Employee Liability

Douglas v. Kinger, 2008 ONCA 452 (CanLII)

[1] A cottage owner hired a 13-year-old local boy to work as a "boat boy". In the course of his chores, the boy accidentally caused a fire. The cottage owner's insurer paid $285,000 on the resulting claim. The central question raised by this appeal is whether the cottage owner, by way of a subrogated claim brought by the insurer, can recover from the boy either in tort or in contract. The trial judge, Stach J., held that the cottage owner cannot and dismissed the claim. For the reasons that follow, I agree. Background

[35] It follows that, in my view, there is no established category defined by whether and employee is skilled or unskilled; rather, liability appears to depend on the degree of the employee's negligence in the context of the employment relationship.

[36] To summarize, I do not accept the appellant's argument that this case can be included in a category of skilled or unskilled employees. 2. Application of the Anns test

[37] Since I conclude that employee liability to an employer for ordinary negligence does not fit into and is not analogous to any of the existing categories, it is necessary to undertake an Anns analysis to determine whether a duty of care should be imposed.

[38] Since, in my view, the nature of the parties' relationship and its broader implications inform both the first and second stages of the Anns test, it is helpful to situate the analysis by considering the case law and academic commentary on the policies informing the duty of care in the employment context in both situations of direct and third-party liability.

[39] In dealing with the direct liability of an employee to an employer in Cole v. Lockhart, 1998 CanLII 28698 (NB QB), [1998] N.B.J. No. 377, 205 N.B.R. (2d) 48 (Q.B.), at para. 14, McLellan J. observed the limitations on employee liability noting that "[t]he courts have recognized for many years that an error of an employee will not necessarily permit an action for negligence against the employee by the employer". In that case, a part-time student employee employed on an elk ranch failed to remove all the binder twine from the feed and an elk choked on some of the twine. In dismissing the employer's claim, the trial judge concluded at, paras. 22-23, that the employer "voluntarily subjected himself to the risks that inevitably accompanied" the work and the student's "very slight error" did not entitle the employer to damages for the business risk. Along similar lines, the court in Dominion Manufacturers observed that public policy dictated against litigation between employer and employee and noted, at p. 222 C.C.E.L., that, apart from negligence in the vicarious liability situation, "[i]n practice, [c]ourts have been reluctant to order the employee liable in tort".