Liability of employees for torts related to employment

Lobo v. Carleton University, 2012 ONCA 498 is a useful source of the law regarding liability of employees for torts connected to their employment:

[6]          We would not give effect to this submission.  This court's decision in Montreal Trust Co. of Canada v. Scotia McLeod Inc. (1995), 26 O.R. (3d) 481 set out the criteria that need to be met to establish personal liability.  These are:

(1)  the actions of the employees are themselves tortious; or

(2)   the actions of the employees exhibit a separate identity or interest from that of the corporation or employer so as to make the act or conduct complained of their own. 

As to the first basis, it is conceded that there is no plea in the fresh as amended statement of claim for fraud, deceit, dishonesty or want of authority on the part of the individual respondents.

[7]          With respect to the second branch of the Scotia McLeod case, we agree with the motion judge, at para. 35, that "the amended pleading […] does little more than "window dress" the suggestion of a separate identity or interest of the named Defendants from that of [Carleton University]" and, at para. 32, that "the allegations made against each in pith and substance relate to decisions made within their ostensible authority as [Carleton University] employees".  The fact that the individual respondents did not exhibit a separate identity or interest is confirmed by para. 145 of the fresh as amended statement of claim in which the appellants pleaded that, "As the employer of the individual Defendants, Carleton University, permitted or acquiesced the individual Defendants to act in the manner that they did and as such, is vicariously liable for their actions."