14 December 2008
Source: Article by Andrea F. Raso-Amer, Will Cascadden, Adrian C. Elmslie and Blair W. McCreadie of Fraser Milner Casgrain

With the holiday season upon us, Fraser Milner Casgrain wishes to remind you of employer best practices for making your company celebrations a success. In addition to creating an atmosphere where employees can enjoy a well-deserved measure of ‘holiday cheer’, it is equally important to take steps to ensure they arrive home safe and sound. In keeping with an employer’s general obligation to take reasonable steps to protect the safety of employees, the standard of care owed by an employer when serving alcohol is significantly increased.

Two leading cases dealing with ’employer-host liability’ are Hunt v. Sutton Group (2002), 60 O.R. (3d) 665 (Ont. C.A.) and Jacobsen v. Nike Canada Ltd. (1996), 19 B.C.L.R. (3d) 63 (B.C.S.C.).Both involved employees who were seriously injured in motor vehicle collisions after consuming alcohol in association with company-sponsored events. By making alcohol available, the courts in both cases found their employers had raised the benchmark to protect the employees from common risks associated with alcohol-impairment, particularly with regard to post-event transportation. In the unfortunate event that an employee is involved in an alcohol-related accident and such reasonable efforts cannot be demonstrated, an employer runs a significant risk of being found liable for personal injury damages. In the Jacobson case for example, a court awarded a judgment of 2.7 million dollars to a young warehouseman who was rendered a quadriplegic following a motor vehicle accident. His employer, which had made alcohol available to him during his shift, was held 75% liable for failing to ensure his safe transportation home.

In light of such decisions, at a minimum, employers are well-advised to:
1. Monitor the amount of alcohol consumed by their employees at company events; and
2. Take positive steps to prevent employees from driving home after drinking.

The following sets out some practical steps employers may consider when event-planning:
• Prior to the event, post a reminder to employees that attendance is voluntary. Remind them of the shared obligation to drink responsibly and never to drink and drive. Offer to reimburse employees for cab fare and/or make taxi chits widely accessible.
• Consider holding the event at a public facility.
• Hire professional bartenders and clearly instruct them not to serve employees who appear to be intoxicated.
• Develop a system to monitor employees’ alcohol consumption and take positive steps to track how much employees are drinking, such as providing a limited number of drink tickets. Do not provide an open or unsupervised bar.
• Provide a wide range of non-alcoholic beverage choices and only serve alcohol when serving food. Cease alcohol service at least two hours before the event ends.
• Arrange to have security monitor employees as they are leaving the event. For those employees suspected of being intoxicated, insist on retaining their car keys and arrange for a taxi ride home or overnight accommodation.

While there is no guaranteed formula to ensure that employees will always drink responsibly, a proper combination of the above measures should help to minimize employer liability while making your holiday events fun and safe!