Date: Mon, 24 Oct 2005 09:47:40 -0400

From: David Cheifetz

Subject: Sup Ct Canada Non-Delegable Duty

John,

The cites and URLs for the quartet of cases is

Lewis v. British Columbia, [1997] 3 S.C.R. 1145;

E.D.G. v. Hammer, [2003] 2 S.C.R. 459, 2003 SCC 52;

K.L.B. v. British Columbia, [2003] 2 S.C.R. 403, 2003 SCC 51

M.B. v. British Columbia, [2003] 2 S.C.R. 477, 2003 SCC 53

The last 3 cases - all sexual assault cases where the plaintiff sought to also hold liable an institution based on at least VL - don't, in fact, hold that VL and NDD are mutually inclusive and you won't find an extensive discussion of the principles non-delegable duty in these cases. The specific ratio, on the NDD claims, was that the statutory responsibilities didn't create non-delegable duties. And that's essentially as far as the trilogy reasons go (as I read them) on the NDD issue.

Lewis is the seminal case. Lewis, for what it's worth, was an independent contractor case. The entire discussion of the principles of NDD is contained in paras 17-20 in the majority reasons and para 50-54 in the concurring reasons.

David

----- Original Message -----
From: "John Murphy"
Sent: Sunday, October 23, 2005 3:23 PM
Subject: RE: ODG: Sup Ct Canada Non-Delegable Duty

David,

I'm interested in this notion that non-delegable duties and vicarious liability should be seen as mutually exclusive. Your email to Neil made reference, via abbreviations, to three cases that I take it suggested that the two are mutually exclusive. (Kirby J held the same view in Lepore, whereas Gummow and Hayne in that case thought - wrongly I'm sure - that non-delegable duty is a subspecies of vicarious liability).

Could you please supply fuller details of those cases?

Without having read those cases, I reserve the right to disagree with myself.

But for what it is worth, my intuitive response to the suggestion that non-delegable duties and vicarious liability should be treated as mutually exclusive is that I don't buy that line of argument. Nor do I buy the explanation of it in (if memory serves) Prue Vines' analysis of Lepore in the Melbourne University Law Review. What the argument seems to me to assume is that the spheres of operation of non-delegable duty and vic liab are totally separate. But why assume this? Wasn't the HL concerned to insist on a non-delegable duty in the employment context in Wilsons only because vicarious liability wasn't available because of the common employment doctrine. Now that that doctrine no longer exists, would we seriously say that if the same facts arose today there would be no prospect of holding D liable on the basis of vicarious liability?

Of course, vicarious liability cannot apply to independent contractors. But non-delegable duties need not necessarily be confined to cases involving contractors.

I have always thought that vicarious liability and non-delegable duties are both odd & little understood beasts, but the fact that they are imperfectly understood is hardly a basis on which to ASSUME that they never traverse the same terrain. I would have thought that it was foolish to make any assumptions about a thing one hardly understands.

Anyway, the references please.

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