Employment & Labour

Happy Holi-daze – an update on social host liability

By Mackenzie Irwin

As we head into the holiday season, many employers will be hosting holiday parties for their employees. With the recent legalization of cannabis and a new decision out of the Ontario Court of Appeal, an update on social host liability is in order.

Social host liability refers to the potential for the host of a social gathering to be found legally responsible for the injuries suffered or caused by their intoxicated guests.

To date, social host liability has not been found in Ontario courts. However, there are cases currently making their way through the court system that open the door for a finding of social host liability.

Recent developments

In this 2018 decision, the Ontario Court of Appeal opened the door for a finding of social host liability even after one’s guest has arrived home safely.

This was a motion for summary judgment, in which the defendants applied to the courts for a ruling that the plaintiff’s claim has no cause of action, and should be dismissed. In a summary judgment motion, the court is tasked with determining whether the plaintiff has an issue that requires a trial.

In the case, two men were coworkers who would regularly get together after work to drink beer. On the day in issue, one of the men was at the other's house, where they drank excessively. The man left the coworker's home, returned safely to his house, put his children in his car and drove the babysitter home. On his way back, the man got into a serious car accident, killing himself and injuring his children.

Potential for liability extending beyond when the guest has safely returned home

The motion judge referenced the Ontario Court of Appeal’s decision in this 2001 case to support her finding that even if the coworker owed a duty of care to the man, it expired when he arrived safely home.

In the 2001 case, the employer was not found liable for an accident involving one of their employees who became intoxicated during his shift with the employer. The employee left work and arrived home safely, where he continued to drink, and later drove to a friend’s house. It was on his way to his friend’s house, where the employee was involved in the accident.

The Ontario Court of Appeal in the 2018 decision disagreed, with the motion judge’s reliance on the 2001 case, holding in paragraph 46, that “in a social host liability case, there is no automatic rule that the duty of care expires once the intoxicated driver arrives home safely.” The Ontario Court of Appeal sent the case to trial, leaving the door open for a finding of social host liability to third parties after the intoxicated guest has arrived home safely.

Social host liability and cannabis

The recent legalization of cannabis in Canada has left many employers and employees unsure of how it affects the workplace. The Ontario Human Rights Commission, the Ministry of Labour, and the Government of Ontario have each released policy statements to ease the transition for legalization of cannabis. Overall, recreational consumption of cannabis in the workplace remains illegal.

To date, the issue of social host liability in relation to cannabis has not come before the courts. However, social hosts should take the same precautions to ensure the safety of their guests as they would with alcohol consumption.

Take home

As employers set out to host their annual holiday parties, if their guests will be consuming alcohol or cannabis, it is important to ensure that they are not over-served, and that they have a safe ride home.

We recommend ensuring that anyone serving alcohol at your party is Smart Serve Certified, in order to regulate the amount of alcohol guests are served.

We also recommend providing all employees with taxi vouchers before the event starts. In addition, employers should send an email to all employees prohibiting them from drinking and/or consuming cannabis and driving and urging them to use their taxi vouchers.

Although social host liability has not yet been found in Ontario, your friends at MacDonald & Associates want to make sure you have a safe and happy holiday season.

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