Search

Vicarious Liability for Workplace Sexual Harassment

In a common law civil action, the plaintiff will typically seek to make the employer responsible for the conduct of its employee.There are two arguments possible. The first is the organic theory of liability based on the “controlling mind” concept.

The second is vicarious liability. This leads to a finding of strict liability, without the need to prove fault of the employer,1 given wrongdoing of its employee.

Conduct which is only coincidentally linked to the business of the employer and the duties of the employee cannot justify the imposition of vicarious liability. The conduct must be closely and materially related to the risk introduced or enhanced by the employer for vicarious liability to be imposed.2

The basic premise of the cases finding strict liability is that the conduct of the employee falls within the ambit of the risk created by the business, or enhanced by it. Liability arises where the wrong is so connected with the employment that it can be said that the employer has introduced the risk itself.

Hence where the risk is closely associated with the wrongful conduct, the employer should bear the risk and internalize the full cost of operation. But where the wrongful act does not have a meaningful connection to the business, liability should not flow. The “mere opportunity” to commit a tort does not suffice. The business and employment must not only provide “the locale or the bare opportunity for the employee to commit his or her wrong, it must materially enhance the risk, in the sense of significantly contributing to it, before it is fair to hold the employer vicariously liable.”3

Courts should be guided by the following principles, where precedent cases are inconclusive, to determine liability in cases of unauthorized intentional wrong.

    1. The question of liability should be openly confronted and not disguised under the rubric of “scope of employment” and “mode of conduct”;
    1. The basic issue is whether the maligned conduct is sufficiently related to the authorized conduct. There should be a significant connection between the creation of a risk and the resultant wrong that so accrues, even where this is unrelated to the employer’s objectives.

To assess the sufficiency of the connection between the employer’s creation or enhancement of the risk, and the conduct in question, the five factors as set out in the Ontario Court of Appeal decision below must be considered, in determining liability for intentional conduct.

In an Alberta civil action for sexual harassment, the factors considered were that (1) the personal defendant was her boss and consistently one of the only other persons in the office, (2) he was her direct boss, (3) she was led to believe that he was the only person in charge, (4) the two were often alone and (4) there was no corporate policy on sexual harassment. These factors, as noted by the CourtofAppeal, materially enhanced the risk of tortious actions.4

An exception was taken to this decision by a B.C. decision5 firstly noting that the above case did not fully apply the first step by asking the question of “whether there are any precedents which unambiguously determine whether vicarious liability should apply in the circumstances”.

More significantly, the court did not refer to other decisions where courts have looked carefully at the policy considerations which are significant in the second step of the analysis.

In the application of the connection between the creation of the risk and the wrong, “incidental connections to the employment enterprise, like time and place (without more), will not suffice”.

The court denied the imposition of vicarious liability as (1) the opportunity given to the personal defendant to abuse his power was not significant, (2) the assignment of work was done openly, (3) there was ample opportunity for employees to raise issues about work or work assignments to senior management, (4) the wrongdoing did not further the employer’s aims, (5) there was no friction, confrontation or intimacy inherent in the business, (6) there was nothing in the business of residential plumbing service which created situations of intimacy between employees, (7) the power given to the wrongdoer was supervisory with respect to the plaintiff, but limited and such power was not one which could be readily abused.

The very fact of supervision of one employee of another, the court stated, should not give rise to vicarious liability.6

From a broad policy overview, a contrary finding, the court stated, would create economic hardship to the business community.

The OCA recently considered the five factored test in a case involving a taxi cab driver who had committed a sexual assault. The Court noted that the application of the above test becomes more difficult in the case of an authorized intentional wrongdoing such as sexual assault.The trial judge’s decision in favour of the employer was confirmed on appeal.

More significantly, the court did not refer to other decisions where courts have looked carefully at the policy considerations which are significant in the second step of the analysis.

In the application of the connection between the creation of the risk and the wrong, “incidental connections to the employment enterprise, like time and place (without more), will not suffice”.

The court denied the imposition of vicarious liability as (1) the opportunity given to the personal defendant to abuse his power was not significant, (2) the assignment of work was done openly, (3) there was ample opportunity for employees to raise issues about work or work assignments to senior management, (4) the wrongdoing did not further the employer’s aims, (5) there was no friction, confrontation or intimacy inherent in the business, (6) there was nothing in the business of residential plumbing service which created situations of intimacy between employees, (7) the power given to the wrongdoer was supervisory with respect to the plaintiff, but limited and such power was not one which could be readily abused.

The very fact of supervision of one employee of another, the court stated, should not give rise to vicarious liability.

From a broad policy overview, a contrary finding, the court stated, would create economic hardship to the business community.

The OCA recently considered the five factored test in a case involving a taxi cab driver who had committed a sexual assault.7 The Court noted that the application of the above test becomes more difficult in the case of an authorized intentional wrongdoing such as sexual assault.The trial judge’s decision in favour of the employer was confirmed on appeal.

1 Opportunity for Abuse

The Court saw this issue as “not negligible” as intoxicated passengers, as in this case, must be trusting of the driver. The cab driver has a form of power and has the ability to create chances for abusive conduct. The Court saw, however, the opportunity for misconduct as “not as intimately connected to his functions”.

2 & 3 Does Wrongdoing Extend the Employer’s Business; Extent to which the Business Purpose related to friction, confrontation or intimacy inherent in the business;

The assault did not promote the employer’s business purpose and was “not related to friction, confrontation or intimacy inherent in the employer’s aims”. The Court found that the fact that the employer did not require or permit physical contact between the driver and the passenger “in any intimate body zones” was influential. In fact the company’s written directions were to avoid physical contact and dating requests.

4 Extent of Power Conferred on the Employee in Relation to the Victim;

To this issue, the Court noted that the employer delegated no power on the driver with respect to the plaintiff. It did not know that it was sending its driver to pick up a lone, intoxicated woman.

5 Vulnerability

Clearly a lone drunk woman was vulnerable. However, as the Court stated, while this is an important factor, the power of the driver is not predicated on his employment. In any event, vulnerability does not, per se, provide the “strong link”.

The strong connection required for the finding of vicarious liability failed. Further from a policy prospective, the Court was not moved by the need to find “deep pockets”.

This decision illustrates the reluctance of the Court to attach employer liability in a context of employment, even one in which there was clearly sympathy for the victim’s circumstance. The “closely and materially” test is one which is difficult to reach.8

1in K.T.vDenisVranich,ElixirandParadiseLaneDevelopmentsHamiltonInc.; Hudson v Youth Continuum, Phillip Brindleand The BrindleAgency Inc.; Shulz v Attorney-General and upheld on appeal. Shulz was a case alleging verbal abuse and was not a sexual harassment case.
2Supreme Court of Canada in Bazley v Curry
3Bazley
4Pawlett v Dominion Protective Services 2007 ABQB 415
5Corfieldv Shaw
6Manitoba Court of Appeal decision in Robertson v Manitoba Keewatanowi where it saw no material connection to support the vicarious liability submission
7Ivic v Lakovic
8Leave to appeal denied

Leave a Reply

* Copy This Password *

* Type Or Paste Password Here *