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The Standard of Care of an Employer

November 11, 2021

Prince Edward Island

,

Canada

Issue

Do employers owe a heightened standard of care to employees who are minors versus employees who are adults?

Conclusion

No Canadian cases were identified that set out the standard of care of an employer towards child employees, as compared to adult employees, to protect them in the workplace.

Section 26 of the Employment Standards Act provides that every employer shall make every reasonable effort to ensure that no employee is subjected to sexual harassment. (Employment Standards Act)

The law requires an employer to take reasonable care for the safety of its employees (Jacobsen v. Nike Canada Ltd.)

The standard of care to guard against unreasonable risk of injury is assessed in particular circumstances by balancing the magnitude of the risk against the difficulty, expense, or any other disadvantage of desisting from the venture, or taking a particular precaution (Dziwenka et al. v. R. et al.)

A variable standard of care required of an employer can be raised or lowered in accordance with the special circumstances of each factual setting. (R. v. Wal-Mart Canada Corp.)

In Rice v. Chan Estate, a 16-year old female plaintiff worked for the defendant, a home builder. The plaintiff had worked for the defendant for about a year doing clean-up and casual labour at construction sites. One day, after checking on one of the construction sites, the defendant and the plaintiff sat in the defendant's car in a garage drinking alcohol. The defendant died from carbon monoxide poisoning and the plaintiff was found in a coma as a result of carbon monoxide poisoning, but she survived. The plaintiff sued the defendant's estate for negligence. The Court discussed the duty and standard of care owed from the defendant to the plaintiff and noted that the standard of care required of the defendant in the circumstances was that of an employer with the responsibility to safeguard his employees from unreasonable risks.

In Gies v. Gunwall, a 16-year-old male plaintiff was hired to do odd jobs by the defendant, an experienced guide, hunter, outfitter, and general manager. While chopping wood at a remote camp that was accessed by airplane, a piece of the wedge that the plaintiff was using to chop the wood flew into his eye. As a result, the plaintiff lost his eye. The Court stated that, given the plaintiff's age and inexperience, the plaintiff and defendant stood in a master-servant relationship (as opposed to an employer-employee relationship). As a result, the defendant was obliged not only to take care and to provide a safe place of work, but also to instruct the plaintiff in the use of the tools with which he must do his job. The Court noted that the standard of care of the master-servant relationship is the same as in the case of an ordinary employee, that is, a duty to take reasonable care to keep him safe. What is a reasonable standard will depend on the facts of each case.

Law

No Canadian cases were identified that set out the standard of care of an employer towards child employees, as compared to adult employees, to protect them in the workplace.

The Employment Standards Act, RSPEI 1988, c E-6.2 provides that:

25. Employee right

Every employee is entitled to employment free of sexual harassment.

26. Employer obligation

Every employer shall make every reasonable effort to ensure that no employee is subjected to sexual harassment.

Section 8 of the Youth Employment Act, RSPEI 1988, c Y-2 sets out the obligations of an employer when the employer employs a "young person":

1. Definitions In this Act

[...]

(e) “young person” means a person under the age of sixteen years.

8. Obligations of employer

Where an employer employs a young person, he shall

(a) act reasonably in assigning duties taking into account the age, knowledge, education and work experience of the young person;

(b) identify any potential danger to health and safety known to him and give appropriate instruction to the young person;

(c) personally supervise the work of the young person or ensure that at all times the work of the young person is supervised by an adult who has experience of the work;

(d) provide adequate training and courses of instruction before authorizing the young person to perform unsupervised work. 1990, c.66, s.8.

The term "young person" is deifnted in section 1 of the Act as:

1. Definitions In this Act

[...]

(e) “young person” means a person under the age of sixteen years.

As stated by Levine J. of the British Columbia Supreme Court in Jacobsen v. Nike Canada Ltd., 1996 CanLII 3429 (BC SC), the law requires an employer to take reasonable care for the safety of its employees:

[48] I disagree with the defendant that the standard of care applicable to tavern-owners is equally applicable to it as the employer of the plaintiff. The law requires an employer to take reasonable care for the safety of its employees.

Per the Supreme Court of Canada in Dziwenka et al. v. R. et al., 1971 CanLII 175 (SCC), [1972] SCR 419, the standard of care to guard against unreasonable risk of injury is assessed in particular circumstances by balancing the magnitude of the risk against the difficulty, expense, or any other disadvantage of desisting from the venture, or taking a particular precaution:

[36] The duty of care owing to a student, especially a handicapped one as in this case, in respect of his personal safety while operating dangerous machinery, is a stricter one than that owed by an employer to an employee working with dangerous machinery. Cases such as Harriman v. Martin[5], in the English Court of Appeal, show how sternly the duty of care for the safety of an employee has been regarded in a jurisdiction where the common law of employer liability has been extensively litigated. The strictness with which a duty of care is regarded reflects the application of the ordinary law of negligence under which the standard of care to guard against unreasonable risk of injury must be assessed, in the particular circumstances, “by balancing the magnitude of the risk, in the light of an accident happening and the possible seriousness of its consequences, against the difficulty, expense or any other disadvantage of desisting from the venture or taking a particular precaution”: see Fleming, The Law of Torts, 3rd ed., 1965, at p. 118. As was said by Lord Macmillan in Read v. J. Lyons & Co. Ltd.[6], at p. 173, “the law in all cases exacts a degree of care commensurate with the risk created.”

In R. v. Wal-Mart Canada Corp., 2017 ONSC 6726 (CanLII), the Ontario Superior Court of Justice heard an appeal from the Ontario Court of Justice. On appeal, Barnes J. held that employers must take every reasonable precaution to protect their employees in the workplace. A variable standard of care required of an employer can be raised or lowered in accordance with the special circumstances of each factual setting:

[31] The due diligence taken must be specific to the hazard in issue. Employers must take every reasonable precaution to protect their employees in the work place. The reasonable care is inextricably linked to the factual settings of each case. Thus, a variable standard of care is required that can be raised or lowered in accordance with the special “circumstances of each factual setting”: R. v. Gonder, [1981] Y.J. No. 16 (Yukon Terr. Ct.), at para. 22.

In Rice v. Chan Estate, 1998 CanLII 3978 (BC SC), a 16-year old female plaintiff worked for the defendant, a home builder. The plaintiff had worked for the defendant for about a year doing clean-up and casual labour at construction sites. After checking on one of the construction sites, the defendant and the plaintiff sat in the defendant's car in a garage drinking alcohol. The defendant died from carbon monoxide poisoning and the plaintiff was found in a coma as a result of carbon monoxide poisoning, but she survived. The plaintiff sued the defendant's estate for negligence. Smith J. of the Supreme Court of British Columbia discussed the duty and standard of care owed from the defendant to the plaintiff and noted that the standard of care required of the defendant in the circumstances was that of an employer with the responsibility to safeguard his employees from unreasonable risks:

[43] In The Law of Torts (9th edition, 1998) Fleming writes (at 559):

Today it is well settled that an employer ... owes an overriding managerial responsibility to safeguard [his or her employees] from unreasonable risks of personal injury in regard to the fundamental conditions of employment -- the safety of plant, premises and method of work. The relevant standard of care from employers is high and over many years tended to increasing stringency.

[...]

Duty and standard of care where children are involved:

[49] Fleming, in The Law of Torts, supra comments at 321:

That the plaintiff is a child or subject to some mental or physical disability may have a bearing on the standard of care demanded from either party. A defendant is of course ordinarily free to act on the assumption that others will take normal precautions for their own safety and that he need not adjust his own conduct in deference to extraordinary disabilities or shortcomings of substandard members of the community, unless he knows or ought to anticipate their presence within the range of his own activities.

[emphasis added]

[...]

1. Did the defendant owe a duty of care to the plaintiff?

[60] I conclude that the plaintiff was the defendant's "neighbour" within the duty principle described in McAlister (Donoghue) v. Stevenson, supra. The defendant ought to have had the plaintiff in mind as someone who might suffer harm in the circumstances. It was conceded that the defendant owed a duty of care to the plaintiff as the passenger in his motor vehicle. I have concluded that he also owed a duty of care to her as her employer. Although counsel for the defendant argued that the parties were not in the garage for employment-related purposes, I accept the evidence of the plaintiff that she accompanied the defendant at his invitation to check the security of the site, that she had done so once before, and he had taken her home after such a check. There was also the uncontroverted evidence that the garage was part of the current work site. While it seems likely that the defendant had another objective for the trip to the site, that does not detract from the fact that the plaintiff was there because her employer asked her to assist with work at that location.

2. If so, was the defendant in breach of that duty in that he failed to exercise the standard of care required in the circumstances?

[61] I have concluded that the standard of care required of the defendant in the circumstances was that of an employer with responsibility to safeguard his employees from unreasonable risks, and that the defendant failed to meet that standard of care. However if I am wrong and if the standard of care was simply that of the reasonable person, the defendant also failed to meet that standard.

[62] The question of an employer's standard of care was raised by me at the end of trial. In subsequent submissions from counsel, the defendant argued that liability based upon the employer-employee relationship had not been specifically pleaded, and that the plaintiff should not be allowed to argue the case on that basis. However, it is not necessary in these circumstances to plead the law upon which a claim is based. The fact that the defendant was the plaintiff's employer had been pleaded in the Statement of Claim alleging negligence. All of the evidence to support the plaintiff's argument based upon the employment relationship was before the court, and the defendant could not have been taken by surprise or otherwise prejudiced since all of the material facts were pleaded. I concluded that an amendment to the pleadings was not necessary but that, if it were, an application for such amendment under Rule 24(5) would be granted.

[...]

[64] Mr. Chan did not meet the standard of care required of him as an employer. He brought his employee, who was a minor, to the work site for a purpose related to her work, under the expectation (judging from the previous occasion) that he would take her home again. He gave her alcohol, possibly had sex with her, and set up the conditions which led to her injuries and his own demise. An employer taking reasonable precautions for his employee's safety would not have supplied any alcohol to his minor employee, would have monitored the consumption of alcohol by any employee, and would have kept control of the motor vehicle by retaining the keys and remaining conscious. The defendant was in breach of the standard of care required of him in the circumstances.

In Gies v. Gunwall, 1982 CanLII 525 (BC SC), a 16-year-old male plaintiff was hired to do odd jobs by the defendant, an experienced guide, hunter, outfitter, and general manager. While chopping wood at a remote camp that was accessed by airplane, a piece of the wedge that the plaintiff was using to chop the wood flew into his eye. As a result, the plaintiff lost his eye. The Court stated that given the plaintiff's age and inexperience, the plaintiff and defendant stood in a master-servant relationship (as opposed to an employer-employee relationship). As a result, the defendant was obliged not only to take care and to provide a safe place of work, but also to instruct the plaintiff in the use of the tools with which he must do his job. The Court noted that the standard of care of the master-servant relationship is the same as in the case of an ordinary employee, that is, a duty to take reasonable care to keep him safe. What is a reasonable standard will depend on the facts of each case:

[1] Kevin Gies, 16, wanted to be a guide and outdoors-man. Mr. Bruce Gunwall, an experienced guide, hunter and outfitter, and general manager of the defendant Prophet River Outfitters Ltd. (hereinafter referred to as "Prophet"), hired him. In May, 1979, he took Kevin to one of the defendant's camps in the mountains. Two other boys, 18 and 19, also went. Kevin was a wrangler or odd job man. One of his jobs was to split logs for firewood. While splitting wood, using a sledge-hammer and a wedge, a piece of iron from the wedge flew into his eye, costing him the sight of the eye. Kevin has sued Mr. Gunwall and Prophet for negligence.

[...]

[8] What duty of care did Mr. Gunwall owe to Kevin? The duty owed by an employer to his employee was described in Smith v. Baker & Sons, [1891] A.C. 325, by Lord Herschell, who said, at p. 362:

It is quite clear that the contract between employer and employed involves on the part of the former the duty of taking reasonable care to provide proper appliances, and to maintain them in a proper condition, and so to carry on his operations as not to subject those employed by him to unnecessary risk.

Does this duty differ from the general duty of care as laid down in M'Alister (or Donoghue) v. Stevenson, 1932 CanLII 536 (FOREP), [1932] A.C. 562? Taylor J. struggled with this question in Veronneau v. Gregory (1979), 1979 CanLII 390 (BC SC), 11 B.C.L.R. 121. He said the duty of care that an employer owes to his employee is not the general duty of care which governs in the usual case, "but one arising out of the special relationship of master and servant" (p. 126). It is, he said (p. 126):

… similar to that which an occupier owes to those on his premises with licence, that is to say, to provide conditions which are in fact "reasonably safe".

He concluded, at p. 127: "While the difference is subtle, I think the latter test is more demanding than the former". In Davie v. New Merton Board Mills, Ltd. et al., [1959] 1 All E.R. 346, however, Viscount Simonds, at p. 350, deprecated any appeal to the law of occupier's liability for the purpose of determining the measure of an employer's responsibility at law to an employee.

[9] I am not certain that these nice distinctions advance the argument. In any event, Mr. Gibb, counsel for Kevin, says that the duty of care that Mr. Gunwall owed to Kevin was that of a master towards an apprentice, a duty of care that is higher than that owed by an employer to an employee: Kerry v. Parker, [1969] 3 All E.R. 723 (C.A.). Given Kevin's age and inexperience, and the isolation of the camp, I hold that Mr. Gunwall stood in relation to Kevin as master to apprentice, and not merely as employer to employee. I do not think, however, that this entailed a higher duty of care. Rather the duty owed to an apprentice is a duty wider in scope than the ordinary duty of care that an employer owes to his employee, that is, he is obliged not only to take care and to provide a safe place of work, but also to instruct the apprentice in the use of the tools with which he must do his job. But even given a wider duty of care in the case of an apprentice,5—143 D.L.R. (3d) the standard of care is the same as in the case of an ordinary employee, that is, a duty to take reasonable care to keep him safe. What is a reasonable standard will depend on the facts of each case.

[...]

[14] I think the case must be decided on common law principles. The standard of care, according to the general rule, is determined by balancing three factors: the probability of an accident happening, the possible seriousness of its consequences, and the costs of reducing the risk of injury: Dziwenka et al. v. The Queen in right of Alberta et al. (1971), 1971 CanLII 175 (SCC), 25 D.L.R. (3d) 12 at p. 22, [1972] S.C.R. 419 at p. 433, [1972] 1 W.W.R. 350 at p. 361 (S.C.C.). As Viscount Dunedin said, in Fardon v. Harcourt-Rivington (1932), 48 T.L.R. 215 at p. 216:

The root of this liability is negligence, and what is negligence depends on the facts with which you have to deal. If the possibility of the danger emerging is reasonably apparent, then to take no precautions is negligence; but if the possibility of danger emerging is only a mere possibility which would never occur to the mind of a reasonable man, then there is no negligence in not having taken extraordinary precautions.

I also cite what was said by Robertson J.A. in Mossop v. Gilmour, 1950 CanLII 226 (BC CA), [1951] 1 D.L.R. 440 at p. 441, 1 W.W.R. (N.S.) 29:

The fact that it is possible that an accident might occur is not the criterion which should be used to determine whether there has been negligence or not. The law does not require a prudent man to foresee everything possible that might happen. Caution must be exercised against a danger if such a danger is sufficiently probable, so that it could be included in the category of contingencies normally to be foreseen: Ouellet v. Cloutier, 1947 CanLII 35 (SCC), [1947] S.C.R. 521.

I do not think the law required Mr. Gunwall to examine the wedge closely. If it had at that time been in an obviously damaged condition, I have no doubt that he would not have allowed Kevin to use it without "trimming it up" or, if he had no file, he would have split the wood himself, so as not to expose the boy to danger. But the wedge was not, at that time, in such a condition. Nor do I think that Mr. Gunwall should have supplied Kevin with goggles. I cannot find negligence here.

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