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1. Where the injury is damages from a breach of a contract that the employer has with a third party, generally the employer will be liable for those damages, subject to the particular terms of the contract and ordinary principles of common law on remedies for breach of contract. It is, after all, a contract of the employer.

2. Where the injury is a tort, the issue is whether the employer is either (i) liable under the terms of a contract for the injury (contracts often make a party liable to indemnify the other party for injury caused by its employees, agents and other representatives), or (ii) vicariously liable for the acts of the employee.

3. Where the issue is breaking the law, the employer can be found responsible for the actions of employees (in addition to other liability – i.e. civil liability under 2(i)). This is a very complex question and not covered here.

The post addresses 2(ii) and covers the analysis of whether the employer is vicariously liable. The basic concept is the question of what rules should apply to determine when one person (the employer) should be responsible for the actions of another (“Vicarious liability”). Unsurprisingly, the application of the test to any particular case is very fact dependant (in the lead case on this issue, the employee had sexually abused children under the care of the employer, which operated a residential care facility).

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A long time ago we posted on the passage of Canada’s new Anti-Spam and Anti-Spyware law, unhelpfully called the “Fighting Internet and Wireless Spam Act” (we will be handing out “Fighting Internet” t-shirts and mugs in the new year). Broadly, the law prohibits the sending of commercial messages and the installation of computer programs without consent.

In March of this year, the CRTC, which has regulatory authority over the new law, registered regulations and then a related policy. More recently, in two bulletins (first here and second here) released in October the CRTC has published guidance on complying with the new law.

The date on which all of this comes into force has not yet been announced, but it’s expected soon. The second bulletin may attract controversy – it suggests that even where the user has to manually indicate consent, a default setting of consent is not permitted, and that third party or audio recording verification of oral consent is required – David Elder of Stikeman’s has an overview here.

As we noted some time ago, we save articles and commentary about this law under this tag. Please contact us if you have any questions.

Update: Barry Sookman has an update. In a nutshell, it while be a while yet, and more is coming.

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