When Will Employers Be Liable for the Off-Duty Conduct of Their Employees?
November 2021 - 4 min read
The ability of employers to monitor and control the actions of their employees is limited. However, employers can be vicariously liable for the actions and omissions of their employees. This means that employers will be liable for acts or omissions, whether unauthorized or authorized by the employer, that are sufficiently related to the course of employment and the acts authorized by the employer.
But how far does this principle extend? Does this principle only apply when the impugned action or omission occurs while the employee is acting in the course of their employment? Or are employers liable for the off-duty conduct of their employees? A review of the case law demonstrates that it depends on the details of the individual employment relationship.
In Tataryn v Browne, 2014 BCSC 13, the Court explored this issue. This case involved a motor vehicle accident whereby 13 plaintiffs were injured while passengers in a truck driven by their colleague Annie. The plaintiffs were temporary workers, and Annie worked for Sunshine Eggs Inc. (“Sunshine”). The plaintiffs alleged that Annie drove carelessly and lost control of the truck. The plaintiffs argued that Annie was an agent of Sunshine and that Sunshine was vicariously liable for Annie’s negligence. The Court provided an extensive analysis and review of the law and stated there had to be a legal obligation between Annie and Sunshine for vicarious liability to attach. However, the only legal obligation was that Annie worked at the farm and Sunshine was obligated to pay her for her work. There was no legal obligation on Annie’s part to transport the workers on the day of the accident. The Court held that Annie volunteered to drive the workers and that she was not acting in the course of her employment. As such, Sunshine was not vicariously liable.
In Cimpean v Payton, 2008 CanLII 32808, the Ontario Supreme Court considered whether the National Basketball Association (“NBA”) and an NBA team were vicariously liable for an alleged assault on a woman and her husband perpetrated by three players from the NBA team. The alleged assault took place outside of an adult entertainment lounge. Although the conduct was certainly “off-duty,” the Court held that the NBA and the NBA team were vicariously liable. In coming to this decision, the Court reviewed the contract between the players and the NBA team. The contracts included provisions mandating morality and good off-court behaviour. The Court stated that “the contract with each player is reasonably capable of leading to the conclusion that the employment relationship between the [NBA Team] and each player involved more than just playing basketball.” As for the NBA, the Court held that it might also be vicariously liable as it had the ability to sanction players for off-court conduct. This meant that the NBA was not too remote from the impugned conduct for vicarious liability to attach.
The Alberta Court of Queens’ Bench decision Hoefling v Driving Force Inc., 2005 ABQB 802 involved a motor vehicle accident. The defendant, Lance, was an employee of the defendant Veco Construction Ltd. (“Veco”), and hitched a ride to the city with his co-worker, Jeremy. Veco had instructed Jeremy to return the vehicle it leased from the job site to another location. Lance took over the driving and caused an accident by running a red light. Lance was convicted of impaired driving. The plaintiff argued Veco was vicariously liable. Even though Veco had not expressly authorized Jeremy to drive the vehicle and had not expressly forbidden him to drive, the Court held that Veco was still vicariously liable. At the moment of the accident, Jeremy was advancing Veco’s corporate interests (by driving the vehicle to the required location). At the very least, Jeremy was doing an unauthorized act (driving the vehicle) that was a mode of doing an authorized act (returning the vehicle).
Where the alleged wrongdoing is intentional (such as sexual battery), it is necessary to consider whether the nature and character of the employment created or enhanced a risk of the conduct complained of. For example, in Pawlett v Dominion Protection Services Ltd., 2007 ABQB 415, the plaintiff alleged that an employee of the defendant Dominion and her direct supervisor sexually harassed her over a period of time and also sexually assaulted her. The Court held that the plaintiff was placed in a vulnerable position by her supervisor. First, he was her direct supervisor. Second, the plaintiff was led to believe that her supervisor was in charge of the company. Third, the employment created a situation whereby the two were often left alone to work together when no one else was present. Lastly, Dominion had no policies in place with respect to sexual harassment. As a result, Dominion was held to be vicariously liable for the harassment and assault.
Ultimately, employers can be vicariously liable for the off-duty conduct of their employees. The above cases show that where the impugned conduct can be tied in some way to the employment relationship, the employer may be vicariously liable. This might be the case if the employment relationship created or enhanced a risk of the wrong complained of (Pawlett), if the conduct advanced the employer’s interests or was a mode of doing an authorized act (Hoefling), or if the conduct was not too remote from the employment relationship (Cimpean).
Employers should be cautious and mindful of their work environments and employment agreements and seek to monitor the actions of their employees. Contact a member of Field Law’s Labour and Employment Group for assistance or if you have any questions.