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Vicarious Liability: Liability Within the Scope of Employment

A commonly litigated issue is whether an employee can be held liable for what they do while employed. In general, an employer is liable for what an employee does so long as it is within the scope of employment. This is known as vicarious liability.


The test for whether an employee's actions fall within the scope of employment is known as the Salmond Test. The Salmond Test is 2 parts and if an employee is able to satisfy either part they are protected by vicarious liability. If an employee is performing an action that is authorized by their employer they satisfy part 1 of the test and are protected by vicarious liability. Part 2 of the test protects any activity which is unauthorized by the employer but is so connected with actions that are authorized by the employer that they are deemed to be another mode of doing what has been authorized. It can be very difficult to decide whether an act is an unauthorized mode of performing an authorized act or an independent act entirely.


Three general strains of case law have developed over how to interpret the Salmond Test. The first group of cases deal with negligence related torts. In negligence related torts the cases generally align with the idea that an employee's actions are within the scope of employment if they are acting in the interest of performing a goal of the employer. The second group is intentional torts. Intentional tort cases generally align with the idea that an employee's actions are within the scope of employment if the employer placed them in a position that has an inherent risk for the employee to commit an intentional tort, this is known as " a situation of friction". The third group of cases deals with dishonest employee cases. These cases primarily deal with fairness and policy. Where an employee's action appears random or wholly unconnected to the employer's enterprise or employee's responsibilities they have been held to not be within the scope of employment. The common feature between these groups of cases is that, if the employer's enterprise created the risk for the tort to be committed and that risk is closely linked to the employee's conduct, the employee is likely protected by vicarious liability.


Sources:

Pritchard v. Roadknight, 2013 ONSC 1939 (CanLII),


E.B. v. Order of the Oblates of Mary Immaculate in the Province of British Columbia, [2005] 3 SCR 45, 2005 SCC 60 (CanLII),


Bazley v. Curry, [1999] 2 SCR 534, 1999 CanLII 692 (SCC)


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