Employers often express their appreciation to
employees by hosting events such as seasonal parties, barbeques or
other social events. While the employer's intentions may be
good, the result isn't always a reflection of those good
Employers can be held liable for unfortunate
acts which occur at these social events, even if the acts were
completely unexpected, unapproved or arguably beyond the
employer's ability to prevent. A case in point is K.L. v.
Calypso Water Park Inc., 2015 ONSC 2417 (CanLII).
In this case, Calypso held an end-of-season
staff appreciation event at its Ottawa-area waterpark. The event
was intended to be a fun get-together for staff. Unfortunately it
allegedly became anything but fun for the Plaintiff, K.L., who
was a 19 year old female employed in the park's maintenance
K.L. alleged that throughout the summer, her
supervisor, a co-defendant in the action, had made sexual advances
towards her. At the end-of-season party, it is alleged that her
supervisor acted on those advances and sexually assaulted K.L. K.L.
sued her supervisor and Calypso for sexual harassment, sexual
assault, assault, battery, false imprisonment, and intentional
and/or negligent infliction of mental suffering.
K.L. alleged that Calypso was liable for all
of the actions committed by the supervisor and sought significant
financial compensation. Calypso brought a motion to strike
K.L's action against it (and related corporations) on the basis
that the claim failed to disclose a reasonable cause of action.
At the motion, the judge determined, based on
prior precedent, that there is no cause of action in Ontario for
sexual harassment and struck that claim against Calypso. However,
the judge found that the other claims against Calypso had some
chance of success and allowed those matters to proceed to
Some of the key allegations of fact which the
judge used to support his decision were the following:
The assault took place during an
unsupervised work function;
The assault occurred on workplace
The employer was either supplying or
permitting the unsupervised and unregulated consumption of alcohol;
The park was expansive and it was
conceivable that K.L. may find herself alone with the
Clearly no employer would condone the conduct
which is alleged to have occurred at this event. However, that does
not mean the employer has no liability for those acts. As noted by
the Supreme Court of Canada in Bazley v. Curry,  2
Underlying the cases holding
employers vicariously liable for the unauthorized acts of employees
is the idea that employers may justly be held liable where the act
falls within the ambit of the risk that the employer's
enterprise creates or exacerbates. Similarly, the policy purposes
underlying the imposition of vicarious liability on employers are
served only where the wrong is so connected with the employment
that it can be said that the employer has introduced the risk of
the wrong (and is thereby fairly and usefully charged with its
management and minimization). The question in each case is whether
there is a connection or nexus between the employment enterprise
and that wrong that justifies imposition of vicarious liability on
the employer for the wrong, in terms of fair allocation of the
consequences of the risk and/or deterrence.
When hosting these types of events, employers
need to be mindful of employee safety. Some of the things employers
ought to keep in mind:
Make sure the venue is one where it is
unlikely that a small number of employees can go to be unseen (i.e.
"blind spots" where trouble may occur);
Limit the consumption of alcohol by
Appoint senior managers to supervise the
event or hire a third party to supervise (i.e. bartender or
Make sure that all attendees have a safe way
home (free cab chits, transit or bus service); and
Make sure the event does not take place at a
location where there can be a higher than usual risk of personal
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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