CITATION: Ontario Public Service Employees Union v. Ontario (Training, Colleges and Universities), 2016 ONSC 6348
DIVISIONAL COURT FILE NO.: 341/15 DATE: 20161011
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
LEITCH, SACHS and PATTILLO JJ.
BETWEEN:
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
Applicant
– and –
THE CROWN IN RIGHT ON ONTARIO (MINISTRY OF TRAINING, COLLEGES AND UNIVERSITIES)
Respondent
Craig A. Flood and Katherine Ferreira, for the Applicant
Jonathan Rabinovitch and Susan Munn, for the Respondent
HEARD at Toronto: October 11, 2016
SACHS J. (Orally)
[1] The Applicant seeks judicial review of a decision of the Grievance Settlement Board (the “Tribunal”) dated March 16, 2015 dismissing a grievance in which the grievor sought to hold her employer vicariously liable for the fact that a fellow employee had committed the tort of intrusion upon seclusion.
[2] The Tribunal accepted that the tort had been committed when a fellow employee used the employer’s equipment and database to access the grievor’s Employment Insurance records. However, the Tribunal found that this wrongful act “was not sufficiently related to conduct authorized by the employer”. On this basis, the Tribunal refused to make a finding of vicarious liability.
[3] The Applicant submits that the Tribunal’s decision was subject to two different standards of review. When it came to its findings of fact, the applicable standard was reasonableness. Otherwise, since vicarious liability is a question of law that is both of central importance to the legal system as a whole and outside of the Tribunal’s specialized area of expertise, the appropriate standard of review is correctness.
[4] We disagree. In our view, the reasoning of the Supreme Court of Canada in Nor-man Regional Health Authority Inc. v Manitoba Association of Health Care Professionals, 2011 SCC 59 is dispositive of the standard of review question in this case. The applicable standard is reasonableness.
[5] The Applicant submits that the Tribunal’s decision was unreasonable for a number of reasons:
(1) In paragraph 44 of its decision, the Tribunal finds that the wrongful act “was done without the sanction or knowledge of the Employer”. According to the Applicant, this finding displays a fundamental misunderstanding of the concept of vicarious liability that was being argued. The Applicant never made an assertion that the wrongful act was authorized by the employer. Rather, she argued that it was unauthorized and unauthorized wrongful acts can still attract liability on the part of the employer, even in the absence of any demonstration of fault.
We agree. However, as the Tribunal correctly recognized, in order for an employer to be found vicariously liable for the wrongful acts of its employee, “[t]he fundamental question is whether the wrongful act is sufficiently related to conduct authorized by the employer to justify the imposition of vicarious liability” (Bazley v Curry, [1999] 2 SCR 534 at para. 41).
The Tribunal addressed this fundamental question by considering the relevant factors set out by the Supreme Court of Canada in Bazley supra. One of those factors is “the extent to which the wrongful act may have furthered the employer’s aims (and hence be more likely to have been committed by the employee)” (Bazley at para. 41). It was in considering this factor that the Tribunal made the impugned comment that the “activity was done without the sanction or knowledge of the employer”. Taken in context, what the Tribunal meant by this comment is that the employer never asked the employee to access the grievor’s Employment Insurance records in order to fulfill her job responsibilities. Contrary to the submission of the Applicant, this comment does not relate to the question of fault on the part of the employer, but rather to the issue of whether there was any direction on the part of the employer that may have increased the likelihood of the misconduct occurring, something that the Supreme Court has found to be relevant to the question of vicarious liability.
(2) The Tribunal unreasonably emphasized the extent to which the employer had put in place policies for protecting private information. According to the Applicant, this is not necessarily a relevant factor under the test for vicarious liability, which may be imposed even where the employer has made reasonable efforts to minimize risk. While we agree that a finding of vicarious liability can and has been made even where an employer has made reasonable efforts to minimize risk, this does not mean that any steps that an employer has taken to minimize risk are irrelevant to the question of whether the wrongful act was sufficiently related to conduct authorized by the employer. As the Supreme Court states in Bazley at para. 42, “It must be possible to say that the employer significantly increased the risk of harm by putting the employee in his or her position and requiring him to perform the assigned tasks.” Assessing the extent to which an employer has “significantly increased” risk requires a consideration of all the factors governing the employee’s employment, including any policies and procedures that the employer may have put in place to deter the risk in question.
(3) At para. 45 of its decision, the Tribunal addresses one of the factors talked about in Bazley namely, the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s enterprise. With respect to this factor, the Tribunal found as follows at para. 45:
Finally, it must be recalled that this Board dismissed the grievor’s allegations that the employer and her co-workers were bullying and harassing her in a separate decision. Accordingly, it seems to me that it cannot be said that the intrusion into her E.I. records by Ms. X was “related to friction, confrontation or intimacy inherent in the employer’s enterprise”.
The Applicant submits that it was unreasonable for the Tribunal to consider the fact that it has dismissed the Applicant’s allegations of bullying and harassment because even though it found no breach of the collective agreement, the Tribunal did make findings in its separate decision that there was friction and confrontation in the workplace. Even if the Tribunal made findings in its separate decision that there was friction and confrontation in relation to the grievor (which is disputed), this does not equate to a finding that the wrongful act was related to the friction or confrontation or that the friction or confrontation was inherent in the employer’s enterprise. In considering these issues, it was reasonable for the Tribunal to take into account the fact that it had dismissed the grievor’s allegations of bullying and harassment.
(4) The Applicant submits that the Tribunal unreasonably failed to consider the relevant policy considerations that underly the concept of vicarious liability: the availability of an adequate and just remedy and deterrence of future misconduct. We agree with the respondent that the test that the Tribunal applied to determine whether the employer was vicariously liable was a test developed by the Supreme Court after taking into account the policy considerations adverted to by the Applicant. This is clear from the wording of para. 41 of Bazley which begins as follows:
Reviewing the jurisprudence, and considering the policy issues involved, I conclude that in determining whether an employer is vicariously liable for an employee’s unauthorized, intentional wrong in cases where precedent is inconclusive, courts should be guided by the following principles: [emphasis added]
As already noted, the Tribunal considered the principles set out at para. 41 of Bazley and they were not required to separately consider the policy factors that led to the formulation of these principles.
[6] In conclusion, it is our view that the Tribunal’s decision was reasonable, justifiable, transparent, intelligible and the outcome reached falls within the “range of possible, acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9 at para. 47). For these reasons, the application is dismissed.
COSTS – Leitch J.
[7] I have endorsed the Application Record of the Applicant as follows: “For oral reasons given, the application is dismissed. Costs of $5,000.00 to the respondent.
___________________________ LEITCH J.
SACHS J.
L.A. PATTILLO J.
Date of Reasons for Judgment: October 11, 2016
Date of Release: October 19, 2016
CITATION: Ontario Public Service Employees Union v. Ontario (Training, Colleges and Universities), 2016 ONSC 6348
DIVISIONAL COURT FILE NO.: 341/15 DATE: 20161011
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LEITCH, SACHS and PATTILLO JJ.
BETWEEN:
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
Applicant
– and –
THE CROWN IN RIGHT ON ONTARIO (MINISTRY OF TRAINING, COLLEGES AND UNIVERSITIES)
Respondent
ORAL REASONS FOR JUDGMENT
SACHS J.
Date of Reasons for Judgment: October 11, 2016
Date of Release: October 19, 2016