Ontario Court hits the brakes on duties owed to intoxicated plaintiffs

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The expansion of recognized duties of care owed to intoxicated persons recently met resistance from the Ontario Superior Court of Justice. In Stewart et al. v. The Corporation of the Township of Douro-Dummer, 2018 ONSC 4009, the Plaintiff was one of four passengers in a taxi cab who was intoxicated and injured after the cab was involved in an accident. The cab driver was not at fault in the actual accident. The Plaintiff did not have his seat belt buckled up at the time of the accident, which resulted in more serious injuries. By the time the action got to trial, the only issue was whether the driver owed the Plaintiff a duty of care to ensure his seat belt was buckled on the basis that it was apparent to the driver that the Plaintiff was intoxicated and, therefore, vulnerable and unable to look after himself.

The Court found that no duty of care existed and, in so doing, conducted an extensive analysis of the issue, as well as jurisprudence in other common law jurisdictions (i.e., United Kingdom, United States and Australia), none of which recognized such a duty.

It is established by statute in Ontario that no duty is owed to adults to ensure they are wearing their seat belt. In essence, the Plaintiff attempted to get around the statute and establish a distinct prima facie duty on the basis that he was intoxicated. The Court in Stewart centers its decision around the evidentiary record in the case, which did not establish any reasonable basis for the Plaintiff’s reliance upon or expectation that the driver would ensure he wore his seat belt.  Therefore, the Court did not find there to be sufficient proximity between the Plaintiff and driver. The Court went further and also based its decision on residual policy considerations that would negate the establishment of a duty of care. In this regard, the Court based its policy considerations on the existing statutory limitations to such duties being imposed towards adult passengers, and found that intoxication is the responsibility of the adult passenger and not the cab driver. In this regard, the Court stated:

[148] Adults can self-induce intoxication. They can make a choice to consume alcoholic beverages to the point of intoxication. It is obvious that persons who chose to become intoxicated, as in this case, will be less able to care for themselves, make appropriate choices, or make safe decisions to protect them from harm when intoxicated. If an adult chooses to become intoxicated to the point that the adult cannot protect their own safety or carry out their responsibility in a taxi cab to buckle their seat belt, there is little reason why the law should find a duty and impose an obligation on a taxi cab driver to assume the responsibility and liability for the voluntarily intoxicated adult.

[149] I see no valid policy reason why this “transfer” of responsibility/liability should occur arising solely from the hiring of a taxi cab. There is no obvious societal benefit for this transfer of responsibility arising solely from the hiring of a taxi cab by an intoxicated adult passenger.

The Court noted that establishing such duty could have an adverse effect on cab drivers choosing not to take fares from intoxicated passengers, which would be contrary to public policy.

The Court left open the possibility that there could be a duty to warn an intoxicated passenger to buckle his seat belt at the beginning of a fare, but this scenario did not apply to the facts of this case since the evidence showed that the Plaintiff was buckled up at the start of the trip. In any event, the Court found that this duty to warn would not continue throughout the fare.
Given the broad duties that have been imposed in respect of intoxicated persons, particularly on commercial hosts, and the perception that in Ontario those duties are prone to being expanded upon other service providers creating new avenues of liability, this decision may be reflective of a more balanced view on the issue of intoxication and the associated responsibilities.

This case was primarily decided on its facts, but given the extensive analysis and reference to other jurisdictions that also refused to expand these duties, we expect this decision to have strong persuasive value moving forward in similar cases, unless and until an appellant court weighs in otherwise.

For a more detailed discussion of the decision and its potential ramifications please contact Doug Stewart or another member of our Canadian Insurance group.