Tortious Liability & Contracts in Hospitality

Tortious Liability in the Hospitality and Tourism Sector

• Tortious liability in the hospitality and tourism sector relates to the condition of hospitality premises and activities on those premises.
• Examples include a severe leg injury in a restaurant parking lot (Flentje v Nichols) and an altercation between two groups in a tavern (Murphy v Little Memphis Cabaret Inc).

Contracts in the Hospitality and Tourism Sector

• Hospitality and tourism contracts require mutual intention to contract, offer and acceptance, and consideration.
• There are alternatives to enforcing a promise: a promise under seal and the legal doctrine of promissory estoppel.
• Promissory estoppel requires a promise to be made, the recipient relying on the promise to their detriment, the recipient's lack of wrongful behaviour, and the promise made within a legal relationship.
• The enforceability of standard form agreements' provisions negating or limiting hospitality vendor liability can be challenged (Garofoli v Air Canada Vacation).
• There are options available to parties following a breach of contract, depending on the nature of the breach: a breach of condition or a breach of warranty.

Elements of Accommodation

• Accommodation includes diverse areas like parking lots, lobbies, hallways, guest rooms.
• Entranceways and exits must be user-friendly with current signage, adequate lighting, appropriate footing, and positive safety and cleanliness projection.
• Glass doors must avoid injuries, revolving doors monitored for misuse, and automatic doors user-friendly.
• Vestibules protect interior areas from weather elements.
• Lobbies can be high traffic areas and require cleaning and maintenance, with signage and lighting.
• Stairwells, staircases, and stairs require careful maintenance.
• Public areas need safety and security considerations.

Regulation of the Service of Alcohol

• Food service providers operate under provincial legislation and Common Law liability.
• There are regulations governing licensing, building requirements, source of alcohol, hours of operation, age of majority, intoxicated or disorderly persons, drink size and price, entertainment/games, advertising and responsible consumption, record-keeping, inspections, penalties.

Commercial Host Liability at Common Law

• Licensees owe a duty of care to patrons and third parties to avoid harm from over-consumption of alcohol (Jordan House Ltd v Menow, Cormier v Lecopo Ltd, Stewart v Pettie).

Negligence

• The standard of care must be met in hospitality and tourism activities (Isildar v Rideau Diving Supply).
• A waiver cannot be a defense against gross negligence (Braid v Whistler River Adventures Ltd).
• Severe injuries, fatalities, or mass casualty events increase the likelihood of blame (Ochoa v Canadian Mountain Holidays Inc).

Waivers

• Customers should be given adequate time to review waivers.
• Valid waivers should be a separate document and include clear warnings and bold language.

Accommodation Elements

• Entryways including roadways, driveways, doorways, revolving doors, and vestibules should be user-friendly and well-maintained.
• Accessibility features should be provided for those with disabilities.
• Glass doors should be designed to prevent injuries.
• Revolving doors must be monitored to prevent misuse.
• Automatic doors require user-friendly accessibility and the speed should be adjusted based on clientele demographics.
• Vestibules provide a buffer between the external and internal environment, protecting the interior from weather elements.
• Lobbies experience high traffic volume, increasing the risk of injuries. Cleaning and maintenance are crucial, particularly considering floor finishes and weather conditions.
• Stairwells, staircases, and stairs present a risk of falls and missteps due to moisture, carpet seams, and handrail malfunctions.
• Public safety is paramount in all public areas.
• Consider crowd congregation, traffic flow, furniture placement, lighting placement, and speed.
• Accommodation properties must comply with relevant provincial/territorial legislation and regional/municipal bylaws regarding fire and other emergencies.
• Staff must receive training on emergency procedures and protocols.
• Swimming pools require a high level of safety protocols for guests.
• Liability for Accidents: Accommodations are liable if they fail to provide reasonable care and due diligence in preventing accidents.
• Highly visible signage about the risks of using swimming pools should be present.
• Equipment should be kept in top operating condition.
• Airbnb and online accommodation marketplaces: act as brokers connecting guests and hosts.
• Potential Challenges: Guests and hosts might need to look out for vandalism, properties not aligning with advertisement, illegal business activities (drug dealing, brothels), and guests refusing to leave.

Food and Alcohol Service Regulations & Key Terms

• Jurisdictional Framework: Federal, provincial, and municipal governments have oversight of food service industry in Canada.
• Federal: Health Canada and the Canadian Food Inspection Agency (CFIA) set safety standards for food and drinks.
• Provincial/Municipal: Directly regulate the food service industry, often under Ministry of Health or Ministry of Environment.
• Legislative Framework: Federal Food and Drugs Act establishes safety and nutritional quality standards. Provincial regulations are subordinate to federal standards, allowing provinces to enact own food safety laws.
• Provincial Regulations for Food Safety: Cover permits, licensing, building standards, equipment, food storage and handling, cleaning and sanitizing, labelling, and menus.
• Common Law Liability: Food providers owe patrons a duty of care to serve food that won't cause harm.
• Regulation of Alcohol Service: Provincial laws governing licensing, age of majority, building requirements, employee training, hours of operation, service standards, promotions, and enforcement.
• Commercial Host Liability: Licensees owe a duty of care to patrons and foreseeable third parties to mitigate harm caused by over-consumption.
• Social Host Liability: Generally, hosts are not liable for guests' intoxication.
• Standard Operating Procedures: Establish essential procedures for preventing foreseeable harm. They are written down and reviewed regularly.

Adventure Tourism Laws

• Risk and Liability: Adventure tourism inherently involves risk, raising the question of responsibility for potential injuries. Adventure operators must take reasonable steps to mitigate risks.
• Waivers: Adventure tourism operators often use waivers to minimize their liability, but courts can void them if not properly drafted or if they contradict legislation.
• Negligence: Occurs when an operator fails to exercise reasonable care in conducting the activity, exposing a participant to unreasonable risk.

Key Terms

• Accommodation Property
• Airbnb
• Automatic Door
• Lobby
• Revolving Door
• Vestibule
• Crash Team

Torts in the Hospitality and Tourism Sector

• Torts can be classified as deliberate actions or negligence
• Example case: Buehl Estate v Polar Star Enterprises Inc (HCJ) - A fishing lodge was sued for breach of the standard of care after a death occurred on their property.
• Example case: Execotel Hotel Corp v EB Eddy Forest Products Co - A hotel sued EB Eddy for nuisance caused by dust and wood particles damaging the hotel's roof. The hotel claimed damage to their roof, loss of income, and diminished value of the hotel.

Treatment of Customers and Patrons

• Customers can claim damages if they experience loss, damage, or injury on the premises.
• Example case: Menow v Honsberger - A hotel was sued when an intoxicated patron was hit by a car after being ejected from the hotel bar.

Condition of Hospitality Premises

• Example case: Flentje v Nichols - A restaurant was sued after a patron suffered a severe leg injury in their parking lot.

Activities in Hospitality Premises

• Example case: Murphy v Little Memphis Cabaret Inc - A tavern was sued after two groups of men started a fight and were subsequently ejected through different doors.

Contracts in the Hospitality and Tourism Sector

• Requirements for an enforceable contract: mutual intention to contract, offer and acceptance, and the exchange of consideration.
• Example case: Waters v Sun Route Tours Inc - The conditions of the sale of a travel agency were examined in court.

Standard Form Agreements

• Example case: Garofoli v Air Canada Vacation - It was determined that a disclaimer clause regarding a disappointing vacation booked through a travel agent was enforceable.

Condition vs. Warranty

• A breach of a condition gives the innocent party the right to terminate the contract and seek damages.
• A breach of a warranty only allows the innocent party to seek damages.

Accommodation Properties

• There are approximately 8,500 accommodation properties in Canada.
• All properties must comply with provincial/territorial legislation and by-laws in relation to fire safety and other emergencies.
• Accommodation staff should receive training on emergency procedures.

Swimming Pools

• Accommodation properties are only liable for accidents at swimming pools if they fail to provide reasonable care.
• Highly visible signage about risks of use must be present.
• Equipment must be in top operating condition.

Airbnb and Other Online Accommodation Marketplaces

• Airbnb acts as an accommodation broker between guests and hosts.
• Guests and hosts must be careful when entering into agreements to avoid potential issues like vandalism, property not being as advertised, illegal activity, and guests refusing to leave.

Food and Alcohol Sector

• Regulations are in place to ensure the safe service of food and alcohol in restaurants and bars.
• In Canada, the federal government sets guidelines for food safety, but each province has its own legislation.
• Servers who serve alcohol to intoxicated patrons can be held liable.
• Childs v Desormeaux - (On the liability of hosts who serve alcohol to guests and the guests subsequently drive while intoxicated, causing injuries).

Social Host Liability for the Provision of Liquor

• Social hosts are not typically liable for guests who become intoxicated.

Standard Operating Procedures

• Establishments should implement standard operating procedures to prevent foreseeable harm.
• Procedures should be written down and reviewed regularly.

Adventure Tourism

• Adventure tourism is inherently risky, which can include physical, mental, and emotional injury as well as property loss.
• Operators must take reasonable care to mitigate risk, even in inherently risky activities.
• Waivers and releases can be used to minimize liability.
• Example case: Loychuk v Cougar Mountain Adventures Ltd - A zipline operator was sued for a collision between two users.

Negligence

• Negligence is a failure to act with the reasonable care that would ordinarily be expected.
• In adventure activities, a guide can be considered negligent if they are careless and expose a participant to unreasonable risk.