CYA for hosting BYOB

You have just finished the big game and it’s time to sit back, relax and share some post-game highlights. You pull-up a chair next to Big Foot and grab a cold one out of the cooler (okay, minus the Big Foot/Sasquatch from the Kokanee commercials, but you get the picture). If you have played on an adult sports team, belonged to a club, or volunteered, chances are you have sat around to have a few beverages after the big game or meeting. In many of these situations, the gathering is BYOB (bring your own booze) or there is a group fund and someone is in charge of bringing the cooler full of beverages. In those instances, there’s usually no official host and no one is selling anything, so who, if anyone beyond the individual themselves, is on the hook if someone in the group drinks too much and bad things happen?

First, let me open by saying this is not an article advocating to eliminate all post-game beers. However, drinking and driving (and other alcohol related risks) after these events are real concerns that need to be considered. The legal risks will depend on the specific facts of each case.

As a starting point, alcohol cannot be opened or consumed in public without a license unless the location is designated as exempt by the government. A penalty for a person for contravening the Liquor Control and Licensing Act is a fine of up to $10,000 or imprisonment for not more than 6 months or both. If the contravention is by a corporation, it is liable to a fine of not more than $50,000. Therefore, drinking beer on the soccer field, in the parking lot, or even on a boat (unless you live in it or it is licensed) will be a violation of the Liquor Control and Licensing Act resulting in liability to the individuals or the group. A typical ticket for an open liquor violation is about $230.

Bars and restaurants that sell and serve liquor are referred to as commercial hosts. Clubs with a social, athletic, recreational, fraternal, benevolent or patriotic nature, who have their own facility, have over 50 members and who charge membership fees over $10/year, can also apply for a liquor license which allows them to sell and serve liquor. Commercial hosts must have licenses and are subject to specific requirements under the Liquor Control and Licensing Act. Commercial hosts who do not take appropriate steps to monitor and control liquor consumption may be liable to a member of the public who is injured or killed by a drunk driver (Stewart v. Pettie).

The host of a private party is generally not liable to people injured by a guest’s action, unless the host does something to create or increase the risk to others. Social hosts, unlike commercial hosts, have no statutory duty to monitor or control the consumption of alcohol. The Supreme Court of Canada in Childs v. Desormeaux affirmed the following statement by the Ontario Court of Appeal

“…I cannot accept the proposition that by merely supplying the venue of a BYOB party, a host assumes legal responsibility to third party users of the road for monitoring the alcohol consumed by guests, … It would not be just and fair in the circumstances to impose a duty of care.”

While a social host is not required to monitor or control alcohol intake, it does not mean that the host can simply ignore someone who is obviously impaired and it is foreseeable that they are going to injure themselves or others. Also, the situation changes if the host increases the risk, by pouring drinks down their guests’ throats. In those situations, the Court may impose liability on the social host.

But what about those in-between situations involving employers or organizations? These cases can be different from the situation in Childs, because there is often a paternalistic relationship involved, where one party is considered to be vulnerable. Jacobsen v. Nike Canada Ltd. is one of the leading cases involving the liability of employers for intoxicated employees. In that case, the Court held that if an employer provides alcoholic beverages to its staff and it knew or ought to have known that the employee was impaired prior to leaving the employment function; the employer will be liable for failing to take steps to prevent the employee from driving. In the Jacobsen decision, the Court found that:

• the employee must have shown signs of impairment;

• the employee was under the control and supervision of the employer at the time he was drinking;

• there was no prior expectation he would be drinking that night, therefore he had no opportunity to make plans in advance for transportation or lodging;

• the employer encouraged drinking by providing the alcohol and drinking with the employee;

• it took no steps to restrict or monitor the employee’s consumption or determine if he was impaired before he left or to prevent him from driving; and

• the employer knew the employee had to get home and the employee had no reasonable alternatives provided to him to get home safely.

As a result of the Jacobsen decision (where the employer was on the hook for over $2 million), many employers curbed their approach or virtually eliminated alcohol at social functions. However, an employer will not always be liable for the acts of intoxicated employees. In a recent decision called Jenkins v. Muir, the Alberta Court of Queen’s Bench concluded that an employer was not liable for the death of an employee who had been drinking on the employer’s premises after hours, where her boss was present for a time, and died as a result of a head on collision. In arriving at its conclusion the Court considered that:

• the employer had a “no alcohol during work” policy and the employee was aware of the policy;

• the employer had a generous taxi policy, allowing employees to use a taxi at any time for any reason, and to charge it to the company. The employee was well aware of the policy;

• the employer did not provide the alcohol that was drank by the employee (in other words it was BYOB);

• in the Jacobsen decision, the employer provided “a large quantity of beer intending Jacobsen to drink it.”;

• there was no evidence as to how much alcohol the employee actually consumed;

• none of the witnesses provided evidence that the employee was inebriated; and

• when the employer left the premises at about 9:00 pm he was reasonably of the understanding that the others, including the employee was about to leave.

In the end, it seems that regardless of the relationship between the parties, it all comes down to foreseeability, or more specifically, whether it was clear that the person was intoxicated or was going to become intoxicated and get behind the wheel. If there is evidence someone was inebriated and you know they are going to drive home, you may find yourself or your organization on the hook for damages for injuries or death.

In summary, merely supplying the venue for a BYOB event will not result in liability, and you can reduce one’s risk in hosting a BYOB event by:

• if you are an employer or a club, have a “no alcohol during work/meeting/game” policy and make sure your members are aware of the policy;

• have a taxi or alternate transportation policy that allows people to get home safe and make sure people are aware of it;

• do not engage in other risky activities or behavior;

• do not provide alcohol (in other words, keep it BYOB) or limit the amount provided;

• restrict or monitor consumption;

• restrict the amount of time people are permitted to stay and consume alcohol;

• make sure people know that they may be consuming alcohol in advance so that they can make other transportation arrangements (another good reason to keep it BYOB); and

• if someone is obviously impaired, take steps to prevent the person from driving or engaging in activity that may injure themselves or others.

Have fun and drink responsibly. For more information on BC’s Liquor laws, see: the BC Liquor Control and Licensing Branch.

*Important Note: The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

This article is written by or on behalf of an outsourced columnist and does not necessarily reflect the views of Castanet.