Date: Fri, 22 Oct 2004 09:07:26 -0400

From: David Cheifetz

Subject: Vicarious liability for intentional torts

The problems that some judges have with the doctrinal rationale for VL sometimes leads to startling decisions and consequences, particularly when the judge have to decide the consequences of that VL on rights the person held vicariously liable may have against others also at fault or liable for the damages.

For example, DB v Parkland School Division 63 Saskatchewan 2004 SKCA 13, the Sask. C.A. held that, because vicarious liability is "derivative" - their word, not mine, which, I think, shows the judges' misunderstanding of the doctrine despite their citing of the modern scholarship and recent Canadian cases which hold that it is liability, not the tort, that is imposed - then if the person who committed the tort is unable to seek contribution from the third party, then the person sued in vicarious liability can be in no better position.

DB had been sexually assaulted by a teacher employed by the School Board. DB sued the board and the teacher. The claims against the board were based on the board's own direct negligence and vicarious liability. The School Board commenced third party proceedings against the parents. The claim over against the parents seems to have been based on alleged negligence by the parents - that the parents were negligent in not preventing the assaults from occurring. DB's claims against the board based on the board's own negligence were dismissed as statute barred by the expiration of the limitation period so the action against the board proceeded only on the vicarious liability cause of action.

An earlier Saskatchewan Court of Appeal decision had held that the Sask legislation applies only to negligence. So, under Sask legislation the teacher had no cause of action for contribution against the parents under the legislation. However, the DB decision is not based on the wording of the Saskatchewan legislation. Instead, it decided the case based on the alleged general principle I have quoted above.

The Sask CA thought its conclusion necessarily follows from the principle that, in VL, all that is imposed is liability for the wrong. It wrote, in paragraph 26:

If the Board is found to be liable, it will assume Ms. Carruthers's liability (subject, of course, to any indemnification between the Board and Ms. Carruthers, if applicable). ... Ms. Carruthers's liability is attributed to the Board. It would be unreasonable, if not illogical, to permit the Board to reduce its liability when Ms. Carruthers could not do so. As the Chambers judge said, "[i]n so far as the allegations against the defendant Board lie in vicarious liability for the actions of Carruthers, such a liability is derivative and .... they cannot be in a stronger position than their employee would be in, in so far as a claim over against the parents is concerned."

Paragraph 26 is not limited to vicarious liability for an intentional tort. However, in para 1, the court's version of its conclusion is limited in that fashion: "I have concluded that if the person who committed the intentional tort is unable to seek contribution from the third party, then the person sued in vicarious liability can be in no better position."

It is rather clear that what bothered the court was the fact that the claim over was against the parents. The court made an explicit reference to this in discussing the prospect of the teaching claiming over "There is something inherently offensive about a relative or teacher committing sexual acts and being able to argue that someone else is liable because they should have prevented those acts from occurring" and stated that under Sask. law it was unlikely that the teacher would be able to obtain contribution from the parents.

There is nothing in the reasons indicating that the members of the panel asked themselves whether it made sense to deny the school board - which was held liable without fault on its part - contribution from others who might be at fault just because the teacher might not be entitled to contribution.

There is nothing in the reasons which suggests that the panel realized that their logic would also defeat a contribution claim advanced against another person also vicariously liable for the teacher's conduct.

David Cheifetz
Bennett Best Burn LLP
Toronto

----- Original Message -----
From: Jason Neyers
To: David Wingfield
Sent: Wednesday, October 13, 2004 2:05 PM
Subject: Re: FWD: ODG: Re: Vicarious liability for intentional torts

Dear David:

While no expert on the history of VL, if I remember correctly, (at least some of) the original justifications for VL were not necessarily social policy but rather theories based upon agency (acting through another is acting yourself) or comparative fault (the one who places trust should lose).

The social policy justifications only really took complete hold when everyone began to realize that the proposed theories could not actually explain the doctrinal limits of VL. Once judges could not find a readily useable theory they retreated into precedent following and/or stating that it was based on policy justifications.

So from what I remember of the historical perspective, one can see principle give way to confusion give way to policy. The question then becomes whether VL can be seen to be based on principle, hence completing the circle, or whether policy is all that we are left with.

I think VL can be explained in terms of justice, not policy but as Harold has said, such a demonstration would require a paper. (By the way, that paper is substantially complete should anyone be interested in reading it).

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