2) Defences

Most of the defences to cattle trespass mirror those found in the scienter action.

a) Default of Plaintiff

There is no liability where the cattle escape onto the plaintiff's land because of the plaintiff's negligence. The plaintiff may, for example, forget to close a gate between her property and that of the defendant. There is, however, no duty on the part of the plaintiff to fence her land to keep cattle out. Cattle trespass is based broadly on the owner's duty to fence cattle in.

b) Consent

Consent to the intrusion of cattle is a complete defence. This is most likely to arise where the plaintiff has given a licence to the defendant to graze cattle on the plaintiff's land.

c) Deliberate Act of a Stranger and Act of God

It is doubtful that these defences are applicable to cattle trespass. The reason is that their recognition would severely restrict the scope of strict liability because the escape of fenced cattle is likely to arise from deliberate acts of strangers or from severe natural phenomena such as floods, ice storms, blizzards, and tornadoes.

3) Distress Damage Feasant

In some situations a self-help remedy is available to deal with cattle trespass. It is known as distress damage feasant. [Note 36: This self-help remedy is not restricted to cattle. It may be applied to other chattels trespassing on land. The remedy is, however, designed to provide security for compensation for damage caused by the chattel. Most chattels do not cause damage to land.] It empowers the plaintiff to impound the straying cattle and to hold them as security for the damage that has been caused by them. The cattle must be returned when compensation is paid.

4) Legislation

There is a great deal of provincial and municipal legislation and regulation relating to the control and responsibility of owners of agricultural livestock. It may modify or abrogate the ancient regimes of tort liability for cattle and must, therefore, be given careful attention. [Note 37: See, for example, Alberta Stray Animals Act, R.S.A 1980, c. S-23; British Columbia Livestock Act, R.S.B.C. 1996, c. 270; Ontario Pounds Act, R.S.O. 1990, c. P.17.]

Barry j. Reiter Melanie a. Shishler

Joint Ventures

(1999)

PART THREE, Implementing the Business Plan

CHAPTER 5, STRICT LIABILITY

F. VICARIOUS LIABILITY

Vicarious liability is not a discrete tort. It describes the responsibility that one person may have for the torts of another because of the relationship between them. Vicarious liability is described as strict because it requires no proof of personal wrongdoing by the person subject to it. The establishment of the requisite relationship between the defendant and the tortfeasor is the key to vicarious liability. It does not displace the personal liability of the tortfeasor. It merely provides the plaintiff with an alternative defendant who is more likely to be solvent, to have liability insurance, or to be able to spread the loss in some other way. The most common relationship giving rise to vicarious liability is that of master and servant or, in more modern language, that of employer and employee. Vicarious liability also applies to the relationship of principal and agent. These two relationships may be contrasted with those of employer and independent contractor, parent and child, bailor and bailee, and trustee and beneficiary, which do not normally give rise to vicarious liability.

1) Employer and Employee (Master and Servant)

An employer is strictly liable for the torts of her employees committed within the course of their employment. The vicarious liability of an employer has been justified on a number of grounds. First, the employer has the power to select, supervise, and control employees so as to minimize the risk of wrongdoing and the risk of damage. Second, the employer takes the benefits and profits of the business enterprise and should, therefore, also absorb the losses generated by the wrongdoing of those who are an integral part of that enterprise. Third, vicarious liability may encourage employers to adopt safe practices and accident prevention measures. Fourth, employers are in a better position than employees to pay judgments and provide real compensation to victims. Fifth, employers are in a better position to absorb or spread the loss suffered by third parties. Employees, who do not normally carry liability insurance, are not good loss distributors.

a) Employees and Independent Contractors

The traditional test to distinguish an employee from an independent contractor is the control test. [Note 38: Performing Right Society Ltd. v. Mitchell & Booker (Palais de Danse ) Ltd., [1924] 1 K.B. 762. ] An employee is a person who is under the direct control and supervision of the employer who is empowered to tell the employee how, when, and where to do the work. Waiters, retail clerks, construction workers, agricultural workers, industrial workers, and bus drivers are typically employees. Independent contractors are not under the employer's control. They are hired to complete a particular task and are controlled by the terms of their contract with the employer, not by the personal instructions of the employer. Plumbers, accountants, automobile mechanics, builders, and painters typically operate as independent contractors. The control test is not, however, easy to apply in a modern economy. It is, for example, difficult to accommodate professional and highly skilled employees within the control test. Their skills and expertise may be far superior to those of their employer and it is unrealistic to suggest that the employer can direct them as to how to do their work. Nevertheless, the courts have shown no desire to exclude these employees from the scope of vicarious liability. The issue has been addressed in three ways. First, there has been some loosening of the control test. Less emphasis is placed upon actual control over the manner in which the work is done, and more emphasis is placed on the supervisory power to control what work is done, when it is done, and where it is done. Second, the courts have identified other typical characteristics of the employment relationship. An employee usually uses the employer's tools, equipment, and facilities and often works at the employer's premises. Conversely, an independent contractor normally uses his own tools and equipment and does the work at various locations. An employee is normally paid by wage or salary. The independent contractor's remuneration is often paid by way of lump sum on completion of a discrete task. Furthermore, the independent contractor, unlike most employees, is in business on his own account and is, therefore, in a position to make a profit or loss in respect of the services or product provided to the employer. [Note 39: Montreal (City of) v. Montreal Locomotive Works Ltd. (1946), [1947] 1 D.L.R. 161 (P.C.)] Third, an alternative or supplementary test, known as the organization test, [Note 40: Stevenson, Jordan & Harrison Ltd. v. MacDonald & Evans (1952), 1 T.L.R. 101 (C.A).] has been developed. It concentrates on the degree to which the tortfeasor is integrated into the employer's business enterprise. An employee is commonly integrated into his employer's business. An independent contractor is usually a discrete and independent business. These modifications have contributed to an expansive definition of the term "employee" and have insured the continuing vitality of vicarious liability in tort law.

Occasionally the courts have had to address the problem of the "borrowed servant." It arises where an employer allows another business to second temporarily one of its employees. There is a weak factual presumption that the original employer remains vicariously liable for the torts of the borrowed servant but ultimately it is a question of who has control of the employee. Relevant factors in this determination include the nature and duration of the secondment, who has the power of dismissal, who pays the employee, and whose equipment and tools are being used to do the work. The leading case is Mersey Docks & Harbour Board v. Coggins & Griffiths (Liverpool) Ltd., [Note 41: [1947] A.C. 1 (H.L.).] where the defendant hired out a crane and its operator to a stevedoring company involved in unloading ships. The House of Lords adopted the control test and concluded that the operator was not an employee of the stevedoring company. The stevedoring company could direct the operator of the crane to perform certain tasks but it did not have any power over the manner in which the crane was operated or over the operator himself.

It is possible for an employee to have two employers, in which case they are both jointly and severally liable for torts committed in the course of employment. This arises most commonly in a partnership where each partner is an employer of the partnership's employees. The federal government and a church have also been found to be the joint employers of an employee who abused a student in a residential school run by them. [Note 42: B.(W.R.) v. Plint (1998), 161 D.L.R. (4th) 538 (B.C.S.C.).]

Remuneration is not an essential element of an employment relationship for the purposes of vicarious liability. Volunteers working for charitable organizations, public institutions, and sporting associations may be employees. The essential criterion is control and in many circumstances that requirement will be satisfied.

Difficulty and uncertainty in the application of the control test are to be expected. It was conceived in a simpler economy and some effort has been needed to facilitate its application to modern commercial hiring arrangements. Moreover, the current reorganization of the economy will not simplify the task. The long-term employment relationship epitomizing ongoing and personal control of workers is giving way to contracting out, term positions, casual work, and employment relationships where employer and worker are linked only by computer. Future innovative hiring and work relationships will present increasing challenges to the traditional concepts. It is likely, however, that the courts will mould the principles of vicarious liability to these new relationships because the strong policy factors that support them are unlikely to diminish.

b) The Course of Employment

An employer is not liable for all the torts of its employees. There must be some connection between the wrongdoing and the employment relationship. This requirement is captured by the rule that the tort must have been committed in the course of employment. The employer is not, therefore, liable for torts committed by the employee at home or in sporting and recreational activities.

The phrase "course of employment" has not, however, been interpreted narrowly. It covers most tortious acts that are broadly incidental or related to the employment function. Any wrongful or unauthorized mode of carrying forward the employment function is normally within the course of employment. Conduct that is unrelated to, and distinct from, the employment function is not within the course of employment. An illustration can be drawn from the activities of a nurse in a hospital setting. Routine negligence ranging from medication errors, failing to report a patient's symptoms, and lapses in sterile procedures are all unauthorized and wrongful modes of performing the nursing function and the employer hospital will be vicariously liable. Conduct that is independent of the normal nursing function, such as negligence when acting as a private nurse on days off, involving a patient in a fraudulent commercial venture, and carrying out techniques that are clearly to be performed solely by physicians, are outside the course of employment.

Employers sometimes give clear instructions or prohibitions in respect of the employment function. When a tort is committed as a result of the employee failing to follow those directions, the employer may argue that the tortfeasor was not acting in the course of her employment. The courts have addressed this issue by drawing a distinction between prohibitions about how the work is to be done and prohibitions about what work is to be done. Express prohibitions relating to the manner in which the work is to be done do not insulate the employer from vicarious liability. If this was not the case, employers would defeat the doctrine of vicarious liability by issuing express prohibitions against any wrongful or negligent conduct in the workplace. Prohibitions and directions that seek to define the sphere of employment or the nature of the task or work to be carried out will normally protect the employer from vicarious liability. The line between the two is not always easy to draw. In Canadian Pacific Railway Co. v. Lockhart, [Note 43: [1942] A.C. 591 (P.C.).] the defendant employer issued an express prohibition against the use of uninsured motor vehicles when employees were on company business. The employee, a carpenter who worked at different locations throughout Toronto, used his own uninsured car to drive to job sites. His negligent driving injured the plaintiff. The Privy Council held that the instruction related to his conduct within the course of employment. It did not limit the sphere of employment or the task to be carried out. The employee was not forbidden from driving a car, merely from driving one that was uninsured. The defendant employer was liable to the plaintiff.

It is difficult to establish the employer's liability for the intentional wrongdoing of an employee. Deliberate wrongdoing is intuitively outside the employee's scope of employment. Nevertheless, employers have been held liable for both intentional and criminal acts of their employees. There are cases where bar owners have been held liable for batteries committed by their employees against patrons. [Note 44: See, for example, Evaniuk v. 79846 Manitoba Inc. (1990), 68 Man. R. (2d) 306 (Q.B.). This case was discussed in chapter 1.] Vicarious liability has also been found where employees have stolen the property of customers and have committed fraudulent acts solely for their personal benefit. [Note 45: See, for example, Lloyd v. Grace, Smith & Co., [1912] A.C. 716 (H.L.).] A security company has been found liable for the arson of one of its guards, which damaged the property that he was supposed to protect. [Note 46: British Columbia Ferry Corp. v. Invicta Security Services Corp. (1998), 167 D.L.R. (4th) 193 (B.C.C.A.).]

Recently the Supreme Court addressed the issue of intentional wrongdoing in two cases of sexual assault of children by employees of non-profit organizations. In Bazley v. Curry, [Note 47: [1999] 2 S.C.R. 534 [Curry].] the employer ran two residential facilities for emotionally troubled children between the ages of six and twelve. The role of the employees was to act as substitute parents to the children. They were responsible for the physical and emotional well-being of the children and they were involved in such intimate activities as bathing the children and putting them to bed. One of the employees committed a series of sexual assaults against the plaintiff in the residence. McLachlin J., speaking for the whole Court, held that the employer was vicariously liable for the sexual assaults that took place. The Court chose to de-emphasize the conventional terminology of "scope of employment" and "unauthorized modes of doing authorized tasks." It favoured a two-step approach. A court must first determine if the situation is controlled by unambiguous precedent, in which case it must be applied. In the absence of such authority, the decision turns on policy considerations, namely, the justice and fairness of allocating the loss to the employer and the contribution that vicarious liability would make to the deterrence of future harm. As a general rule, these policy factors support the principle that the employer is liable where he placed the employee in a position that created or enhanced the risk of the wrongful act. It is not sufficient that the employer provided the opportunity for the wrongdoing. The employer's enterprise and the power given to the employee must have materially increased the risk of the wrongdoing. This provides a sufficient connection between the employment and the wrongful act. The relevant factors to be taken into account in applying this test include the opportunity afforded the employee to abuse his power, the extent to which the wrongful act may have furthered the employer's aims, the extent to which the act was related to friction, confrontation, or intimacy inherent in the employer's enterprise, the extent of the power conferred on the employee in relation to the victim, and the vulnerability of potential victims to the wrongful exercise of the employee's power. In Curry the test was clearly satisfied. The employer authorized the employee to undertake a parental, intimate, and nurturing role that materially increased the risk of abuse.

The scope of the Court's ruling in Curry was brought into sharper focus by its decision in the companion case of Jacobi v. Griffiths. [Note 48: [1999] 2 S.C.R. 570 [Griffiths].] In that case the employee was the program director for a Boys'and Girls' Club that provided recreational after-school activities for children who lived in the community. The employee developed a friendship with the plaintiff brother and sister, which led to a series of sexual assaults, most of which took place after-hours in the employee's home. The Court was unable to agree on the application of the "enterprise risk" test outlined in Curry to these facts. The majority, in a decision written by Binnie J., distinguished Curry and refused to impose vicarious liability on the employer. It emphasized the importance of a strong connection between the enterprise risk and the sexual assaults. The nature of the employment must have significantly increased the risk of sexual assaults. In its view, the employer provided access to the plaintiffs and the opportunity to commit the sexual assaults but there was not a sufficiently strong connection between the kind of risk created and the nature of assault to warrant vicarious liability. The role of the program director was to establish a rapport with the children, to be their friend, and to provide adult mentoring. It was not to develop a parental, intimate, or nurturing relationship similar to that in Curry. The majority was also influenced by a concern that a finding of vicarious liability would threaten to impose an undue burden on all non-profit organizations whose activities involve some interaction between adult employees and children and would be inconsistent with current judicial opinion on the limits of vicarious liability for sexual abuse. In her dissenting opinion, McLachlin J. held that the facts of the case fell comfortably within the scope of the principle in Curry. She emphasized the role of the club in providing care and protection for vulnerable children, the power and influence engendered by the position held by the employee, and his ability to build a trusting and intimate relationship from that position. In her view, the employer had sufficiently increased the risk of sexual assault to warrant a finding of vicarious liability.