Vicarious liability is a form of strict liability under which an employer can be held responsible for the wrongful acts of an employee committed in the course and scope of their employment, even where the employer did nothing wrong itself. Ontario courts look at whether the employee's conduct advanced the employer's interests, whether it occurred while performing an authorized act, and how closely connected the conduct was to the employment relationship — purely personal conduct generally falls outside it.
- Vicarious liability is a form of strict liability — the employer can be liable even where it did nothing wrong itself.
- Liability applies only to conduct occurring in the course and scope of employment, a fact-specific determination in every case.
- Courts weigh whether the conduct advanced the employer's interests and whether it was connected to an authorized act.
- Conduct undertaken exclusively for an employee's personal interests generally falls outside vicarious liability.
- Liability can sometimes extend to off-duty conduct, depending on its connection to the employment relationship.
- Vicarious liability claims are typically pleaded alongside a direct negligence claim against the employee, giving a plaintiff two potential sources of recovery.
What Is Vicarious Liability?
At common law, an employer can be held vicariously liable for the wrongful acts of an employee committed in the course and scope of their employment. This is a form of strict liability — meaning the employer can be held responsible even though it did nothing wrong itself, simply because of the nature of the employment relationship and the risks that relationship creates for third parties.
The "Course of Employment" Test
The central question in every vicarious liability case is whether the employee's conduct occurred in the course and scope of their employment. Ontario courts have made clear this is dependent on each specific set of facts, weighing factors including:
- Whether the conduct advanced the employer's interests
- Whether the employee was in the process of performing an authorized act
- Whether the employment relationship was too isolated from the conduct to fairly attribute it to the employer
Where an employee acted exclusively for their own personal interests, entirely disconnected from their job duties, the employer is generally not liable — the connection to the employment relationship is what drives the analysis.
Why This Matters for Recovery
Vicarious liability claims are typically pleaded alongside a direct negligence claim against the employee personally. This matters practically: an employer — through insurance coverage or its own assets — is often far better positioned to actually satisfy a judgment than an individual employee. Pursuing both gives a plaintiff a more realistic path to full recovery, an issue closely related to our broader guide on enforcing a judgment in Ontario Superior Court.
Off-Duty and Borderline Conduct
Vicarious liability is not strictly confined to normal working hours. At times, liability may extend beyond the working context to include off-duty conduct, where a sufficient connection to the employment relationship remains. These borderline cases are highly fact-dependent, and Ontario courts continue to refine this analysis — the Court of Appeal for Ontario's 2022 decision in Dagenais v. Pellerin is a useful recent illustration of how this plays out in practice.
A delivery driver, while making a scheduled delivery for their employer, negligently causes a collision that injures another motorist. Because the driver was performing an authorized task that directly advanced the employer's business at the time, the employer can likely be held vicariously liable alongside the driver personally.
Defending a Vicarious Liability Claim
A business facing a vicarious liability claim can argue the employee's conduct was entirely personal and unconnected to their job duties, or that the individual was properly classified as an independent contractor rather than an employee — a distinct legal relationship that vicarious liability generally does not extend to in the same way.
Businesses sometimes assume a worker is an independent contractor based on how they are paid or labelled, when the true legal relationship — based on control, integration, and other factors — may in fact be an employment relationship, with different liability consequences.
Pursuing a Claim
If you were harmed by someone acting in the course of their employment, we assess both the direct claim against the individual and whether their employer can be held vicariously liable, to build the strongest, most realistic path to recovery.
Call our Toronto civil litigation lawyers at 416-274-2222 to discuss your situation.
Frequently Asked Questions
Vicarious liability is a legal doctrine under which an employer can be held responsible for the wrongful acts of an employee committed in the course and scope of their employment — a form of strict liability that applies even where the employer itself did nothing wrong.
No. Liability only extends to conduct that occurs in the course and scope of employment. Courts look at whether the conduct advanced the employer's interests, was connected to an authorized task, and was not too isolated from the employment relationship to fairly attribute it to the employer.
Potentially, yes — vicarious liability can extend to off-duty conduct in some circumstances, particularly where there is still a meaningful connection to the employment relationship, though this is highly fact-dependent and decided case by case.
Practically, an employer is often better positioned to actually pay a judgment — through insurance or its own assets — than an individual employee. Vicarious liability lets a plaintiff pursue both, giving a more realistic path to full recovery.
Dagenais v. Pellerin, upheld by the Court of Appeal for Ontario in 2022, is a notable recent decision addressing when an employer can be held vicariously liable for an employee's conduct — a useful illustration of how fact-specific this analysis remains.
Yes — a common defence is that the employee's conduct was entirely for their own personal purposes, unconnected to their employment duties, and therefore outside the scope of employment altogether.
Generally, vicarious liability applies to employees rather than independent contractors, though the legal characterization of a worker's relationship with a business — employee versus contractor — is itself sometimes disputed and can significantly affect a case.