A Comparative Look at Vicarious Liability for Intentional Wrongs and Abuses of Power in Canadian Law

Abstract

This paper examines the theoretical underpinnings of vicarious liability in the Canadian common law as well as in Quebec’s civil law tradition. It then goes on to trace how each legal tradition has responded to employees’ intentional wrongdoing. More specifically, the paper analyses the scope of employment in cases of fraud, theft and sexual violence. The paper then identifies a developing trend in Quebec’s law through which judges adopt the approach of the common law in an attempt to find liability where the traditional civilian test is of no use. Ultimately, a comparison between the civilian approach and the common law approach is made. This paper argues that the common law approach is more responsive to the policies justifying the institution of vicarious liability and that Quebec courts should be more willing to adopt this.