Employer’s vicarious liability is an established doctrine in the common law that attributes liability to employers for the negligence of their workers. If an employee was negligent during the course of his or her work, the victim may claim damages against the employer. The doctrine is beneficial from a public policy perspective because it encourages employers to carefully train their workers and it helps ensure that victims will be fully compensated for their losses, among other things.
Employer’s vicarious liability, however, does not preclude victims from also seeking damages against employees who are negligent. A recent Court of Appeal decision has confirmed that an employee may still be held liable, along with the employer, even if he or she was negligent during the course of their employment.
In the case of Sataur v. Starbucks Coffee Canada Inc., 2017 ONCA 1017, the minor plaintiff, Abigail Sataur, was injured at a Starbucks in Brampton when the barista poured hot water on her hands. She commenced a lawsuit against Starbucks, the barista, and the store manager who, she claimed, had not properly supervised the barista. At first, Starbucks was successful in having the motion judge strike the action against the barista and manager. The motion judge ruled that Starbucks’ vicarious liability precluded its employees from being held liable, and that naming the manager and barista as defendants in the action was an abuse of process because its only purpose was to obtain evidence from them through discovery.
ONTARIO COURT OF APPEAL’S DECISION
On appeal, the Court of Appeal set aside the motion judge’s order and ruled that the barista and manager could be named as defendants, together with Starbucks, on the Statement of Claim. The Court quoted Justice McLachlin’s firm statement on this issue from the seminal case of London Drugs Ltd. v. Kuehne & Nagel International Ltd., 1992 CanLII 41 (SCC),  3 S.C.R. 299: “It has always been accepted that a plaintiff has the right to sue the person who was negligent, regardless of whether the employee was working for someone else or not.” In other words, so long as the employee was negligent, he or she could be sued too along with the employer.
With regards to the motion judge’s finding that there had been an abuse of process, the Court held that naming the employees as defendants solely for the purpose of obtaining discovery was actually quite appropriate in a case like this as there was a reasonable cause of action. The barista and manager were not merely coworkers who had happened to witness the events giving rise to the lawsuit. They were, allegedly, directly involved and responsible.
As noted, the doctrine of employer’s vicarious liability achieves several important public policy goals. One drawback, however, is that it could lead employees to be less careful at work. Perhaps that is why the Courts have allowed plaintiffs to also sue employees who are negligent in the course of their employment, despite their employers’ vicarious liability. The above-discussed case is a reminder that employees could be held liable too, together with their employers, whenever there is a reasonable cause of action, and that it still pays for them to be very careful at work.