The courts continue to grapple with issues of legal responsibility for the consequences of liquor consumption. These cases arise in three main contexts: actions against commercial hosts, social hosts and employer hosts.
In its landmark decisions in Jordan House v. Menow, [1974] S.C.R. 239 and Stewart v. Pettie, [1995] 1 S.C.R. 131, the Supreme Court of Canada made it clear that a commercial provider of alcohol owes a duty of care to its patron and the public at large. Nevertheless, disputes continue to arise over whether or not that duty has been discharged and, if not, what percentage of fault the commercial provider ought to bear.
In Childs v. Desormeaux, 2006 SCC 18, the Supreme Court of Canada determined that, generally, a social host is not legally responsible for the actions of an intoxicated guest. However, the Supreme Court left the door open for a finding of liability on the part of the social host where he or she has actively contributed to the guest’s intoxication and knows, or should know, of the risk of harm. There are recent examples of litigants seeking to fit within this exception, and the courts have declined to dismiss claims against social hosts without a full hearing of the evidence.
The Supreme Court of Canada has yet to address the duty of care of an employer in relation to the service of alcohol to an employee. Even at lower levels of court, there are relatively few examples of cases that consider the obligations of an employer who makes liquor available to an employee. If liability can be considered as a spectrum, with a commercial host on one end and the social host on the other, it is difficult to say where along that spectrum an employer is likely to fall. As discussed below, it may be that the unique circumstances of a case determine if a particular employer owes a duty of care comparable to that of a commercial host, or if the employer is akin to a social host.
This paper examines the current state of liquor liability law in Canada in relation to three main categories of potential exposure: commercial hosts, social hosts and employer hosts. The objective is twofold: firstly, to identify the key lessons from the case law with a view to effective risk management; and secondly, to assist in evaluating the possible exposure.
A. Commercial Hosts
The duty owed by a commercial provider of alcohol to both the imbibing patron and the public is well-established in Canada. Since the 1970s, Canadian courts have articulated general principles of commercial host liability law. However, noteworthy cases continue to be decided as they apply the commercial host’s positive legal duty to guard against reasonably foreseeable harm that can arise should a patron become intoxicated.
The concept of commercial host liability was established by the Supreme Court of Canada in Jordan House (also referred to as Menow v. Honsberger). In Jordan House the Supreme Court of Canada held that a commercial liquor provider owes a duty of care to its intoxicated patron. The Supreme Court of Canada subsequently extended this duty of care to third parties (members of the public) in Stewart.
The rationale for the extension of the duty is essentially one of public policy, recognizing the danger associated with the over-service of alcohol. In Lum (Guardian ad litem of) v. McLintock, (1997) 45 B.C.L.R. (3d) 303 (S.C.), Mackenzie J. explained the public policy rationale as follows (para. 27):
In pragmatic terms, responsibility placed on commercial hosts is likely to be most effective as a deterrent in keeping intoxicated drivers off the roads. The cost of damage awards should modify rational conduct of commercial hosts directed to maximizing economic advantage …
The public policy objective was affirmed by the Supreme Court of Canada in Childs v. Desormeaux, 2006 SCC 18, a social host case. The Supreme Court said that it is appropriate to impose a duty of care upon a commercial host because regulations govern the sale of alcohol and the public relies upon the commercial host not to over-serve patrons or to protect the public by preventing an intoxicated patron from driving (para. 46).
The focus of much of the recent case law is what type of conduct on the part of a commercial host constitutes a breach of the standard of care. In Stewart, the Supreme Court clarified that the duty is not breached by over-service alone. Rather, the breach occurs when there is a foreseeable risk of harm to the intoxicated patron or the public, and the commercial host does not take any, or adequate, steps to prevent that harm. The Supreme Court explained as follows (at para. 35):
I doubt that any liability can flow from the mere fact that Mayfield may have over-served Pettie. To hold that over-serving Pettie per se is negligent is to ignore the fact that injury to a class of persons must be foreseeable as a result of the impugned conduct. I fail to see how the mere fact that an individual is over-imbibing can lead, by itself, to any risk of harm to third parties. It is only if there is some foreseeable risk of harm to the patron or to a third party that Mayfield and others in their position will be required to take some action.
It is important to note that there must be evidence that a patron who suffered harm, or caused harm to others, was intoxicated before there is a potentially viable claim against the commercial provider: Donaldson v. John Doe, 2009 BCCA 38
Commercial hosts are required to have protocols in place to prevent patrons from becoming intoxicated to the point where they pose a foreseeable danger: Donaldson at para. 49. Should a person become intoxicated, the commercial provider is required to ensure that the intoxicated patron is not in a position to harm himself or herself, or others. The intoxicated patron should be placed in the care of a reasonable person, or not sent away alone until “in a reasonably fit condition to look after himself”: Jordan House at p. 249. The critical question is whether or not it is foreseeable that the intoxicated patron could come to harm or cause harm to others. If the patron is intoxicated, but does not pose a foreseeable risk, the provider may avoid liability: Feaver v. Briggs,2009 NBQB 305; Salm v. Coyle, 2004 BCSC 112.
While cases of this nature are fact-dependent, examples of conduct that has been found to breach the standard of care can be taken from the following cases:
- Jordan House: the defendant hotel failed to exercise a number of available options to discharge its duty to its intoxicated patron. The available options included placing a call to the police, contacting the plaintiff’s employer, summoning a taxi to take him home, making arrangements with another patron able and willing to take him home, or providing him with one of the hotel’s spare rooms.
- Hansen v Sulyma, 2013 BCCA 349: the defendant pub failed to meet the standard of care by failing to evict the intoxicated patron; failing to cease service when the staff knew, or ought to have known from the tab, that he was becoming impaired, failing to ascertain whether or not the patron would be driving and failing to stop him from driving.
- Holton v. MacKinnon, 2005 BCSC 41: the defendant providers failed to make appropriate enquiries regarding the patrons’ intentions, failed to put the patrons in the care of a responsible and sober person, and failed to take steps to ensure that they would not drive.
The case law also suggests that while a commercial host will likely not be liable for spontaneous incidents, loud or aggressive behaviour needs to be addressed by staff and should not be left unattended for any length of time: Hartley v RCM Management Ltd., 2010 BCSC 579.
Knowledge of a regular patron’s behavioural and alcohol consumption tendencies is important. If service staff knows, or should know, that a patron has a tendency to behave in a dangerous manner, close monitoring of that patron would likely be expected: Wandy v. River Valley Ventures Inc., 2013 SKQB 309.
A commercial host can discharge its duty in a number of different ways, but proactive steps are required when the patron poses a foreseeable risk to himself or herself, or others. The commercial host must have in mind the safety of all of the people who might foreseeably be injured if the intoxicated patron is permitted to leave unattended. While the majority of the cases involve motor vehicle accidents, the BC Court of Appeal has made it clear that the commercial host’s duty to the public is not limited to users of the highways: Donaldson at para. 34.
While each case will turn on its own facts, a commercial provider in breach of its duty of care can generally anticipate exposure to a damages award of around 20%, unless its conduct could be considered to be particularly blameworthy.
This view is based on the recent Hansen decision, which concerned a serious motor vehicle accident on Texada Island. The plaintiff was a passenger in her car which, at the material time, was operated by the defendant Mr. Sulyma. The car had run out of gas, and Mr. Sulyma parked it off the paved portion of the road near the crest of a curve to the left. The defendant Mr. Leprieur struck the plaintiff’s vehicle from behind. Mr. Leprieur had spent the evening drinking at a pub, and the trial judge found that he was intoxicated and that this was a causal factor in the circumstances of the accident. The trial judge also found that the staff at the pub were negligent in the manner in which they served alcohol to Mr. Leprieur.
Mr. Leprieur was served by two servers over the approximately five hours that he spent at the pub prior to the accident. His tab was in excess of $100, although he had purchased some drinks for others. The trial judge found that he likely consumed at least six rye whiskeys with water (each was at least two ounces of alcohol). The drinks were first served by the bartender. When she went off duty around two hours into Mr. Leprieur’s time at the pub, a new bartender took over. The bartenders did not communicate with each other as to how long Mr. Leprieur had been drinking at the pub, although the second bartender was aware of what had already been billed to the tab. The trial judge also found that the pub was busy and the second bartender did not pay much attention to Mr. Leprieur, although she observed that he was showing signs for intoxication. It was also a relevant fact that a patron of the pub offered to pay for a hotel room for Mr. Leprieur, which indicated to the trial judge that Mr. Leprieur was visibly showing signs of impairment.
In particular, the trial judge noted that the server was aware from Mr. Leprieur’s bar tab exactly what he had consumed. It was a breach of the standard of care not to evict him or prevent him from consuming any more alcohol. The server did nothing to determine how Mr. Leprieur would be leaving the bar. The trial judge found that it would have been reasonable for the server to have realised, had she made any effort to find out, that Mr. Leprieur would be driving and thus she was at fault for not taking any steps to stop him from doing so. However, the trial judge apportioned only 5% of liability to the pub. Mr. Leprieur was allocated 70% and 25% to Mr. Sulyma for stopping the vehicle in a dangerous location and failing to activate the hazard lights.
One of the issues before the Court of Appeal was whether or not the trial judge’s apportionment of liability should stand. It was argued that the pub defendants’ conduct was more blameworthy than reflected by the 5% allocation of fault by the trial judge. The Court of Appeal confirmed that there is a high standard for an appellate court to interfere with a trial judge’s apportionment of liability, and that “very strong and cogent reasons” are needed for doing so. However, on behalf of the Court, Newbury J.A. found that the pub’s conduct merited a different apportionment. Her Ladyship commented that “the allocation of minimal responsibility to the pub defendants was grossly disproportionate to their comparative blameworthiness, including their disregard of their statutory obligations” (para. 36).
Newbury J.A. observed that in the commercial host cases to which counsel for Mr. Sulyma (the appellant) referred the Court, “liability of between 78% and 28.5% was apportioned to the defendants in the position of the pub” (para. 36). The Court of Appeal re-apportioned 20% of the liability to the pub defendants.
There is potential for a higher award in circumstances in which the provider’s conduct may be considered to be particularly blameworthy. In Laface v. McWilliams 2005 BCSC 291 upheld by 2006 BCCA 227 the apportionment of fault to the commercial host, a hotel, was 50% on the basis that the hotel “flagrantly ignored its responsibilities as a commercial host” (para. 189).
B. Social Hosts
It is clear that the leading case in Canada regarding the liability of social hosts is Childs v. Desormeaux, 2006 SCC 18, wherein the Supreme Court of Canada analyzed whether or not a social host owes a duty of care to a guest or a member of the public.
In Childs, the defendants hosted a party at their home. They made some alcohol available to their guests, but the event was essentially a “BYOB” type of gathering. Mr. Desormeaux was a guest at the party, and was known by the hosts to be a heavy drinker. As Mr. Desormeaux departed, one of the hosts asked him if he was okay to drive. He indicated that he was fine, but was subsequently involved in a motor vehicle accident that caused serious injury to Ms. Childs. Ms. Childs sued Mr. Desormeaux as well as the party hosts, Mr. Courrier and Ms. Zimmerman. She alleged that Mr. Courrier and Ms. Zimmerman, in their capacity as party hosts, owed a duty of care to third-party users of the highway. In particular, she alleged that the hosts’ failure to act was negligent.
The Supreme Court began its analysis by considering foreseeability, but noted that simply establishing that the harm was foreseeable would not be enough to support a finding that the party hosts were negligent by failing to prevent Mr. Desormeaux from driving:
[31] … “Foreseeability does not of itself, and automatically, lead to the conclusion that there is a duty of care”: G. H. L. Fridman, The Law of Torts in Canada (2nd ed. 2002), at p. 320. Foreseeability without more may establish a duty of care. This is usually the case, for example, where an overt act of the defendant has directly caused foreseeable physical harm to the plaintiff: see Cooper. However, where the conduct alleged against the defendant is a failure to act, foreseeability alone may not establish a duty of care. In the absence of an overt act on the part of the defendant, the nature of the relationship must be examined to determine whether there is a nexus between the parties. Although there is no doubt that an omission may be negligent, as a general principle, the common law is a jealous guardian of individual autonomy. Duties to take positive action in the face of risk or danger are not free-standing. Generally, the mere fact that a person faces danger, or has become a danger to others, does not itself impose any kind of duty on those in a position to become involved.
[32] In this case, we are concerned not with an overt act of the social hosts, but with their alleged failure to act. The case put against them is that they should have interfered with the autonomy of Mr. Desormeaux by preventing him from drinking and driving. It follows that foreseeability alone would not establish a duty of care in this case.
…
[34] A positive duty of care may exist if foreseeability of harm is present and if other aspects of the relationship between the plaintiff and the defendant establish a special link or proximity. Three such situations have been identified by the courts. They function not as strict legal categories, but rather to elucidate factors that can lead to positive duties to act. These factors, or features of the relationship, bring parties who would otherwise be legal strangers into proximity and impose positive duties on defendants that would not otherwise exist.
[emphasis in original]
The Supreme Court went on to note that a positive duty to act exists “where a defendant intentionally attracts and invites third parties to an inherent and obvious risk that he or she has created and controls” (para. 35). There is also a positive duty to act in certain circumstances involving “paternalistic relationships of supervision and control such as those of parent-child or teacher-student” (para. 36). A defendant may also owe a positive duty to act where he or she “exercise[s] a public function or engage[s] in a commercial enterprise that includes implied responsibilities to the public at large” (para. 37). In general, the Supreme Court held that the defendant must be materially implicated in the creation of the risk.
The Supreme Court held that the party hosts did not owe a positive duty to act absent material implication in the creation of the risk. The court made an important distinction between commercial hosts and social hosts: simply hosting a party where alcohol was consumed was not, without more, enough to support a duty of care:
[44] Holding a private party at which alcohol is served — the bare facts of this case — is insufficient to implicate the host in the creation of a risk sufficient to give rise to a duty of care to third parties who may be subsequently injured by the conduct of a guest. The host creates a place where people can meet, visit and imbibe alcohol, whether served on the premises or supplied by the guest. All this falls within accepted parameters of non-dangerous conduct. More is required to establish a danger or risk that requires positive action. … Suffice it to say that hosting a party where alcohol is served, without more, does not suggest the creation or exacerbation of risk of the level required to impose a duty of care on the host to members of the public who may be affected by a guest’s conduct.
There was no evidence that Mr. Courrier or Ms. Zimmerman knew, or ought to have known, that Mr. Desormeaux was intoxicated to the point that an injury to someone in Ms. Childs’ position was reasonably foreseeable. Secondly, even if the injury was reasonably foreseeable, there was no duty of care because there was no positive duty upon the hosts to act.
Accordingly, as the law currently stands, there is a general proposition that a social host does not owe a duty of care simply as a function of hosting a party where alcohol is consumed. However, the Supreme Court of Canada left open the door for there to be a finding of liability on the part of the host if the host is materially involved in the creation or enhancement of the risk. Thus, the social host is not responsible for monitoring and controlling the partygoer in the same way that a commercial host is responsible for its patron. A duty of care does not arise from the mere fact that the social host provided a venue.
In two recent decisions of the BC Supreme Court, the Courts declined to apply Childs to summarily dismiss claims against social hosts in the absence of a full hearing: Sidhu (Guardian ad litem of) v. Hiebert, 2011 BCSC 1364; Lutter v. Smithson, 2013 BCSC 119.
The Sidhu case arose out of a motor vehicle accident. The plaintiff sued a number of parties, including the host of a party attended by a co-defendant motorist. On a summary dismissal application, the host, Mr. Rattan, relied upon Childs as authority for the proposition that he did not owe a duty to monitor his guest’s alcohol consumption. The Court dismissed the application on the grounds that the issue should not be determined without a full hearing of the evidence. The Court was of the view that full development of the evidence was required regarding Mr. Rattan’s knowledge of Mr. Hiebert’s intoxication and the supply of alcohol by Mr. Rattan.
The decision in Sidhu was subsequently applied by Macaulay J. in Lutter. Mr. and Mrs. Mazu permitted their daughter to host her 19th birthday party on their property. One of the guests, 18 year-old Mr. Smithson, attended the party and became intoxicated. He drove away and was involved in an accident. The plaintiff was a passenger in the other vehicle. Mr. and Mrs. Mazu were named as defendants and third parties in the action, and faced allegations that, in their capacity as social hosts, they owed a duty to the plaintiff and Mr. Smithson.
As in Sidhu, the court held that it would not be appropriate to summarily decide this issue. Mr. Justice Macaulay pointed out that there was evidence that Ms. Mazu knew that Mr. Smithson was intoxicated; evidence of this nature was not before the court in Childs. Another potentially important distinction was that the individuals involved in the Childs case were all adults; the Supreme Court found that there was no positive duty to act. Mr. Justice Macaulay agreed with the submission that the fact that Mr. Smithson was a minor could potentially result in a finding that there was a positive duty on the hosts to act, and that it was appropriate for this issue to be given consideration in the context of a regular trial:
[29] To adopt some of the language in Childs, found at para. 45, these distinctions raise the question whether an adult host is actively implicated in the creation or enhancement of the risk if she permits an underage person on her property to consume alcohol to the point of intoxication, perhaps extreme intoxication. As in Sidhu, that important question is, in my view, better left to be determined upon the fullest record available after a regular trial. Accordingly, it would be unjust to decide the issue on a summary judgment application.
Nearly a decade has passed since the Supreme Court’s decision in Childs. It remains the case that a social host does not owe a duty of care to the guest or the public simply by hosting a private party where alcohol is consumed. More is required to support the imposition of a duty of care. However, it remains possible that social host may face liability exposure in some circumstances, and the courts appear to be reluctant to dismiss a claim against a social host absent a full hearing of the facts.
C. Employer Hosts
The obligations of employers in relation to the provision of liquor to employees are not yet well-defined. Employers that host gatherings at which liquor is consumed by employees are neither true commercial providers nor true social providers, but there are few cases that address the employer’s responsibilities.
There are cases wherein an employer has been found to be liable on the basis that the supply of alcohol in the workplace rendered it reasonably foreseeable by the employer that there was a risk of harm: Jacobsen v. Nike Canada Ltd., (1996) 133 D.L.R. (4th) 337 (B.C.S.C.). However, the circumstances in which an employer faces liability exposure are not as well ascertained as in the case of a commercial host. Nevertheless, a recent decision of the Alberta Court of Queen’s Bench shed some light on the issue. As discussed in detail below, in Jenkins v. Muir, 2012 ABQB 352, the Court held that the employment relationship does not automatically give rise to a duty of care.
It appears that the existence of a duty of care owed to the employee will rarely be in question when the employer serves liquor directly to employees at a work function, or makes liquor freely available in the workplace. An employer must exercise reasonable care for the safety of its employee when the employer provides alcohol to its employees or makes alcohol a part of the work environment: Jacobsen. In such circumstances, employers must take reasonable steps to prevent foreseeable harm from materializing. At the opposite end of the spectrum, it has been found that if an employer does not introduce the alcohol into the workplace, or host a party or social event, the employer is not liable for the actions of its intoxicated employee: John v. Flynn, 2001 CanLII 2985 (ON C.A.).
In Jacobsen, the plaintiff was a 19-year-old employee for Nike Canada and worked in the warehouse. On the day in question, he was instructed to drive his vehicle to work as he was going to be part of a crew erecting a display for a trade show. Mr. Jacobsen put in a long day. Dinner and beer were provided to his crew at 8:30 p.m. He consumed 4 – 5 beer during a 45 minute dinner break. They crew resumed work, and Mr. Jacobsen consumed more beer. By the time that the crew broke for the night, Mr. Jacobsen had consumed 8 – 10 beer. He proceeded to go out to nearby bars with some of his co-workers, and continued to drink. After he left a bar in the early hours of the morning, Mr. Jacobsen was involved in a motor vehicle accident and was badly injured.
The court noted that Nike required the employees to bring their cars to work and knew they would be driving home. In effect, “Nike made drinking and driving part of the working conditions that day” (para. 54). It effectively encouraged the crew to drink without limit by making freely available large amounts of beer in an atmosphere which induced thirst and drinking games. The supervisors drank along with the crew, and made no attempts to restrict or monitor the amount the plaintiff or any of the other crew members drank. The court stated that the employer’s responsibility to the plaintiff went beyond watching for signs of impairment and taking steps to prevent him from driving if it observed any such signs (i.e. responsibility of a commercial host). Its responsibility for his safety required that it not introduce into the workplace conditions that foreseeably put him at risk.
The court stated that “it is hard to imagine a more obvious risk than introducing drinking and driving into the workplace” (para. 55). The court added that even if Nike’s responsibility was only that of a commercial host, it had not met that standard either. Nike had a number of options available to monitor Mr. Jacobsen’s consumption. These options included asking Mr. Jacobsen when he was leaving how many beer he had consumed; asking any of the other crew members about Mr. Jacobsen’s consumption; counting the empty beer cans or the unopened cans remaining in the cooler; and making an informed guess as to how much he drank.
The further agreed that the standard owed by the employer must take into account the special circumstances of the plaintiff. It noted that he was the youngest, least experienced member of the crew. He was an inexperienced drinker. He had a 40-minute drive home after a long, tiring shift. All of those facts were known to the employer. In those circumstances, the employer was required to exercise more care with respect to the plaintiff’s safety. The court apportioned fault of 75% to the employer and 25% to Mr. Jacobsen. This is a greater apportionment of fault to the employer than typically assigned to the liquor provider in a commercial host case. However, the employer’s conduct in Jacobsen could be considered particularly blameworthy when taking into account the amount of information that the employer had about the amount of alcohol that Mr. Jacobsen consumed and the likelihood that he would drive.
It is important to note that Jacobsen was decided well before Childs wherein the Supreme Court carried out a detailed analysis of the potential for a duty of care to exist in circumstances that do not involve a commercial host. In Childs, the Supreme Court of Canada confirmed that the harm must be reasonably foreseeable for a duty of care to exist, and that there must be sufficient proximity in the relationship between the parties to justify the imposition of the duty. The Supreme Court did not expressly identify an employment relationship as one of sufficient proximity. At present, it is unclear if the Supreme Court would consider the employer-employee relationship to be one of sufficient proximity to justify the imposition of a duty of care.
It is arguable that the duty of care arises when the employer directly creates the risk through the introduction of alcohol into a work environment were there is real potential for the consumption to result in harm. It is also arguable that the relationship between an employer and an employee is paternalistic in nature. However, it is not plain that a regular, adult employee is under the employer’s control to an extent that supports the imposition of a duty of care upon the employer. It bears mention that the plaintiff in Jacobsen was young and was provided with alcohol in the course of his work duties. Accordingly, Jacobsen could be considered to be an atypical case.
The more recent case of Jenkins v. Muir, 2012 ABQB 352 takes a step toward addressing the issue of whether or not there is a duty of care owed to the employee by the employer in relation to alcohol, although the question should not be considered to be settled.
Jenkins was a family compensation action arising out of Melanie Bakalar’s death following a motor vehicle accident. The plaintiffs alleged that Ms. Bakalar became severely intoxicated at the premises of her employer, the defendant 4M Water Hauling Ltd. The Plaintiffs alleged, among other things, that 4M failed to monitor Ms. Bakalar’s alcohol consumption and failed to take any, or sufficient steps, to prevent her from operating a vehicle.
On the night of the accident, Ms. Bakalar and her colleague stayed late to work on a project. Two friends of the owner, Mr. Muir, attended at the office and shared a drink with Mr. Muir. Ms. Bakalar and her colleague subsequently joined Mr. Muir’s friends for a drink in Mr. Muir’s office. Others came and went, but Ms. Bakalar stayed and continued to drink into the early hours of the morning. The source of the alcohol was unclear, but the plaintiffs did not establish that it was provided by the employer.
The court confirmed that the plaintiffs must show that it was foreseeable by 4M and Mr. Muir that their acts or omissions would cause harm to Ms. Bakalar. The plaintiffs also had to show that there was sufficient proximity between Ms. Bakalar and the defendants to justify a duty of care. The proximity analysis required showing that the relationship was in a category in which a duty of care had, or should, be recognized. The proximity analysis also required a determination of whether or not there are reasons not to impose a duty. The final consideration was whether the defendants could show that there are policy considerations to limit or negate the duty of care.
The court began by considering foreseeability, and found that there was nothing that should have caused Mr. Muir to anticipate that Ms. Bakalar would continue to drink for hours after Mr. Muir left. Similarly, there was nothing that should have caused Mr. Muir to realize that if Ms. Bakalar stayed and continued to drink to the point of intoxication, she would drive. The employer had a “generous taxi use policy” of which Ms. Bakalar was aware (at para. 62). Accordingly, while Mr. Muir permitted the consumption of alcohol on 4M’s premises, in the circumstances, it was not foreseeable that Ms. Bakalar would become severely impaired and drive. The court rejected the plaintiffs’ argument that a duty of care arose simply because of the employment relationship between Ms. Bakalar and 4M:
[64] The Plaintiffs submitted, in effect, that the existence of a duty of care was established by the fact that Ms. Bakalar was a 4M employee – that the duty of care existed because an employer/ employee relationship existed. This submission gives little, if any, place to foreseeability and, with respect, I reject it.
[65] Throughout the evolution of the law relating to duty of care, the one constant and unchanging feature since 1932 has been the requirement of foreseeability.
…
[68] Relationship cannot replace the foreseeability analysis. It is not the law that where an employer’s careless act or failure to act results in injury to an employee the employer is liable even though it was not foreseeable that the act or failure to act would do so.
As foreseeability could not be established, the plaintiffs’ claim was dismissed.
Both Jacobsen and Jenkins arise from circumstances in which alcohol was consumed at the workplace and where the alcohol was not served by a licensed provider. At present, the case law offers little insight into whether an employer who hosts an event at a licensed establishment owes a duty of care to the employee or to the public at large.
It may less foreseeable by an employer that an employee invited to a gathering where liquor is served by a licensed provider will become intoxicated to the point where there is a risk of harm. Common sense suggests that employer who opts to retain a licensed provider to serve the alcohol should not face the same degree of potential liability exposure as the licensed provider in the case of over-service. However, it seems unlikely that an employer would escape liability if it has direct knowledge of excessive consumption by an employee and knowledge that the employee poses a risk of harm. As discussed above in relation to the Childs decision, even a social host who has actively contributed to the risk potentially faces exposure. What is unclear is whether the employer has any active obligation to monitor the amount of liquor served or to implement precautions such as a taxi program.
If the employer owes a duty of care in the circumstances, it is also unclear whether or not the duty of care extends beyond the employee to members of the public. It is well-established that commercial liquor providers’ obligation extends to the general public. Yet, arguably, the public policy considerations that the Supreme Court of Canada has held support the imposition of a duty of care upon a commercial provider to members of the public do not exist in the context of an “employer host”. While Childs was a social host case, the Supreme Court observed that it is appropriate to impose a duty of care upon a commercial host because regulations govern the sale of alcohol, and the public relies upon the commercial host not to over-serve patrons. McLachlin C.J. summarized the three criteria that support the imposition of the duty of care upon a commercial host:
- the commercial host’s training in and special incentive to monitor consumption because they are profiting from it;
- the strict regulatory framework; and
- the unique contractual relationship between a tavern owner and its patron (paras. 17 – 23).
These considerations that support the imposition of a positive duty of care upon a commercial liquor provider may not exist for an employer host. Accordingly, a plaintiff who is a member of the public may have difficulty proving that the intoxicated wrongdoer’s employer is legally responsible.
D. Summary
It is a requirement of any liquor liability case that there is evidence of intoxication of the patron, guest or employee. The plaintiff must establish that the defendant knew, or ought to have known, of the inebriation. In the absence of such evidence, the claim will not succeed.
Foreseeability is also a requirement of a liquor liability case. A host of any description will not be liable unless there was evidence of intoxication such that the host knew, or ought to have known, that the patron posed a risk to himself or herself or others.
The principles underlying commercial host liability have become well-known since Jordan House and Stewart were decided. The recent cases suggest that many establishments who become defendants in civil actions do not dispute that they owe a duty to their patron and members of the public. However, issues remain regarding the scope of the duty and the steps necessary to discharge the duty. The recent cases assist the commercial host to understand when the duty of care is met. Poor communication among staff, poor monitoring of the bar tab and the patron and a failure to make inquiries as to how the patron would get safely home have contributed to findings of liability.
Nearly a decade ago, the Supreme Court of Canada determined that a party host will not be liable for the actions of an intoxicated guest unless the host was materially involved in the creation of the risk. However, the Childsdecision has not put an end to claims against social hosts. It remains to be seen how what interpretations the courts will give to material involvement in the context of purely social gatherings.
It is presently uncertain how the principles articulated in Jordan House, Stewart and Childs may apply to employers who make alcohol available to their employees.
The case law provides limited guidance to employers in respect of the service of alcohol to employees. While any liquor liability case will turn on its own facts, the obligations of an employer appear to be determined by the circumstances and whether or not it is reasonably foreseeable that there is a risk of harm. On one end of the spectrum, it is clear risk of liability exposure where the employer directly supplies the alcohol in the workplace with the knowledge that an employee is likely to drive while intoxicated. However, it is less apparent that an employer faces risk of liability exposure if an employee becomes intoxicated at a licensed establishment where alcohol is served by a commercial provider. Clarification of the obligations of an employer host may be the next major step in the field of liquor liability law in Canada.