(b)    Cambie’s employees had failed to follow the safe-serving policies set out by their employer. They did not meet the standard of care in the circumstances of this case. The arrival home of Rockwell did not break the chain of causation from the establishment. There was no contributory negligence by Widdowson therefore Rockwell and Cambie were jointly and severally liable.


This comprehensive and well-reasoned decision definitively challenges the concept that a negligent commercial host’s liability does not end when the intoxicated patron arrives home or his/her destination. The Court expressly acknowledged that the Court of Appeal might come to the opposite conclusion.

Also, this case speaks to the duty of counsel when drafting affidavits. Counsel should be careful to ask the deponents questions about the issues that would be asked if they were testifying in chief at trial, use the witness’s own words.  Counsel should not merely draft what he/she would like the witness to say on the issues in legalese. Otherwise, the witness may be caught out in an inaccuracy when cross-examined on affidavit and/or the Court may give the evidence little weight.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at:

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This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.