Canadian Law: Understanding Vicarious Liability Doctrine

From institutional abuse to gig workers, vicarious liability now reaches far beyond the employment contract Vicarious liability means the blame does not stop with the person who caused the harm. Under Canadian law, it can travel up the chain to the employer, the institution, or increasingly, the platform. In this article, we’ll discuss what personal lawyers in Canada need to know about where the doctrine stands today, and where it is heading. This article can also be used by lawyers as an educational piece for their clients. Vicarious liability is a form of strict liability. By this, a party can be held legally responsible for another person’s wrongful act without any proof that they personally did something wrong. The vicarious liability then arises from the relationship between the parties, not from any finding of fault. The most common example is the employer-employee relationship. Under Canadian common law, an employer can be held liable for a wrongful act committed by an employee, provided the act occurred in the course and scope of their employment. If the employee acted purely for personal reasons, with no connection to their job, the employer generally will not be liable. The core framework of this type of liability was laid out in Bazley v. Curry , [1999] 2 SCR 534 . The court wrote that 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.” Here, the employer does not have to be negligent, and the employer does not have to know about the wrong. What matters is whether the enterprise the employer created materially increased the risk of the harm. This video shows secondary liability and vicarious liability differs, as applied in the context of corporate officers and directors: Check out our article on “ Personal injuries proceedings act: Limits, notices, and traps ” to learn about the factors that lawyers and litigants should not miss in these cases. The Supreme Court in Bazley identified two policy reasons that underpin the doctrine: These two rationales are also what define the doctrine’s limits. Where a wrong is only incidentally connected to employment, neither policy is served and liability will not follow. The harder cases arise when an employee commits an intentional wrong, including sexual abuse , that the employer never authorised and would never condone. Two companion decisions from the Supreme Court, released the same day in 1999, set the boundaries. In Bazley , the Children’s Foundation, a non-profit organisation, operated residential care facilities for emotionally troubled children aged six to twelve. Its employees were authorised to act as substitute parents, including bathing children and tucking them in at bedtime. The Foundation hired Leslie Curry, who turned out to be a pedophile, though no background check revealed this. Curry sexually abused several children in his care, including Patrick Bazley. The Supreme Court held that the Foundation is vicariously liable. The terms of employment had created near-total intimacy and authority over vulnerable children; the enterprise had materially enhanced the very risk that produced the abuse. The companion case, Jacobi v. Griffiths , [1999] 2 SCR 570 , reached the opposite result on similar facts. Harry Griffiths was the program director of a recreational Boys’ and Girls’ Club in Vernon, BC. He cultivated friendships with children at the Club, then invited them to his home after hours and assaulted them there. The Supreme Court, by a 4–3 majority, declined to impose vicarious liability, because of the following reasons: The majority found the connection between the Club’s enterprise and the abuse was not strong enough to justify no-fault liability. Here’s a video which explains how vicarious liability helps in a sexual abuse claim under Canadian laws: Check out Canadi