October/November 2002

Two Steps Back

By Richard Anstruther

RECENTLY, THE ONTARIO COURT OF APPEAL reversed two lower court decisions that seemed to point the way toward runaway liability of employers for accidents resulting from workplace alcohol consumption by their employees. While highly significant from a legal perspective, however, the reversal of these two cases does not mean that the duty of care owed by an employer to its employees -- or, for that matter, by a host to his or her guests -- is materially changed.

Many readers will recall the Barrie, Ontario office party case known as Hunt v. Sutton Group Incentive Realty Inc. Some may also recall the less well known but, for employers, potentially more worrisome case of John v. Flynn.

In John v. Flynn, an employer was held liable at trial for injuries caused by an employee who came to work drunk and continued drinking surreptitiously while at work. The man took precautions to avoid detection of his drinking, such as wearing eye protection so that co-workers could not see his eyes and avoiding conversation with his supervisor so that his slurred speech and alcohol-smelling breath would not be noticed. During several breaks, he went to his vehicle in the parking lot to continue drinking. At the end of his night shift, the employee went home and continued drinking. He then left home with a bottle of beer, got into his car, drove onto the highway and ended up in a motor vehicle accident.

The person injured by the drunk driver then sued the man's employer, arguing that the employer should have done more to detect and deal with the employee's alcohol problem at work.

The court initially found in the injured driver's favour, but that decision was overturned and the employer acquitted.

In the more widely publicized Hunt decision, Linda Hunt, a secretary and receptionist with Sutton Group, a realty firm, attended her employer's office Christmas party in December, 1994. The party featured an open bar with no one in charge of monitoring alcohol consumption. Hunt drank an unknown amount of alcohol during the party, cleaned up the premises at the end of the day and left with several other people around 6:30 pm.

She and a group of others headed for a local bar known as P.J.'s Pub. She drank some more at P.J.'s, eventually leaving that establishment around 8 pm to head home to Wasaga Beach, about 40 kilometres away.

Freezing rain had been falling and the roads were quite slippery. Hunt apparently lost control of her vehicle, crossed into the opposing lane and collided with a pickup truck at about 9:45 pm. She received multiple serious injuries, including broken bones and a closed head injury. She had to be removed from the wreckage by paramedics who cut through the roof of her car. She spent months in a halo vest to stabilize her neck injury and underwent years of physiotherapy.

Although she had left P.J.'s nearly two hours earlier, she was just 12.2 kilometres away when she had the accident. No explanation was ever given for what she was doing during the intervening hour and three-quarters.

In fact, Hunt was left with no memory of the accident or of any events in the week prior to the collision. She sued her employer for negligence, arguing that the employer's "open bar" office party was partly responsible for the accident. She did not dispute that she herself bore most of the blame for the accident. Her lawyer even suggested during the trial that 70 per cent of the blame could be fairly allocated to Hunt. However, Hunt argued that Sutton Group was at least partly responsible and therefore should be ordered to pay a share of the damages.

The trial began before a jury and eventually attracted a storm of publicity, much of it very unfavourable toward Hunt. To some observers it appeared that Hunt exemplified North America's victim culture in which every adverse turn of events is someone else's fault.

Eventually, Hunt's lawyer asked the judge to dismiss the jury on various grounds, including a contention that the publicity had affected the jury's ability to decide the case impartially. The judge agreed and dismissed the jury. He eventually ruled that Sutton Group was partly liable and ordered it to pay damages. Sutton Group appealed.

On August 14, 2002 the Ontario Court of Appeal ruled on that appeal, and reversed the decision of the trial judge. While this might at first appear to be grounds for celebration among employers, a closer examination of the reasons for the Court of Appeal's decision does not by any means lead to the conclusion that employers are free to host events at which alcohol is served with impunity.

Sutton Group had appealed on three grounds: first, that the trial judge had erred in discharging the jury; second, that Sutton Group was not negligent in any action that could be said to be a "proximate cause" of the accident; and, third, that the trial judge erred in allowing opinion evidence from two lay witnesses.

The third ground was quickly dismissed. On the second ground, the Court of Appeal agreed with Sutton Group that the judge had made a number of errors in his analysis of the causal connection between what had happened at the Sutton Group office party and the accident. However, the court declined to decide Sutton Group's responsibility itself, ruling that the matter should be decided in a new trial and that the evidence before it was not sufficient to allow the court to make a ruling on the degree of Hunt's intoxication at the time she left Sutton Group's office party. In the court's words:

"Even accepting the findings of negligence made by the trial judge, as well as his findings of fact relating to causation, and assuming that all outstanding factual issues would be resolved in favour of (Ms. Hunt), I am not prepared to hold that a trier of fact would be precluded from finding that the negligence of (Sutton Group) was a proximate cause of the accident."

In other words, given the facts, it is still possible to find Sutton Group liable at a new trial.

However, the court also ruled that the judge had been wrong to dismiss the jury, and that the right to trial by jury, even in civil proceeding, is a substantive right that should not lightly be set aside.

The court also noted that the trial judge in the Hunt case had relied on the earlier trial decision in John v. Flynn, which decision was itself also later reversed by the Court of Appeal.

What, then, is the "bottom line" for employers from the Court of Appeal's decision in Hunt v. Sutton Group? Clearly this was not a wholesale exoneration of Sutton Group's conduct. Nothing in the Court of Appeal's decision would preclude Sutton Group from being held liable in a new trial. At most, the decision indicates that the all-important issue of causation needed to be tried again, this time before a jury.

In the meantime, employers should continue to think carefully about whether they really wish to host social events at which alcohol is served. For those employers that do, it is essential to think carefully about a program to monitor alcohol consumption at the event, what measures will be necessary to deter attendees from driving while intoxicated, the potential risk of liability and the extent to which the employer may be insured for that risk.

Richard Anstruther is a lawyer with the firm of Stringer Brisbin Humphrey in Toronto. He specializes in oh&s and workers' compensation law and can be contacted through www.sbhlawyers.com.

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