The liability of the principal for a fault committed by his agent

In Quebec civil law, a principal is a person to whom the employee is subordinate, such as an employee (attendant) vis-à-vis his employer (principal) or a subcontractor (attendant) vis-à-vis a general contractor.

As a victim, you will be able to sue both for damages you have suffered, because the principal is liable to his servant.

However, the principal is generally more solvent than his employee and often also benefits from insurance. This mechanism allows the victim to maximize his chances of obtaining justice by suing a defendant who is better able to satisfy a judgment, such as a company or a municipality in connection with an injury caused to others by a distracted or negligent employee, or even a school board for an act of abuse committed by one of its teachers against a student.

The presumption of liability under the Act

In Quebec, as a general rule, it is up to the victim to prove the three elements necessary to establish civil liability : fault, injury, and the causal link between the latter two. The burden of proof therefore rests with the victim, that is, the person claiming the damages.

On the other hand, the Civil Code of Québec provides for a few situations in which the burden of proof is reversed and the person from whom the victim claims damages is presumed liable and must therefore prove that he or she did not commit a fault. This is the case, among others, for parents who are presumed responsible for the fault committed by their minor child.

However, principals are presumed to be responsible for the wrongful conduct of their servants in a much stricter manner than a parent would be held responsible for the wrongful conduct of his minor child.

Indeed, while to release the presumed responsibility for the fault committed by a minor, one must prove the fault of the minor and the absence of fault of the holder of parental authority, in the case of the principal, the presumption is absolute.

Therefore, the existence or absence of a fault on the part of the principal is irrelevant, it is only that of the employee that will have to be established.

How to engage the presumption of responsibility of the principal?

To establish a presumption of liability on the part of the principal, the victim will have to prove that:

• the officer has committed a fault within the meaning of article 1457 of the Civil Code of Québec;
• the person who committed the fault and the person you are suing are connected by a preposition link. This is the case for an employer who has some degree of control over his employee and is responsible for monitoring and verifying his work. The preposition link is not necessarily contractual; the court will analyze and interpret each case according to the specific circumstances surrounding it.
• the fault was committed in the performance of the duties of the attendant. In the case of an employee, he is in the performance of his duties when, for example, he acts on behalf of his employer (on behalf of and for the benefit of the latter) or performs the tasks in the course of his work assigned to him by his employer. On the other hand, if the employee has acted in the context of his personal life, without any relation to his employment, even if he has done so during the hours and in the workplace, the employer will not be held responsible.

To avoid this liability, the principal will have to prove either the absence of one of the three criteria mentioned above, or that the damage is the result of the fault of the victim or a third party, or force majeure.

Fault committed by an employee outside the performance of his duties

In other scenarios where a fault is committed by an employee in connection with his or her employment, for example, at his or her workplace, during his or her designated shift or with his or her work instrument, it will be noted that the misconduct was committed by the employee outside the performance of his or her duties. However, such a fault never makes it possible to engage the principal’s liability alone.

For example, it has been determined that a janitor who takes advantage of his presence in the workplace to commit sexual touching acts entirely outside the performance of his duties. Similarly, it was determined that jewellery theft and fraud by an employee cannot be attributed to a construction company and a used vehicle company respectively. In each of those cases, the act complained of was too far removed from the duties of the servant in question and did not bring any benefit to the principal being prosecuted.

The direct fault of the principal

Finally, I would point out that there are other means of holding the principal liable, in particular by attributing to him a direct fault, independent of that committed by his servant. For example, it can be shown that an employer failed to provide adequate training or instruction to its employees.

In the case of sexual abuse more specifically, there is direct fault if an employer who, having knowledge of the abuse committed by his employee, fails in his duty to denounce the latter or to stop the abuse. It is also possible to accuse the principal of failing to take measures to prevent situations of abuse when there is a risk of inappropriate conduct.

Sue the principal for the fault committed by the attendant

If you have been the victim of damage caused by an employee, you may be entitled to claim damages from their employer, who is presumed liable for the fault of their employee.

The burden of proof will be reversed, but you will still have several elements to prove. As a result, act quickly and bring all possible evidence.

Remember that our articles contain general explanations of the law and the situations mentioned therein are as examples. The particular circumstances of your case can greatly vary your chances of success and a lawyer will help you maximize them. Contact our office now so that we can do an analysis of your file.

To not miss our next articles, check out our weekly legal capsules on different legal topics on our Facebook page!