Vicarious Liability And Employer's Responsibility

• Published date: 06 April 2022
• Subject Matter: Employment and HR, Employee Rights/ Labour Relations
• Law Firm: Devry Smith Frank LLP
• Author: Mr Timothy Gindi and Angela Papeo

The Court of Appeal recently upheld the decision made in the case of Dagenais v. Pellerin, 2022 ONCA 76 which calls into question the scope of vicarious liability of an employer. This article will discuss how the court came to its reasoning, as well as outline the test for finding vicarious liability and the relevant case law referenced to reach this decision.

Vicarious liability involves placing the liability for one's actions or inaction upon another person due to the nature of their relationship. This can include a parent and child, an employer and employee, an owner of a vehicle and the driver. At Common Law, an employer can be vicariously liable for the wrongful acts by an employee in the course and scope of their employment. In Canada, this is a form of strict liability. While vicarious liability does not look to evaluate the culpability of an employer, it executes accountability based on a factual situation, once one has been established.

Case Law Upheld

The recent decision in Dagenais v. Pellerin, 2022 ONCA 76, was upheld by the Court of Appeal. The motion judge found that the employer failed to demonstrate that they were not vicariously liable for the motor vehicle accident. The employee had been instructed by his supervisor to travel to a job site two hours away. While travelling, the employee stopped for a coffee along the way. As the employee returned to his vehicle and continued his journey, he struck another vehicle. The stop taken by the employee was found to have no basis or interference, thus meeting the standard for the first part of the Salmond Test, which is the test to determine vicarious liability.

The Test for Vicarious Liability

The test for vicarious liability is known as the Salmond Test which was affirmed by the Supreme Court of Canada Bazley v. Curry [1999] 2 S.C.R 534. The Salmond Test posits that employers are vicariously liable for:

• Employee acts authorized by the employer;
• Unauthorized acts so connected with the authorized acts that they may be regarded as modes of doing an authorized act, as shown in Canadian Pacific Railway Co. v. Lockhart, [1942] A.C. 591 at 599 (P.C.)

Claimants must show that they have a valid cause of action against an employee for a fault they committed within the scope of their employment. This is linked to the idea that enterprises should be responsible for the risks they introduce...