This story is equally relevant to Canadian audiences. Employer host liability for the drunk driving of employees is an outgrowth of the employer's obligation to protect its employees. But it's not contained in any of the provincial or territorial OHS statutes; nor is it in the regulations that implement those statutes.

The law comes from court cases. More precisely, host liability and its application to employers who serve alcohol to employees is part of negligence law.

3 Key Court Cases

It all started in 1974 when the Canadian Supreme Court decided a case called Jordan House Ltd. v. Menow, (1974) D.L.R. (3d) 105 (S.C.C.). A customer walked into a bar, drank too much and got run over by a car after stumbling into the street while walking home. The customer sued the bar for serving him to the point of intoxication and then letting him leave knowing that he couldn't properly care for himself.

The Court found the bar guilty of negligence. Bars, restaurants and other commercial establishments that serve alcohol have a duty to protect their patrons, it said. Essentially, the Court was saying that a bar can't just serve customers until they get drunk and then turn them loose on the streets.

The Menow case involved a commercial establishment. But in 1996, the BC Supreme Court applied host liability to an employer. A supervisor brought a cooler of beer to a crew erecting a trade show display on a hot day. A crew member got noticeably drunk and drove into a ditch on the way home. As a result, he became a quadriplegic. The Court found the company 75 percent responsible and ordered it to pay the victim $2.7 million in damages.

Holding the employer responsible for the victim's injuries might seem unfair. After all, the victim was a responsible adult capable of making his own decisions. But the Court said that the employer in this case was just like the bar in Menow. It supplied the beer; the supervisor also knew the victim was drunk but didn't try to stop him from driving home. Employers have an obligation to guard employees against unreasonable risks, the Court said, just as bars have a duty to protect their customers [Jacobsen v. Nike Canada Ltd., [1996] B.C.J. No. 363 (B.C.S.C.)].

The Nike principles apply equally to employers who host parties where liquor is served. In 2001, an Ontario company was held 25 percent responsible for injuries caused by an employee who got into an accident after drinking wine at the company Christmas party. Keeping an employee from driving home drunk after a party it hosts is part and parcel of the duty to ensure workers a safe workplace, according to the court [Hunt v. Sutton Group Incentive Realty Inc., (2001) 52 O.R. (3d) 425].

Note: The Ontario Court of Appeal later reversed the Hunt case on a technicality. The Court said the jury was subject to improper influences; but it didn't say that the case was wrong to impose a duty on the employer. Thus, the concept of host liability on the part of an employer remains the law until and unless a court or the legislature say otherwise.

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