Canada: Collaborative Care And Vicarious Liability

Collaborative care is the practice of healthcare professionals from different specializations working together to provide the best possible care for their patients. Oftentimes these specializations include allied healthcare professionals working alongside each other and others in facilities such as private healthcare facilities, public community health centres, and hospitals. Given the collaborative and team-based approach to care utilized by these facilities, in the event of an injury to a patient it is common for all professionals and institutions who were involved in the treatment of that patient to be named as defendants in a medical malpractice lawsuit. Therefore, it becomes especially important in collaborative care environments for all parties to have adequate liability coverage and for the care team to be set up in such a way so as to limit exposure.

This paper seeks to provide an introduction to vicarious liability in Canada, the applicability of joint and several liability, and the impact of these general principles in the collaborative care context. In so doing, we will review medical malpractice jurisprudence in which the court considered whether professionals and institutions should be held liable for the acts of others.

Primer on Vicarious Liability in Canada

Vicarious liability is the imposition of tort liability on a party who, while related to the negligent party through a specific relationship, did not actually commit the negligent act.1 Vicarious liability commonly arises with respect to the employer-employee relationship, wherein it has been held that employers can be held vicariously liable for the acts of their employees.

The test for establishing vicarious liability has been well defined by the courts. Firstly, an employment relationship must have existed between the negligent person and the facility or employer. Secondly, the employee must have been acting within the scope of his or her employment. In other words, a plaintiff need not prove that the employer authorized the act complained of, but merely that it was done while the employee was carrying on the business of their employer.2 If the employee is acting a manner that so clearly falls outside of the scope of what it is that they are employed to do, then this portion of the test will not be met.

In assessing whether to make a finding of vicarious liability, the court will consider a number of factors. These factors include:

  • the level of control that the employer had over the employee,
  • any agreements which describe the relationship between the parties, and
  • any requirements in place with respect to the employee's obligation to follow the employer's policies and procedures.

With few exceptions, an employer is generally not vicariously liable for the acts of an independent contractor. In Canada, many attending physicians in hospitals are independent contractors; therefore any negligence on the part of an independent attending physician would not vicariously extend to the hospital. The finding as to whether a particular person is an employee or an independent contractor is therefore of paramount importance and, in Ontario, is dealt with by way of Application to the Workplace Safety and Insurance Board (commonly referred to as the "WSIB").

Interestingly, when an independent attending physician is conducting an operation, the nursing staff under their supervision are usually considered to be outside the control of the hospital, and therefore not acting as servants of the hospital for the duration of the operation. In a 1909 English case which is still frequently cited, Hillyer v St Bartholomew's Hospital, the hospital was found not to be vicariously liable for negligent acts of either the physician or of the nurses who were under his supervision.3

Joint and Several Liability

Ontario's Negligence Act4 (the "Act") makes clear that in the event that more than one tortfeasor causes or contributes and an indivisible injury, the injured party may recover the entirety of their damages from any individual defendant, notwithstanding their respective degree of fault. Section 1 of the Act states:

Extent of liability, remedy over
1. Where damages have been caused or contributed to by the fault or neglect of two or more persons, the court shall determine the degree in which each of such persons is at fault or negligent, and, where two or more persons are found at fault or negligent, they are jointly and severally liable to the person suffering loss or damage for such fault or negligence, but as between themselves, in the absence of any contract express or implied, each is liable to make contribution and indemnify each other in the degree in which they are respectively found to be at fault or negligent. R.S.O. 1990, c. N.1, s. 1.

In circumstances where not all defendants are insured, either adequately or at all, a plaintiff can be expected to seek recovery from the defendant that has adequate insurance coverage to satisfy the damages award, as opposed to seeking recovery from another defendant personally. The adequately insured defendant would then have to seek contribution from any other negligent defendants based on their respective degrees of fault. Given that regulated allied healthcare professionals, as well as the facilities that employ them, are generally adequately insured, it is important that they verify that their colleagues or other members of their care teams for whom they may be found vicariously liable are also adequately insured.

Collaborative Care Concerns

The goal of collaborative health is to have "the right workers with the right skills in the right place doing the right things" in order to improve health outcomes.5 Given the complexity of certain procedures and the number of allied healthcare professionals that may be involved in the care of a certain individual, there is a risk that tasks could fall between the cracks if healthcare professionals do not work to ensure proper communication and delineation of roles. While from a policy standpoint there is a view that patient care is a shared responsibility between all of the professionals within the collaborative care team, this is not necessarily so in the legal context. From a legal standpoint, it is important to outline who is responsible if a patient is injured or if something goes wrong.

General principles of vicarious liability in Canada apply in the healthcare field. Employers are typically responsible for the acts of their employees if the negligent employee was acting within the scope of their employment. This principle applies equally to hospitals that employ hundreds of health professionals and also to small clinics.

Case Study: Vicarious Liability in Hospitals

As with most areas of a hospital, health professionals in maternity wards must be prepared for rapid changes in patient conditions. In negligent perinatal care cases, doctors, nurses, midwives, and the hospitals that employ them are often sued for causing what can sometimes be catastrophic injuries to the mother and the newborn. In Steineback (Litigation Guardian of) v Fraser Health Authority, a pregnant woman delivered a baby who suffered from cerebral palsy resulting from a complete placental abruption right before the birth.6 The court found that the nurse failed to assess fetal heart rate and the doctor failed to call for an obstetrical consult before the delivery. The court apportioned 60% liability to the doctor, who was not an employee of the hospital, and 40% to the nurse and her employer. The court awarded $321,000 in general damages, $100,000 in special damages and home adaptation, $100,000 for the "in trust" claim, and $1,065,000 for loss of future earning capacity/loss of future earnings.

The vicarious liability of the hospital did not appear to be in dispute as the court spent no time analyzing same. One could infer that the starting point is to assume that a healthcare professional employee of a hospital, acting within the course and scope of their employment, will lead to a finding of vicarious liability as against their employer.

The doctor who was found to be 60% liable appealed the trial decision claiming that there was no causal link between the doctor's negligence and the injury since if the nurse had not been independently negligent and had called the doctor to the delivery room earlier, the doctor would have immediately delivered the infant. The British Columbia Court of Appeal dismissed the doctor's appeal but varied the quantum of the cost award. The court found that the doctor's argument failed to recognize the causal implications of her failure to properly assess the patient and properly direct the nursing staff. The court varied the cost award by lowering the award for loss of future earning capacity/loss of future earnings from $1,065,000 to $750,000. An application for leave to appeal to the Supreme Court of Canada was refused.

Case Study: Vicarious Liability in Private Clinics

Outside of hospitals, doctors frequently operate medical clinics and hire allied health professionals to provide a variety of health services. This was in the case in the Supreme Court of Canada decision in Guaranty Trust Co. of Canada v Mall Medical Group in which a patient re-fractured her knee-cap when she was undergoing treatment by a remedial gymnast.7 The remedial gymnast was an employee of Dr. Bruser and the Mall Medical Group. As was articulated by the Supreme Court of Canada, since no negligence was asserted against Dr. Bruser, a finding of liability as against Dr. Bruser and Mall Medical Group would be solely dependent on a finding that their employee, the remedial gymnast, was negligent. On finding that the remedial gymnast was negligent, liability was vicariously extended to his employer.

Employers will be vicariously liable for the negligent acts of all kinds of employees:

In T. (A) (Next Friend of) v Mah

A physician employer was held vicariously liable for a receptionist whose failure to accurately record an appointment date eventually lead to personal injuries of a mother and her newborn infant.8 The mother missed an appointment after the receptionist told her the wrong date, the physician did not follow up after the missed appointment, and the physician later tried inducing vaginal delivery when caesarian delivery was appropriate. Ultimately, vaginal delivery was not possible; the baby was born by emergency caesarian and sustained permanent and severe brain injury.

In Downey v Rothwell

A partnership carrying on a practice as Dr. W. O. Rothwell and Associates was liable for the negligence of a nurse employed by the practice.9 The nurse led the epileptic plaintiff to an examination room, placed her on an examination table, and left her alone. The plaintiff had a seizure, fell from the table onto the tile floor, and sustained personal injuries. The partners of the medical practice were vicariously jointly and severally liable for the nurses' negligence.

While it is advisable for employers to ensure that their health professionals carry insurance, it is not always required as the fact that an employee is insured does not nullify the usual principle of vicarious liability.10 In Guerrero v Trillium Dental Centre, the plaintiff was allegedly harmed during a teeth whitening procedure conducted by a dental hygienist. The court was "not persuaded that the mere fact that the employee has insurance, the scope of which is unknown, should nullify the usual principle that employers may be liable to third parties for the wrongdoing of their employees occurring within the scope of their employment." As discussed above, the existence of additional insurance policies, and collection of damages awards from those policies, would be the responsibility of the defendants as between each other and only once the plaintiff has been fully compensated based on the principle of joint and several liability.


Where there is an employer-employee relationship and an employee is acting within the scope of his or her employment, the employer will be held vicariously liable for the tortious acts of its employees. In the healthcare field, this commonly arises in the context of medical malpractice claims. While employee liability insurance coverage will not shield an employer from vicarious liability, it is nevertheless wise to ensure all allied health professionals are adequately insured to safeguard against situations in which defendants are under-insured. This is especially important in smaller practices. In the context of hospitals, attending physicians are often independent contractors. This may limit a hospital's vicarious liability exposure. Notably, not all attending physicians are independent contractors; increasingly, physicians are being hired as employees of hospitals and other facilities. In all cases, it is important to be aware of the corporate structure of the practice or institution, to define the roles of each health professional, and to be aware of the potential exposure to claims that may arise even without the direct involvement of a particular insured.


1 Klar, Tort Law, 2nd ed. (1996), p 478; Fleming, The Law of Torts, 9th ed (1998), p 409.
2 Klar, Supra note 1.
3 1909 2 KB 820 (CA).
4 R.S.O. 1990, c. N.1.
5 World Health Organization, The World Health Report 2006: Working Together for Health (Geneva: World Health Organization, 2006)
6 2010 BCSC 832, 190 ACWS (3d) 607.
7 [1969] SCR 541, 4 DLR (3d) 1.
8 2012 ABQB 777, 228 ACWS (3d) 570.
9 [1974] 5 WWR 311, 49 DLR (3d) 82.
10 2014 ONSC 3871, 241 ACWS (3d) 364.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions