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27 November 2018
The expansion of recognised duties of care owed to intoxicated persons recently met resistance from the Ontario Superior Court of Justice. In Stewart v The Corporation of the Township of Douro-Dummer (2018 ONSC 4009), the plaintiff was one of four intoxicated passengers in a taxi who had been injured after the taxi was involved in an accident.
It was found that the taxi driver was not at fault in the actual accident and the plaintiff did not have his seatbelt fastened at the time of the accident, which resulted in more serious injuries. By the time the action went to trial, the only issue was whether the taxi driver owed the plaintiff a duty of care to ensure that his seatbelt was fastened on the basis that it was apparent to the taxi driver that the plaintiff was intoxicated and therefore vulnerable and unable to look after himself.
Under Ontario's statue, no duty is owed to adults to ensure that they are wearing their seatbelt. The plaintiff attempted to get around this statute and establish a distinct prima facie duty on the basis that he had been intoxicated. The court in Stewart centred its decision on the evidentiary record in the case, which established no reasonable basis for the plaintiff's expectation that the taxi driver would ensure that he wore his seatbelt. Therefore, the court found that there was not sufficient proximity between the plaintiff and the taxi driver. The court went further and 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 on adult passengers and found that intoxication is the responsibility of the adult passenger and not the taxi driver. In this regard, the court stated as follows:
 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.
 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 a duty could have an adverse effect on whether taxi drivers accept business from an intoxicated passenger, 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 fasten their seatbelt at the beginning of a journey. However, this scenario did not apply to the facts of this case since the evidence showed that the plaintiff had been wearing his seatbelt at the start of the journey. In any event, the court found that this duty to warn would not continue throughout the journey.
Given the broad duties that have been imposed in respect of intoxicated persons – particularly on commercial hosts – and the perception in Ontario that those duties are prone to being expanded on 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 it is expected that this decision will have strong persuasive value moving forward in similar cases, unless and until an appellant court weighs in otherwise.(1)
For further information on this topic please contact Douglas BB Stewart at Dentons by telephone (+1 416 863 4511) or email (firstname.lastname@example.org). The Dentons website can be accessed at www.dentons.com.
(1) For more information please see www.occupationalhealthandsafetylaw.com.
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Douglas BB Stewart