Canada: The Time Of Year For Holiday Cheer: A Few Things For Employers To Keep In Mind

Last Updated: December 8 2016
Article by Albert Nolette and Jason Kully

With the holidays just around the corner, many employers will be celebrating the holiday season and a hard year's work with its staff. Although this is a time for cheer, employers should also be mindful of their obligations to employees and guests who attend office parties or other holiday parties.

Generally, the mere hosting of a party where alcohol is served or the mere service of alcohol is not sufficient to establish liability for the host. Liability for injuries related to the provision of alcohol will only be imposed where there is an additional factor that creates or exacerbates the risk of danger to the guest or others. This may be the obvious sign of intoxication combined with knowledge that the person intends to drive or the continued over-service of an individual who shows signs of intoxication. Ultimately, it must be reasonably foreseen that a guest or a third party would suffer harm as a result of the service of alcohol.

In Canada, the law has recognized that some hosts will be held to a higher level of responsibility than others.

Commercial host - A commercial host is a business that sells alcohol to the public from its business premises for a profit. Such sales are highly regulated and the courts have imposed a higher obligation on commercial hosts to ensure their patrons do not become intoxicated and suffer injury or hurt someone else. This is because commercial hosts have a "special relationship" with their patrons, arising from the host's profit motive and the vulnerability of patrons.

Social host – Less likely to produce liability is the social host context, where alcohol is freely given in social settings held in a private home. Social host situations are treated differently than commercial hosts because there is no profit motive in sale, because hosts are not required to monitor consumption, and because of the recognition of personal responsibility on the part of the drinker. It is possible that liability for injuries to a guest or to a third party be imposed in circumstances where something "more" exists, such as where a host continues to serve alcohol to a visibly inebriated person knowing that the person will drive home or where the host's conduct, in some other way, implicates them in the creation or exacerbation of the risk.

Non-commercial relationship-based host – This is an "in-between" category that employer's may fall into within the context of an office or holiday party. An employer may be viewed as being more sophisticated than an average individual who hosts a party in their home, as they usually have more authority over employees than homeowners have over their guests. This means that an employer stands in a different position than a purely social host. However, the fact that an employer is not typically selling alcohol for a profit also suggests it stands in a different position than a commercial host.

So what are an employer's obligations if it hosts a social function, but abdicates some or all of the hosting duties to a commercial operation?

Let's take the example of an employer who hosts a party at a local hotel and the hotel supplies and serves the food and drink. Here, the hotel would owe a commercial host's duty of care to guests and others they might later encounter. As for the employer, a finding of liability would represent an extension of the existing principles of host liability law, but some court cases suggest that employers may not be totally exonerated from liability at such social functions. In the presence of something that creates or exacerbates the risk of danger to the guest or others, an employer's liability could become engaged.

To reduce the legal risk that may exist when alcohol is being served at a company holiday function, and, more importantly, to ensure the safety of employees, guests and third parties, there are many steps employers can take. Some things employers should consider include:

Service of Alcohol

  • Ensuring qualified and trained individuals are serving and monitoring the consumption of alcohol
  • Ending the service of alcohol prior to the end of the event
  • Limiting the number of drinks a guest may consume during the party
  • Prohibiting activities that encourage  the consumption of alcohol

Alternate Transportation

  • Informing all attendees not to drink and drive (both before the event and at the event)
  • Making alternative transportation options available to guests (for example: taxi chits, designated drivers) and known to guests in advance of the event
  • Calling the police for assistance if an intoxicated guest insists on driving

Assist with Accommodations

  • Assisting guests with arrangements for hotel rooms (for example: arrange for hotel rooms at discounted rate that employees would pay themselves

The lawyers in Field Law's Labour and Employment Group wish you and your organization a happy and safe holiday season.

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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