Top 5 Civil Appeals from the Court of Appeal (July 2017)

1. Ivic v. Lakovic, 2017 ONCA 446 (Hoy A.C.J.O., Blair and Hourigan JJ.A.), June 2, 2017

2. Hodge v. Neinstein, 2017 ONCA 494 (Hoy A.C.J.O., Gillese and Brown JJ.A.), June 15, 2017 3. Bruff-Murphy v. Gunawardena, 2017 ONCA 502 (Lauwers, Hourigan and Benotto JJ.A.), June 16, 2017 4. Tracy v. Iran (Information and Security), 2017 ONCA 549 (Hoy A.C.J.O., Blair and Hourigan JJ.A.), June 30, 2017 5. Amyotrophic Lateral Sclerosis Society of Essex County v. Windsor (City), 2017 ONCA 555 (Hoy A.C.J.O., van Rensburg and Roberts JJ.A.), June 30, 2017* 1. Ivic v. Lakovic, 2017 ONCA 446 (Hoy A.C.J.O., Blair and Hourigan JJ.A.), June 2, 2017 Is a taxi company vicariously liable for an assault committed by one of its drivers? In this decision, the Court of Appeal considered this question. Tanja Ivic alleged that she was sexually assaulted by a cab driver who drove her home from a party. In addition to suing the driver personally, she brought a claim against the taxi company, pleading that it was vicariously liable for the acts of the driver, that it was negligent, and that it breached its fiduciary duty to her. On a motion for summary judgment, the motion judge dismissed Ivic's claim against the taxi company. Ivic did not challenge the motion judge's conclusion that her claim in negligence failed on the ground that she led no evidence with respect to the applicable standard of care in the circumstances nor regarding any breach on the part of the taxi company. She also did not challenge the motion judge's conclusion that she did not establish any basis for the existence of a fiduciary duty. Her appeal turned on whether the taxi company should be held liable for the assault, in the absence of any fault on its part. The Court of Appeal agreed with the motion judge that the taxi company was not vicariously liable. Hoy A.C.J.O. emphasized that in order for there to be a finding of vicarious liability, there must be a strong connection between what the employer was asking the employee to do and the wrongful act. She concluded that there was no such connection in this case. The Supreme Court of Canada outlined the test for assessing vicarious liability in Bazley v. Curry, [1999] 2 S.C.R. 534. When considering whether an employer is liable for unauthorized, intentional wrongdoing on the part of one of its employees, courts must consider: (i) the opportunity that the enterprise afforded the employee to abuse his or her power; (ii) the extent to which the wrongful act may have furthered the employer's objectives; (iii) the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer's enterprise; (iv) the extent of power conferred on the employee in relation to the victim; and (v) the vulnerability of potential victims to wrongful exercise of the employee's power. While acknowledging that the opportunity for a taxi driver to assault a passenger was not negligible, Hoy A.C.J.O. found that the driver's opportunity for misconduct was not intimately connected to his functions. She distinguished the circumstances of this case from those in Bazley, where a non-profit organization that operated residential care facilities for the treatment of emotionally troubled children was held vicariously liable for an employee's sexual abuse. In Hoy A.C.J.O.'s view, the taxi driver's opportunity for misconduct did not rise to the level of what existed in Bazley. Hoy A.C.J.O. disposed of the second, third and fourth factors noting that the alleged assault did not further the taxi company's aims in any respect and was not related to friction, confrontation or intimacy inherent in the employer's aims. Unlike the employee in Bazley, taxi drivers do not have physical contact with their customers in the course of carrying out their duties. In fact, the taxi company's Rules and Regulations sought to prevent such contact, explicitly providing: "Do not touch any customer if possible". Hoy A.C.J.O. noted that in dispatching the driver to pick up the appellant, the taxi company did not confer any power on him. "What power the driver had, he arrogated to himself through his own decisions", the court held. Turning to the issue of the vulnerability of potential victims to the wrongful exercise of the employee's power, Hoy A.C.J.O. acknowledged that a lone, intoxicated woman out late at night is vulnerable. However, she is "prey" not only to taxi drivers. Any power wrongfully exercised by this driver was not predicated on his employment. Hoy A.C.J.O. agreed with the motion judge that the requisite strong connection between what the taxi company was asking the driver to do and the alleged sexual assault was not present. The company did not materially increase the risk of the appellant being sexually assaulted by permitting the driver to drive the taxi and dispatching him. The alleged assault was only "coincidentally linked" to...