P was sexually assaulted as a young child in a youth care facility. The non-profit facility operator had carried out a background check of the perpetrator Curry prior to hiring him. On discovering Curry’s criminal conduct, the facility fired him.
In what circumstances is an employer to be held vicariously liable for unauthorized, intentional wrongs of employees where the wrong committed is sexual assault?
The test for vicarious liability for an employee’s sexual abuse of a client should focus on whether the employer’s enterprise and empowerment of the employee materially increased the risk of the sexual assault and hence the harm.
The Salmond Test:
** Employer vicarious liability is in part governed by the Salmond test which posits that employers are vicariously liable for:
*** Authorized acts of the employee;
*** Unauthorized acts closely connected to authorized acts
** A question remains as to the meaning of the second branch, hence the following analysis…
** Overall theme is the idea that where the employee’s conduct is closely tied to a risk that the employer’s enterprise has placed in the community, the employer be held vicariously liable for the employee’s wrong.
** Relevant cases can be grouped into three categories:
*** 1. “Furtherance of employer’s aims” cases;
*** 2. “Employer’s creation of friction” cases;
*** 3. “Dishonest employee” cases.
** Furtherance of aims": This works for negligent torts but doesn’t fit with intention torts
** Creation of friction: Relevant to accident-like intentional torts; occurs in circumstances where such incidents can be expected to arise because of the nature of the business (e.g. bartender assaults obnoxious customer).
** Dishonest employee liability: determined by fairness and policy, where the employee’s wrongdoing was a random act wholly unconnected to the nature of the employer’s enterprise, the employer is not vicariously liable – however, in less clear instances, the employer may be held liable
** LaForest J in London Drugs v Kuehne & Nagel: The vicarious responsibility regime is best seen as a response to policy concerns regarding compensation, deterrence, and loss internalization.
** Fleming in Law of Torts 9th Ed: Two fundamental concerns: (1) provision of a just and practical remedy for the harm, and (2) deterrence of future harm.
B. Feldthusen: The policy goal is effective compensation: vicarious liability improves chances the victim can recover judgment from a solvent defendant.
McLachlin J: Where precedent is inconclusive, courts should be guided by principles (including but not limited to):
** To openly confront the question of vicarious liability and not obscure it.
** Vicarious liability is generally appropriate where there is significant connection between the creation of the risk and the wrong.
** Consideration of subsidiary factors to gauge the sufficiency of the connection between employer’s creation of risk and the wrong.
** Factors may include:
*** a. Opportunity afforded by the enterprise to the employee to abuse power
*** b. Extent to which wrongful act furthered employer’s aim
*** c. Extent to which wrongful act was related to an employer friction
*** d. Power relationship between employee and victim
*** e. Vulnerability of potential victims to wrongful exercise of power
In cases of sexual assault, incidental considerations of time and place are unlikely to be relevant (e.g. that the assault occurred on the employer’s premises is not determinative).
** Applying the principles, the court found that the intimate private control, parental relationship, and power required by the terms of employment created an environment that brought about the abuse.
** The foundation is vicariously liable for Curry’s misconduct.
Foundation held vicariously liable.