Hospitality Law Cases and Contracts

Condition of Hospitality Premises

• Flentje v Nichols: Case involving a severe leg injury in the parking lot of the Buckhorn Restaurant & Banquet Facilities
• Murphy v Little Memphis Cabaret Inc: Case involving an altercation between two groups of men in a tavern and their subsequent ejection through different doors

Contacts in the Hospitality and Tourism Sector

• Requirements for an enforceable contract: mutual intention to contract, offer and acceptance, and the exchange of consideration.
• Two alternative ways in which a promise may be enforceable: a promise under seal and successful application of the legal doctrine of promissory estoppel

Requirements for Promissory Estoppel

• A promise has been made.
• The recipient of the promise relies on the promise such that it would be unfair if it were retracted.
• The recipient of the promise has not obtained the promise by any wrongful behaviour.
• The promise was made within an existing legal relationship between the parties.
• Waters v Sun Route Tours Inc: Case involving the conditions of the sale of a travel agency

Standard Form Agreements

• The most critical legal issue is whether the usual provisions in these agreements negating or limiting the liability of the hospitality vendor are enforceable
• Garofoli v Air Canada Vacation: Case involving the enforceability of provisions in standard form agreements

Elements of Accommodation

• Must be operationally and mechanically complete.
• Accurately calibrated to stop in alignment with destination floors.
• Must be in full compliance with fire service requirements.
• Other considerations: weight management and crowd control

Dumbwaiters

• Post highly visible signage that accommodation will not be held responsible for inappropriate use

Lighting and Light Fixtures

• Adequate lighting helps with floor perception and pitch recognition.
• Must comply with fire exit lighting codes

Furniture

• E.g., bar stools should be heavily weighted with backs and arms.
• Cribs must comply with government requirements

Ceiling, Wall Beautifications, and Enhancements

• Secure mounting is crucial.
• The area must be closed to pedestrian traffic when work is occurring.

Food and Beverage Outlets

• Signage is necessary for "exclusive" areas
• Management's greatest concern: intoxicated guests

Guest Rooms

• Must be safe and secure, and have fire escape routes and legal notices posted on the back of the door.
• Other safety considerations: smoke detectors, shatter resistant glassware, lighting/switch locations, ceiling damage, windows/window coverings, balcony/patio doors, and bathrooms.

Front Desk and Managerial and Support Offices

• Proper signage is necessary for areas restricted to authorized personnel
• The front desk has full responsibility to coordinate or collaborate with emergency services

Fire and Other Emergencies

• Must remain in full compliance with provincial/territorial legislation, regional and municipal by-laws.
• Accommodation properties should ensure that all staff members have received training on emergency procedures and protocols.

Swimming Pools

• Accommodation properties will only be liable in the event of an accident or tragedy at its swimming pool if the property failed to provide reasonable care and to do its due diligence.
• Highly visible signage about risks of use.
• Must ensure all equipment is in top operating condition.

Airbnb and Other Online Accommodation Marketplaces

• An electronic online market platform that acts as an accommodation broker.
• Guests and hosts must be careful when considering whether to stay or rent, as disasters include vandalism, property not being close to what was advertised, property being used for illegal business (drug dealing, brothel), and guests refusing to leave.

Jurisdictional Framework

• Federal government is largely concerned with the safety of food and drink, not the premises in which it is served.
• Health Canada and the Canadian Food Inspection Agency (CFIA) are responsible for carrying out the government’s mandate under the Food and Drugs Act and Safe Food for Canadians Act.
• Provincial and Municipal governments have a direct role in regulating the food service industry (usually under either the Ministry of Health or Ministry of the Environment).
• Some provinces delegate enforcement to local or provincial health units (refer to Table 6.1 for Responsible Authorities by Province and Territory).

Legislative Framework

• Food and Drugs Act: sets standards for the safety and nutritional quality of all foods sold in Canada.
• Fines can be imposed when contravened.
• Provincial rules are lower in priority than the FDA.
• Each province has the power to enact its own laws (including regulations)

Provincial Regulation of Food Safety

• Permits and Licensing
• Building Standards
• Equipment
• Food Storage and Handling
• Garbage
• Cleaning and Sanitizing
• Staff Training, Hygiene, and Health
• Record-Keeping and Protocols
• Labelling and Menus
• Inspections

Other Provincial Legislation Affecting Food Service

• Sale of Goods Acts: Provincial in scope and include an implied condition that food offered by a food service operator is suitable for immediate human consumption

Common Law Liability Affecting Food Service

• Food providers owe patrons a duty of care to serve food that will not cause harm.
• Heimler v Calvert Caterers Ltd: Case involving wedding guests who contracted typhoid fever from the catered food.
• Box 6.1: Gee v White Spot Ltd: Case involving a restaurant failing to provide food fit for human consumption.

Regulation of the Service of Alcohol

• Licensing and Eligibility
• Duties of a Licensee
• Building Requirements
• Source of Alcohol
• Hours of Operation
• Employee Training & Conduct
• Age of Majority
• Intoxicated or Disorderly Persons
• Drink Size and Price
• Entertainment/Games
• Advertising and Responsible Consumption of Liquor
• Record-Keeping
• Inspections
• Penalties

Commercial Host Liability at Common Law

• Licensees owe a duty to their patrons and foreseeable third parties to avoid harm that may arise from a patron’s over-consumption of alcohol.
• Jordan House Ltd v Menow: Case involving the duty to avoid harm from over-consumption of alcohol
• Cormier v Lecopo Ltd: Case involving the duty to avoid harm from over-consumption of alcohol
• Stewart v Pettie: Case involving the duty to avoid harm from over-consumption of alcohol

Torts

• Torts are civil wrongs that result in harm to another party.
• Torts are often classified by whether they are intentional or unintentional.
• There are many notable cases of torts in the hospitality and tourism sectors.
• Buehl Estate v Polar Star Enterprises Inc (HCJ) involved a death at a fishing lodge, resulting in a claim of breach of the standard of care of an occupier under the Ontario Occupiers’ Liability Act.
• Execotel Hotel Corp v EB Eddy Forest Products Co involved significant damage to a hotel due to airborne dust and wood particles, resulting in a claim against EB Eddy for the tort of nuisance for physical damage to the roof, loss of income, and diminished value.
• Menow v Honsberger involved a intoxicated patron that was ejected from a hotel beverage room, and was later hit by a vehicle, leading to a claim against the hotel.
• Flentje v Nichols involved a severe leg injury in the parking lot of the Buckhorn Restaurant & Banquet Facilities.
• Murphy v Little Memphis Cabaret Inc involved an altercation between two groups in a tavern, and their subsequent ejection through different doors.

Contracts

• Contracts are agreements that are enforceable by law.
• For a contract to be enforceable the elements of mutual intention to contract, offer and acceptance, and exchange of consideration must be present.
• Waters v Sun Route Tours Inc involved the sale of a travel agency.
• Garofoli v Air Canada Vacation involved the enforceability of standard form agreements.

Elements of Accommodation

• Entranceways and Exits must be user-friendly, have signage, adequate lighting, appropriate footing and traction, an acceptable ambient temperature.
• Glass Doors must be designed and maintained to avoid injuries.
• Revolving Doors must be monitored to avoid injuries.
• Automatic Doors need to be user-friendly.
• Vestibules serve as a buffer between the internal and external environments.
• Lobbies are high traffic areas, cleaning and maintenance, signage and lighting need to be considered to ensure safety.
• Stairwells, Staircases, Stairs should be well lit, clean, and have functional handrails to avoid missteps due to moisture or carpet seams.
• Public Safety in public areas is paramount, and considerations need to be made for things like crowd congregations, traffic flow, and furniture placement.
• Guest and Service Elevators must be operational and mechanically complete, accurately calibrated, and meet fire service requirements.
• Dumbwaiters should have visible signage warning of the accommodation's liability for inappropriate use.
• Lighting and Light Fixtures need to be adequate for floor perception and pitch recognition, and fire exit lighting must be up to code.
• Furniture needs to be safe, for example, bar stools should be heavily weighted with backs and arms, and cribs must comply with government requirements.
• Ceiling, Wall Beautifications, and Enhancements need to be securely mounted, and areas with work in progress need to be closed off to pedestrian traffic.
• Food and Beverage Outlets require signage for exclusive areas, the greatest concern is intoxicated guests.
• Guest Rooms must be safe and secure, and have fire escape routes, legal notices posted, smoke detectors, shatter resistant glassware, well-placed lighting, and safe windows and balconies.
• Front Desk and Managerial and Support Offices should have signage for areas restricted to authorized personnel, the front desk is responsible to coordinate with emergency services.

Negligence

• Negligence occurs when a person fails to exercise reasonable care and a person or property suffers harm as a result.
• Standard of Care means that a person has the legal duty to act with a certain degree of care.
• Gross Negligence is a higher level of negligence, and a waiver is not a defense against this claim.
• Gross Negligence: Mass Casualty Events amplify liability when the injuries sustained are severe, particularly in mass casualty events.

Waivers

• Waivers should be a stand alone document, and should not be used for drop-in traffic.
• Waivers should also be clear and include a notice that they waive legal rights, including the right to sue.
• Delaney v Cascade River Holidays Ltd involved the validity of a waiver following the drowning of three participants.

Accommodation Sector

• Canada has approximately 8,500 accommodation properties.

Elements of Accommodation

• Entranceways and Exits: must be user-friendly with current signage, adequate lighting, appropriate footing and traction, an acceptable ambient temperature, and project a sense of safety and security.
• Glass Doors: Must be designed and maintained to avoid injuries.
• Revolving Doors: Must be monitored for misuse that causes injuries.
• Automatic Doors: Must have user-friendly accessibility.
• Vestibules: Separate the external from the internal environment; they control the environment and protect interior floors.
• Lobbies: High traffic areas, cleaning and maintenance heavily impacted by factors like floor finishes and weather, signage must be present.
• Stairwells, Staircases, Stairs: Falls and missteps due to moisture on hard surfaces, carpet seams, handrail malfunction.
• Public Safety: Safety and security are paramount in public areas.
• Guest and Service Elevators: Must be operationally and mechanically complete, including accurate calibration, compliance with fire service requirements, weight management, and crowd control.
• Dumbwaiters: Signage is required indicating that accommodation will not be held responsible for inappropriate use.
• Lighting and Light Fixtures: Adequate lighting aids floor perception and pitch recognition, fire exit lighting must be to code.
• Furniture: Must be heavily weighted (e.g., bar stools) with backs and arms; cribs must comply with government regulations.
• Ceiling, Wall Beautifications, and Enhancements: Secure mounting is crucial, work areas should be closed off to pedestrians.
• Food and Beverage Outlets: Signage is necessary for “exclusive” areas, management concern is intoxicated guests.
• Guest Rooms: Must be safe and secure with fire escape routes and legal notices posted. Other safety concerns include smoke detectors, shatter-resistant glassware, lighting, ceiling damage, windows, balcony/patio doors, and bathrooms.
• Front Desk and Managerial and Support Offices: Signage is necessary for areas restricted to authorized personnel, the front desk is responsible for coordinating emergency services.

This quiz covers important legal cases in the hospitality sector, including Flentje v Nichols and Murphy v Little Memphis Cabaret Inc. Additionally, it explores the requirements for enforceable contracts and the concept of promissory estoppel. Test your understanding of these fundamental legal principles in hospitality and tourism.