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EXTRA-CONTRACTUAL OBLIGATIONS/TORTS 2002-2003 Prof. LARA KHOURY - page 20 / 64

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McGill Faculty of Law: Extra-Contractual Obligations/Torts: Prof. Lara Khoury, 2002-03/Summary by Derek McKee

of working. If any of his employees had been injured, he would have been liable, not Quebec Asbestos. He was too autonomous to be considered an agent of Quebec Asbestos.

Part 3 of the civil law test, “in the performance of duties,” is extremely hard to prove, especially when the agent intentionally committed a wrongful act. Courts will ask: Whose interest was pursued in the wrongful act? If it was even partly in the principal’s interest, the principal can be held responsible.

Strictly speaking, it doesn’t matter whether the agent was acting criminally, disobeying orders, displaying incompetence, or acting outside the time and place of employment.

Dubé c. Havre des femmes Inc., [1998] R.J.Q. 346. (C.A.). (CB1p339)

Jurisdiction

Quebec

Facts

After a divorce, Laurette Dubé went to stay at Le Havre, a women’s shelter. She was looked after there by several caseworkers including Nicole Denis. Denis found out that Dubé had money from her divorce and invited Dubé to stay with her at home, using Dubé’s alcoholism to lure her. Once there, Denis and her husband convinced Dubé to “lend” her most of her money from the divorce. Dubé sued Denis, her husband and Le Havre jointly. The Superior Court allowed the action. Le Havre is appealing (Denis and her husband are not).

Issues

1. Was Le Havre at fault?

2. Was Le Havre responsible for Denis’s actions in the absence of fault?

Holding

1. No., 2. No. (The appeal was allowed.)

Ratio

1. Le Havre exhibited perfect diligence in hiring and training Denis, and it had no idea of her scheme; Denis worked hard to hide it from her employers. Therefore Le Havre could not be at fault under a.1053 CCLC.

2. There are three elements for establishing liability for the acts of employees in civil law (CCLC): the fault of the principal, the link between the principal and the agent, and the fact that the fault was committed in the context of carrying out one’s functions (“le fait que le faute ait été commise dans le cadre de l’exécution de ses fonctions”). The first two elements were certain. However,  Denis’s fault was not committed in the course of carrying out her work. Although she planned the scheme while she was at work, she only committed the actual fault once she had lured Dubé to her house. Also, her scheme did not benefit Le Havre in any way. So Le Havre could not be responsible under a. 1054, al. 7 CCLC.

Common law uses the “control test”: the courts ask whether the employee was under direct supervision, and whether the employee was told where, when and how to do the work.

This can be difficult in specialized professions.

Courts also look at who owns the tools, where the act took place, who profited from it, and other factors.

Part 3 of the common law test, “in the course of employment,” is also very difficult. Courts will use the Salmond test: They will distinguish:

authorized acts carried out in an unauthorized mode (even if wrongful, intentional, criminal)

from

conduct so unconnected to the employee’s work as to be separate from it.

Bazley v. Curry, [1999] 2 S.C.R. 534. (CB1p344)

Jurisdiction

British Columbia

Facts

While he was working for the non-profit Children’s Foundation (in one of its homes), Curry sexually abused a child, Patrick Bazley, who was living in the home. Curry was convicted; Bazley is now suing the Children’s Foundation.   

Issues

The court (opinion delivered by McLachlin J.) framed the issues thus:

“1. May employers be held vicariously liable for their employees’ sexual assaults on

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