Court of Appeal for Ontario
Date: 2017-12-22 Docket: C64000
Judges: Laskin, Miller and Paciocco JJ.A.
Between
Abigail Sataur, a minor by her Litigation Guardian, Emran Sataur
Plaintiff (Appellant)
and
Starbucks Coffee Canada Inc., Danielle Bovenberg and Jane Doe
Defendants (Respondents)
Counsel
For the Appellant: Gavin Mackenzie, Brooke Mackenzie and Doug Strelshik
For the Respondents: Bruno Roti
Heard and Released Orally: December 20, 2017
On Appeal From: The order of Justice Stewart of the Superior Court of Justice, dated May 29, 2017.
Reasons for Decision
[1] The appellant Abigail Sataur pleaded that she was injured when a barista at a Starbucks store in Brampton poured scalding hot water on her hands. Through her Litigation Guardian, Ms. Sataur sued Starbucks, the barista (Jane Doe) and the manager of the store, Danielle Bovenberg, for negligence. She has alleged that each of the two individual defendants owed her a duty of care and that each was personally liable for breaching her duty.
[2] On a motion brought by Starbucks the motion judge struck the Statement of Claim against the two individual defendants on two grounds: first, the Statement of Claim did not disclose a reasonable cause of action against either individual defendant; and, second, suing the two individual defendants amounted to an abuse of process.
[3] On her appeal Ms. Sataur submits that the motion judge erred in law in striking the Statement of Claim against both individual defendants on either ground. We agree.
[4] The motion judge held that the claim against the individual defendants did not disclose a reasonable cause of action because "the general rule remains that employees are not liable for what they do within the scope of their authority and on behalf of their corporation". Respectfully, the general rule is the opposite. As Justice McLachlin said succinctly in London Drugs Ltd. v. Kuehne & Nagel International Ltd., [1992] 3 S.C.R. 299, "It has always been accepted that a plaintiff has the right to sue the person who was negligent, regardless of whether the employee was working for someone else or not." Put in the negative, there is no general rule in Canada that an employee acting in the course of her employment cannot be sued personally for breaching a duty of care owed to a customer.
[5] Here Ms. Sataur has pleaded specific acts of negligence against each individual defendant for which each may be personally liable - in the case of Jane Doe, the pouring of hot water, and in the case of Ms. Bovenberg, not supervising Jane Doe properly.
[6] The motion judge's ruling conflates two separate concepts: the employer's vicarious liability for its employees acting within the scope of their employment; and employees' personal liability for their own negligence while acting within the scope of their employment. Under Canadian law the two concepts can live together.
[7] The motion judge also held that the pleading against the individual defendants was an abuse of process because they were named parties solely to obtain discovery. Even accepting that the two defendants were named solely to examine them for discovery, doing so in this case does not amount to an abuse of process. Quite the contrary. It is not an abuse of process to bring a lawsuit against individual defendants for the purpose of obtaining discovery from them, if the plaintiff has pleaded a proper cause of action against those individual defendants, as we have found that the plaintiff has in this case.
[8] Again, as Justice McLachlin said in London Drugs Ltd. v. Kuehne & Nagel International Ltd., unless the alleged individual tortfeasor is named, "the right to discovery and use of evidence of the testimony of the person who was actually negligent might be lost." The situation would be different if the plaintiff had named defendants who had no direct involvement in the substance of the claim. That is not the situation here.
[9] Accordingly, the appeal is allowed, the order of the motion judge is set aside and the defendant's motion to strike the Statement of Claim against the two individual defendants is dismissed. The appellant is entitled to her costs of the appeal in the agreed upon amount of $15,000 all inclusive. The parties also agree that the successful party before the motion judge - the appellant – is entitled to the costs of the motion in the amount of $2,500, all inclusive.
"John Laskin J.A."
"B.W. Miller J.A."
"David M. Paciocco J.A."
