In Rankin (Rankin’s Garage and Sales) v. J.J., 2018 SCC 19, the Supreme Court of Canada clarified how it will interpret existing duties of care, in the context of a personal injury arising from the theft of a vehicle stored at a commercial garage, and the evidentiary requirements for establishing novel duties of care.read more
Breaching Duty of Care: Can Individual Employees Be Personally Liable?
A recent decision of the Ontario Court of Appeal, Sataur v Starbucks Coffee Canada Inc., 2017 ONCA 1017, addressed the issue of whether individual employees can be personally liable for breaching a duty of care owed to a customer in the course of their employment.
Abigail Sataur (“Sataur”), a minor, was injured after a Starbucks barista poured scalding hot water on her hands. Sataur commenced a claim for negligence against Starbucks, the barista and the store manager, alleging that the individual defendants owed her a duty of care and that each was personally liable for breaching said duty.
Starbucks brought a motion to strike the Statement of Claim against the barista and the store manager, which was granted by the motions judge on two grounds: (1) the Statement of Claim did not disclose a reasonable cause of action against either individual defendant because employees are not liable for negligent acts performed in the scope of their employment; and (2) naming the individual defendants in the pleadings solely to obtain their discovery evidence amounted to an abuse of process. Sataur appealed this decision.
Relying on the decision of the Supreme Court of Canada in London Drugs Ltd. v Kuehne & Nagel International Ltd.,  3 SCR 299, the Ontario Court of Appeal confirmed that an employee acting in the course of her employment can be sued personally for breaching a duty of care owed to a customer. The Court also found that the concepts of an employer’s vicarious liability for its employee’s conduct and an employee’s personal liability for her own negligence are not mutually exclusive, and can instead coexist under Canadian law. As specific acts of negligence had been pleaded against the individual defendants for which they may be personally liable, the Court held that Sataur had a right to name them in the action.
Turning to the abuse of process issue, the Court disagreed with the motions judge that naming the individual defendants for the purposes of obtaining discovery evidence amounted to an abuse of process. Conversely, the Court found that individual defendants may be named in an action solely to obtain their discovery evidence if a proper cause of action has been pleaded against them, as was the case here.
Lesson for Employers
This decision demonstrates that the concept of vicarious liability is not a bar to commencing an action against individual employees who owe a duty of care to their employers’ customers. Such employees may be named in an action provided that there are specific allegations of negligence or wrongdoing against them. Employees should be made aware that they may be held personally liable for negligence arising in the course of their employment, and that they are not protected by the fact that the alleged act of negligence was performed in the scope of their employment.
For the full decision of the Ontario Court of Appeal, please click the link below: