Can An Employee Be Sued or Just the Employer?
Laypeople and Lawpeople Commonly Misunderstand Legal Principles Regarding the Right to Sue An Employee. If By Negligence, Among Other Things, An Employee Caused Harm, An Employee May Be Sued.
Understanding When An Employee May Be Personally Liable For Negligence Occurring While Working
On December 22 2017, the Court of Appeal provided the legal community with a well needed gift - the gift of clarity! What is meant by the gift of clarity is that the Court of Appeal, in a succinct short two-page decision stated what always seemed plain and obvious and clear and logical yet argued extensively among legal practitioners and judicially reviewed, apparently inconsistently, for many years. What the Court of Appeal did was to issue decision in the case of Sataur v. Starbucks Coffee Canada Inc., 2017 ONCA 1017. The legal question was actually quite a simple question. The question was, whether an employee can be held personally liable for a negligent act by the employee that occurs while acting on behalf of an employer. For many years, and throughout the legal community, views varied significantly regarding the answer to the question. Many argued that employees were protected by some form of employment immunity that ensured a free pass for incidents arising from the negligence of the employee during the course of employment. Others argued that such an immunity suggests a legal absurdity and is contrary to common sense. It is paragraph 4 in Sataur that is so important and that states what is commonly argued, viewed, and unfortunately all too often decided, incorrectly. With the clarity within the Sataur decision, it is hopeful that a better understanding will now prevail. Specifically, paragraph 4 states:
 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 CanLII 41 (SCC),  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.
Interestingly, the Sataur decision was really just a reminder of the law rather than establishing a new principle of law. As restated in Sataur, while citing the London Drugs Ltd. v. Kuehne & Nagel International Ltd.,  3 S.C.R. 299, case of the Supreme Court from twenty-five years earlier, which was even then providing the reminder, "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".
Recently, the case of Segal v. Hyperblock Inc., 2021 ONSC 8303, again addressed whether an employee can be sued for conduct by the employee and within it was said:
 The applicable law is not in controversy. A corporation is a distinct legal entity that can only act through its agents, employees, officers and directors. A plaintiff who is wronged by the actions of a corporation has a right to sue that corporation. However, that plaintiff does not automatically have a separate right to sue every employee who dealt with them on the corporation’s behalf. The mere fact of being an employee does not support an independent cause of action: see, for example, Piedra v. Copper Mesa Mining Corporation, 2011 ONCA 191, 332 D.L.R. (4th) 118, at para. 73. Nor, on the other hand, does being an employee necessarily immunize an individual from suit: see, for example, Sataur v Starbucks Coffee Canada Inc., 2017 ONCA 1017, 140 O.R. (3d) 307. In the context of these two fundamental principles, the courts have limited the cases in which individual employees can be held personally liable for acts done in the course of their employment by a corporation to one of the following two scenarios:
(i) Cases in which the alleged “actions of the employees are themselves tortious.” In such cases, the employee-defendant is alleged to have committed a tort in their personal capacity, even if the conduct is also allegedly done to benefit the employer. In the case of negligence, this would require an allegation of a duty of care owed personally by the employee separate from any duty owed by the employer; and
(ii) Cases in which the actions of the employee exhibit a “separate identity or interest from that of the corporation or employer so as to make the act or conduct complained of their own”. In such cases, the alleged conduct is not pleaded to be done on behalf of or for the benefit of the employer, but is instead motivated by some “separate identity or interest.” Courts have stressed that the “separate identity or interest” pleaded by the plaintiff must be real and substantial and that plaintiffs cannot simply “‘window dress’ the suggestion of a separate identity or interest” where the “pith and substance” of the allegations are indistinguishable from allegations levelled against their employer: Lobo v. Carleton University, 2012 ONCA 498 at paras. 6 and 7.
Otherwise Insurance Fraud Implication Suggested
The Sataur decision is reassuring lest such would otherwise imply that thousands, perhaps millions, of fraudulently misrepresented insurance policies are sold by commercial insurance brokers each year. This is said whereas the entire commercial insurance sector sells commercial insurance coverage to businesspeople who are requiring commercial insurance via sales pitches that include and emphasize the importance of the definition of an "insured", which includes directors, officers, employees, among others, as is found within a typical commercial general liability policy as the most common coverage purchased by a business. If the law did provide a free pass to employees, among others, and the liability risk was only faced by the business entity itself, then there would be no reason for the millions of insurance policies sold in Canada every year to include protection for the negligent acts of employees, among others, such as the directors and officers.
Sample Insurance PolicyIntact Insurance
Commercial General Liability Policy (Form LR10)
Of course, the insurance industry providing coverage for a risk fails to explain why or how the risk arises in law; however, an entire multi-billion dollar industry providing such coverage as standard does suggest that the risk plainly and obviously existed - and thereby the confusion when persons within the legal community suggest that the personal liability risk is non-existent and that the free pass actually does exist.
Until Sataur, it was common that many legal persons (lawyers, paralegals, or judges) would suggest that personal liability against a director or officer or employee could arise only from bad faith such as fraudulent or intentional schemes and that in the absence of bad faith, a corporate veil provided immunity or exemption or a free pass for negligence. Again, as above, if such was true, then why do thousands of commercial insurance brokers sell general liability, director's & officer's liability, errors & omissions liability, environmental impairment liability, insurance policies that provided protection for the personal liability of directors, officers, and employees?
The confusion within the legal community appears to arise from what is known and referred to as the corporate veil - which is all too often highly misunderstood. The corporate veil is an intangible thing that arises in law and provides protection to the shareholder owners (even just one shareholder as is the case in a individually owned corporation). The layer of protection that arises within the corporate veil involves, what should be, the simple idea that whereas a corporation is a separate entity from the owner(s) of the corporation, the separation enables a corporation to enter into contracts independently and the owner(s) of the corporation will be protected against liability for a breach of contract by the corporation (subject to the Said v. Butt exception). Furthermore, the owner(s) of the corporation will be protected from liability arising from the wrongful acts of persons, other than oneself, who act on behalf of the corporation; however, with the Sataur case, the Court of Appeal provides clarity to the point of law that such protection from personal liability is absent when oneself acts negligently.
In the past, per the ADGA Systems International Limited v. Valcom Ltd., 1999 CanLII 1527 decision, the Court of Appeal said essentially the same thing; however, it seems that within the twenty page ADGA decision, which explained various principles such as the Said v. Butt exception, among other things, the primary point frequently became lost. With the Sataur case, the legal community now has a clear and succinct and short, just two-page, answer confirming that personal liability for negligence does exist.
Insurance Coverage For Employee Negligence
In most circumstances, where an employee causes an incident that accidentally, but negligently, harms a customer or other third party person, the commercial general liability insurance that is usually carried by a business, being the employer, should respond to provide protection to both the business for the vicarious liability arising out of the actions of the employee as well as providing coverage on behalf of the employee. As an "insured" person under the commercial general liability insurance, the employee will, usually, be without concern for the financial burden that may come with being personally liable for a negligent act during the course of employment. Of course, if the employer is without insurance coverage, or if the incident involved was outside the scope of that coverage such as falling within an exclusion, the employee may suffer the burden of the cost of defending the litigation as well as any liability eventually found in the case.
There is a common misunderstanding by laypeople and lawpeople alike that an employee is protected from personal liability while working for an employer. This misunderstanding appears to arise as a misunderstanding of what is known as a corporate veil. When correctly understood, the legal principles involving corporate veil are without application to an employee, among other persons, that are directly involved in the negligent act, among other causes, that cause injury, damage, or harm. Accordingly, where an employee was hands-on in a negligent act, such as spilling coffee per the Sataur case, an employee may be named as a proper Defendant within the litigation.Learn More About
Corporate Veil Principles