Can an employer be vicariously liable for an employee's intentional wrong?

Ontario, Canada


The following excerpt is from Hoyle (Estate) v Gibson-Heath, 2017 ONSC 4481 (CanLII):

The leading case on vicarious liability for intentional torts is Bazley v. Curry, 1999 CanLII 692 (SCC), [1999] 2 SCR 534. The case involved the liability of a non-profit organisation which operated two residential care facilities for the treatment of emotionally troubled children, for the sexual abuse by one of its employees of a former resident of one of its facilities. After an extensive review of previous situations in which courts had held employers vicariously liable for the unauthorised torts of employees and of the policy considerations underlying vicarious liability, McLachlin J., for the court concluded, at para. 41: 41 …in determining whether an employer is vicariously liable for an employee's unauthorized, intentional wrong in cases where precedent is inconclusive, courts should be guided by the following principles: (1) They 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.

Other Questions


Can an employer be vicariously liable for an unauthorized, intentional wrong such as the sexual assault committed by an employee? (Ontario, Canada)
What is the duty of an employer to seek alternate employment for employees who have lost their employment due to the loss of their employment? (Ontario, Canada)
When an employer unilaterally changes the essential terms of an employee’s contract of employment and the employee does not agree to the changes, is the employee constructively dismissed? (Ontario, Canada)
Can an employer be vicariously liable for an employee's actions? (Ontario, Canada)
What is the difference between the provisions of an employee’s rights on termination from an employee's employment plan and those of the employee's termination notice? (Ontario, Canada)
Can an employer be vicariously liable for the acts of an employee? (Ontario, Canada)
Can an employer be liable to an employee for the consequences of the employee’s negligence? (Ontario, Canada)
What is the test for an employment application where the payor is intentionally unemployed or under-employed? (Ontario, Canada)
Does an indefinite term employment contract require the employer to give reasonable notice of an intention to terminate the contract? (Ontario, Canada)
Is a payor intentionally under-employed or unemployed intentionally negligent in paying for their child’s education and health needs? (Ontario, Canada)
X



Alexi white


"The most advanced legal research software ever built."

Trusted by top litigators from across North America.