November 24, 2008
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Douglas v. Kinger, 2008 ONCA 452

Employees are not liable to indemnify their employers for negligence, according to a recent decision by the Ontario Court of Appeal. In today’s world of integrated business practices and an increasing reliance on complex machinery and sophisticated information technology systems, the Court of Appeal concluded it is the responsibility of the employer to account for, adequately prepare for, and insure against potential negligence of an employee.

The facts are as follows. In 2000, Douglas hired a 13 year old, Kinger, to complete specific chores at his cottage. Kinger was expected to work three days a week during his summer vacation. In addition to the list of chores, Douglas ordered Kinger not to use power tools unsupervised at the cottage. On June 17, Kinger burned down his employer’s boathouse when his attempt to refuel a lawnmower went awry, causing $285,000 in damages. After resolving the insurance claim, the insurer launched a subrogated claim for damages against Kinger.

Finding that there is no existing duty of care owed by skilled or unskilled employees at law, the Court proceeded to determine if a duty of care should be imposed. The Court found on an examination of the employment relationship demonstrates that employee negligence was foreseeable, but that the employee’s liability for negligence was not. Also, public policy considerations favored no duty being imposed as employers are in a better position than employees to allocate resources to mitigate against risks of negligence in the workplace, principally through insurance or as a cost of business.

The Court did note however, that employees could be held liable in cases of gross negligence or willful misconduct. What type of conduct will be categorized as “gross” as opposed to “ordinary” negligence was not addressed, though areas of law have set a high threshold before an individual will be found liable for gross negligence.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Employment Law