Employer Faces Vicarious Liability Claim by Employee for Sexual Assault
August 18, 2015
A defendant/employer unsuccessfully tried to stymie a claim by an employee that it was vicariously liable for violence committed by another one of its employees.
The plaintiff employee (“Employee”) was a maintenance worker with a theme park (the “Employer”). The Employee alleges that in the summer of 2013 her supervisor (the “Supervisor”) made sexual advances toward her, all of which were rejected, and threatened job action if she reported his behavior. At an end-of season staff party, the Employee claims that she was sexually assaulted by the Supervisor, as well as forcibly confined when he entered her car without consent and forced her to drive around while he assaulted her. On the night of the staff party, the Employee contacted police and the Supervisor was charged criminally with sexual assault and forcible confinement.
The Employee brought a civil action against the Supervisor, but also claimed damages against the Employer for sexual harassment, sexual assault, battery, false imprisonment and intentional and/or negligent infliction of mental suffering. She claimed that the Employer was liable for a number of reasons, including the fact that it hired an employee with a violent criminal history and put him in a supervisory role; failed to supervise employees in general and specifically at staff functions; failed to train and instruct employees on issues of sexual harassment, sexual assault and proper conduct in the workplace; allowed an unstructured and unsupervised party on its premises where it supplied alcohol; and generally enhanced the risk that vulnerable employees could be subject to harmful activity.
The Employer brought a motion for an order striking out the Employee’s claim and dismissing the action against it on the grounds that it disclosed no reasonable cause of action.
On the question of the Employer’s vicarious liability, the Court analyzed the two-stage test set out in prior case law. The first step required the Court to explore whether factually similar cases established, without a doubt, that vicarious liability should be imposed. The Court found that no such precedent existed here. At the second stage of the test, the Court must ask whether there was a connection between the employment enterprise and the wrong committed that justified imposing vicarious liability on the employer, in terms of fair allocation of the consequences of the risk and/or deterrence. The employer must ‘materially enhance the risk’ before it is reasonable to hold it vicariously responsible for wrong acts.
On the facts as pleaded, the Court noted that a staff party is obviously connected to the Employer, and because it was held at a large waterpark supervision was difficult if not impossible. The Employer also permitted alcohol consumption, without any controls. Although the Employee at this stage in the court proceeding had not established that the Employer was vicariously liable for the acts committed by the Supervisor, the Court was not prepared to strike the claim on the basis that it disclosed no reasonable cause of action.
The Court did, however, hold that sexual harassment is not an independent tort recognized in law and therefore cannot support a cause of action in the civil courts. Rather, such a claim comes within the exclusive jurisdiction of Ontario’s Human Rights Code. The Court struck this part of the Employee’s statement of claim.
K.L. v 1163957799 Quebec Inc., 2015 ONSC 2417 (CanLII)