This is the question that K.L. v. 1163957799 Quebec Inc., 2015 ONSC 2417
hopes to answer. In the summer of 2013 Calypso Theme Park
("Calypso") hosted an employee social event with
unlimited access to alcohol. Over the course of the event it is
alleged that sexual harassment, sexual assault, forcible battery,
and other tortious conduct took place between a 19 year old female
and her 40 year old supervisor. The events that took place led to
the 19 year old employee ("K.L.") filing a claim in
Ontario Superior Court for damages against Calypso Theme Park
related to sexual harassment, sexual assault, assault, battery,
false imprisonment and intentional and/or negligent infliction of
mental suffering. The link provided above is an interim decision
following Calypso's request to strike the pleading on the
ground that it discloses no reasonable cause of action.
For a claim to be struck, it must be plain and obvious that no
reasonable cause of action exists – an historically difficult
test for a party to establish. In the past employers have been
found vicariously liable for the acts of employees – the
leading case and test for vicarious liability was the Supreme
Court's decision in Bazley v. Curry, 1999 CanLII 692
(SCC). Chief Justice McLachlin set out a two part test:
Do factually similar precedents
establish, unambiguously, whether vicarious liability should be
imposed or not?
If Part 1 is inconclusive, are there
broader public policy rationales to support strict liability?
Each of the precedents establishing vicarious liability in the
first stage was found to be distinguishable from the events that
took place at the employer's theme park. The second part,
regarding public policy considerations, essentially asks whether
the actions have a sufficient nexus to the workplace and whether an
allocation of liability on the employer is fair in the
circumstances. In Bazley v. Curry Justice McLachlin
explains "The enterprise and employment must not only provide
the locale or the bare opportunity for the employee to commit his
or her wrong, it must materially enhance the risk, in the sense of
significantly contributing to it, before it is fair to hold the
employer vicariously liable." In this particular instance
Justice Smith was not prepared to strike the claim and determined
that the plaintiff's action could move forward aside from the
claim for sexual harassment (NOTE – sexual harassment is not
a recognized tort in the Province of Ontario). Justice Smith
determined the claim should be allowed to proceed based on the
A staff party is directly connected
to an employer and, in fact, an employer derives loyalty and
goodwill from hosting such events
Risk to K.L. was materially enhanced
by hosting the party at an expansive water park where supervision
would be inherently difficult or impossible
The size of the venue could easily
lead to employees becoming isolated and vulnerable
Calypso permitted alcohol to be
consumed without the monitoring of a bartender
At this stage liability has not been attributed to Calypso. We
will be sure to keep employers up date as this case moves through
the litigation process.
Hosting work events can be a valuable endeavour for employers.
Events such as these can be an excellent team building exercise
that helps to build a dedicated workforce. However, there are
inherent risks associated with acting as host and employers should
be particularly careful when supplying access to alcohol. As a
starting point for any social event, read Susan Crawford's Blog for tips on hosting holiday events.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Labour and employment law had some interesting developments in 2016. What follows are a few highlights from the last year and an introduction to an issue that may attract significant attention in 2017.
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