Torts in Hospitality and Tourism Sector

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Questions and Answers

What is one classification of torts in the hospitality and tourism sector?

Torts caused by negligence and ignorance

Torts arising from deliberate action and carelessness (correct)

Torts related to criminal actions and civil disputes

Torts resulting from economic loss and emotional harm

Which of the following represents a plausible example of tortious liability in hospitality?

A guest slips on a wet floor and suffers an injury (correct)

A guest is dissatisfied with their room service

A guest has a disagreement with hotel management

A guest feels that the hotel was overpriced

Which of the following is essential for glass doors to promote safety?

Tinted glass for privacy

Regular cleaning schedule

Design and maintenance to avoid injuries (correct)

Framed art to enhance aesthetics

Which factor is critical in maintaining safety in lobbies?

Signage and adequate lighting Signup and view all the answers

What should be considered to enhance public safety in accommodation settings?

Crowd congregation and traffic flow Signup and view all the answers

What is a social host's common law liability for a guest becoming intoxicated?

They are not liable according to the Childs case Signup and view all the answers

What is the primary purpose of standard operating procedures in hospitality establishments?

To ensure critical procedures do not get overlooked. Signup and view all the answers

In the context of adventure tourism, what does 'inherent risk' refer to?

Risks (that can't be eliminated) associated with physical and emotional injuries. Signup and view all the answers

What must a guide demonstrate to be considered negligent in adventure tourism?

They must behave carelessly and create unreasonable risk. Signup and view all the answers

What is the effect of waivers and releases in adventure tourism?

They indicate that operators do not owe a duty of care to participants. Signup and view all the answers

In Childs v Desormeaux, what issue was addressed regarding social hosts?

Hosts have no liability for intoxicated guests who cause harm. Signup and view all the answers

What is required of accommodation properties in relation to fire and emergencies?

Training for all staff on emergency procedures Signup and view all the answers

Under what condition will accommodation properties be held liable for incidents at swimming pools?

If they failed to provide reasonable care Signup and view all the answers

What type of training is essential for staff in accommodation properties regarding emergencies?

Emergency procedures and protocols Signup and view all the answers

What must swimming pool signage indicate for safety?

Risks associated with use of the pool Signup and view all the answers

What should accommodation properties do to comply with local laws?

Ensure they follow provincial, territorial, and municipal laws Signup and view all the answers

An accommodation property is financially responsible for accidents at its swimming pool if it fails to provide what?

Reasonable care and due diligence Signup and view all the answers

What is necessary for a promise to be enforceable under the doctrine of promissory estoppel?

The recipient of the promise relies on it significantly. Signup and view all the answers

What is a primary legal concern regarding standard form agreements in the hospitality sector?

The enforceability of liability limitation provisions. Signup and view all the answers

Which of the following statements about enforceable contracts is incorrect?

Only verbal agreements can be considered enforceable. Signup and view all the answers

What is the primary legal responsibility of employees in accommodation properties?

To recognize and act according to their legal responsibilities. Signup and view all the answers

Which of the following is typically a common area in accommodation properties?

Public spaces like lobbies Signup and view all the answers

What is an important consideration for the safety of entranceways in accommodation properties?

They should ensure accessibility for all guests. Signup and view all the answers

What is required for staff members at accommodation properties concerning emergencies?

They must receive training on emergency procedures and protocols. Signup and view all the answers

Which factor contributes to accommodation properties being liable for incidents at swimming pools?

An absence of visible signage about risks. Signup and view all the answers

What should swimming pool equipment be maintained in?

Top operating condition to ensure safety. Signup and view all the answers

What must guest and service elevators be calibrated to ensure?

They are aligned with destination floors Signup and view all the answers

What is a critical safety feature in guest rooms?

Fire escape routes Signup and view all the answers

What is necessary for food and beverage outlets regarding intoxicated guests?

Signage is necessary for 'exclusive' areas Signup and view all the answers

What is essential for front desk operations in relation to emergencies?

Coordinate with emergency services Signup and view all the answers

Which aspect regarding lighting is crucial for parking lot areas?

Adequate lighting for floor perception and safety Signup and view all the answers

Front desk personnel are responsible for coordinating with emergency services and have restricted signage for authorized areas.

True Signup and view all the answers

Accommodation properties are NOT responsible for incidents at swimming pools if they provided reasonable care and due diligence.

True Signup and view all the answers

Accommodation properties are required to adhere to local municipal by-laws and regulations.

True Signup and view all the answers

Municipal health units in Canada may be delegated enforcement authority by provinces regarding food safety regulations.

True Signup and view all the answers

The regulatory framework for the food service industry in Canada is exclusively managed at the federal level.

False Signup and view all the answers

In the context of torts within the hospitality sector, nuisance can primarily arise from which situation?

Airborne dust damaging hotel property Signup and view all the answers

What is one essential factor that affects tortious liability regarding commercial alcohol providers?

The level of intoxication of the patron Signup and view all the answers

Which term best describes the legal responsibility a hospitality provider has to ensure the safety of patrons?

Duty of care Signup and view all the answers

Which piece of legislation is considered the top of the regulatory pyramid for food safety in Canada?

Food and Drugs Act Signup and view all the answers

What role do provincial and municipal governments play in the food service industry?

They have a direct role in regulating food service standards. Signup and view all the answers

Which regulation must food service operators adhere to when it comes to labeling and menus?

Food and Drugs Act Signup and view all the answers

Which of the following must employees in accommodation properties recognize as part of their responsibilities?

The legal responsibilities associated with safety Signup and view all the answers

What is essential for accommodation properties to uphold regarding local regulations?

Compliance with municipal by-laws Signup and view all the answers

Which area of an accommodation property is likely considered a common space?

Lobby Signup and view all the answers

Study Notes

Torts in the Hospitality and Tourism Sector

Torts are classified into deliberate actions or carelessness
Examples of torts include:
- Buehl Estate v Polar Star Enterprises Inc (HCJ): Claim for breach of standard of care by an occupier
- Execotel Hotel Corp v EB Eddy Forest Products Co: Claim for nuisance due to building damage caused by airborne dust and wood particles
Hospitality and tourism providers may be liable for customer injuries or losses:
- Treatment of Customers and Patrons: This includes injuries or losses suffered by patrons on premises or as a result of hospitality-related activities.
- Commercial Providers of Alcohol: An example is Menow v Honsberger where a hotel was held liable for a patron who was injured by a vehicle after being ejected from a hotel beverage room.

Elements of Accommodation

Important elements include:
- Entranceways and Exits: Must be user-friendly with clear signage, adequate lighting, and safe footing.
- Glass Doors: Designed and maintained to avoid injuries.
- Revolving Doors: Monitored for misuse.
- Automatic Doors: User-friendly and accessible, adjustable speed for different demographics.
- Vestibules: Separate external and internal environments, control weather elements.
- Lobbies: High-traffic areas requiring careful cleaning, maintenance, and signage.
- Stairwells, Staircases, Stairs: Ensure safety by addressing moisture on surfaces, carpet seams, and handrail malfunctions.
- Public Safety: Prioritize safety and security in public areas, considering crowd control, traffic flow, and furniture placement.
- Fire and Other Emergencies: Comply with local legislation and ensure staff training on emergency procedures.
- Swimming Pools: Accommodation properties are liable if they fail to provide reasonable care and due diligence.
- Airbnb and Other Online Accommodation Marketplaces: Guests and hosts need to be cautious, as risks include vandalism, misleading property descriptions, illegal activities, and disputes regarding guest departure.

The Food and Alcohol Sector

Social Host Liability for the Provision of Liquor: Hosts are typically not held liable for intoxicated guests, as seen in Childs v Desormeaux.
Standard Operating Procedures: Used to ensure critical procedures are followed and are reviewed regularly.

The Law of Adventure Tourism

Introduction: Risk is inherent in adventure tourism and must be balanced with operator responsibility. Waivers are employed to minimize liability.
Negligence: Failure to act with reasonable care can lead to negligence. For a guide to be negligent, they must be careless and expose the claimant to unreasonable risk.
Standard of Care: The standard of care example is Isildar v Rideau Diving Supply, involving a drowning during a scuba-diving course.
Gross Negligence: Waiver is not a defense against gross negligence. Example: Braid v Whistler River Adventures Ltd involving a drowning on a river raft.
Waivers: Businesses may be criticized for pressuring customers to sign waivers without sufficient time to review them. Example: Delaney v Cascade River Holidays Ltd involving a drowning and the validity of the signed waiver.
Mass Casualty Events: Blame is amplified when incidents are severe, resulting in death, or mass casualties. Example: Ochoa v Canadian Mountain Holidays Inc involving nine heli-skiers killed in an avalanche.

Tortious Liability in Hospitality and Tourism

There are two main types of tortious liability that are present in the hospitality and tourism industry.
The condition of hospitality premises, can be seen in the case of Flentje vs Nichols, where a person was severely injured in the parking lot of a restaurant.
Activities happening on hospitality premises can also be subject to lawsuits, as seen with the case Murphy vs Little Memphis Cabaret Inc, where there was an altercation between two groups of men in a tavern.

Contracts in the Hospitality and Tourism Sector

To be enforceable a contract needs mutual intention between the parties, an offer and acceptance, and an exchange of consideration.
There are two alternative ways to enforce promises: a promise under seal or successful application of the legal doctrine of promissory estoppel.
For promissory estoppel to be successful, the promise must have been made, the recipient relied on the promise, the recipient did not obtain the promise by wrongful behaviour, and the promise was made within an existing legal relationship between the parties.
The case of Waters vs Sun Route Tours Inc, shows examples of the conditions of the sale of a travel agency
Standard form agreements are common in this industry. It is critically important to determine if agreements that are used to negate or limit the liability of the hospitality vendor are actually enforceable, as seen in Garofoli vs Air Canada Vacation, where a travel agency was sued for a disappointing vacation.
Remedies for a breach of contract depend on the nature of the breach. Contracts can be broken in two ways: by condition or warranty.
When a condition is broken, the remedy is either termination of the contract or a breach of the contract and in the case of a warranty, the contract is not terminated but the innocent party can seek damages.

Elements of Accommodation

There are approximately 8500 accommodation properties in Canada.
Accommodation properties have different functional and common areas with employees that must be aware of their legal responsibilities regarding their work.
Accommodation properties have grounds, points of access and regress, public spaces, common space, and guest rooms.
Guest and service elevators must be operating and mechanically complete, accurately calibrated, in full compliance with the fire service requirements and must have weight management and crowd control measures in place.
Dumbwaiters should post signage that the accommodation will not be held responsible for inappropriate use.
Lighting and light fixtures must be adequate and in compliance with fire exit codes.
Furniture must be safe and secure as seen with bar stools should be heavily weighted with backs and arms and cribs must comply with government requirements.
Secure mounting is crucial when it comes to ceiling and wall beautifications and enhancements as well as ensuring that these areas are closed to pedestrian traffic during maintenance.
Food and beverage outlets must have signage on exclusive areas, management should be prepared to handle intoxicated guests.

Elements of Accommodation (Cont'd)

Guest rooms must be safe and have fire escape routes and legal notices posted on the back of the door. The room must contain smoke detectors, shatter resistant glassware, optimal lighting and switch locations, no ceiling damage, secure windows and window coverings, safe balcony or patio doors and safe bathrooms.
Front desk and managerial and support offices should have proper signage for restricted areas for authorized personnel with the front desk collaborating with emergency services.
Properties must be in full compliance with provincial and territorial legislation as well as regional and municipal by-laws. All staff members must have emergency procedure and protocol training.

Elements of Accommodation (Cont'd)

Swimming pools must be in compliance with provincial and territorial legislation as well as regional and municipal by-laws. Accommodation properties should ensure that all staff members have received training on emergency procedures and protocols.
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.
Signage must be posted advising on the risks of using the pool and equipment must be in top working condition.
Airbnb and other online accommodation marketplaces are online platforms that act as brokers for the accommodation market.
Guests and hosts must be careful when considering staying or renting, as there have been reports of disasters including 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 of Food and Alcohol

Food service is a heavily regulated area.
Food service is regulated by both the federal and provincial and municipal government.
The federal government is mostly involved with the safety of food and drink, not the premises in which food and drink are served.
Health Canada and the CFIA (Canadian Food Inspection Agency) are responsible for the mandate under Food and Drugs Act and Safe Food for Canadians Act.
Provincial and Municipal governments have a direct role in regulating the food service industry.
Provincial and territorial governments use either the Ministry of Health or the Ministry of the Environment to regulate the food service industry and some delegate to local or provincial health units.

Elements of Accommodation

Guest and service elevators: Must be operationally and mechanically complete, accurately calibrated, and in full compliance with fire service requirements.
Dumbwaiters: Accommodations are not responsible for inappropriate use, highly visible signage should be posted.
Lighting and light fixtures: Adequate lighting is necessary for floor perception and pitch recognition, indoors and outdoors. Fire exit lighting must be to code.
Furniture: For example, bar stools should be heavily weighted and with backs and arms; cribs must comply with government requirements.
Ceiling, wall beautifications, and enhancements: Secure mounting is crucial, and the area must be closed to pedestrian traffic while work is occurring.
Food and beverage outlets: Signage is necessary for “exclusive” areas. Management’s largest concern is intoxicated guests.
Guest rooms: Must be safe and secure, with fire escapes, and legal notices posted on the back of the door. Other safety considerations include smoke detectors, shatter-resistant glassware, and proper lighting.
Front desk and managerial and support offices: Signage is necessary for areas restricted to authorized staff.
Fire and other emergencies: Must remain in full compliance with provincial/territorial legislation, regional & municipal by-laws. Ensure staff have training on emergency procedures and protocols.
Swimming pools: Accommodation properties are only liable for accidents or tragedies at the swimming pool if the property failed to provide reasonable care. Highly visible signage about risks of use and equipment must be in top working 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/rent.

Food and Alcohol Sector

The Food and Alcohol Sector is heavily regulated.
Jurisdictional framework:
Federal: Largely concerned with safety of food/drink, not the premises in which it is served. Health Canada and the Canadian Food Inspection Agency (CFIA) are responsible for carrying out government’s mandate under the Food and Drugs Act and Safe Food for Canadians Act.
Provincial and Municipal: Direct role in regulating the food service industry (under either Ministry of Health or Ministry of the Environment). Some provinces delegate enforcement to local or provincial health units.
Legislative framework:
Food and Drugs Act: Sets standards for the safety and nutritional quality of all foods sold in Canada, fines can be imposed for contraventions.
Provincial Regulation of Food Safety: Permits and licenses, building standards, staff training, hygiene and health, record-keeping and protocols, equipment, food storage and handling, garbage, cleaning and sanitizing, and inspections.
Other Provincial Legislation Affecting Food Service: Sale of Goods Acts, states an implied condition that the 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.
Regulation of the Service of Alcohol: Licensing and Eligibility, Duties of a Licensee, Building Requirements, Source of Alcohol, Hours of Operation, Employee Training and 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.
Social Host Liability for the Provision of Liquor: A social host has no common law liability for a guest who becomes intoxicated.
Standard Operating Procedures: Ensures critical procedures do not get missed, expects an establishment does everything reasonable to prevent foreseeable harm, written down and routinely reviewed/updated.

Adventure Tourism

Adventure tourism is marked by inherent risk to physical, mental, emotional injury, and loss of property.
Waivers and releases may be used to minimize liability and operators’ duty of care.
Negligence: Failure to act with reasonable care that would ordinarily be expected and exposes the claimant to unreasonable risk.