CASUAL LEGAL: A Reminder about Vicarious Liability

Attention: AMSC Members – Please distribute to all appropriate personnel

A Reminder about Vicarious Liability

By Lauren Chalaturnyk

Reynolds Mirth Richards Farmer LLP

AMSC Casual Legal Service Provider

Sometimes during the course of employment, employees will act negligently or commit intentional acts that inflict injury on another person. These types of actions are referred to as torts. Under normal circumstances, the perpetrator would be responsible for any of the damage or injury that occurs as a result of their actions; however, if they have committed a tort during the course of employment, it is possible their employer may also be liable. This is known as vicarious liability.

Put simply, vicarious liability is when liability is imposed on one party because of the misconduct of another party. Relationships in which vicarious liability may arise include parents/children (if the parent sanctioned, condoned, and knew about the wrong perpetrated), corporate partnerships, and employer/employee relationships. Vicarious liability may also arise as a result of legislation. The most common relationship that attracts findings of vicarious liability is the employer/employee relationship.

If an individual is properly classified as an employee (not an independent contractor), then the next step is to determine whether they committed a tort during the course of their employment. The logic being that an employer should not be held liable for the actions of an employee when they are off the clock. Whether an employee has committed a tort during the course of employment is a question of fact. Every case will be different; however, employers are more likely to be held liable for the acts of their employees if they have authorized an employee to do something and the employee does that thing negligently or carelessly.

It is less likely that an employer will be found liable for the deliberate and malicious wrongdoings of employees; however, this is not outside the realm of possibilities. Generally, in those cases, courts have considered whether the employer materially enhanced the risk of the malicious and deliberate act occurring. If they did, then the employer may be vicariously liable. The overarching question is whether the wrongful act is sufficiently related to the conduct authorized by the employer to justify the imposition of vicarious liability.

Vicarious liability has to be carefully assessed on a case-by-case basis, which makes it challenging to provide employers with a clear plan to avoid the risk of vicarious liability. However, as long as employers remember it is possible for them to be held liable for the acts of their employees and they respond to those possibilities appropriately in their recruitment, training, and management of those employees, they are more likely to avoid a finding of vicarious liability.

To access AMSC’s Casual Legal Helpline, AUMA members can call toll-free to 1-800-661-7673 or email casuallegal [at] amsc.ca and reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP.  For more information on the Casual Legal Service, please contact Risk & Claims via email at riskcontrol [at] amsc.ca.  Any Regular or Associate member of the AUMA can access the Casual Legal Service. 

DISCLAIMER: This article is meant to provide information only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated.