Professionals are often held responsible, both by their regulator and by the courts, not only for their own conduct but for the conduct of their employees.  However, a more difficult issue arises when professionals enter into business relationships with each other and share facilities.  Often, a question arises as to whether one professional is responsible for the acts or omissions of colleagues with whom they practice.

In terms of professional regulation, most regulators do not hold their members responsible for the conduct of another.  While there are some exceptions to this rule, it is generally accepted that professionals should only be responsible for their own conduct.  Civil courts, however, are another matter.  When a doctor retains a nurse in a private office, is the doctor responsible if the nurse causes harm to a patient? If a chiropractor retains a physiotherapist in the same clinic, and the physiotherapist causes harm to a patient, is the chiropractor liable for damages?

The Supreme Court of Canada recently set out the test as to when one person is responsible for another in the workplace.  The Supreme Court held that although the categories of relationships that attract vicarious liability are not exhaustively defined or closed, the most common relationship that gives rise to vicarious liability is the relationship between employer and employee, as opposed to employer and independent contractor.  There is no one conclusive test that can be universally applied to determine whether a person is an employee or an independent contractor.  What matters is all of the relevant circumstances in the relationship.

The essential question is whether the person who has been engaged to perform services is performing them on his or her “own account”.  In making this determination, the level of control that the employer has over their colleague’s activities will always be a factor.  However, other factors include whether the person provides his or her own equipment, whether the person hires his or her own assistants, the degree of financial risk taken by the person, the degree of responsibility for investment and management held by the person and the person’s opportunity to profit from the performance of his or her tasks.

Practitioners often believe that when they enter into a contract with a colleague, and the contract states specifically that the colleague will be an “independent contractor”, as opposed to an employee, that is determinative.  However, the Supreme Court of Canada affirmed the principle that the characterization of the person in the contract is not conclusive.  Rather, the entire relationship will be examined before a court decides the actual nature of the relationship.

As these factors demonstrate, it is often difficult to predict whether a court would find a professional relationship to be that of “employer- employee”, or that of “an independent contractor”. It is even possible to contemplate a court finding one professional vicariously liable for the actions or omissions of another while, on the other hand, the federal government making a different determination for tax purposes, as tax authorities are quite vigilant about ensuring that if someone calls themselves an independent contractor, they are not doing it simply for tax purposes.  The overall test focuses on the independence and control in the relationship; if the independent contractor is truly “independent”, their colleagues will likely not be held to be responsible for their acts or omissions.

If a professional is considered to be “an employee” of another professional, the consequences are obviously quite significant.  Apart from obligations under income tax legislation, the employer will usually be liable for virtually all acts or omissions performed by their “employee” within the scope of practice or scope of employment of the person.  Since this responsibility usually extends to both negligence and intentional wrongs, the scope of vicarious liability can be very broad.  It is therefore important that practitioners do their best to ensure that any arrangements they have with colleagues reflect precisely the kind of relationship they wish to have.

[Professional Practice and Liability on the Net is a monthly Internet newsletter addressing issue of interest to a wide range of professionals. Please consult with a lawyer for specific legal advice. If you wish to be removed from the list of subscribers, please simply reply to this email. If you wish to reprint this article, please provide appropriate credit, and send a copy of the publication to, Steinecke Maciura LeBlanc, 393 University Avenue, Suite 2000, Toronto M5G 1E6. Or, call 599-2200, ext. 232, or email: bleblanc@sml-law.com.  Visit our website at http://www.sml-law.com. Comments and suggestions are also welcome. ]

Professional Practice and Liability on the Net is a monthly internet newsletter addressing issues of interest to a wide range of professionals. Please consult with a lawyer for specific legal advice. If you wish to be removed from the list of subscribers, please simply reply to this email. If you wish to reprint this article, please provide appropriate credit, and send a copy of the publication to, Steinecke Maciura LeBlanc, 401 Bay Street, Suite 2308, P.O. Box 23, Toronto, ON  M5H 2Y4. Or, call 599-2200, ext. 232, or email bleblanc@sml-law.com. Comments and suggestions are also welcome.