Vicarious Liability

1. Was there a Relationship Akin to Employment?

Only an employee can create vicarious liability for an employer. An independent contractor cannot.

The label the parties put on their relationship does not determine the employment status

Two employers can be vicariously liable for the same tortfeasor if they both exercise sufficient control

Courts will look at the true nature of the working relationship, not merely the labels or wording used in the contract.

Individuals who work on a casual, as-needed basis without mutual obligations are not employees

In cases involving vicarious liability for borrowed employees, the original employer is generally presumed to retain responsibility for the employee’s actions unless control over how the work is done has clearly passed to the borrowing employer.

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Does the employer control not only what the worker does (independent contractor) but also how, when, and where the worker does it? Less relevant today.

Is the person’s work integral to the business, or are they an independent accessory?

1) Is there remuneration in exchange for personal service?

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2. Was the Tort Committed During the Course of Employment?

An employee will be found to have been acting during the course of employment if their wrongful act is so closely connected with their employment that it is fair and just to hold the employer vicariously liable for the employee’s actions.

1. What functions or “field of activities” was the employee entrusted with?

Employers are not vicariously liable when an employee’s wrongful actions are purely personal and motivated by factors that have no connection to their employment

Travel is within the course of employment when:

An act may still be “in the course of employment” even if:

An employer is not vicariously liable where an employee commits a tort outside the scope of their employment for purely personal reasons, even if it breaches the employer’s instructions.

A detour = A minor or incidental deviation from the employee’s duties that is still connected to their employment.

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COMPENSATION

If VL is established, the employer will be ordered to pay compensation, though under the _________, the employer can recover any compensation from the employee, e.g. deduction from wages.