The holidays are fast approaching. That can only mean one thing — it’s office party season. Here are a few things employers (and employees) should keep in mind when planning and hosting holiday parties.
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 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 alcohol intake 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.
Statutory obligations imposed on a commercial host (such as a tavern owner) require the commercial host to monitor a patron’s alcohol consumption, thereby controlling the conduct of that person. If a host has the right to control a guests’ conduct, a failure to exercise that control which results in the very kind of damage expected 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 her guests’ conduct is the relationship of control that host has over the activity of the person who suffers damage or who causes damage. One of the clearest examples of a relationship that 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 safety.
Jacobsen v. Nike Canada Ltd
., a 1996 ruling by the British Columbia Supreme Court, 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 while driving and was seriously injured. In an action for damages, the employer was held in breach of its duty to provide a safe workplace. The court found that the employee showed signs of impairment when he left work and that the employer ought to have monitored the amount the employee consumed, and taken steps to prevent him from driving.
Hunt (Litigation Guardian of) v. Sutton Group Incentive Realty Inc.
, the employee became intoxicated at her employer’s office party.
The plaintiff alleged her employer had 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 that may arise from 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 managers to casually monitor guests’ alcohol intake.
Brian Kenny is a partner with MacPherson Leslie and Tyerman LLP in Regina. He can be reached at (306) 347-8421 or email@example.com.