In “Overview of the New Legal Era for Development Projects in the Newfoundland and Labrador Offshore,” Todd Stanley, QC, discusses the history of Newfoundland and Labrador’s offshore and the changes to the legal and regulatory landscape for upcoming projects. Originally prepared for the Canadian Energy Law Foundation’s June 2019 conference, you can now download a […]read more
Parties, Cocktails & Cannabis – the Triple Threat for Host Liability
Last year was the first holiday season after the legalization of cannabis. The products available then were primarily for consumption by inhalation. As of October 17 of this year, edible cannabis is legal, and edible cannabis products may be available for sale by mid-December. The introduction of legalized edible cannabis raises difficulties in detecting consumption, as many products will resemble ordinary food items, such as gummies or chocolate bars. Given this new development, if you are an employer looking to host a holiday gathering, you should be aware of the risks of hosting social gatherings over the holidays, and the steps you can take to minimize those risks.
The issue of host liability is categorized in three ways: Commercial, Social, and Employer. The following principles and best practices are important to keep in mind, especially during this time of year.
Commercial Host Liability
The concept of commercial host liability was set out by the Supreme Court of Canada in Jordan House Ltd v Menow,  SCR 239. In that case, a customer had been kicked out of the bar because of his level of intoxication. The customer attempted to walk home when he was struck by a vehicle. The customer alleged that the bar was negligent in serving him alcohol to the point of intoxication and then ejecting him from the bar when the staff knew, or ought to have known, that he was unable to take care of himself. The Court held that the bar was negligent in failing to see that the customer got home safely or was under the care of a responsible person.
The Menow decision established that bars, restaurants, and other commercial establishments that serve alcohol have a duty to protect their customers and the public. They cannot serve customers alcohol to the point of intoxication and then simply turn them loose.
Social Host Liability
Thirty years later, in the case of Childs v Desormeaux, 2006 SCC 18, the Supreme Court of Canada tackled the issue of whether individuals who host a party can also be held liable for the actions of their intoxicated guests. In that case, the defendants had hosted a New Year’s Eve party at their home. The guests of the party provided their own alcohol. One of their guests, who was known to have engaged in impaired driving on multiple occasions in the past, drove home from the party in an intoxicated state. While on his way home, he collided head-on with another vehicle, killing one of the passengers and seriously injuring three others. The party hosts were not held liable for the car accident. The Court explained that a social host may be held liable if their conduct contributed to the risk:
A social host at a party where alcohol is served is not under a duty of care to members of the public who may be injured by a guest’s actions, unless the host’s conduct implicates him or her in the creation or exacerbation of the risk. [Emphasis added]
The Childs decision opened the door for the imposition of liability on a social host where the host serves alcohol to a guest to the point of intoxication and fails to prevent the guest from driving home while intoxicated. Even on these facts, the Court cautioned that policy considerations may still mitigate against a finding of liability.
Employer Host Liability
Employer host liability first arose in Jacobsen v Nike Canada Ltd, 1996 Can LII 3429 (BC SC). The employer had provided employees with a substantial amount of beer during working hours. The employer was aware that all employees had driven to work and were not within walking distance of their homes. After one employee finished work, he and his co-workers went to two bars and consumed more alcohol. While driving home from the final bar, the employee drove off the highway and suffered serious injuries that rendered him a quadriplegic. The employee sued his employer, alleging that the employer was negligent by providing alcohol to him during working hours and failing to take any steps to prevent him from driving while intoxicated. The Court held that the employer was 75% liable for the accident as the employer failed to provide a safe workplace by introducing alcohol at work.
In John v Flynn, 2001 Can LII 2985 (ON CA), the Ontario Court of Appeal provided some guidance on how an employer may avoid employer host liability. The employee in question had a drinking problem. For eight hours prior to his shift, and during his shift, the employee drank steadily. Despite his intoxication, the employee managed to leave work and arrive home safely, where he continued to drink. He later drove to a friend’s home and, on his way, was involved in a motor vehicle accident. The Court of Appeal held that the employer was not liable because:
- the employer did not provide any alcohol to the employee;
- the employer was not aware that the employee was drinking on the job;
- the employee did not demonstrate any signs of intoxication; and
- the employer did not condone drinking and driving.
The Alberta Court of Queen’s bench came to a similar decision in Jenkins v Muir, 2012 ABQB 352. In this case, the employer did not provide alcohol, was not aware of the employee’s intoxication when leaving the premises, and the employer’s policies included using taxis at the employer’s expense.
Impacts of Edible Cannabis on Host Liability
In general, employers are prohibited by law from distributing cannabis at a social function. With respect to social hosts, the matter is different. Individuals are permitted to possess and cultivate cannabis in their homes. While it is an offence to sell cannabis, it is generally not an offence to give cannabis to an adult. As such, social hosts may provide cannabis to their guests. However, caution should be exercised when considering gifting cannabis.
First, while you can possess or gift as much alcohol as you want, there is a limit to how much cannabis you can possess or give out. It is an offence under the Cannabis Act to possess or distribute (which includes giving) more than 30 grams of dried cannabis. Second, for the same reasons as alcohol, providing cannabis to your guests would likely result in the creation or exacerbation of a risk—a trigger for liability noted by the Supreme Court of Canada in Childs. The alcohol content in home brew can be easily determined, thereby allowing a host to somewhat monitor alcohol intake. Determining THC content in home grown cannabis or homemade edibles is less straightforward.
The impairing effects of cannabis, and there duration, are still a subject of debate. This uncertainty was discussed in the recent labour arbitration decision, International Brotherhood Lower Churchill Transmission Construction Employers’ Assn. Inc. and IBEW, Local 1620 (Tizzard), Re (2018), 136 CLAS 26. In this case, the arbitrator reviewed several medical authorities and found that it was possible for impairment to last for over 24 hours, the employee could sincerely believe he was not impaired and yet still be long after consumption, and there were essentially no reliable options available to effectively determine impairment. Due to these uncertainties, the arbitrator ruled that an employer did not have to accommodate an employee who was taking prescribed medicinal cannabis.
With respect to edible cannabis specifically, research indicates that ingesting cannabis results in a more delayed “high” that is less acute but lasts longer than smoking. The full effects of ingesting cannabis may not be apparent until hours later. For individuals new to cannabis who might not be aware of this, there is a risk of over consumption through ingesting cannabis, not immediately feeling the effects of it, and subsequently believing they may ingest more. If alcohol and cannabis are consumed together, it is generally accepted that it takes less amounts of each to become impaired. Again, not feeling the immediate effects of ingested cannabis further heightens the risk of over-consumption of alcohol when consumed together.
Lessons for Employers
The office holiday party is a great way to boost morale by rewarding staff and giving them a chance to get familiar with their colleagues on a social level. However, employers must remain mindful of their potential liability.
Employer host liability will generally be imposed where the following conditions are met:
- the employer provides alcohol (or other impairing substances) to the employee;
- the employer has knowledge of the employee’s intoxication; and
- the employer fails to take sufficient steps to prevent the employee from driving.
Employers can minimize the risks of employer host liability by implementing the following best practices when hosting a company party:
- hire professional bartenders to serve alcohol – they are trained to identify intoxicated patrons and how to handle them;
- provide non-alcoholic beverage options;
- avoid an open bar and, instead, provide guests with a limited number of drink tickets;
- if acting as a private individual, exercise caution if giving out cannabis, particularly when alcohol is available, and vice versa;
- if acting as an employer/organization, do not give out cannabis;
- ensure food is served at all times when alcohol is available;
- provide taxi vouchers to guests who require them;
- implement a specific cut-off point where the work function officially ends;
- promote responsible substance use and inform employees of the effects of combining cannabis and alcohol; and,
- if you hold a management-level or supervisory position, lead by example.
If you think an employee may attempt to drive a vehicle while impaired, consider taking the following steps:
- provide alternative means of transportation;
- take away the employee’s car keys;
- provide accommodations for the employee; and/or
- if the employee refuses your assistance and attempts to drive home, call the local police.
Have a safe and happy Holiday Season!
 Global News, Cannabis edibles expected to hit Canadian shelves mid-December. June 14, 2019, online: <https://globalnews.ca/news/5391103/cannabis-edibles-stores-mid-december/>.