While at first glance it seemed to me that the judgments from these two cases were irreconcilable, I have come to find some distinctions between them which may ultimately hold little weight, but are, in my opinion, nonetheless interesting and noteworthy in assessing the question of the particular point at which an employee ought to find themselves in the corporate hierarchy before the courts will be willing to attribute blame for that employee’s mistake or fault to the corporation itself.
In both cases, the courts ask whether the individual at fault can be considered the directing mind of the company. In Fitzpatrick’s Fuel, the act mistakenly committed by the attendant was in fact partially beneficial to the company (generating revenue for the company through this sale of alcohol to a minor). In this light, from a policy perspective, failing to attach liability to the company might incite this type of illegal behavior more frequently and leave questions as to whether such a ‘mistake’ was in fact unintended. This arguably militates in favor of considering the station attendant as a directing mind in order to consider the attendant’s authority and actions as the actions of the company itself. In direct contrast, the mistake in The Rhône was far from beneficial to the company, and could eventually lead the company to reassessing current safety measures or skill requirements for the position. Another distinction lies in the potential for the company’s control of the employee’s duties and, to some extent, the circumstances in which those duties are undertaken. In the tasks assigned to the respective employees, the potential for straying beyond the realm of what can be predicted and instructed is much higher in The Rhône. Given the context of tugboats and navigation, where a multitude of factors could have combined with the Captain’s own mistake to cause the accident (for instance, the presence of others in the tugging operation, the factors of unpredictability potentially involved in the operation, etc.), the court may have been less inclined to see that the actions of the employee are directly attributable to the corporation. Arguably, there are fewer ‘unpredictable’ factors that play into the causality of the gas station attendant’s mistake – and perhaps this can be an element which suggests that the employee is a directing mind. Arguably, as a result, there is more potential for attributing the station attendant’s act in Fitzpatrick’s Fuel to the company due to the predictability of the actions and duties that would have been delegated to him and a heightened ability by the company, through the employee, to prevent such mistakes from occurring.
These are good points you make. I originally felt like the two cases were irreconcilable, largely due to the following statement by Iacobucci J in Rhone v Widener:
“The key factor which distinguishes directing minds from normal employees is the capacity to exercise decision-making authority on matters of corporate policy, rather than merely to give effect to such policy on an operational basis, whether at head office or across the sea. While Captain Kelch no doubt had certain decision-making authority on navigational matters as an incident of his role as master of the tug Ohio and was given important operational duties, governing authority over the management and operation of Great Lakes’ tugs lay elsewhere.”
It seems like, based on this statement alone, there is no way the gas station attendant could be a directing mind of the company. However, I think both your policy argument and the extent to which the circumstances surrounding the event are or are not within the control of the employee in question may have been important factors in these cases being decided differently.