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Simon Shields, LLB

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Tort - Vicarious Liability

Kassian Estate v. Canada (Attorney General) (Ont CA, 2015)

In this case the Court of Appeal articulated the test for vicarious liability in tort as follows:
[11] The law of vicarious liability was articulated by the Supreme Court of Canada in K.L.B. v. British Columbia, 2003 SCC 51 (CanLII), [2003] 2 S.C.R. 403. At para. 18, the court explained that “liability is imposed on the theory that the person may properly be held responsible where the risks inherent in his or her enterprise materialize and cause harm, provided that the liability is both fair and useful.” The court held, at para. 19, that to succeed in a claim for vicarious liability, a plaintiff must establish that:
1) The relationship between the tortfeasor and the person against whom liability is sought is sufficiently close to make a claim for vicarious liability appropriate; and

2) The tort is sufficiently connected to the tortfeasor’s assigned tasks that the tort can be regarded as a materialization of the risks created by the enterprise.
[12] An important factual consideration includes the degree of control exercised by the person or organization sought to be held liable and the tortfeasor: K.L.B., at para. 22. In K.L.B., the court considered whether the relationship between the province of British Columbia and foster parents was sufficiently close to impose vicarious liability on the province for the negligent actions of the foster parents. The court found that the day-to-day control of the affairs of foster children made the foster parents sufficiently independent from the province so there was no basis for vicarious liability. This conclusion was arrived at even though governments provided instruction, training, periodic monitoring and funding.

[13] By contrast, where the control is at the day-to-day level, as it was in Blackwater v. Plint, 2005 SCC 58 (CanLII), [2005] S.C.R. 3, vicarious liability will be imposed. There, the United Church of Canada was found vicariously liable for its employees who abused children in a residential school. The Church was involved in all aspects of the operation and management and religious education of the students.


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