Documentation:Torts/Vicarious liability
Vicarious liability
Vicarious liability is a doctrine of strict liability under which a principal can be held responsible for their agent's tortious action. Vicarious liability can extend both to the agent’s negligence and to intentional torts. Vicarious liability is strict since it does not entail fault of the principal.
At the center of vicarious liability is the relationship between the tortfeasor and the principal party being held liable. While the person who directly committed the act may also be liable to the plaintiff, under this doctrine a plaintiff can additionally pursue that person's principal, which may be an employer or institutional entity that is more solvent or carries liability insurance.[1]
Common law vicarious liability
Employer liability for authorized acts
| Developments in Vicarious Liability |
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| LawPod UK discusses recent developments in the doctrine of vicarious liability in English law.[2]
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The doctrine of vicarious liability has been recognised at common law for centuries. It originated in master-servant relationships. In the 1697 case Turberville v. Stampe, Lord Chief Justice Holt stated:
"[i]f a stranger set fire to my house, and it burns my neighbour's house, no action will lie against me. But if my servant throws dirt onto the highway, I am indictable. So in this case if the defendant’s servant kindled the fire in the way of husbandry and proper for his employment, though he had no express command of his master, yet his master shall be liable to an action for damage done to another by the fire; for it shall be intended, that the servant had authority from his master, it being for his master’s benefit."[3]
In the early 20th century, Professor John Salmond encapsulated the doctrine of vicarious liability into two situations; "(a) a wrongful act authorized by the master, or (b) a wrongful and unauthorized mode of doing some act authorized by the master."[4] Turberville and the "Salmond test" epitomised vicarious liability as concerning contexts where employees cause harm in the course of fulfilling their employment duties.
The doctrine has primarily been justified on two policy grounds: "the provisions of a just and practical remedy and the deterrence of future harm".[1] In practice, vicarious liability enables employers to be held accountable for the risks that their enterprise creates through the possibility of tortious acts by employees. It accounts for financial discrepancies between individuals and enterprises, allowing successful claimants to recover from deeper-pocketed employers substantial damages for harm caused by their employees.
Two elements
The Supreme Court of Canada has said that before vicarious liability will be imposed a plaintiff must establish two elements:
| Elements of vicarious liability[5] |
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| 1. The relationship between the tortfeasor and the person against whom liability is sought was sufficiently close as to make a claim for vicarious liability appropriate. |
| 2. The tort was sufficiently connected to the tortfeasor’s assigned tasks such that the tort can be regarded as a materialization of the risks created by the principal’s enterprise. |
As to the first element, the common law has long recognized that the employee–employer relationship is "sufficiently close",[6] whereas the typical independent contractor–client relationship is not. These two types of relationship can be considered poles at opposite ends of a spectrum. Between the poles are relationships that courts have found more challenging to determine for the purposes of vicarious liability, including priest–church relationships[7] and foster-parent–government relationships.[5]
As to the second element, the common law has had little trouble applying vicarious liability to an employee's intentional acts that their employer has authorized, and to an employee's careless acts that perhaps weren't expressly authorized but were in the realm of the sorts of acts that the employer did authorize. But what about intentional acts of an agent that were unauthorized and indeed directly contrary to the principal's wishes? When and why should such acts be attributed to the principal? This problem has generated considerable case law, scholarship and debate around the common law world.
Expansion of vicarious liability to some unauthorized acts
| Bazley v. Currey and employment liability |
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| This animated video by Allard School of Law provides a summary of Bazley v. Currey. |
The traditional Salmond test envisaged employer liability attaching in circumstances where an employee committed a tort that was an "unauthorized mode of committing an authorized act".[8][9] But what about what about when employees use their position to do acts unauthorized by their employer that cause others significant harm?
Traditional approaches to vicarious liability came to be seen as too narrow to serve the underlying rationales of deterrence and victim compensation in cases involving an employee or agent's intentional torts such as sexual assault of vulnerable persons, which fall well outside of ordinary "employment functions".[8]
Two landmark Canadian cases, Bazley v. Curry and Jacobi v. Griffiths, clarified the doctrine of vicarious liability in such circumstances. Both cases involved employer liability for appalling intentional torts: sexual and physical abuse of children by employees working at non-profits. The Supreme Court of Canada in Bazley held that employers may be held liable for their employee's actions if there is a "close connection" between the employee's tortious conduct and the employment relationship.[10] The Supreme Court laid down the following principles to guide courts in such cases:[11]
(1) [Courts] should openly confront the question of whether liability should lie against the employer, rather than obscuring the decision beneath semantic discussions of “scope of employment” and “mode of conduct”.
(2) The fundamental question is whether the wrongful act is sufficiently related to conduct authorized by the employer to justify the imposition of vicarious liability. Vicarious liability is generally appropriate where there is a significant connection between the creation or enhancement of a risk and the wrong that accrues therefrom, even if unrelated to the employer’s desires. Where this is so, vicarious liability will serve the policy considerations of provision of an adequate and just remedy and deterrence. Incidental connections to the employment enterprise, like time and place (without more), will not suffice. Once engaged in a particular business, it is fair that an employer be made to pay the generally foreseeable costs of that business. In contrast, to impose liability for costs unrelated to the risk would effectively make the employer an involuntary insurer.
(3) In determining the sufficiency of the connection between the employer’s creation or enhancement of the risk and the wrong complained of, subsidiary factors may be considered. These may vary with the nature of the case. When related to intentional torts, the relevant factors may include, but are not limited to, the following:
(a) the opportunity that the enterprise afforded the employee to abuse his or her power;
(b) the extent to which the wrongful act may have furthered the employer’s aims (and hence be more likely to have been committed by the employee);
(c) the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s enterprise;
(d) the extent of power conferred on the employee in relation to the victim;
(e) the vulnerability of potential victims to wrongful exercise of the employee’s power.
The Court held that "[a]pplying these general considerations to sexual abuse by employees, there must be a strong connection between what the employer was asking the employee to do (the risk created by the employer’s enterprise) and the wrongful act."
The Bazley approach to vicarious liability has influenced other common law jurisdictions. In the English case Mohamud v. Wm Morrison Supermarkets, the UK Supreme Court emphasized the significance of "an unbroken sequence of events" connecting the tortious act and employee duties.[12]
Expansion of vicarious liability to relationships 'akin' to employment
While employer-employee relationships defined the traditional form of vicarious liability at the turn of the 20th century,[13] this has "come under increasing scrutiny in recent times and has been extended significant ways."[14] In modern common law an employment contract is no longer a pre-requisite for vicarious liability, which has been extended to relationships "akin to employment".[14] In practice, while the traditional conception excluded liability for independent contractors, certain relationships where contractors act as employees may also come under the umbrella of strict liability.
While vicarious liability has extended to contractor situations "akin to employment", such application is troubled by the reality of the modern economy.[14] In the contemporary employment landscape, independent contractors have performed functions previously restricted to traditional employment. In practice doctors, accountants, and construction workers can all be independent contractors which exist outside of employers management. The role that independent contractors play can be complex, requiring judges to adapt to industry and organization specific circumstances. In the 2001 case 671122 Ontario Ltd. v. Sagaz Industries Canada Inc, the court outlined factors for determining whether a commercial enterprise can be held liable for the actions of an independent contractor, referencing "the level of control the employer has over the worker's activity" as a central factor for the degree of responsibility the employer hold for wrongdoings.[15]
Residential Schools and Government Liability
As early as the 1880s, the Canadian government set up a nationwide network of residential schools for Indigenous children administered by the Catholic church.[16] The schools which would remain open until the end of the 20th century, and were known for acts of cruelty, cultural assimilation, forcible separation, and displacement. Many Indigenous students who attended these schools have spoken out regarding the sexual emotional, and physical abuse they endured from staff members.[16] In some schools, it is estimated that between 48% and 70% of children were sexually abused, while other schools have an estimated 100%.[17] As a result of the lasting legacy of residential schools, as well as the immediate harm caused to the families involved, some survivors of residential schools have pursued legal action against churches as well as the Canadian government through vicarious liability.
Residential school victim's civil claims
Blackwater v. Plint addressed whether the Canadian Government could be held liable for the actions of Church "employers or controlling agents".[18] Chief Justice McLachlin relied on her previous ruling in Bazley v. Curry, which held a non-profit corporation vicariously liable for sexual assaults committed by an employee. The Court found that the close connection between the Church and perpetrator Plint satisfied the requirements for vicarious liability. While Plint was an employee of the church, an employer who played a "significant role in the running of the school", the Court found that the Government and Church were acting in partnership providing grounds for vicarious liability.[19] In addition, Chief Justice McLachlin added that there was "[n]o compelling jurisprudential reason ... to limit vicarious liability to only one employer, where an employee is employed by a partnership".[19] The Government of Canada was found vicariously liable, with 75% of the damages apportioned to Canada, and the remaining 25% to the Church.
By comparison, in E.B. v. Oblates of Mary Immaculate the Supreme Court set aside a claim of vicarious liability for unauthorized abuses committed on children by an employee working at the Christie Residential School. The Court held there was a lack of connection between what the employer was requiring the employee to do, or the risk created by the employer's enterprise, and the tortious act. As the perpetrator was a "baker, boat driver and odd-job man", the majority considered that it "did not put him in a position of power, trust or intimacy with respect to the children".[20] The majority cautioned against making an employer an "involuntary insurer" liable for every tortious act committed by employees.[21]
Policy considerations
These two cases demonstrate different applications of the test of close connection between employee duties and tortious acts in the circumstance of residential schools. Scholars have criticized the court's approach to vicarious liability for schools and the government for atrocities at residential schools. In practice, quashing of employer liability in cases involving children taken to institutions against their will "renders children involuntary insurers" who bear the cost of risk associated with the employer's enterprise.[22] Yet in Bazley, the Court emphasized that the imposition of vicarious liability must account for "[f]airness and the need for deterrence in this critical area of human conduct".[23]
Statutory liability
Alongside common law vicarious liability, legislation has created secondary liability for a number of entities ranging from the Crown, police, and parents.
Crown Liability
At common law the Crown could not be directly sued for the tortious acts of its servants, although in practice it tended to stand behind its servants when defendants in litigation and pay damages awards on their behalf.[24] Today, legislation provides for the vicarious liability of the Crown:
| Crown Liability and Proceedings Act, RSC 1985 |
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| 3 The Crown is liable for the damages for which, if it were a person, it would be liable ... in respect of
(i) a tort committed by a servant of the Crown, or (ii) a breach of duty attaching to the ownership, occupation, possession or control of property. |
In addition to the federal statute, each province has its own form of provincial Crown liability statute:
- Alberta: Proceedings Against the Crown Act, RSA 2000, c P-25.
- British Columbia: Crown Proceeding Act, RSBC 1996, c 89.
- Manitoba: The Proceedings Against the Crown Act, CCSM c P140.
- New Brunswick: Proceedings Against the Crown Act, RSNB 1973, c P-18.
- Newfoundland and Labrador: Proceedings Against the Crown Act, RSNL 1990, c P-26.
- Nova Scotia: Proceedings against the Crown Act, RSNS 1989, c 360.
- Ontario: Crown Liability and Proceedings Act, 2019, SO 2019, c 7, Sch 17.
- Prince Edward Island: Crown Proceedings Act, RSPEI 1988, c C-32.
- Saskatchewan: The Proceedings Against the Crown Act, 2019, SS 2019, c P-27.01.
Local Government Liability
In British Columbia, the Local Government Act, RSBC 2015, c 1 establishes vicarious liability for municipal governments for the acts and omissions of local public officers.
Police Liability
Police departments and the attorney general may be held vicariously liable for the actions of police officers as provided in policing statutes.
| Police Act, RSBC 1996, c 367, ss 11, 21 |
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11. Ministerial liability (1) The minister, on behalf of the government, is jointly and severally liable for torts committed by(2) Even though a person referred to in subsection (1)(a) or (b) is not found liable for a tort allegedly committed by the person in the performance of his or her duties, the minister may pay an amount the minister considers necessary to (3) The Minister of Finance must pay out of the consolidated revenue fund, on the requisition of the minister, money required for the purposes of subsection (2). |
In British Columbia v. ICBC Justice Lebel found the Attorney General of British Columbia liability in part for the damages resulting from the acts of negligence by a police officer during a high speed police chase.[25] The case demonstrates how the Police Act transfers liability from the officer personally to the Government.[25]
Parental Liability
Parental liability statutes (such as the Parental Liability Act, SBC 2001, c 45, s 3 and the School Act, RSBC 1996, c 412, s 10) impose vicarious liability on parents for the tortious conduct of their children.
The Parental Liability Act, SBC 2001, c 45, s 3, imposes liability on BC parents of a child who "intentionally takes, damages or destroys property of another person".
The School Act, RSBC 1996, c 412, s 10, imposes liability on parents for damage caused by their children in the context of the school environment. This statute was applied in Nanaimo-Ladysmith School District No. 68 v. Dean: a 14-year-old student's parents were held liable to their child's school to the tune of $48,000 after their child's prank went awry. In her reasons Justice Fitzpatrick noted the heavy financial risk the statute creates for parents, but stated that "if there is to be any change to this provision in the School Act, that is a matter for the legislature, not the court".[26]
Discussion Questions
Common law vicarious liability
- Vicarious liability evolved from servant-master dynamic to traditional employer-employee dynamic to dynamics "akin to employment". What are the key elements to understanding whether a claim of vicarious liability can be successful?
- Why do you think judges had difficulty extending vicarious liability to intentional torts like those seen in Bazley, Jacobi, and Plint?
- Interpretations of what qualifies as a "close connection" were under question after E.B. v. Oblates of Mary Immaculate. What role does risk play in understanding whether there is a "close connection" between employees' actions and employer's enterprise?
Statutory vicarious liability
- Vicarious liability for the government has benefits (the compensation of victims) and drawbacks, (the cost of the government bearing the burden for the actions of individuals). What level of protection should the government get from vicarious liability if any?
- The judge in Nanaimo-Ladysmith School District No. 68 v. Dean appeared concerned about ordering the Dean family to pay $48,000 in damages for their child's prank. Do you agree with the judges decision? Why or why not?
Quiz
- ↑ 1.0 1.1 Osborne, Philip (2020). The Law of Torts. Toronto: Irwin Law. p. 383.
- ↑ LawPod, UK (20 Oct 2017). "Vicarious Liability". LawPod UK – via SoundCloud.
- ↑ Turberville v. Stampe, (1697) 91 ER 1072 (KB).
- ↑ Salmond, John William (1907). Law of Torts, a Treatise on the English Law of Liability for Civil Injuries. London: Stevens and Jaynes. p. 83.
- ↑ 5.0 5.1 K.L.B. v. British Columbia, 2003 SCC 51, [2003] 2 SCR 403 at para. 19.
- ↑ Dagenais v. Pellerin, 2022 ONCA 76.
- ↑ John Doe (G.E.B. #25) v The Roman Catholic Episcopal Corporation of St. John’s, 2020 NLCA 27.
- ↑ 8.0 8.1 De Stefano, Nikolas (2020). "A Comparative Look at Vicarious Liability for Intentional Wrongs and Abuses of Power in Canadian Law". Canadian Bar Review. 1: 6.
- ↑ Lockhart v. Canadian Pacific Railway Company, [1942] AC 591.
- ↑ Bazley v. Curry, 1999 CanLII 692 (SCC); Jacobi v. Griffiths, 1999 CanLII 693 (SCC).
- ↑ Bazley v. Curry, 1999 CanLII 692 (SCC) at para 41.
- ↑ Mohamud v. Wm Morrison Supermarkets plc, [2016] UKSC 11 at para 47.
- ↑ CCIG Investments Pty Ltd v. Schokman [2023] HCA 21, paras 48-54.
- ↑ 14.0 14.1 14.2 Shao, Y. (2019). "Evolution of Vicarious Liability: How the Independent Contractor Defence was Lost". Public Interest Law Journal of New Zealand. 6: 63.
- ↑ 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59 (CanLII)at para 34.
- ↑ 16.0 16.1 Hanson, Erin (2009). "The Residential School System". UBC Indigenous Foundations.
- ↑ Feldthusen, Bruce (2007). "Civil Liability for Sexual Assault in Aboriginal Residential Schools: The Baker did it". Canadian Journal of Law and Society. 22: 62.
- ↑ Blackwater v. Plint, 2005 SCC 58 (§23.1.3), at para 20.
- ↑ 19.0 19.1 Blackwater v. Plint, 2005 SCC 58 (§23.1.3) at paras 35, 38.
- ↑ E.B. v. Order of the Oblates of Mary Immaculate in the Province of British Columbia, 2005 SCC 60 (CanLII) at para 51.
- ↑ E.B. v. Order of the Oblates of Mary Immaculate in the Province of British Columbia, 2005 SCC 60 (CanLII) at para 48.
- ↑ Feldthusen, Bruce (2007). "Civil Liability for Sexual Assault in Aboriginal Residential Schools: The Baker did it". Canadian Journal of Law and Society. 22: 85.
- ↑ Bazley v. Curry, 1999 CanLII 692 (SCC) at para 58.
- ↑ Dicey, A.V. (1915). Introduction to the Study of the Law of the Constitution. Indianapolis: Macmillan. pp. 417-18.
- ↑ 25.0 25.1 British Columbia v. ICBC, 2008 SCC 3 (§23.2.4.1) at para 11.
- ↑ Nanaimo-Ladysmith School District No. 68 v. Dean, 2015 BCSC 11 (§23.2.6.1) at para 94.