Accountability of public authorities through contextualized determinations of vicarious liability and non-delegable duties.

• Author: Adjin-Tettey, Elizabeth

INTRODUCTION

This paper focuses on those persons who suffer injuries from another's performance of contracted government services and whom may not have access to effective remedies because of narrow and de-contextualized constructions of when vicarious liability and breach of non-delegable duties arise. The need to protect such victims is becoming increasingly desperate given the growing reliance on non-standard (outsourced) employees to fulfil governmental functions. Non-standard workers are not classified as employees. Hence, the employer is not vicariously liable for the torts of non-standard workers unless the delegated work entails non-delegable duties. Yet, many of the non-standard workers are not truly independent contractors--they are in no different situations than employees in relation to their ability to internalize costs associated with their work and compensate those injured in the course of its performance.

Constructions of (a) who qualifies as an employee for purposes of vicarious liability, and (b) when a non-delegable duty arises have not kept up with this new social reality. Unless courts adopt contextualized constructions of who qualifies as an employee for purposes of vicarious liability and when non-delegable duties arise, public authorities can effectively insulate themselves from liability through outsourcing. This will likely leave many of those injured in the course of the provision of government services without remedy. Not only would this undermine the purposes of vicarious liability and non-delegable duties but more importantly, it also indirectly creates immunity for public authorities in their engagement with members of the public.

Crown or government immunity, at least in relation to torts committed by its employees in the course of their employment, is a thing of the past. (1) As Cory J. notes: "The early governmental immunity from tortious liability became intolerable. This led to enactment of legislation which imposed liability on the government for its acts as though it were a private person or entity." (2) Today, governments are vicariously liable for torts committed by their employees in the course of their employment in the same way as private individuals and corporate entities. (3) Thus, victims of tortious conduct committed by public officials can seek redress against the government as a right either on the basis of direct or vicarious liability. (4) Hogg and Monahan describe this change in the law as carrying a significant impact for victims of tortious conduct caused by government employees. (5) The ability of private citizens to sue public authorities provides an opportunity to review government actions, promotes accountability of government agencies and their employees and avoids unnecessarily disadvantaging those who become victims of governmental activities. (6) Government agencies and their employees are now engaged in a wide range of activities that involve direct and indirect contact with members of the public. In fact, government agencies may be in a better position to protect the public from the myriad and difficult situations often involved in providing public services. (7) However, there is also an increased risk of injury to members of the public from the activities of public authorities.

Treating all tort victims in the same manner, regardless of the identity of the wrongdoers or the entity on whose behalf wrongdoers were acting, is an important equality principle and consistent with Dicey's idea that governments (and its officials) should be subject to the same law as private citizens. (8) Even prior to abolition of Crown immunity, (9) vicarious liability of the government was achieved through the practice of the Crown standing behind its servants who incurred tort liability in the course of their work. (10) In Canada, the Exchequer Court Act 1887, (11) as amended in 1938, (12) imposed vicarious liability on the federal Crown for negligence of its servants in the course of their work. Vicarious liability of the government is an important equality principle and legislative developments that purposely or effectively immunize governments from liability for its employees are considered contrary to public policy and indefensible because they deny innocent victims redress. The practice has been to preserve vicarious liability even where government employees are specifically immune from liability for torts committed in the course of their employment. (13)

The emerging phenomenon of privatization and outsourcing of governmental functions to persons typically characterized as independent contractors undermines access to effective compensation. Persons working under privatized regimes, though legally characterized as independent contractors, do not fit that categorization as it has traditionally been understood. Many of the so-called independent contractors may be individuals providing services and not necessarily carrying out business ventures with opportunities for cost internalization and loss spreading. These individuals are not often in a position to satisfy tort judgments against them. The increasing use of these workers to provide public services also raises a more fundamental issue: Is it fair to make liability arising from inherent risks associated with the provision of certain public services fall on the shoulders of these so called independent contractors?

Liability on the basis of a breach of non-delegable duty provides a further basis of compensation; liability of government agencies remains unaffected where the activity contracted out is characterized as entailing a non-delegable duty of care. Courts, however, have been reluctant to recognize statutory non-delegable duty absent specific legislative provisions to that effect. Courts have also foreclosed the possibility of recognizing a non-delegable duty where a claim for vicarious liability has failed. Care must be taken not to unnecessarily limit the scope of vicarious liability, and when non-delegable duties arise so as not to unnecessarily frustrate access to effective remedies for tort victims.

This paper considers the current law with regards to employee tortfeasors and the triggering of vicarious liability. Reference will be made to recent contextual constructions of what constitutes torts committed "in the course of one's employment" sufficient to trigger vicarious liability for intentional and often criminal wrongdoing. The enlightened constructions have been motivated by instrumentalist concerns of justice to victims; to ensure that they receive effective compensation. I argue that similar considerations ought to apply in relation to the construction of who qualifies as an employee or when a person should be considered as an independent contractor. A contextualized understanding of when a worker should be considered an employee or independent contractor in ways that protect the interests of vulnerable victims is consistent with changing social realities.

Part I explores the persistence of vicarious liability, a form of strict liability, in the predominantly fault-based modern tort law. In Part II, the the paper discusses employers' liability for the torts of independent contractors and the rationale for this exception. Part III explores the relationship between non-delegable duties and vicarious liability. In Part IV, the paper considers when workers are characterized as employees to trigger vicarious liability, and when non-delegable duties arise. Part V discusses the changing patterns of employment in both private and public sectors, how that could effectively privatize liability for foreseeable risks associated with the provision of public services and how that could also undermine liability of public authorities. Part VI explores the importance of contextualizing the status of workers. In part VII, the non-availability of vicarious liability for the torts of foster parents is used to highlight potential risks of privatizing govermental services. The conclusion, emphasizes the need for contextual analysis consistent with the goals of vicarious liability, non-delegable duties and governmental liability.

1. SURVIVAL OF VICARIOUS LIABILITY IN MODERN TORT LAW

   Modern tort law is fault-based. This is premised on the individualistic basis of classical liberalism which emphasizes personal responsibility and agency. The notion that there should be no liability without fault became entrenched in the common law by the 19th century; which reflected the necessities of a rapidly expanding society and the need to encourage private enterprise and risk taking. Grounding tort liability in personal fault also reflected opposition to the system of strict liability that had hitherto constituted the basis of tort law and served as an attempt to bring the basis of tort liability in line with moral principles. (14) Therefore, the fault principle provides a moral foundation for tort law and grounds tort liability in corrective justice; it provides a reason why one party, the tortfeasor, should be singled out to bear responsibility for another's losses.

   Notwithstanding the centrality of the fault principle in assigning liability in modern tort law, liability is not always premised on fault. According to the doctrine of vicarious liability, legal liability may be imposed on one party (an employer), for the wrongs that another person (an employee), committed in the course of their employment. Liability, in this context, is strict and based not on the personal fault of employers, but rather on their relationship with the primary wrongdoer. Thus, vicarious liability can arise even where the employer has taken all the necessary precautions to avoid the outcome in question. (15) Given the philosophical basis of modern tort law as grounded in the fault principle and corrective justice, the basis and persistence of vicarious liability in modern tort law appears anomalous. (16) However, the reason for the...