In JGE v English Province of Our Lady of Charity, [2011] EWHC 2871, MacDuff J was prepared to hold the bishop of a Roman Catholic diocese vicariously liable for the acts of a priest who was not an employee of the diocese or under its control. The judge applied the ‘close connection test’ from Doe v Bennett, 2004 SCC 17, and found the bishop vicariously liable.

The bishop’s appeal was dismissed by the English Court of Appeal (at [2012] EWCA Civ 938), although the Canadian cases aren’t treated so kindly. Ward LJ (Davis LJ concurring) expressed the view that McLachlin CJC’s mere ‘exposition of the policy reasons’ for extending vicarious liability to relationships akin to employment is no substitute for principled legal reasoning. Pretty short shrift is given to the Supreme Court of Canada’s willingness to find vicarious liability on the basis of a ‘close connection’ (‘if anything precedent is against that conclusion’).

In order to determine whether vicarious liability should be imposed in a situation akin to employment, a court ought to consider a number of interrelated tests: whether there is control by the ‘employer’ of the ‘employee’ or control by the ‘employee’ over himself or herself (the control test); the degree to which the activities of the ‘employee’ are a central part of the business of the ‘employer’ (the organisation test), or integrated into it (the integration test); and the extent to which the ‘employee’ behaves like an entrepreneur acting on his or her own account (the entrepreneur test). On the facts, the priest in question was more like an employee than an independent contractor, although it was a close one (as Tomlinson LJ’s dissent attests).

[Link available here].