Test for Distinguishing Between Independent Contractors and Employees 3

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Table of Contents

Joint Tortfeasors 2

Vicarious Liability: 2

Test for distinguishing between independent contractors and employees 3

Test for “Course of Employment” 4

Test for Employer Vicarious Liability in cases of institutionalized sexual abuse 4

Joint and Several Liability 5

Contributory Negligence 5

Trespass Torts 7

Assault 7

Battery 7

False Imprisonment 8

Intentional infliction of mental suffering Tort 9

Defences to Trespass Actions 9

Infancy 9

Self-Defence and Defence of others: 10

Consent: 10

Consent in Medical Battery 11

Informed Consent: 11

Children and Consent 12

Fiduciary Duty 12

Consent in Sexual Battery Cases 13

Limitation Periods 13

Issues in Tort Law 15

Objectives of Tort Law 15

Civil Actions for sexual assault in context 15

Stalking 16

Harassment 16

Consent and Fraud 16

Liability of the other Parent 16

Sexual Abuse Cases in Context 17

Norberg v. Winrib (1992) SCC 17

Non-Marine Underwriters v. Scalera SCC 2000 17

Oblates 18

Wrongful Sterilization 19

Children and Mature Minor Consent 19

Joint Tortfeasors

·  Agent who commits a tort within the scope of her/his principle

·  Employee and Employer within the scope of her/his employment

·  Two people who agree on a common purpose and one of them commits a tort to further that action (Cooke)

·  When people set out on a common action that is lawful and could be undertaken without negligence, members of the party are not liable for the negligence of any one member. (Cooke)

o  A “shared bag is not sufficient evidence that were acting together to commit the tort

Vicarious Liability:

Policy Considerations for Vicarious Liability

·  Fair Recovery

o  Spread liability to someone who can compensate plaintiff

o  Employer puts enterprise into community and therefore should assume risk

o  A person who employs others to advance own economic interests should have liability of losses in course of enterprise .

o  An employer is often better able to spread the loss through insurance

·  Deterrence of future harm

The relationship

·  If the requisite relationship is established by the plaintiff on a balance of probabilities, a party who has not necessarily done anything wrong may be held vicariously liable. This a strict liability, meaning the party held vicariously liable may not have done anything wrong (Sagaz). Plaintiff must also prove that the tortuous conduct was in the agent’s authority or in the scope of the employee’s employment. (Osborne)

o  The Common types of relationships are:

§  Employer and Employee acting within the scope of their employment

§  Principle and Agent (acting within their authority as an agent)

o  Does not usually include:

§  In cases of employer and independent contractor the relationship is normally not sufficiently close enough to be a situation of vicarious liability (Sagaz)

§  At common law parents are not vicariously liable. Parental Responsibility Act ss. 3 and 6 changes this by putting presumption of parental fault for intentional property damage of up to 10,000 for their. Considers factors such as age of the child, behaviour of parent etc.

§  Trustee and Beneficiary (Osborne)

§  Hospitals and doctors with hospital privileges (Yepremanian)

ú  This may not be true in cases where the patients at a hospital have no choice of who their doctor is (Jamon)

Test for distinguishing between independent contractors and employees

·  Was set out by the SCC in Sagaz. The key question the court considers is whether the worker is acting as a person in business on their own account. While doing so the court considers factors such as

o  level of control the employer has over the worker’s activities

o  Whether worker provides own tools

o  whether worker hires own helpers

o  degree of financial risk taken on by worker

o  degree of responsibility for investment and management of the employer’s resources

o  worker’s opportunity for profit in the performance of his or her tasks

o  The above list is a non-exhaustive list

o  Factors In Sagaz:

§  Consulting business had its own offices,

§  paid all expenses of conducting business

§  was free to represent other suppliers that were not direct competitors

§  worked on commission of sales of Sagaz’s products

§  Sagaz controlled what was done, AIM controlled how it was done

·  Foster parents are not employees of the government (K.L.B.) since the government does not exercise sufficient control of the daily activities of the foster parents

·  An employee can have more than one employer (Blackwater)

·  In cases of secondment there is the presumption that the primary employer is vicariously liable but ultimately the test is who has control of the employee (Osborne). This includes:

o  The nature and duration of the secondment

o  Who has the power of dismissal

o  Who pays the employee

o  And whose equipment and tools are being used to do the work

Test for “Course of Employment”

·  Traditionally employers were held vicariously liable if the acts of the employees were authorized by the employer or the unauthorized acts were improper “modes” of performing authorized acts. A distinction was made between prohibitions about how the works is done and prohibitions about what work is to be done (Salmond Test)

Test for Employer Vicarious Liability in cases of institutionalized sexual abuse

The SCC in Bazley recognized that the traditional scope of employment test was not sufficient in cases of institutionalized sexual abuse. The Court therefore created the enterprise risk test. This means that the employer will be vicariously liable if the employer’s enterprise created or materially enhanced the risk of the wrong

·  The first step of this test is for courts to determine whether there are unambiguous precedents that determine whether or not vicarious liability should be apportioned

·  If there is no clear precedent then the court will determine if vicarious liability should apply in consideration of the underlying policy rationales behind strict liability. These policy rationales include fair recovery and deterrence

·  When considering both steps of this test the court may consider (non-exhaustive or determinative list)

o  (a) The opportunity that the enterprise provided the employee to abuse his or her power.

o  (b) The extent to which the wrongful act may have furthered the employer’s aims.

o  (c) The extent to which the wrongful act was related to friction, confrotation or intimacy inherent in the employer’s enterprise.

o  (d) The extent of power conferred on the employee in relation to the victim. (e) The vulnerability of potential victims to wrongful exercise of employee’s power.

Oblates

·  Maj. Seems to suggest that the list of factors should be treated as a non-exhaustive list. Narrows the Bazley test.

Joint and Several Liability

·  Where two or more people are found to be at fault they are jointly and severally liable (s. 4(2)(a) of Negligence Act)

·  Plaintiff can collect global damage from one defendant and then

·  it is up to that defendant to collect from other defendants (s. 1(2)(b))

·  When 2 or more people are at fault damages are apportioned in proportion to the degree each person was at fault (s. 1.1)

·  If Court doesn’t have enough evidence to decide degree of apportionment than is divided evenly between at fault parties s. 1(2) Negligence Act

Contributory Negligence

·  In BC only: A contributory plaintiff is required to recover from defendants separately (defendants are not considered jointly and severally liable) 4(2)(a) of Negligence Act, so plaintiff bears loss if one defendant is insolvent. Plaintiff is not considered an innocent.

·  Possible Situations:

o  Plaintiff’s negligence was cause of harm

o  Plaintiff’s actions put them in situation whether there was foreseeable harm from the plaintiff’s actions

o  Plaintiff did not take reasonable precautions to protect themselves

o  Some Factors:

§  costs of preventive measures

§  likelihood of damage

§  plaintiff’s conduct

§  exigent circumstances

·  Trend: Contibutory negligence is being extended to actions that the plaintiff did not take, although courts are still reluctant to do this

·  Since most people don’t have 1st party liability insurance Courts tend to not award large percentage of fault to plaintiff

·  Courts are going to apportion more liability to the person who took the most risk (Cycling example: Person not wearing helmet but otherwise obeying traffic rules suffers brain injury when hit by negligent driver. Driver still is apportioned more liability because their actions caused the accident

Trespass Torts

·  Intentional Action: intended or substantially certain to result, or Negligent (CN)

·  Direct (no intervening act)

o  Directness test: Would the result have occurred had it not been for the intervention of another independent agent (including actions of the plaintiff)? (CN)

·  Actionable without damages (CN)

·  Partial Reverse Onus (Cooke): Plaintiff has to prove direct interference, after that then onus of proof shifts to defendant.

·  Defendant can avoid liability by proving that the action was not intentional and was not negligent (CN)

Assault

An assault is a reasonable awareness on the part of the victim of an immediate or imminent battery. The plaintiff must have received warning of the immediate attack and does not matter whether the defendant had the means or the intent to follow through with the action. It can either be intentional, meaning the threat was intended or substantially certain to result or negligent. (Osborne). The legal wrong committed is disturbing the plaintiff’s sense of security.

·  Negligent: if defendant unreasonably didn’t think of the risk of apprehension (doesn’t necessarily mean fear)

·  Unless Plaintiff was completely unaware of the impending battery a battery includes assault

·  Immininent: Up to two chairs away is considered immediate enough (Stephens)

Battery

A battery is a direct, offensive physical interference that is harmful or offensive to a reasonable person. It is a violation of the victim’s personal autonomy and there is no need for the plaintiff to prove damages (Scalera). It can be intentional, meaning there was a subjective intent to contact or the contact was substantially likely to occur (Scalera), or negligent, which is unreasonably disregarding the risk of contact (Dalhberg). There is a partial reverse onus, the plaintiff must prove that the contact occurred and the defendant must prove that either the contact was not intentional or negligent or the plaintiff had consented (Scalera). The defendant is liable for all consequences that flow from the contact (Class Notes).

·  Compensation stems from the violation to personal autonomy (Scalera)

o  Includes shooting, throwing object etc.

·  Must directly interfere with the body or something that is an extension of the person (Class notes)

·  Defendant liable for all consequences, not just those that are foreseeable

·  Offensive: Social context matters to determine if there is implied consent (depends on courts’ definition of offensive) (CN)

·  Contact doesn’t have to be harmful (affirmed in Scalera)

·  Partial Reverse Onus: Cooke confirmed in Scalera Burden of proof on defendant to show that harm was not intentional

o  Required because of directness requirement of trespass torts

o  Defendant might have evidence that is unavailable to plaintiff

o  With the directness requirement there are high demoralization costs for the plaintiff

False Imprisonment

False imprisonment is a confinement of plaintiff within physical or mental boundaries set by defendant without lawful authority (Nolan). It Protects personal liberty and freedom of movement. The imprisonment must be total (Bird). Likely the plaintiff does not have to be aware of the false imprisonment (Osborne). It is generally intentional (Class Notes). The plaintiff must prove imprisonment and than it is up to the defendant to prove that the authority was lawful.

·  The lawful authority must be exercised lawfully (Lumba)

o  Although the published policy would have allowed detainment the office was following an unpublished and therefore unlawful policy, when the plaintiffs were detained

·  Includes if

·  a person is intimidated into going with a police officer or security guard who does not have lawful authority, for questioning by shows of authority, fear of embarrassment, or is fearful of the consequences of disobeying (Osborne)

·  Action for false imprisonment available to persons that are detained by police without reasonable and probable grounds (Nolan)

o  Plaintiff was status Indian, he had the same name and birth date as someone with three outstanding warrants for arrest.

o  Arresting officers had lawful authority but once they got to the police station the officers there should have quickly realized that he did not match the description for the person with the outstanding warrants.

o  Court determined he was detained because he was aboriginal

Intentional infliction of mental suffering Tort

This is a hybrid tort that combines elements of trespass and negligence. It applies when an act or statement was intended or calculated to produce harm and is both objectively and subjectively harmful. The plaintiff’s reaction has to be objectively reasonable unless the defendant knew or should have known about an unusually sensitive nature of the plaintiff. The burden of proof is on the plaintiff to prove the harm (Wilkinson). It applies to outrageous conduct that is not a threat of battery and that goes beyond “mere insults” (Nolan)

·  Involves outrageous act that is not threat of battery. Extreme conduct that goes beyond mere insults. (Nolan)

o  Factors:

§  Derogatory and racist comments

§  relationship between police officer and Nolan (position of authority)

§  discrimination based on race

§  constructive intent to produce harm

§  In Nolan: Did not require objective medical evidence. Trend: recent cases show a relaxing of traditional requirement for objective medical evidence

Defences to Trespass Actions

Onus on the defendant to prove that s/he did not

·  Negligently disregard the risk of contact and

·  Did not Intentionally cause the contact

The defendant can also avoid liability if s/he can prove that the plaintiff was able to and did consent to the contact

Accident Defendant could not have reasonably foreseen the outcome or did not intend the action (contrast with an act committed by mistake: defendant intended the outcome but was mistaken about facts, will not usually avoid liability (possibly in defence of other situations) (Osborne)