Vicarious Liability in Alberta

Vicarious liability is a legal doctrine that holds an employer liable for the wrongful acts or omissions of their employees, as long as those actions occur within the scope of employment. In Canada, this is considered a form of strict liability, meaning liability can be imposed without proving the employer’s direct fault.

The principle of vicarious liability is rooted in the idea that employers have a degree of control over their employees’ conduct and should bear responsibility when that conduct causes harm. Another theory to justify vicarious liability is the “Enterprise Risk Theory,” which reasons that since employers benefit from the work their employees do, they should be expected to bear the risks associated with that work.

Here’s an example to demonstrate vicarious liability: imagine a delivery driver negligently causing an accident while making deliveries. Here, the delivery driver is tasked with transporting goods to customers, which is a core component of their employment.  As the driver negligently caused an accident during the course of these deliveries—perhaps by speeding, failing to obey traffic signals, or being distracted—the employer could be held liable for any resulting damages. This is because the accident occurred while the driver was performing their job duties, making the employer responsible for the employee’s conduct under the doctrine of vicarious liability.

 Vicarious Liability and its Implications for Employment

The implications of vicarious liability for employment relationships are significant. This principle places a strong incentive on employers to implement thorough hiring practices, provide adequate training, and enforce clear workplace policies to mitigate risks. It also underscores the importance of defining the boundaries of an employee’s role, since liability often hinges on whether the act was performed “in the course of employment.” As workplace dynamics evolve, especially with remote work and gig economy roles, courts continue to refine the application of this doctrine, making it a critical area for employers, HR professionals, and employees to monitor closely.

Determining Scope of Employment

To determine whether an employer is vicariously liable, courts ask whether the employee’s wrongful act was closely connected to their job duties. This is known as the “sufficient connection” or “Salmond” test, which proposes that employers are vicariously liable for:

• employee acts authorized by the employer; or
• unauthorized acts so connected with authorized acts that they may be regarded as modes of doing an authorized act.

For the second option to be viable, it’s not enough that the act happened at work or during work hours. Instead, there must be a meaningful link between the employer’s business and the risk that led to the harm. Courts consider factors like the power given to the employee, the nature of their role, the extent to which the wrongful act is related to the employee’s job, and whether the employer’s operations increased the risk of harm.

What About Independent Contractors?

In Alberta, an employer is generally not vicariously liable for wrongful acts of an independent contractor. This is because independent contractors operate with a high degree of autonomy and control over how they do their work. In other words, they are their own boss.

However, courts have recognized specific exceptions to where vicarious liability can apply to independent contractors, including:

Non-delegable Duties

This refers to obligations that an employer cannot transfer to another party, including an independent contractor. These duties require the employer to ensure certain standards are met, regardless of who performs the work. For example, if a school hires an independent contractor to drive a school bus, , the school may still be held responsible for an accident caused by the bus driver, as the school has a non-delegable duty of ensuring the safety their students.

Inherently Dangerous Activities

Some tasks or operations inherently carry a high risk of harm, requiring special precautions to ensure safety. When an employer hires independent contractors to perform such activities, the employer might still be held liable for any resulting harm because of the elevated risks involved.

An Agency Relationship is Formed

An agency relationship is formed when one party (the agent) is authorized to act on behalf of another party (the principal) and is subject to the principal’s control. In such cases, the principal may be held liable for the actions of the agent, even if the agent is an independent contractor.

Statutory Liability

Some statutes impose responsibility on an employer for certain acts, regardless of whether those acts are performed by an independent contractor. In those cases, the employer may be held liable for the actions of the independent contractor.
Most Common Examples of Vicarious Liability in Alberta

Driving Someone Else’s Vehicle

Under Section 187(1) 187(2) of Alberta’s Traffic Safety Act, the owner of a vehicle can be held vicariously liable for the negligent actions of another person driving their vehicle with permission. This means that if an individual lends their car to someone who then causes an accident due to negligent driving, the car owner may be responsible for any damages resulting from the accident. This statutory provision underscores the importance of vehicle owners exercising caution and ensuring that anyone they allow to drive their vehicle is competent and responsible.

Healthcare

In Alberta, the healthcare industry is particularly vulnerable to vicarious liability, as hospitals and healthcare facilities can be held accountable for the actions of their medical staff, including doctors and nurses. Employers are responsible for ensuring that their employees provide safe and competent care, which includes liability for errors such as administering the wrong medication and other negligent acts. This liability arises from the institution’s obligation to supervise and train its staff, ensuring high standards of patient care and safety.

Transportation

The transportation industry, encompassing sectors like freight and passenger services, faces notable vicarious liability risks. Employers bear responsibility for their drivers’ actions, including accidents resulting from negligence, reckless driving, or other improper conduct. This liability arises from the employer’s duty to oversee and regulate their employees’ activities to ensure safety and compliance with industry standards

Defences to Vicarious Liability in Alberta

“Random Act”

A “random act” is an employee’s conduct that is entirely personal and unrelated to their job duties. As a defense, it works by demonstrating that the act was outside the scope of employment, absolving the employer of liability for actions unconnected to authorized work responsibilities.

Independent Contractor

An independent contractor operates with autonomy and control over how they perform their work, unlike an employee. As a defense, this distinction works by showing that the contractor’s actions were not under the employer’s control, absolving the employer of liability for the contractor’s conduct.

Out of the Scope of Employment:

If it can be demonstrated that the wrongful act was not related to the employee’s authorized duties, the employer may not be held liable. The fundamental question is whether the wrongful act is sufficiently related to conduct authorized by the employer to justify the imposition of vicarious liability, as established in Bazley v Curry [1999] 2 SCR 534. If the act is deemed outside the scope of employment, this can serve as a robust defense for the employer.

 

How KMSC Law Can Help

Selecting the appropriate legal counsel is crucial, especially when navigating complex issues like vicarious liability. At KMSC Law, we are committed to understanding your unique situation, providing expert guidance, and advocating on your behalf throughout the entire process.

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Schedule your consultation today and get the clarity you need to move forward.