An inebriated woman calls a taxi. She enters the cab and is sexually assaulted. Should the taxi cab company be held strictly liable for these damages suffered by her?
On the facts of this particular case, there was no negligence asserted by the plaintiff upon the cab company such as a lack of appropriate reference checks or comparable failure to take proper diligence in the hiring process or the supervision of the driver.
Thus, given the absence of negligence, the issue was whether the plaintiff could use the concept of vicarious liability to hold the employer strictly liable for the intentional wrongdoing of its “employee”. The Ontario Superior Court, on a summary judgment motion, refused to do so. Indeed, the Court of Appeal agreed. Leave to appeal to the Supreme Court was denied.
The principle of vicarious liability holds the employer legally responsible for the wrongdoings of its employees. It is a difficult concept for the plaintiff to apply successfully, as the questioned conduct must be closely and materially connected to the business of the employer. It is even more difficult to succeed when the wrongdoing is intentional criminal conduct.
An example of the application of vicarious liability may be a barista who accidentally spills hot coffee on a waiting customer. The conduct is clearly and materially related to the business. However, a server who deliberately throws hot coffee in a fit of rage at a customer would likely not give rise to the application of vicarious responsibility.
 The taxi cab company, in this instance, conceded this issue.
 The summary judgment motion was then cited as T.I. v Lakovic; In the OCA, it was styled Ivic v Lakovic; Leave application denied SCC
Debating the legal correctness of this decision and whether the application of Bazley principles was right or wrong will not change results of this case.
This being said, there may still be some real controversy as to whether Bazley should be the final word. Take, as a contrasting view, the decision of English High Court in Barclays Bank, a decision in which the outcome in favour of the claimants was influenced by their apparent vulnerability. (See a brief review of this decision attached as an appendix.)
What of the moral correctness? Should a vulnerable person, such as in this case, an intoxicated woman, or in other examples, a child traveling alone, or an elderly person, not have a viable remedy in the event of an intentional wrongdoing such as robbery or assault, sexual or otherwise, committed by a driver who has locked the passenger in his vehicle without means of escape?
Somehow it just does not seem right that such a victim would be without a meaningful remedy.
In the cited case, the company accepted that the relationship was one of employment. That was a considerable admission as Uber and similar ride sharing services are nowhere even close to making this admission, one which is traditionally a building block to the finding of vicarious liability in this context.
The business reality is that the taxi cabs and rider app services of the world will insure the liability and spread the risk accordingly. There will some additional costs to be absorbed by the passenger, certainly. Is it worth the additional 50 cents a ride to allow for this remedy?
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I agree. Let’s amend the law and make the common carrier taxi cab liable for the intentional wrongdoing of its drivers.
In Barclays. each of the claimants was required to undergo a compulsory medical examination as a term of employment. The examination was conducted by a physician, hired as a contractor for the Bank, who sexually assaulted the plaintiffs.
The High Court uses a two-fold test. The first hurdle is whether there is a relationship of employment or “akin to employment”. To answer this question, these considerations are influential:
- The employer is more likely to have the means to compensate the victim than the employee and the employer can be expected to insure against this liability;
- The tort has been committed as a result of activity taken by the employee of behalf of the employer;
- The employee’s activity is likely to be part of the employer’s business;
- The employer, by hiring the employee, has created the risk of the tort being committed by the employee;
- The employee, to a greater or lesser degree, is under the control of the employer.
 Barclays Bank v Various Claimants; Court of Appeal affirming