Duty of Care

Published in Orchard and Vine Magazine on: December 11, 2012

The holiday season is here. It is the time to make merry and enjoy holiday celebrations. Many of you with employees may be planning a business Christmas party where alcohol is served. While you are deciding on the food to be served and gifts to give away, take a few moments to think about the “duty of care” you may owe to your employees at your party and steps you should take to minimize your risk of liability.

I know…seasonal parties are supposed to be about good times and cheer, not risks of potential liquor liability. But, let’s say that you provide several bottles of B.C. wine at your party and an employee drinks too much, drives home, gets into an accident and becomes a paraplegic. The good times at the party long forgotten, your employee sues you for negligence.

Your employee argues you threw a party where a large amount of liquor was available and you should have done better to protect their safety in the workplace. Your employee takes you to court and argues that because you gave them access to liquor and failed to monitor their drinking, when you knew or ought to have known your employee would be driving home, you should have to pay damages for their injury.

A few moments thinking about employer host liability could save you a great deal of grief and cost in the future.

Such an argument was made by an employee in Hunt v. Sutton Group Incentive Realty Inc., a 1996 case from the Ontario Superior Court of Justice. In this case, the employer held a holiday office party at its office for employees, customers and other business associates. Guests served themselves from an open bar and no one was monitoring how much liquor each guest drank. The employee, Ms. Hunt, was the office receptionist, attended the party where she drank alcohol, cleaned up the office at the end of the party and left with others. She and the others went to a local pub where she consumed more alcohol. She left the pub about 1.5 hours after arriving. While driving home, Ms. Hunt appeared to have lost control of her vehicle, slid into the opposite lane and was hit by an oncoming vehicle. She was seriously injured.

During the trial of the case, the employer argued while there was a duty on the employer to keep the place of employment safe, the duty did not require the employer to supervise an employee’s drinking habits or ask about an employee’s intoxication level when there are no signs of impairment.

The trial judge rejected the employer’s position and found the employer had a duty to its employee to safeguard her from harm, which included a duty to ensure she would not enter into such a state of intoxication while on business premises and “on duty” that would interfere with her ability to drive home safely. The judge concluded the employer should have anticipated the possible harm that could have happened to her as a result of her intoxication and taken positive steps to prevent her from driving.

The trial judge concluded that the employer and the pub were jointly and severally liable for 25% of the employee’s loss.

On appeal by the employer, a new trial was ordered as a result of certain errors of law made during the trial; however the Court of Appeal did not take issue with the rulings of the trial judge regarding the standard of care owed by the employer to the employee. The decisions of the trial judge regarding the care owed by the employer to Ms. Hunt at the holiday party may be followed by another trial judge.

This is why it is important to spend time considering whether you, as an employer, owe a duty of care to your employees. Consider the specifics of your Christmas party and determine what steps you need to take as a result. What inquiries will you make to determine if your employee is intoxicated? Will your bar be supervised? Will you offer your employees a cab ride home or, if necessary, take away their car keys? Do you know the names and numbers of their relatives who can pick them up?

Depending upon the situation and the specific factual scenario under which liquor is provided, different standards of care may apply and the potential for liability will vary. As this article provides information alone, obtain advice from your lawyer about your specific business.■

Denese Espeut-Post is an Okanagan-based lawyer and owns Avery Law Office. Her primary areas of practice include wine and business law. She also teaches the wine law courses at Okanagan College.

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