Workplaces that condone employees' bad behaviour may be at greater risk of vicarious liability in light of a recent decision from the Supreme Court of British Columbia.
The Court recently certified a proposed class action seeking to hold a grocery store in Saanich, B.C., vicariously liable for the actions of an employee. In 2016, the store's former assistant manager (the "Assistant Manager") pleaded guilty to several criminal offences related to surreptitiously taking photographs of up to 13 female employees, including both plaintiffs, while the employees were undressed in the washroom and staff room. The Assistant Manager uploaded those photographs to pornographic websites.
"Structural elements" in the workplace and vicarious liability
To certify a class proceeding, the plaintiffs were required to demonstrate that their pleadings disclosed a legal claim enforceable in court against the grocery store that had some basis in fact. The contentious issue in this case was whether the grocery store was vicariously liable for the Assistant Manager's misconduct.
The well-established test for vicariously liability is that an employer is liable for an employee's acts that it authorized, as well as unauthorized acts that are closely connected with the employee's authorized acts, duties and responsibilities. The grocery store's position was that neither of these requirements was met as the Assistant Manager's conduct was not authorized or foreseeable, and that opportunity alone is insufficient to establish vicarious liability.
The plaintiffs submitted that the workplace culture established by the owners and male managers condoned sexually charged and inappropriate behaviour, tacitly authorizing misconduct of a sexual nature that extended beyond the Assistant Manager's formal duties. The plaintiffs presented evidence that the owners and male managers created a sexualized work environment by commenting on women's bodies, making sexualized remarks and lewd comments, and failing to discipline inappropriate conduct of a sexual nature, including the Assistant Manager exposing himself to a female employee.
While there may not have been a strong connection between what the Assistant Manager was strictly authorized to do and his wrongful conduct, Justice Mackenzie was satisfied that vicarious liability was properly pleaded for the purposes of class certification — i.e., that it was not plain and obvious that there was no cause of action against the grocery store.
Burke suggests that the court may be moving toward a more expansive concept of vicarious liability that includes employees' acts that are effectively authorized by the conduct of management and the workplace culture established by an employer. Employers should be aware of and assess their workplace environment to ensure they are not indirectly condoning the wrongful acts of their employees.
However, a class certification is a preliminary proceeding and does not establish a binding precedent. We will have to wait to see if the plaintiffs in Burke are able to conclusively establish their case of vicarious liability against the grocery store on the merits.
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