What is the test for vicarious liability in the context of medical malpractice?

Ontario, Canada


The following excerpt is from B.L. v. Furman et al, 2011 ONSC 214 (CanLII):

In Bazley v. Curry, 1999 CanLII 692 (S.C.C.), McLachlin J. (as she then was) set out the test for the court to apply with respect to vicarious liability: 41 (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.

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