Vicarious Liability: Are Employers Responsible for Their Employee’s Off Duty Conduct?

Cimpean v. Payton – Ontario Superior Court of Justice – July 7, 2008

An employer may be found responsible for their employee’s off duty conduct if such conduct can be linked to the employer through such means as an employment contract.

On July 7, 2008, the Ontario Superior Court of Justice reached a decision in Cimpean v. Payton [2008] O.J. No. 2665 (“Cimpean”) which stands as a warning to all employers that they may be held responsible for their employees’ off duty conduct.

In Cimpean, three NBA players who played for the Milwaukee Bucks assaulted a woman and her husband outside of an adult entertainment lounge. The Respondents plead that the Bucks and the NBA were vicariously liable for the three players’ actions pursuant to clauses 5(b)(iii) and 5(d) of each player’s contract with the Bucks and Article 35 of the NBA Constitution.  Clause 5(b)(iii) of the employment contract stated that each player agreed to “conduct himself on and off the court according to the highest standard of honesty, citizenship, and sportsmanship”. Clause 5(d) read that “The Player agrees to be bound by Article 35 of the NBA Constitution” in which all players agreed that the NBA Commissioner could suspend or impose a fine on any player who “in his opinion, shall have been guilty of conduct that does not conform to standards of morality or fair play, that does not comply at all times with all federal, state and local laws, or that is prejudicial or detrimental to the Association.”

In response to these claims, the Bucks and the NBA filed an application to strike a portion of the Respondents’ claim for failure to disclose a reasonable cause of action pursuant to Rule 21.01 of the Rules of Civil Procedure.

After reviewing the claims made by both parties to the application, the Trial Judge found that the causes of action plead by the Respondents, namely the allegations of vicarious liability made towards both the Bucks and the NBA, were reasonable causes of action within Rule 21.01, resulting in the Motion being dismissed. In reaching this decision, the Trial Judge made some important observations regarding the vicarious liability of the Bucks and the NBA.

In regards to the Bucks’ liability, the Trial Judge stated, “clause 5(b)(iii) of the Bucks contract with each player is reasonably capable of leading to the conclusion that the employment relationship between the Bucks and each player involved more than just playing basketball…In contracting for good off court behaviour, the Bucks made off court behaviour part of their business concerns. In this circumstance, it is fair and just that the Respondents have the opportunity to claim that the Bucks are vicariously liable for the players conduct.”

As for the NBA’s vicarious liability, the Trial Judge stated, “The focus of the allegations in issue is the business of professional basketball, in which image is closely related to financial returns and the NBA has the power to sanction off court conduct by players in order to protect that business. A person who is subject to a NBA player contract may reasonably be said to be bound, at all times, to conduct himself in a manner consistent with the requirements of section 35 of the NBA Constitution. That element of NBA control over player conduct is a critical element in determining whether the Respondents’ claim that the NBA is vicariously liable for the player’s conduct herein is a reasonable cause of action.” The Trial Judge continued, “In my opinion, the NBA’s ability to sanction player conduct off court means that the NBA is not too remote from the conduct in issue for vicarious liability to attach to it.”

The observations made by the Trial Judge shed light on the matter of an employer’s vicarious liability for their employees’ off duty conduct. This suggests that employers should be aware of their employees’ off duty conduct as they may be held vicariously liable for any inappropriate conduct.  That said, if an employer makes an employee’s good conduct a term of the employee’s employment, there may be greater likelihood that the employer will be found vicariously liable for that employee’s off duty misconduct.  As the Trial Judge stated in his finding in Cimpean, “vicarious liability, if ultimately imposed on the Bucks, will likely have the effect of ensuring that teams will exercise a greater degree of influence over the free time activities of players”. Employees, however, may feel that an employer is being overly intrusive into their own personal life while off duty. Yet, this otherwise reasonable argument may lose its weight if the employee’s off duty conduct can be linked to their employer, such as through an employment contract as in Cimpean, thereby making the employer responsible for the employee’s actions.

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