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| Oksana Romanov |
It has been two long COVID years, and everyone is yearning for a good party … at work. Suppose they are back in the office, that is. Should the employers embrace luring everyone, willing or not, back to the office with a promise of a “thirsty” Thursday or a good old party on a Friday night? Who wants to be “alive” after 5?
The answer that a future lawyer should give is “it depends.”
Setting aside the regulatory and legal complexities of the COVID-related legislation and emergency measures in Ontario, the answer to the employer liability for hosting work parties lies in tort. Let’s take a long road to explore what it means.
As the law stands now, it is unlikely that a social host would attract negligence liability without “something more” (Williams v Kardux [2018] OJ No 5824 at para. 27) unless there is evidence that she created inherently risky alcohol- or drug-related activity in her home. Notably, parties with drugs and alcohol range on the spectrum of risk (ibid.at para. 28), where gatherings with “BYOA” are viewed as not inherently risky (Childs v. Desormeaux 2006 SCC 18 at para. 42) as well as small private parties in general (Allen v. Rade 2014 ABQB 171 at para. 78, cited in Kardux at para. 28) or having a dinner at a co-worker’s home followed by drinks outside.
In case of receiving conflicting evidence from witnesses, a matter may proceed to full trial (Sidhu (Litigation guardian of) v. Hiebert 2011 BCSC 1364; Wardak v. Froom 2017 ONSC 1166; Lutter v. Smithson 2013 BCSC 119, cited in Kardux at para. 26). Nevertheless, a summary judgment motion could be granted despite conflicting evidence a social host could not reasonably foresee that their guests were intoxicated, similarly to the facts in Sabourin (Litigation guardian of) v. McKeddie 2016 ONSC 2540 (cited in Kardux at para. 26).
In addition to the difficulty of establishing reasonable foreseeability, a social host may lack proximity to the guest under the Anns test if there is no evidence of an ongoing or committed relationship between the parties (Anns v. Merton London Borough Council). Finally, it is unlikely that a social host will attract liability for having legal recreational drugs in her home for policy reasons in Canada.
There is no affirmative duty of care of social hosts to guests and plaintiffs/third parties in Canada (Desormeaux), unlike in the United States (Kelly v. Gwinnell 476 A.2d 1219 (N.J. June 27, 1984). The answer to the social host liability question is always fact-specific because “there is no clear formula for determining whether social hosts owe a duty of care to third parties or guests” (Kardux at para. 24).
However, recent trial level decisions (John v. Flynn [2000] O.J. No. 128 (Flynn No. 1); John v. Flynn [2001] O.J. No. 2578 (ONCA), leave to appeal dismissed, S.C.C. File No. 28739, S.C.C. Bulletin, 2002, p. 716 (Flynn No. 2); Hunt (Litigation guardian of) v. Sutton Group Incentive Realty Inc. [2001] OJ No 374 (Hunt No. 1); Hunt (Litigation guardian of) v. Sutton Group Incentive Realty Inc, [2002] OJ No 3109 (Hunt No. 2), subsequently overturned on appeal, indicate that employers serving alcohol during work hours may attract liability. Unlike the first two situations, commercial host liability is well established in Canadian law (Jordan House v. Menow [1974] S.C.R. 239; Hague v. Billings [1993] O.J. No. 945).
At the trial level, the court in Flynn No. 1 and in Hunt No. 1 extended the implied duty of care on the employer for hosting employee parties and serving alcohol. In Flynn No. 1, the judge found a corporate defendant Eaton Yale 30 per cent contributorily negligent for the conduct of its employee, an intoxicated driver, who struck the plaintiff. However, this decision was overruled on appeal in Flynn No. 2, after leave to appeal was dismissed by the Supreme Court of Canada. In Hunt No. 1, the trial judge found an implied duty of care on the brokerage who supplied alcohol for the party during work hours and expected a licensed realtor to perform her duties.
Linda Leigh Hunt left the office intoxicated and stopped to get another drink on her way home. The court found both Sutton Group Incentive Realty Inc. and the pub 25 per cent contributorily negligent in this case. Similarly to Flynn No. 1, this case was reversed on appeal. As the Canadian law stands now, employers are not liable (Flynn No. 2 at para. 50). Further, the Supreme Court is not ready to overturn the precedents, thereby extending the duty of care to the employer (Flynn No. 2 at para. 48) beyond providing a safe work environment (Flynn No. 2 at para. 26).
Ultimately, employers may be pulled into litigation along with a commercial host such as a bar or a restaurant and be forced to spend money defending against the employees’ claims. Even if establishing liability is evasive, it is cost-prohibitive. Why would one want to engage with the issue just to find out two trials later that you have nothing to do with it? So, the short answer is to host a party at a bar or a restaurant and avoid serving alcohol in the office while employees are focused on completing work-related tasks. And with that in mind, drink responsibly, enjoy the patio season, and have a great summer!
Oksana Romanov is a 3L law student at the Lincoln Alexander School of Law in Toronto at Toronto Metropolitan University. She is an aspiring employment law lawyer and a summer legal student at Workly Law. To learn more about the author, you can visit her LinkedIn profile.
Photo credit / bernardbodo ISTOCKPHOTO.COM
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