Business Civil Code of Quebec Quebec Superior Court Rulings

Security company held responsible for employee’s tort

blameThe world’s fifth-largest purveyor of armored car and security guard services was ordered to pay $782,000 to an insurance company after Quebec Superior Court held that it was liable for tort committed by one of its employees who set fire to a vacant YMCA building in downtown Montreal.

“The suit essentially rests on the delicate and controversial question surrounding the liability of the principal for the intentional fault of its employee,” noted Justice Chantal Masse in her Axa Assurances inc. c. Groupe de sécurité Garda inc.

Garda World Security Corp. and its insurance company, Chubb Insurance Company of Canada, argued that it should not be held liable for the actions of its employee because he did not act in the performance of his duties – but to no avail.

Sébastien Farrese, a 22-year old security agent, was part of a team that oversaw a deserted YMCA building hit by a spate of small fires. The building was slated for renovations, and the YMCA added security personnel, changed the locks, increased lighting, and at the behest of Garda, installed a camera to thwart the fires. Garda’s personnel were also given clear instructions to work in pairs.

On April 25, 1999, Farrese, hired only six months before, was the acting supervisor of the graveyard shift, overseeing two other security agents. Instead of following instructions, he separated the personnel, and ordered them to inspect the premises individually, one on the third floor, the other on the sixth. Alone, Farrese then used the opportunity to strike a fire using newspaper and small pieces of wood he found in the building. By the time the fire was discovered by Farrese’s colleagues, it was out of control.

Farrese, who was sentenced to two years less a day served in the community plus two years probation, struck the fire with the intention of stifling it to demonstrate that he “was master of the situation and show the others that he was a good agent,” he stated in his confession.

Damages totaled to $2.4-million, and YMCA’s insurer, Axa Assurances Inc., covered the amount. The French-based insurance company in turn then sued the Montreal security company. Axa maintained that Farrese abused his duties, that he acted in part in the interests of Garda, that Garda should be held accountable for Farrese’s personality deficiencies, and that it could not discharge its responsibility because Farrese committed a criminal act. Further, Axa argued that the fact that Farrese set the fire while working is a determining factor.

The heart of the suit lies around the interpretation of s. 1463 of the Quebec Civil Code, pointed out Justice Masse. According s. 1463, the principal is liable to reparation for injury caused by the fault of his agents and servants in the performance of their duties.

Informed by a series of Supreme Court of Canada rulings, notably Bazley v. Curry, [1999] 2 S.C.R. 534, as well as the British Columbia Court of Appeal ruling in British Columbia Ferry Corp. v. Invicta Security Service Corp. [1998] 167 D.L.R. (4th) 193 (B.C.C.A), Justice Masse held that rulings emanating from common law jurisdictions deserve consideration, and in fact highlight the fact that legal principles behind vicarious liability in common and civil law have at the very least edged closer together, if not become “unified.”

Noting that the SCC in Bazley established a new approach to determining vicarious liability, Justice Masse said that it can be “useful in the measure that it well defines the principles underlies vicarious responsibility and its reach is not incompatible with the limits” set out by s.1463 of the Civil Code.

Justice Masse notes that in Untel v. Bennett, [2004] 1 S.C.R. 436, 2004 SCC 17, the SCC said that in order to determine whether there is a sufficient connection in the case of intentional torts, factors to be considered  include: the opportunity that the enterprise afforded the employee to abuse his or her power, the extent to which the wrongful act may have furthered the employer’s aims (and hence be more likely to have been committed by the employee), the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s enterprise, the extent of power conferred on the employee in relation to the victim, and the vulnerability of potential victims to wrongful exercise of the employee’s power.

“The Court has all the reasons to be inspired by the non-exhaustive list of factors elaborated by the Supreme Court of Canada in common law to determine, if in Quebec civil law, the intentional tort by an employee should be considered in the performance of his duties,” said Justice Masse.

In this case, as in the case British Columbia Ferry Corp., Justice Masse said that vicarious liability should be attached to the security company because it faced an inherent risk in the ordinary course of running a security business, that is, the people who it entrusted to guard against external threats may misuse that trust to threaten the property themselves.

Justice Masse concluded that there was an additional piece of evidence that played in Axa’s favour.

“Even if the fault committed by Farrese did not contribute to the realization of Garda’s objectives, the Court retains from the evidence that he committed his gesture with the goal of shining and impressing during the performance of his duties,” said Justice Masse. “Indirectly, if he had succeeded in making others believe that he and his team subdued the fire lit by someone else, as it was his intention, Farrese’s act would have benefitted Garda by demonstrating the quality of its services.”

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