Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. She has been practicing law since 1994, with brief stints away to begin raising children. Susan has experience in many areas of law, but is most drawn to areas in which she can make a positive difference in people���s lives, including employment law. She has been a member of the Law Society of Alberta since 1994 and a member of the Law Society of British Columbia since 2015. Susan grew up in Saskatchewan. Her parents were both entrepreneurs, and her father was also a union leader who worked tirelessly to improve the lives of workers. Before moving to B.C., Susan practiced law in both Calgary and Fort McMurray, AB. Living and practicing law in Fort McMurray made a lasting impression on Susan. It was in this isolated and unique community that her interest in employment law, and Canada’s oil sands industry, took hold. In 2013, Susan moved to the Okanagan with her family, where she currently resides. photo:contributed

Kootnekoff: ‘Tis the season

It’s that time of year again. The holiday season is upon us.

Workplace holiday party season is in full swing.

Employers, ensure your guests know that you will provide a safe way home.

Those attending, know your limits. Avoid taking the wheel if there is any chance you may be impaired.

The area of host liability has been a developing area of law for decades, and is still not yet fully settled.

This much is clear — a commercial host will be liable if it fails to take reasonable steps to prevent foreseeable harm to patrons or third parties.

Reasonable means reasonable in the eyes of the law.

How does an employer’s liability differ from that of a commercial establishment?

There are few Canadian cases that directly address this question.

One B.C. case considered the responsibilities of an employer, Jacobsen v. Nike Canada Ltd.

In that case, Mr. Jacobsen, a 19 year old employee, was employed by Nike at its warehouse in Coquitlam, B.C.

Nike asked him to help set up a trade show exhibit at B.C. Place.

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He was asked to bring his own vehicle, to transport supplies from the Coquitlam warehouse to BC Place, in downtown Vancouver.

While the crew worked at B.C. Place that day and into the night, the supervisor brought them beer, pop and chips. No limits were placed on the amount of alcohol consumed. It was determined that the supervisor did not monitor consumption.

After leaving B.C. Place, Jacobsen attended two local pubs and eventually walked back to his car near 2 a.m. While driving home, he was involved in a single vehicle crash that rendered him a quadriplegic.

The judge held that the employer failed to meet its standard of care by providing alcohol in large quantities, not monitoring consumption and failing to take steps to ensure that employees did not drive away impaired.

Negligence was apportioned between the employer, at 75 per cent, and Jacobsen, at 25 per cent. Damages were assessed in 1996 at $2.7 million.

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The Court had this to say about the employer in that case:

“The law imposes a higher standard of care on an employer than on a tavern-owner…. An employer is required to safeguard its employees from unreasonable risks. The risk of injury from becoming impaired from consuming alcohol and driving in that condition is obvious to any reasonable person. It is not too onerous, in my view, for an employer who provides alcohol to its employees to monitor consumption, so that it is in a position in the appropriate circumstances to take affirmative steps to prevent the foreseeable risk of injury.”

Some may be tempted to discount this case based on its extreme facts. Only time will tell whether that is a mistake.

There are several steps an employer can take to minimize its liability, but as one court noted, the law on employer liability in these situations is “in a state of infancy.”

Let’s keep it that way.

So, please, whether you are a guest or an employer, act responsibly this holiday season.

The content of this article is intended to provide very general thoughts and general information, not to provide legal advice. Specialist advice from a qualified legal professional should be sought about your specific circumstances. If you would like to reach us, we may be reached at 250-764-7710 or info@inspirelaw.ca . Check out our website, www.inspirelaw.ca.

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