Legal pot puts restaurants in tough spot

Cannabis legalization is on the minds of many Canadians these days. It doesn’t seem like long ago that an announced legalization date of July 1, 2018 turned us into prognosticators of the regulatory frameworks and likely impacts on individuals and businesses that would result.

What a difference the past 12 months have made. With the Oct. 17 legalization date coming up, the federal Cannabis Act effectively finalized, and provincial distribution models near-complete, our speculations have become much more informed.

But as a lawyer to the restaurant and food service industries, I see businesses still grappling with the inherent tension between the risks and opportunities that cannabis legalization presents for them. The opportunities for restaurants are plentiful, whether it’s increased customer traffic, the upside from cannabis-tourism revenue, clever marketing programs or, of course, the upcoming regulation of edibles.

However, the single largest concern uniformly expressed to me across all restaurant businesses I speak with is the occupier’s liability when serving a customer who is under the influence of cannabis.

Yes, people have been getting high and visiting restaurants and consuming alcohol before legalization was ever on the table. This risk is not new. But cannabis legalization does pose the possibility of more prevalent cannabis consumption, as well as ways to easily conceal cannabis consumption so that no server in a bar or restaurant would ever know.

And if that patron, impaired by cannabis consumption, were served one or more alcoholic beverages, and subsequently caused property damage, personal injury or even death, could the establishment that served the alcohol be liable?

It is no wonder this is on the minds of businesses licensed to serve alcohol. A restaurant or bar owner has a unique duty of care owed to patrons both while they are on, and once they have left, the premises.

In Ontario, for example, the provincial Liquor Licence Act imposes liability on the employees or agents of a commercial host if they sell alcohol to or for a person whose condition is such that consumption would apparently intoxicate the person or increase the person’s intoxication so that they would be in danger of causing injury to themselves, to another person or to the property of another person. The person who sold the alcohol can be liable for damages if personal or property damage is caused, or if the person dies while intoxicated either by suicide or by accident.

That is serious stuff. No wonder so many restaurants and bars are concerned.

Further, the law has established that a restaurant or bar owner has an obligation to ensure that the physical condition of the premises does not pose undue harm to those who enter. For example, floors should not be too slippery, stairs should be adequately lit and facilities should be clean and in good repair.

There is no doubt that alcohol and cannabis, whether consumed separately or together, impair judgment and physical ability. As a result, establishments that serve alcohol are often held to a higher standard of care to ensure their patrons remain safe while on the premises.

And that higher standard of care will be exactly what will be at issue the first time a patron is — unbeknownst to the server — impaired by cannabis and orders drinks, which leads to intoxication to the point of personal or property damage. I have little doubt that some restaurant will be one of the first unfortunate test cases of the liabilities arising from cannabis legalization.

NO WONDER SO MANY RESTAURANTS AND BARS ARE CONCERNED.

I am not opposed to cannabis legalization. My point is that I worry that restaurant businesses, already under a special microscope relating to the duty of care they owe to patrons consuming alcohol, will be exposed to added burdens and liabilities.

That is why education will be vital. Each provincial liquor board or commission already mandates that employees serving alcohol undergo and pass a regulated training course with respect to the safe service of alcoholic beverages. It remains to be seen how or whether these certifications may be augmented to provide for cannabis-related education. But with the risks for restaurant owners so much potentially higher, and the spotlight likely so much larger, the provision of meaningful education for these servers seems crucial.

Shanna Munro, president and CEO of Restaurants Canada, the largest association representing businesses across Canada’s food service industry, says provinces won’t need to reinvent the wheel. “We look forward to helping regulators build on the groundwork we’ve already laid surrounding duty of care with alcohol consumption,” she says. “Governments at every level can leverage the work we’ve been doing, consulting with our members, to ensure their experiences are understood and respected.”

I agree this is the best place to start. Limiting or avoiding liability for restaurant and bar owners does, at least in part, depend on that education. And that education starts with provincial regulators, who must consult with restaurant industry stakeholders in devising these programs.