There are several principles that have been enunciated by the courts, some of which may overlap:
- The employment contract is now considered to have an implied term that the employer must treat its employees with "decency, civility, respect, and dignity." All employees have a duty of good faith and fidelity towards their employer while working, and key or senior employees will also have a fiduciary duty which may continue after they leave.
- There is now an overarching principle in place that holds that both parties to a contract have a duty of honest performance.
- In the formation of a contract, both parties can be held to account for any negligent misrepresentations they may have made during its negotiation.
- In providing references for an employee, employers have a duty of care to ensure that they are accurate and fair, and failure to do so can constitute negligence.
That's not all. There is also employer liability for acts during the working relationship. The list is complex, as noted by one of the larger Canadian law firms:
- An employer is ALWAYS DIRECTLY LIABLE for its own negligence in hiring, training, or supervising employees.
- An employer is ALWAYS VICARIOUSLY LIABLE for the wrongful acts of an employee within the scope of his or her employment.
- An employer MAY BE VICARIOUSLY LIABLE for the wrongful acts of an employee outside the scope of his or her employment.
- A party hiring an independent contractor is generally NOT VICARIOUSLY LIABLE for the wrongful acts of the independent contractor.
- An employer is ALWAYS VICARIOUSLY LIABLE for wrongs committed by an agent in the scope of the agent’s actual, apparent, or usual authority.
- An employer MAY BE VICARIOUSLY LIABLE for an employee’s breach of fiduciary duty owed to a previous employer, even if the new employer was unaware of the breach.
- The most effective way for employers to limit unnecessary liability is to take PROACTIVE PREVENTATIVE MEASURES.