As the holiday season approaches, it’s time to revisit the law of employer host liability. If your organization plans to host a workplace holiday party where alcohol or other legal intoxicants may be served or consumed, you’ll want to protect your employees from harm and your organization from the potential for significant liability for damages sustained or caused by an impaired employee.
The law of “host liability” – a refresher
The 2001 decision, Hunt v Sutton Group Realty (“Sutton Group”),[1] is a good illustration of the scope of the duty of care that may be owed by an employer to an employee who becomes impaired at a company event and hurts themself.
In Sutton Group, the employer was found partially liable for injuries an employee, Ms. Hunt, suffered during a car accident that occurred while Hunt was driving home from the office holiday party. At the party, Hunt had consumed alcohol made available through an unsupervised open bar. After the party, she and a number of other employees went to a pub where they consumed additional alcohol.
At the trial, the employer argued it was not responsible for Hunt’s injuries because it had taken all reasonable steps to protect her from injury and it was unreasonable to have expected the employer to do more. Specifically, the employer noted the following:
- It had offered a taxi to all employees at the party.
- Recognizing Hunt was impaired, it had asked Hunt if she wanted her husband to be contacted to pick her up.
- It had refrained from putting Hunt into a taxi because it was concerned this may amount to false imprisonment or even kidnapping.
- It was not possible to monitor the alcohol consumption of all employees.
- It was not possible to anticipate Hunt would stop for a drink on the way home from the party.
The trial judge rejected each argument and found the employer had breached its duty of care and was negligent. The employer and pub were held jointly liable for 25 percent of the damages suffered by Hunt who was held 75 percent liable on the basis of self-induced alcohol consumption:
…I find that the defendant Sutton, as the plaintiff’s employer, did therefore owe a duty to the plaintiff, as its employee to safeguard her from harm. This duty to safeguard her from harm extended beyond the simple duty while she was on [the employer’s] premises. It extended to a duty to make sure that she would not enter into such a state of intoxication while on [the employer’s] premises and on duty so as to interfere with her ability to safely drive home afterwards…
As for the additional drinking while at the pub, the court held this “intervening act” did not absolve the employer from liability as the employer should have reasonably foreseen or anticipated this result.
The employer appealed and while the Court of Appeal allowed the appeal and ordered a new trial on both liability and damages, it did so for reasons unrelated to the trial judge’s comments on an employer’s duty of care; that part of the decision remained unchanged.[2]
Sutton Group was cited in the 2021 Supreme Court of British Columbia decision, McLaughlin v. Cerda (“Cerda”),[3] in which the employer was held not to have breached its duty of care to an employee who became impaired after, not during, a work social event. The court noted that the duty of care does not require an employer to take steps to protect an employee after they leave an employer-sanctioned event in a sober state, nor to warn another establishment an employee may be on their way to that establishment. The duty of care and host liability is only triggered if the employee becomes intoxicated at an employer-sanctioned event.[4]
Holiday party best practices
As Sutton Group demonstrates, an employer can be held responsible for the damage suffered by an employee who becomes impaired at a company sponsored event. As such, short of a total ban on intoxicants while at a workplace event, employers may wish to consider any or all of the following best practices:
- Do not have a self-serve, open bar. Instead, retain the services of a professional bartender trained to identify and appropriately deal with an impaired employee.
- Offer a cash bar.
- Establish a drink ticket system.
- Provide non-alcoholic beverages, and food.
- Designate a team leader to monitor consumption and assist anyone who has become impaired and requires transportation.
- Address impaired employees immediately; do not wait until they are about to leave.
- Make transportation or lodging arrangements and communicate them to guests, preferably before the event. This may include:
- A driving service (e.g., taxi, or other paid service)
- Carpooling with designated drivers
- Discounted hotel rooms near the event
- Require impaired employees to turn over their car keys. If an employee insists on driving, call the police.
- Ensure senior management leads by example.
- Have appropriate liability insurance in place.
Finally, we recommend every workplace have a policy regarding the use of legal intoxicants at the workplace or a company sponsored event. The policy should emphasize the employer’s concern for employee safety and make clear the expectation that employees not consider a work event an opportunity to ‘party’ to excess.
Let’s all have a happy and safe holiday season!
To learn more and/or for assistance preparing for this holiday season, contact a member of the Sherrard Kuzz LLP team.
[1] Hunt v Sutton Group Realty, 2001 CanLII 28027 (ON SC). Note, this decision was appealed in Hunt v Sutton Group Realty, 2002 CanLII 45019 (ON CA). The appeal was allowed on grounds other than the duty of care.
[2] The matter ultimately resolved before a new trial was held.
[3] McLaughlin v. Cerda, 2021 BCSC 979.
[4] Ibid at paras 56-57.
