“It Is Not Reasonable To Expect A Tobacco Retailer To Control Its Employees At All Times” – Superior Court of Quebec

A single appeal judgment, which will undoubtedly serve as a precedent for convenience stores, has just reiterated that the concept of due diligence must be precisely what it says, ie “due or adequate supervision”!

Serge Richard, owner of the Dépanneur 5 Étoiles in Trois-Rivières, was sentenced on July 12, 2016 by Judge Gaétan Ratté to a fine of $ 500 plus fees for having, on August 11, 2014 and through an employee, sold tobacco to a minor, in this case a 16-year-old assistant inspector hired by the Quebec Ministry of Health and Social Services (MSSS).

Considering though that the judge misinterpreted the Law, Mr. Richard appealed to the Superior Court… and won! The judgment has just been finalized a month ago, on October 16, 2017.

The Dépanneur 5 Étoiles is a busy depanneur in Trois-Rivières. It welcomes about 1000 customers a day, includes a postal counter, a SAQ Alimentation counter, a large section of micro-brewery beers and offers cooked meals on site.

When he first pleaded his case on May 3, 2016, Mr. Richard and his manager Katya Richard went to great lenghts to demonstrate that they were doing everything in their power to prevent the sale of tobacco to minors:

  • For seven to eight years, the convenience store has implemented an internal policy of systematic age verification of customers looking 25 years old or younger;
  • The owner installed posters indicating the obligation for anyone looking 25 years old or less to show ID;
  • During the job interview of a new employee, this policy was explained personally by the owner;
  • In the event of a breach of the policy, the employee at fault is fired and threatened, in addition, to being fined $ 600;
  • Compulsory training at the caisse is required for at least 30 hours during which the new employee is always accompanied by an experienced employee. The training can even extend up to 60 hours;
  • In terms of supervision, there are always experienced employees or a supervisor on site;
  • The convenience store also has a system of 35 cameras, one with a microphone above the check-out area. Employees are aware that they are filmed and recorded all day;
  • There are constant reminders to employees to make sure they don’t forget to ask for IDs when necessary;
  • The convenience store also uses a book to communicate with employees, which contains information, comments, notes and instructions;
  • In 34 years of operation, Mr. Richard is proud that an employee never got caught selling tobacco to minors.
Guilty for lack of supervision

In his judgment, Judge Ratté gave credit to the owner for his persistence in reminding employees — during training or other — to verify the age of all customers appearing to be twenty-five years-old or less. He notes that signs are placed near the check-out area in the depanneur, and that meetings and reminders are regularly held and given to employees. He notes the presence of a surveillance camera system, the on-going presence of a manager and other more experienced employees. He also emphasizes the training of employees and refuses to question its quality as suggested by the prosecutor.

Posters reminding clients who look 25 years old or younger that they must show ID are placed in strategic areas of the store.

However, despite his positive comments suggesting that he has acted responsibly, he finds him guilty.

According to the Judge, the fact that the employee who had 15 months of experience was left alone at the check-out area during the offense is a significant negligence in its employee supervision process, especially since the employee in question has been a cause of concerns to the owner. Knowing the situation and the possibilities, if not probabilities, of error by this person, the defendant had to make sure that she was not left to herself and better supervised.

The Judge adds that depanneurs carry out a highly regulated activity which imposes a greater responsibility than other types of businesses.

“It can not be exonerated from this responsibility by referring it to the employee who, because of her young age, her inexperience and her own limited abilities, may not be able to assume it without supervision and adequate monitoring”, wrote Judge Ratté.

It should be noted here that, in light of due diligence judgments that have proliferated in Quebec in recent years, the trend has been towards a clear legal tightening of this notion, in the sense that it was becoming more and more difficult for a convenience store owner to deny responsibility for the behavior of an employee, regardless of the circumstances.

Appeal procedure: the depanneur goes all in

Mr. Richard argued on appeal that the judge misinterpreted the Law with respect to the legal standard of care applicable in matters of strict liability and a manifest error in the assessment of the facts by finding in particular the offending employee was working unsupervised on the day of the offense.

After reviewing the facts, the Superior Court recalls that in the context of this defense, it is necessary to apply an objective standard and to assess the accused’s conduct in relation to that of a reasonable person, who is in a similar context.

In other words, it is necessary to evaluate the convenience store’s behavior relative to another reasonable tobacco retailer.

In the Sault St-Marie case, the Supreme Court of Canada found that the employer’s liability is based on control and ability to prevent an offense to occur. In other words, due diligence is not an obligation of result, but an obligation of means, of reasonable means in the circumstances.

The Superior Court therefore considers that Judge Ratté seems in this regard to have imposed an excessive burden on the employer by requiring him to constantly follow an employee, regardless of her training.

In a similar case, i.e. Groupe Harnois inc. (see judgment here), the Superior Court reiterated that one should not impose on an employer a burden that is too heavy, equivalent to a standard of perfection or infallibility, which is then incompatible with the standard of due diligence applicable to strict liability.

Thus, the “Law does not require the employer to assume that all employees are stupid, grossly careless or irresponsible” writes the Superior Court. “It does not impose either to follow them step by step, but to supervise them well, to establish realistic preventive measures and to ensure their correct application.”

In addition, it is incorrect to claim that the employee was left alone because the offense occurred during the day, there were other experienced staff members on-site, the manager was working in the checkout area four hours per day and the employee monitored further by a camera system.

Thus, the Superior Court considers that it is not because the employee in question is alone per se that Judge Ratté can conclude that she was left without supervision by the owner on the day of the offense.

Also, the Court deems unreasonable that Judge Ratté found that Dépanneur 5 Étoiles had not taken all reasonable steps to prevent the sale of tobacco to minors. Although this can be true in cases where there is insufficient evidence of general guidelines, spot checks and frequent reminders, Dépanneur 5 Étoiles was doing a lot more: cameras, posters, policies, communication book, warnings, checks, the presence of family members and many other things. This is certainly enough to ensure that the guidelines are applied within the store.

In conclusion, the Superior Court wrote that Judge Ratté disregarded the entirety of the evidence related to the case and imposed on the c-store owner a burden of proof beyond that which was incumbent upon him: he required proof of physical supervision of the employee at the check-out area during the offense and not only evidence that the owner took all reasonable precautions to avoid the event in question.

These errors justify the acquittal of the Dépanneur 5 Étoiles, since the latter has been diligent.

Had it not been for these errors of law and fact, the initial judgment would not have been the same and the convenience store would have been acquitted of the alleged offense!

By achieving an appeal victory that will allow the legal concept of due diligence to be better interpreted as not meaning infallibility and perfection but reasonable supervision, Dépanneur 5 Étoiles has rendered a tremendous service to the entire industry.

The Dépanneur 5 Étoiles was ranked 22nd in DepQuébec’s Top 100 Most Liked Depanneurs in Québec unveiled last month. The initial judgment can be found here and the appeal, here (in French only).

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