Legal-Ease by Doug Lester
Summer is coming, and with it comes plans for office functions such as golf tournaments, picnics, baseball games, and other events.
What should you as an employer do to make sure your next office party is remembered for all the right reasons? You need to understand the concept of the “duty of care” owed to employees.
In Canada, the question of whether one party owes a duty of care to another party is based on three criteria. First, is there a sufficiently close relationship between the parties to justify the law imposing a positive duty of care? Second, is potential harm reasonably foreseeable? Third, is imposition of a duty of care supported by public policy?
In 1995, the Supreme Court of Canada, in a case called Stewart v. Pettie, confirmed that commercial hosts, such as restaurateurs or tavern owners, can be found liable for failing to take reasonable steps to prevent foreseeable harm to patrons or third parties. It was found by the court that there is a sufficiently close relationship between business owners and patrons to justify a positive duty of care.
In 1996, in a case called Jacobsen v. Nike Canada Ltd., the Supreme Court of British Columbia held: “the law imposes a higher standard of care on an employer than a tavern owner.”. The court further held that “an employer who provides alcohol to its employees” must “monitor consumption … so that it (the employer) is in a position … to take affirmative steps to prevent foreseeable risk of injury.” Thus, in our province, there is a sufficiently close relationship between an employer and employee at work, or at a work function, to create a positive duty of care.
Mr. Jacobson was an employee of Nike Canada who had driven his own car to a work function where the employer provided alcohol. In those circumstances the court found it was reasonably foreseeable that the employee might drive home intoxicated, and injure himself or others in the process of driving home.
Since the Stewart and Jacobson decisions, Canadian courts have sweepingly held that there is a public policy interest in curbing drunk driving, and as such, employers owe a duty of care to employees who consume alcohol at work functions.
We now know that employers owe a duty of care to employees who are consuming alcohol at work, or at work functions, but what is the required standard of care that is owed? In Ontario, it has been held that positive steps must be taken to ensure this duty is properly discharged. A general offer of a free taxi ride home is insufficient, as is an offer to call a friend or family member. Asking the employee if he or she “feels OK to drive” is also insufficient, because alcohol impairs judgment.
If you suspect your employee has become intoxicated at your office function, take the following steps: 1. Offer a safe ride home. 2. Take away the employee’s car keys. 3. Call a taxi for the employee and take reasonable steps to ensure he or she takes it. 4. Finally, if the employee refuses your assistance and attempts to drive home, call the police.
Doug Lester is a partner with RDM Lawyers LLP in Abbotsford and Mission. Questions or comments regarding this article can be sent to legalease@abbynews.com.
