There’s a chill wind in the air as the calendar steams towards November. That also means that, at many Canadian organizations, thoughts are turning to organizing the annual holiday party.
From an employer’s perspective, alcohol and employees rarely mix well. One of the big issues is liability, and HR Law Canada is turning the clock back to 2001 to break down a seminal ruling out of Ontario.
HR often has a reputation for being fun regulators. But that’s often a necessary role, as the unfortunate case of Hunt v. Sutton Group Incentive Realty Inc. shows.
It involved Linda Hunt, a part-time secretary for Sutton Group Realty in Barrie, Ont.
Open bar at Sutton
On Dec. 16, 1994, the company held a party for its employees, agents, brokers, customers and others with whom it had a business relationship. It kicked off at 1 p.m. and featured an open bar, and nobody was designated to monitor how much people drank.
Her employer, Don Gerry, became concerned about her state of inebriation, according to the Ontario Superior Court of Justice ruling.
He reminded her that “if you are to carry on, I’ll call (your husband) to come and pick you up.”
At the end of the party, Hunt, 44, cleaned up the premises and drove to a local bar, P.J.’s Pub, with some other people who had been at the party. That was around 6:30 p.m. and that pub was about one kilometre away from the office.
There was some dispute over the amount of alcohol consumed, but the court settled on the fact that Hunt had two drinks at the bar.
At 8 p.m. she left P.J.’s Pub and started driving to her home in Wasaga, which was about 30 minutes away. At around 9:45 p.m., she was seriously injured in a car crash — about 12.2 kilometres away from P.J.’s on the way to Wasaga.
“At the time in question, the very bad winter storm had progressed and worsened into a major cause of concern,” wrote Justice Marchand of the Ontario Superior Court of Justice.
On her way home at 9:45 p.m., some 12.2 kilometres away from the pub, she lost control of her car. While heading downhill, she slid into oncoming traffic and was T-boned on the driver’s side. It was a serious accident. She was unconscious for some time and had to be cut out of the vehicle.
She suffered brain injury, upper body injuries, pelvic fracture and a cervical fracture.
Two blood alcohol samples were taken from Hunt. The first, at 11:20 p.m., at a hospital in Barrie showed a blood alcohol level of 149 mg/100 ml of blood. The second, taken at 2:30 a.m. the next day at a Toronto hospital, showed 105 mg/100 ml of blood.
She had no memory of the accident nor of any event in the week before it. Apart from the time required to drive the 12.2 kilometres, there was no evidence as to how she spent the period from 8 p.m. to 9:45 p.m.
Two blood alcohol samples were taken from Hunt. The first, at 11:20 p.m., at a hospital in Barrie showed a blood alcohol level of 149 mg/100 ml of blood. The second, taken at 2:30 a.m. the next day at a Toronto hospital, showed 105 mg/100 ml of blood.
The legal limit in Ontario is 80 mg/100 ml.
Hunt sued both her employer and P.J.’s Pub for damages arising from the accident.
The Ontario Superior Court of Justice calculated her damages at more than $1.1 million, including general damages, past loss of income, future loss of income and costs of future care.
The employer’s responsibility
Hunt was at the office party as an employee, the court noted. She was answering the phone, was expected to clean up and was being paid throughout.
Sutton acknowledged it had a duty to keep its workplace safe. But it argued that did not extend to a requirement that it monitor or supervise the drinking habits of employees.
It argued that taking Hunt’s keys would have been tantamount to theft; and forcibly putting her into a cab might even give rise to false imprisonment or even kidnapping, according to the court ruling.
Hunt, though, argued that the duty to keep a workplace safe extended to supervising employees so that “he or she is not to partake of either drug or alcohol while on premises and especially while on duty so as to endanger their ability to drive home later.”
The court sided with Hunt.
“This duty to safeguard her from harm extended beyond the simple duty while she was on his premises. It extended to a duty to make sure that she would not enter into such a state of intoxication while on his premises and on duty so as to interfere with her ability to safely drive home afterwards,” it said.
The fact there was a serious storm at the time made that duty “much more evident,” it said.
“He ought to have foreseen the dangerous conditions made worse by the intoxicated condition of his employee. He ought to have anticipated the possible harm that could have happened to her and, in fact, taken positive steps to prevent her from driving home,” the court said.
Offering a cab to employees, generally, didn’t cut it, the court said. And it rejected the theft (taking keys) and kidnapping (forcing her to take a cab) defenses outright.
It could have insisted she leave her keys at the office and take a cab. Or it could have phoned her husband to pick her up or even have called the police if necessary.
Asking her whether or not she should call her husband also didn’t cut it, in the court’s view.
The toxicologist testified that the very worst person to ask for guidance in such circumstances is the “drunk person herself” as alcohol impairs one’s ability to make an appropriate judgment, it said.
The pub’s responsibility
As a commercial host, P.J.’s Pub has an obligation to ensure its customers are protected from “foreseeable and unreasonable risk of harm,” the court said.
It was clear Hunt was showing signs of inebriation or impairment when she left Sutton, it said, which was just a few minutes before she got to the pub.
“It seems to me that if such signs of impairment were so visible to inexperienced observers, much more so should it have been to the staff of a professional establishment who are trained or ought to be trained in detecting such impairment,” it said.
It should have known that allowing Hunt to drive home, in the dark in the middle of a snowstorm while obviously impaired by alcohol, was a bad idea.
Therefore, the pub was also responsible for not getting her a taxi, asking for her keys or calling the police.
Hunt’s responsibility
Hunt was not off the hook for her own actions. Her consumption of alcohol was, after all, self-induced.
“Just as I have found that her degree of impairment due to the consumption of alcohol was a cause of the accident, so too is her self-indulgence in the partaking of such alcoholic beverages an attributable cause of the accident,” the court said.
“I find that turning her back to the dangers that she ought to have foreseen by allowing herself to drink and then drive home in such weather conditions as existed at the time in question was negligent on her part.”
75 per cent, 25 per cent
Taking all the above into account, the court found Hunt was 75 per cent liable for the accident.
It found Sutton and P.J.’s Pub to be jointly liable for the remaining 25 per cent, and said it would be “impractical to quantify their respective degree of negligence.”
They were jointly liable to Hunt for the 25 per cent, which amounted to $281,299.
Ruling appealed
Sutton Group appealed the ruling to the Ontario Court of Appeal.
It appealed, partly because the trial judge dismissed the jury on Hunt’s request. That was done partially because the case had attracted so much media attention locally.
“The right of a litigant to a jury is a substantial right. It is not to be voided except for substantial reasons,” the Court of Appeal ruled. “
It ordered a new trial.
That trial never happened, as later in 2002 the case was settled out of court, according to the Globe and Mail.
In that article, lawyer Roger Oatley said the ruling did not actually change the law.
“The law has always been clear that employers, like taverns, owe a duty of care to ensure that when they serve alcohol, they do not allow their employees or patrons to drive when intoxicated,” he told the Globe and Mail.
For more information, see:
Hunt v. Sutton Group Incentive Realty Inc., 2001 CanLII 28027 (ON SC)
Hunt (Guardian of) v. Sutton Group Incentive Realty Inc., 2002 CanLII 45019 (ON CA)
