Employer Liability
The issue of whom should be named as a respondent in a human rights complaint is regrettably complicated.1 The answer to this question depends very much on the statute of the relevant jurisdiction and also the nature of the remedy which is sought.
The common law principle of vicarious liability may lead to the conclusion that the employer is legally responsible for the acts of its employees which take place in the course of employment. 2 [2]
Statutory Liability
However, most human rights statutes now deem that the company is responsible for the actions of its employees, officers and directors in that circumstance. Absent such a provision in the relevant statute, the leading case on this subject has also determined that the employer should be responsible for human rights violations of its employees in the course of employment.3
B.C. is an example of a jurisdiction which does not have such a statutory provision dealing with or in any way qualifying employer liability. Accordingly, the relevant law is the common law by which the employer is responsible, in a human rights context, for all acts of its employees committed in the course of the employment relationship.4
The law is the same as in Saskatchewan, Nova Scotia, PEI, Newfoundland & Labrador, NWT, Nunavut and Quebec.
Ontario’s act creates for most violations deemed employer liability but denies its application to a sexual harassment case. This statute 5 deems the employer responsible for the conduct of its officer, official, employee or agent in the course of their employment.
This provision, however, does not apply to freedom from harassment in the workplace, 6 sexual harassment in the workplace 7 and sexual solicitation and freedom from reprisal connected to sexual solicitation. There hence is no deemed liability upon the employer for wrongdoings under these remedy sections. The personal offenders must be added as respondents in these contexts.
Thus, under the Ontario Code, the deeming provision holding the employer responsible for the acts of its employees, agents or officers, does not apply to sexual harassment. Such a complaint must be brought personally against the individual who is accused of the offensive conduct.8
Employer Statutory Defence
Other jurisdictions have allowed the employer what is essentially a “due diligence” defence to the complaint on this issue of vicarious liability.
Manitoba provides such an example. It has enacted legislation which defines the concept of employer liability for the acts of its employees. Provided that the conduct was in the course of employment, the employer is deemed responsible. The employer may, however, show a defence by proving:
1.It did not consent to the conduct; and
2.It took all reasonable steps to prevent it; and
3.It then took all reasonable steps to minimize or avoid the effect of the offensive actions.
The substance of this provision is repeated in the legislation of the Yukon and Canada. This defence applies to all instances of a code violation. For the employer to defend such a proceeding, the first step would be the implementation and circulation of a human rights and harassment policy.
New Brunswick has similar legislation with respect to only a complaint of sexual harassment, which deems the actions of the employee to be those of the employer, and then allows the employer a defence of showing it used due diligence to prevent such conduct.9
This does not, however, end the analysis of employer liability.
Directing Mind
This concept of “organic liability” provides an argument that the employer company is responsible for the conduct of its principals. It is different from vicarious liability. The theory is that a legal entity can only act through its principals and hence the company will held liable for such conduct of its “principals” or “its directing mind” in a sexual harassment case, or a similar situation where the statute’s deeming provision of liability upon the employer does not apply.
This is essentially what New Brunswick codified in its legislation. There is no need, however, for the relevant statute to state this concept within the statute.
The persons who act as the “directing mind” of the corporation will not only allow for the liability of the corporation for their actions 10 but will also attract personal liability. 11 This is true for all human rights cases in all jurisdictions.