The test for vicarious liability for sexual assaults and harassment is set out by MacLachlin J in Bazley v Curry and affirmed in Jacobi v Griffiths.
To find vicarious liability, the Court must determine whether there is "a strong connection between what the employer was asking the perpetrator employee to do (the risk created by the employer's enterprise) and the wrongful act. It must be possible to say that the employer significantly increased the risk of the harm by putting the perpetrator employee in his or her position and requiring him to perform the assigned tasks." In making its determination, the Court engages in the following exercise:
(1) It examines precedents to determine whether there are decisions in cases dealing with similar fact situations, which …show more content…
At para 41 of Bazley, McLachlin offers three principles to guide the analysis:
Concerning the opportunity risk created by the employment enterprise, it has been noted that cases wherein the employment only provides no more than a mere opportunity to commit the assault will not as a matter of principle support a finding of vicarious liability. In Jacobi at para. 45 Binnie J. comments as follows regarding 'the opportunity cases':
Balezy and Jacobin were applied in a recent Ontario Court of Appeal decision, Ivic v Lakovic. In Ivic the Court dismissed a claim against a taxi company whose driver allegedly sexually assaulted the appellant. The Court found that the alleged acts were only coincidentally connected to the taxi company, the driver’s actions were not related to the company’s aims, especially, since the company had rules that sought to prevent any physical contact with customers, and that the company did not confer any power on the driver over the appellant. The Court noted
To find vicarious liability, the Court must determine whether there is "a strong connection between what the employer was asking the perpetrator employee to do (the risk created by the employer's enterprise) and the wrongful act. It must be possible to say that the employer significantly increased the risk of the harm by putting the perpetrator employee in his or her position and requiring him to perform the assigned tasks." In making its determination, the Court engages in the following exercise:
(1) It examines precedents to determine whether there are decisions in cases dealing with similar fact situations, which …show more content…
At para 41 of Bazley, McLachlin offers three principles to guide the analysis:
Concerning the opportunity risk created by the employment enterprise, it has been noted that cases wherein the employment only provides no more than a mere opportunity to commit the assault will not as a matter of principle support a finding of vicarious liability. In Jacobi at para. 45 Binnie J. comments as follows regarding 'the opportunity cases':
Balezy and Jacobin were applied in a recent Ontario Court of Appeal decision, Ivic v Lakovic. In Ivic the Court dismissed a claim against a taxi company whose driver allegedly sexually assaulted the appellant. The Court found that the alleged acts were only coincidentally connected to the taxi company, the driver’s actions were not related to the company’s aims, especially, since the company had rules that sought to prevent any physical contact with customers, and that the company did not confer any power on the driver over the appellant. The Court noted