Date: Sun, 23 Oct 2005 21:23:21 +0200

From: John Murphy

Subject: Sup Ct Canada Non-Delegable Duty

David,

I'm interested in this notion that non-delegable duties and vicarious liability should be seen as mutually exclusive. Your email to Neil made reference, via abbreviations, to three cases that I take it suggested that the two are mutually exclusive. (Kirby J held the same view in Lepore, whereas Gummow and Hayne in that case thought - wrongly I'm sure - that non-delegable duty is a subspecies of vicarious liability.)

Could you please supply fuller details of those cases?

Without having read those cases, I reserve the right to disagree with myself.

But for what it is worth, my intuitive response to the suggestion that non-delegable duties and vicarious liability should be treated as mutually exclusive is that I don't buy that line of argument. Nor do I buy the explanation of it in (if memory serves) Prue Vines' analysis of Lepore in the Melbourne University Law Review. What the argument seems to me to assume is that the spheres of operation of non-delegable duty and vic liab are totally separate. But why assume this? Wasn't the HL concerned to insist on a non-delegable duty in the employment context in Wilsons only because vicarious liability wasn't available because of the common employment doctrine. Now that that doctrine no longer exists, would we seriously say that if the same facts arose today there would be no prospect of holding D liable on the basis of vicarious liability?

Of course, vicarious liability cannot apply to independent contractors. But non-delegable duties need not necessarily be confined to cases involving contractors.

I have always thought that vicarious liability and non-delegable duties are both odd & little understood beasts, but the fact that they are imperfectly understood is hardly a basis on which to ASSUME that they never traverse the same terrain. I would have thought that it was foolish to make any assumptions about a thing one hardly understands.

Anyway, the references please.

John Murphy
Manchester University

From: David Cheifetz
To: Neil Foster
Subject: ODG: Sup Ct Canada Non-Delegable Duty
Date: Sun, 23 Oct 2005 13:39:09 -0400

Neil,

... can anyone suggest why in a decision which seems from the headnote to be dealing with the issue of non-delegable duty of care for sexual assault of children in care ... [there isn't] a single reference to the High Court of Australia decision in Lepore v NSW?

The scope of the non-delegable duty argument (at least in cases where vicarious liability is an available argument) was severely circumscribed in prior SCC cases referred to in Blackwater - KLB, EDG, Lewis - and neither of KLB nor EDG mention Lepore. Look at KLB starting at para 30 for the non-delegable duty discussion. I've mentioned that Lepore isn't referred to in the SCC cases because KLB et al were argued at the end of 2002 and judgment was released in the fall of 2003, after Lepore. We should assume that the SCC panel in KLB et al knew about Lepore. That might be part of the reason.

Apart from that, the only reported decision that I'm aware of in which the HCA decision in Lepore was cited is another sexual assault case at a residential school. Lepore was referred to in the BCCA decision: B.(E.) v. Order of the Oblates of Mary Immaculate, 2003 BCCA 289 (CanLII). The appeal in that case was argued before the SCC in Dec 2004 and is presently under reserve. Perhaps the SCC is saving any discussion of Lepore for its reasons in Oblates. (I make no reference to the possibility of the reappearance of the wandering inflatables from the circa 1980s Pink Floyd London concert.)

It seems to me that the statement at the end of para 17 of the BCCA decision in Oblates is probably as good as any summary of the current Canadian approach to cases were non-delegable duty liability and vicarious liability might overlap. It comes from the BCCA reasons in EDG: "I do not think that vicarious liability and non-delegable duty should overlap to permit inconsistent results for the same tort by an employee. The duplication of vicarious liability and non-delegable duty would create doctrinal confusion for no valid policy purpose."

I expect there are other readers of this list who could provide a better answer.

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