It is not always clear when an organization will be liable for the intentional wrongs committed by its representatives.
Earlier this year the Human Rights Tribunal of Ontario (“HRTO”) found that a corporate respondent was liable for the violations of the Ontario Human Rights Code perpetrated upon the applicant by the personal respondent in the course of his employment, relying upon the analysis of the Supreme Court of Canada in Robichaud v. Canada (Treasury Board), 1987 CanLII 73 (SCC).
In A.B. v. Joe Singer Shoes, 2018 HRTO 107, the personal respondent was the “directing mind” of the corporate respondent which allowed the HRTO to impose equal liability upon the corporate respondent.
The leading decisions on the liability of an organization for the torts of its agents are the 1999 companion decisions of the Supreme Court of Canada in:
Bazley v. Curry, 1999 CanLII 692 (SCC)
Jacobi v. Griffiths, 1999 CanLII 693 (SCC)
The Court set out the now-called “Enterprise Theory”, in Bazley, pursuant to which organizations can be vicariously liable for the unauthorized acts of employees where there is sufficient connection between the intentional tort and the employment duties. The Court decided that the corporate defendant should be held responsible where the enterprise has enhanced the risk to the victims by, for instance, affording the perpetrator the opportunity to abuse his or her power especially where the victims are more vulnerable, or the wrongful act relates to the power or intimacy inherent to the enterprise.
In Jacobi, the Court was also assessing the liability of the institutional defendant with respect to the sexual abuse of children by an employee groundskeeper, although in that case most of the assaults took place at the home of the employee outside of working hours.
In a split decision, the Court distinguished Bazley saying that mere opportunity to commit a tort is not sufficient to impose a regime of no-fault liability. In Jacobi, the Court held that there was not a strong connection between the employment and the assaults such that the likelihood of assaults was enhanced by a combination of job-created power and intimacy. The Court did not find that the employment significantly increased the risk of harm or contributed to the occurrence of the harm.
Last year the Ontario Court of Appeal had occasion to revisit this issue in Ivic v. Lakovic, 2017 ONCA 446, which was another sexual assault case, this time involving a taxi driver and an intoxicated passenger.
For the purposes of the litigation the parties conceded that the driver was an employee of the taxi company; however, the corporate defendant was not held vicariously liable for the wrongful acts of the driver which were only coincidentally linked to the corporate defendant’s business. In that case, the taxi company’s rules and regulations sought to prevent any physical contact or intimacy with passengers and the intoxicated plaintiff was vulnerable to any number of perpetrators in addition to the individual defendant.
The Court held that the taxi company did not materially increase the risk of the plaintiff being sexually assaulted. Furthermore, there was no strong connection between the duties of the driver and the sexual assault and there existed no public policy reason to impose strict liability.
These latest decisions underscore the difficulty in determining in what circumstances an organization will be held vicariously liable for the intentional wrongs of its workers as well as the challenges in trying to gauge whether a court will find that there was sufficient connection between such intentional wrong and the worker’s duties.
Mark Josselyn, Gowling WLG
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