TORONTO — A taxi company cannot be held liable for the alleged sexual assault of a passenger by one of its drivers, Ontario's top court ruled on Friday.
In dismissing an appeal by the complainant, the Court of Appeal sided with a lower court judge that the company had done no wrong.
"The alleged sexual assault may be characterized as only coincidentally linked to the activities of the taxi company," the Appeal Court said. "The taxi company did not require or permit the driver to touch the customer in any intimate body zones."
The alleged incident arose when a woman had a friend at a party call United Taxi in Kitchener, Ont., late one evening to come get her. The woman, who was intoxicated, claimed the driver sexually assaulted her. She sued him and the owner of the cab. She also sued the cab company on the basis that it was liable for the driver's actions.
In September last year, Superior Court Justice David Broad dismissed her claim against the company.
Evidence was that the driver had no criminal record. Nor was there any indication the company knew, or should have known, that he might have had a propensity for, or history of, sexual or other violence. As a result, Broad said, it would defy common sense to hold the company responsible for the alleged assault.
"The wrongful acts alleged by the plaintiff against (the driver) were only coincidentally linked to United Taxi's activities as the operator of a taxi-dispatching business," Broad ruled.
The woman appealed. While she didn't argue the company had actually done anything wrong, she nevertheless maintained it bore responsibility.
The Appeal Court disagreed even though an employer can sometimes be held responsible for an employee's misdeeds without having been negligent or having done something blameworthy.
Such a situation is known as "vicarious liability," and most commonly occurs when an employee accidentally causes loss or damage to a third party. An example might be when a supermarket worker leaves a mop on the floor and a customer trips on it.
"The more difficult issue is when an employer should be found vicariously liable for an unauthorized, intentional wrong, such as a sexual assault, committed by the employee," the Appeal Court said.
In such cases, Associate Chief Justice Alexandra Hoy wrote in the decision, courts generally refrain from imposing liability for an employee's "abhorrent, intentional acts."
A key consideration in making an exception, Hoy said in citing case law, is the existence of a strong connection between what an employer asks an employee to do and the wrongful act itself.
"It must be possible to say that the employer significantly increased the risk of the harm by putting the employee in his or her position and requiring him to perform the assigned tasks," the Appeal Court noted.
In analyzing this case, Hoy agreed that a driver has some power over a lone, intoxicated woman, but said the connection to the company's demands of its employees wasn't strong enough to make it responsible.
"Sadly, however, she is prey not only to taxi drivers," the court said. "The power the driver allegedly wrongfully exercised was not predicated on his employment."
The court also noted the alleged assault did not further the company's aims. In fact, its driver rules state: "Do not touch any customer if possible," and "Do not ask a customer out for a date."
The Canadian Press does not name alleged victims of sexual assault without their active consent.
