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A Guide to Hospitality and Tourism Law in Canada 1 Torts in the Hospitality and Tourism Sector Torts may be classified in various ways. One notable method is to distinguish between those torts arising from a deliberate action of the tortfeasor and those caused by carelessness Copyrigh...

A Guide to Hospitality and Tourism Law in Canada 1 Torts in the Hospitality and Tourism Sector Torts may be classified in various ways. One notable method is to distinguish between those torts arising from a deliberate action of the tortfeasor and those caused by carelessness Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 2 Torts in the Hospitality and Tourism Sector (cont’d) Box 4.1 Buehl Estate v Polar Star Enterprises Inc. (HCJ) On a death at a fishing lodge and resulting claim against the lodge for breach of the standard of care of an occupier under the Ontario Occupiers’ Liability Act Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 3 Torts in the Hospitality and Tourism Sector (cont’d) Box 4.2 Execotel Hotel Corp v EB Eddy Forest Products Co On significant building damage to a hotel due to airborne dust and wood particles and resulting claim against EB Eddy for the tort of nuisance for physical damage to the roof of the hotel, loss of income, and diminished value of the hotel Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 4 Torts in the Hospitality and Tourism Sector (cont’d) Tortious liability in the hospitality and tourism sector: Treatment of Customers and Patrons (when a patron or other invitee incurs some form of loss, damage, or injury on the premises of a hospitality provider, or otherwise as a consequence of a hospitality-related activity or event) Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 5 Torts in the Hospitality and Tourism Sector (cont’d) Tortious liability in the hospitality and tourism sector (cont’d): Commercial Providers of Alcohol (e.g., See Menow v Honsberger on page 66. On an intoxicated patron hit by a vehicle after being ejected from a hotel beverage room and the resulting claim against the hotel) Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 6 Torts in the Hospitality and Tourism Sector (cont’d) Tortious liability in the hospitality and tourism sector (cont’d): Condition of Hospitality Premises (e.g., See Flentje v Nichols on page 66. On a severe leg injury in the parking lot of the Buckhorn Restaurant & Banquet Facilities) Activities in Hospitality Premises (e.g., See Murphy v Little Memphis Cabaret Inc on page 67. On an altercation between two groups of men in a tavern and their subsequent ejection through different doors) Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 7 Contacts in the Hospitality and Tourism Sector Recall in Chapter 3 the necessary requirements for an enforceable contract: mutual intention to contract; offer and acceptance; and the exchange of consideration Also, two alternative ways in which a promise may be enforceable—a promise under seal and successful application of the legal doctrine of promissory estoppel Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 8 Contacts in the Hospitality and Tourism Sector (cont’d) Table 4.2: Requirements for Promissory Estoppel Requirement No. 1: A promise has been made. Requirement No. 2: The recipient of the promise relies on the promise such that it would be unfair if it were retracted. Requirement No. 3: The recipient of the promise has not obtained the promise by any wrongful behaviour. Requirement No. 4: The promise was made within an existing legal relationship between the parties. E.g., See Waters v Sun Route Tours Inc on page 71. (On the conditions of the sale of a travel agency) Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 9 Contracts in the Hospitality and Tourism Sector (cont’d) Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 10 Contracts in the Hospitality and Tourism Sector (cont’d) 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 See Garofoli v Air Canada Vacation on page 72. (On a disappointing vacation booked through a travel agent and the use of the disclaimer clause in terms and conditions) Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 11 Contracts in the Hospitality and Tourism Sector (cont’d) Recall in Chapter 3 the alternatives available to an innocent party for a breach of contract first depend on the nature of the breach: A breach of a condition? A breach of a warranty? Table 4.4 highlights the distinction between a condition and a warranty, and the remedies for their breach Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 12 Introduction Accommodation properties: Approximately 8,500 in Canada Different functional and common areas of these properties (e.g., the grounds, points of access and regress [driveways, carports, parking lot], public space [lobby/washrooms], common space [hallways and enter/exit doors], guest rooms) Employees must recognize their legal responsibilities Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 13 Elements of Accommodation Entranceways and Exits Includes roadway entrances, driveways, doorways, revolving doors, vestibules Must be user-friendly Must have current signage, adequate lighting, appropriate footing and traction, an acceptable ambient temperature, and they must project a positive sense of safety, cleanliness, and security Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 14 Elements of Accommodation (cont’d) Glass Doors Must be designed and maintained to avoid injuries Revolving Doors Must be monitored for misuse causing injuries Automatic Doors User-friendly accessibility; speed can be set for clientele’s demographics Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 15 Elements of Accommodation (cont’d) Vestibules Space that separates the external environment from the internal environment Keep most weather elements outside and control the residual elements within the vestibule protecting interior floors/finishes Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 16 Elements of Accommodation (cont’d) Lobbies High traffic/volume—risk of injury on lobby floor Cleaning and maintenance impacted by floor finish, weather, etc. Signage must be present. Adequate lighting Stairwells, Staircases, Stairs Falls and missteps due to moisture on hard surfaces, carpet seams, handrail malfunction Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 17 Elements of Accommodation (cont’d) Public Safety In public areas, safety and security are paramount Considerations to consider include crowd congregation; traffic flow and speed; furniture, fixture, lighting placement Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 18 Elements of Accommodation (cont’d) Guest and Service Elevators Must be operationally and mechanically complete; accurately calibrated to stop in alignment with destination floors (greatest maintenance issue); be in full compliance with fire service requirements Other considerations: weight management, crowd control Dumbwaiters Post highly visible signage that accommodation will not be held responsible for inappropriate use Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 19 Elements of Accommodation (cont’d) Lighting and Light Fixtures Adequate lighting helps with floor perception and pitch recognition; indoors and parking lot Fire exit lighting must be to code Furniture E.g., bar stools should be heavily weighted with backs and arms; cribs must comply with government requirements Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 20 Elements of Accommodation (cont’d) Ceiling, Wall Beautifications, and Enhancements Secure mounting is crucial; when work is occurring, the area must be closed to pedestrian traffic Food and Beverage Outlets Signage is necessary for “exclusive” areas Management’s greatest concern: intoxicated guests Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 21 Elements of Accommodation (cont’d) Guest Rooms Must be safe and secure and have fire escape routes and legal notices posted on back of door Other safety considerations include smoke detectors, shatter resistant glassware, lighting/switch locations, ceiling damage, windows/window coverings, balcony/patio doors, bathrooms Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 22 Elements of Accommodation (cont’d) Front Desk and Managerial and Support Offices Proper signage necessary for areas restricted to authorized personnel Front desk has full responsibility to coordinate/collaborate with emergency services Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 23 Elements of Accommodation (cont’d) Fire and Other Emergencies Must remain in full compliance with provincial/ territorial legislation; regional & municipal by-laws Accommodation properties should ensure that all staff members have received training on emergency procedures and protocols Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 24 Elements of Accommodation (cont’d) 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 Equipment in top operating condition Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 25 Elements of Accommodation (cont’d) 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: e.g., 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 Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 26 Introduction Food service industry is heavily regulated Overview of jurisdictional and legislative framework: which levels of government have oversight and the pieces of legislation they use to maintain that oversight Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 27 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. Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 28 Jurisdictional Framework (cont’d) Provincial and Municipal Direct role in regulating food service industry (under either Ministry of Health or Ministry of the Environment) Some provinces delegate enforcement to local or provincial health units. See Table 6.1 for Responsible Authorities by Province and Territory Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 29 Legislative Framework Food and Drugs Act: top of the regulatory pyramid, sets standards for the safety and nutritional quality of all foods sold in Canada Fines can be imposed when contravened Provincial rules lower in priority than the FDA Each province has power to enact its own laws (including regulations) Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 30 Legislative Framework (cont’d) Provincial Regulation of Food Safety Permits and Licensing Staff Training, Hygiene, Building Standards and Health Equipment Record-Keeping and Protocols Food Storage and Handling Labelling and Menus Garbage Inspections Cleaning and Sanitizing Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 31 Other Provincial Legislation Affecting Food Service Sale of Goods Acts Provincial in scope Implied condition that food offered by a food service operator is suitable for immediate human consumption Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 32 Common Law Liability Affecting Food Service Food providers: Owe patrons a duty of care to serve food that will not cause harm See Heimler v Calvert Caterers Ltd on page 105 (On wedding guests who contracted typhoid fever from the catered food) See Box 6.1: Gee v White Spot Ltd (On a restaurant failing to provide food fit for human consumption) Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 33 Regulation of the Service of Alcohol Licensing and Eligibility Intoxicated or Duties of a Licensee Disorderly Persons Building Requirements Drink Size and Price Source of Alcohol Entertainment/Games Hours of Operation Advertising and Responsible Employee Training and Consumption of Liquor Conduct Record-Keeping, Age of Majority Inspections, Penalties Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 34 Commercial Host Liability at Common Law, or When Things Go Wrong 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 See Jordan House Ltd v Menow (page 113) See Cormier v Lecopo Ltd (page 114) See Stewart v Pettie (page 114) Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 35 Social Host Liability for the Provision of Liquor A social host has no common law liability for a guest who becomes intoxicated E.g., Childs v Desormeaux on page 115) (On the liability of New Year’s Eve party hosts with respect to a guest who drove while intoxicated and significantly injured and killed others) Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 36 Standard Operating Procedures Ensures critical procedures do not get missed Expects an establishment does everything reasonable to prevent foreseeable harm Are written down and routinely reviewed/updated Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 37 Introduction Risk: a key feature of adventure tourism Risk to physical, mental, emotional injury; loss of property Paradox: inherent risk of activity vs. expectation that operators take sufficient care to mitigate risk Effect of waivers and releases: that operators do not owe participant duty of care Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 38 Introduction (cont’d) Waivers to minimize liability E.g., See Loychuk v Cougar Mountain Adventures Ltd on page 123 (On a high-speed collision between two people on a zipline) Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 39 Negligence Failure to act with the reasonable care that would ordinarily be expected Risk is inherent in adventure; for a guide to be negligent, he/she must: Be careless Expose claimant to unreasonable risk Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 40 Negligence (cont’d) Standard of Care E.g., See Isildar v Rideau Diving Supply on pages 123–124) (On the drowning of a student during an advanced open water scuba-diving course) Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 41 Negligence (cont’d) Gross Negligence A waiver is not a defense against gross negligence. E.g., See Braid v Whistler River Adventures Ltd on page 126 (On a woman being thrown from a river raft and drowning under a log cut by an employee) Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 42 Negligence (cont’d) Gross Negligence: Mass Casualty Events Blame is amplified when the injury sustained is severe, when someone is killed, or when there is a mass casualty incident E.g., See Ochoa v Canadian Mountain Holidays Inc on page 126 (On nine heli-skiers killed in the notorious Bay Street avalanche) Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 43 Waivers Pressure to sign a waiver Businesses that rely on drop-in traffic are sometimes accused of not allowing its customers to calmly and dispassionately contemplate the contents of the waiver E.g., See Delaney v Cascade River Holidays Ltd on page 127 (On the validity of the signed waiver following the drowning of three participants) Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 44 Waivers (cont’d) A release of liability and waiver of claims should be a separate, stand-alone document Now, standardized releases are used and include a clear notice at the top, in bold, all caps: RELEASE OF LIABILITY, WAIVER OF CLAIMS, ASSUMPTION OF RISK AND INDEMNIFICATION AGREEMENT” followed by “BY SIGNING THIS DOCUMENT YOU WILL WAIVE CERTAIN LEGAL RIGHTS, INCLUDING THE RIGHT TO SUE OR CLAIM COMPENSTION FOLLOWING AN ACCIDENT” and “PLEASE READ CAREFULLY Copyright © 2021 Emond Montgomery Publications. All rights reserved.  A Guide to Hospitality and Tourism Law in Canada 45 Waivers (cont’d) Body of release should include the heading “Assumption of Risks” Details the risks and hazards involved, including negligence of the party relying on the release Spells out negligence: the failure on the part of the releasees to take reasonable steps to safeguard or protect the person from the risks, dangers, and hazards of participating Copyright © 2021 Emond Montgomery Publications. All rights reserved.