O’REGAN J
identify the circumstances in which employers will be liable for such assaults. It is
interesting to note that the approach in the United Kingdom, in terms of which the
courts ask whether there is a close link between the wrongful conduct of the
employees and the business of the employer or the nature of the employment, is very
similar to the test set in Rabie. The approach taken by the Canadian Supreme Court
sets a similar objective test to be answered in the light of a range of factors. There can
be no doubt that the jurisprudence of these jurisdictions will be of value in considering
the development and application of our own rules of vicarious liability.
The development of the common law
[44]
From this comparative review, we can see that the test set in Rabie, with its
focus both on the subjective state of mind of the employees and the objective
question, whether the deviant conduct is nevertheless sufficiently connected to the
employer’s enterprise, is a test very similar to that employed in other jurisdictions.
The objective element of the test which relates to the connection between the deviant
conduct and the employment, approached with the spirit, purport and objects of the
Constitution in mind, is sufficiently flexible to incorporate not only constitutional
norms, but other norms as well. It requires a court when applying it to articulate its
reasoning for its conclusions as to whether there is a sufficient connection between the
wrongful conduct and the employment or not.
Thus developed, by the explicit
recognition of the normative content of the objective stage of the test, its application
should not offend the Bill of Rights or be at odds with our constitutional order.
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