As the holiday season approaches, what do employers need to remember about serving alcohol?
Question: We are planning a Christmas party again this year, as we do every year, except that there has been some mention of drinking and employers’ responsibility to employees, whether the party is held onsite or not. What do we need to keep in mind?
Answer: In Childs v. Desmoreaux, a recent Supreme Court of Canada decision, the court ruled that “social” hosts of parties where alcohol is served do not owe a duty of care to the general public to protect them from the actions of their intoxicated party guests. The court held that, unless the host’s conduct implicates her in the creation or exacerbation of a risk, a host is entitled to respect the autonomy of a guest.
The court noted that alcohol is frequently served at parties, and that serving alcohol is not an inherently risky activity for a host, as the consumption of alcohol, and the assumption of the risks of impaired judgment, is a personal choice. When an adult makes the choice to drink at a party, there is no reason why the host of the party should be made to bear the costs.
In most social contexts, unless there is evidence that a guest reasonably relied on the host to ensure her safety, there is no duty for a host to monitor a guest’s intake of alcohol or prevent an intoxicated guest from driving.
However, an employer who hosts a party for its employees is not an ordinary “social host.” Canadian courts have suggested the duty of care owed by an employer to its employees at a party is closer to that of a commercial host, rather than a social host.
Statutory obligations imposed on a commercial host (such as a tavern owner) require the commercial host to monitor a patron’s consumption of alcohol, thereby controlling the conduct of that person. If a host has the right to control the conduct of a guest, a failure to exercise that control which results in the very kind of damage you might expect from that failure (such as a car accident) may be actionable by the injured guest.
The key issue in determining whether a host may be responsible for the conduct of its guests is the relationship of control that host has over the person who attends her party. A host’s power of control over the activity of the person who suffers damage or who causes damage is a significant factor in liability. One of the clearest examples of a relationship which involves a right of one person to control the behaviour of another is the employer-employee relationship. The opposite side of this right is the employer’s duty to protect the employee and to take reasonable care to ensure his or her safety.
In Jacobsen v. Nike Canada Ltd., a 1996 ruling by the British Columbia Supreme Court, there was an employer-employee relationship and the employer supplied beer to employees who were working during the evening. The employer knew one of the employees was likely to drive home drunk, but no limit was placed on the consumption of beer and that employee drank at least eight bottles.
After leaving work, he consumed several more drinks at some local taverns. On the way home, the employee fell asleep at the wheel of his car and was seriously injured. In an action for damages, the employer was held in breach of its duty to provide a safe workplace. The evidence established that the employee showed signs of impairment when he left work and the court determined the employer ought to have monitored the amount consumed by the employee, and taken positive steps to prevent him from driving.
Similarly, in Hunt (Litigation Guardian of) v. Sutton Group Incentive Realty Inc., the employee became intoxicated at her employer’s office party. At the time she was engaged as an employee, answering the phone, was expected to clean up after the party and was paid throughout.
The plaintiff alleged that her employer failed to take adequate steps to prevent her from leaving her place of employment while she was in a state of intoxication. She stopped at a bar on the way home and had two more drinks. She then attempted to drive home and was badly injured when her vehicle crashed in inclement weather. At trial, the court determined the employer was liable for the employee’s damages (a new trial was ordered on appeal, but the appeal court did not dismiss the contention that the employer might be liable for the employee’s injuries).
Although a holiday party held after hours and off-site suggests the employer’s authority in the employee-employer relationship is more tenuous, these cases suggest an employer will have some responsibility to look out for its employees when it hosts a holiday party, particularly where alcohol is served. Some suggestions to limit any liability which may arise from hosting a holiday party are:
•provide taxi cabs, at the employer’s expense, to and from the party. Before the party, communicate to all employees that they should use taxis if they will be drinking at the party. Make a similar announcement during the party;
•if an open bar is provided, limit the time the bar is “open.” This discourages overindulgence and makes it easier to manage alcohol intake; and
•appoint one or several managers to casually monitor guests’ alcohol intake and behaviour in order to prevent intoxicated guests from driving.
The cases I have mentioned do not suggest employers should no longer host holiday parties for their staff, they just serve as a caution that employers should take some active steps to monitor alcohol consumption and to discourage guests from driving or engaging in other risky behaviour when engaging in holiday cheer.
Brian Kenny is a partner with MacPherson Leslie and Tyerman LLP in Regina. He can be reached at (306) 347-8421 or [email protected].
Answer: In Childs v. Desmoreaux, a recent Supreme Court of Canada decision, the court ruled that “social” hosts of parties where alcohol is served do not owe a duty of care to the general public to protect them from the actions of their intoxicated party guests. The court held that, unless the host’s conduct implicates her in the creation or exacerbation of a risk, a host is entitled to respect the autonomy of a guest.
The court noted that alcohol is frequently served at parties, and that serving alcohol is not an inherently risky activity for a host, as the consumption of alcohol, and the assumption of the risks of impaired judgment, is a personal choice. When an adult makes the choice to drink at a party, there is no reason why the host of the party should be made to bear the costs.
In most social contexts, unless there is evidence that a guest reasonably relied on the host to ensure her safety, there is no duty for a host to monitor a guest’s intake of alcohol or prevent an intoxicated guest from driving.
However, an employer who hosts a party for its employees is not an ordinary “social host.” Canadian courts have suggested the duty of care owed by an employer to its employees at a party is closer to that of a commercial host, rather than a social host.
Statutory obligations imposed on a commercial host (such as a tavern owner) require the commercial host to monitor a patron’s consumption of alcohol, thereby controlling the conduct of that person. If a host has the right to control the conduct of a guest, a failure to exercise that control which results in the very kind of damage you might expect from that failure (such as a car accident) may be actionable by the injured guest.
The key issue in determining whether a host may be responsible for the conduct of its guests is the relationship of control that host has over the person who attends her party. A host’s power of control over the activity of the person who suffers damage or who causes damage is a significant factor in liability. One of the clearest examples of a relationship which involves a right of one person to control the behaviour of another is the employer-employee relationship. The opposite side of this right is the employer’s duty to protect the employee and to take reasonable care to ensure his or her safety.
In Jacobsen v. Nike Canada Ltd., a 1996 ruling by the British Columbia Supreme Court, there was an employer-employee relationship and the employer supplied beer to employees who were working during the evening. The employer knew one of the employees was likely to drive home drunk, but no limit was placed on the consumption of beer and that employee drank at least eight bottles.
After leaving work, he consumed several more drinks at some local taverns. On the way home, the employee fell asleep at the wheel of his car and was seriously injured. In an action for damages, the employer was held in breach of its duty to provide a safe workplace. The evidence established that the employee showed signs of impairment when he left work and the court determined the employer ought to have monitored the amount consumed by the employee, and taken positive steps to prevent him from driving.
Similarly, in Hunt (Litigation Guardian of) v. Sutton Group Incentive Realty Inc., the employee became intoxicated at her employer’s office party. At the time she was engaged as an employee, answering the phone, was expected to clean up after the party and was paid throughout.
The plaintiff alleged that her employer failed to take adequate steps to prevent her from leaving her place of employment while she was in a state of intoxication. She stopped at a bar on the way home and had two more drinks. She then attempted to drive home and was badly injured when her vehicle crashed in inclement weather. At trial, the court determined the employer was liable for the employee’s damages (a new trial was ordered on appeal, but the appeal court did not dismiss the contention that the employer might be liable for the employee’s injuries).
Although a holiday party held after hours and off-site suggests the employer’s authority in the employee-employer relationship is more tenuous, these cases suggest an employer will have some responsibility to look out for its employees when it hosts a holiday party, particularly where alcohol is served. Some suggestions to limit any liability which may arise from hosting a holiday party are:
•provide taxi cabs, at the employer’s expense, to and from the party. Before the party, communicate to all employees that they should use taxis if they will be drinking at the party. Make a similar announcement during the party;
•if an open bar is provided, limit the time the bar is “open.” This discourages overindulgence and makes it easier to manage alcohol intake; and
•appoint one or several managers to casually monitor guests’ alcohol intake and behaviour in order to prevent intoxicated guests from driving.
The cases I have mentioned do not suggest employers should no longer host holiday parties for their staff, they just serve as a caution that employers should take some active steps to monitor alcohol consumption and to discourage guests from driving or engaging in other risky behaviour when engaging in holiday cheer.
Brian Kenny is a partner with MacPherson Leslie and Tyerman LLP in Regina. He can be reached at (306) 347-8421 or [email protected].
