I think that The “Rhone” and Fitzpatrick’s are reconcilable in regards to the captain not being seen as a directing mind, but the gas attendant/cashier being found to be a directing mind due to different policy considerations playing a role in the two cases. This might be too simplistic, but here’s how I rationalize it. I think that the fundamental differences between the the facts of the two cases was that, even though both could be seen as doing operational matters, the captain’s navigational errors/decisions in The “Rhone” were not directly linked to the implementation of any specific company policy and they were in no way of benefit to the company; whereas, the gas attendant/cashier’s actions in Fitzpatrick’s were in the course of the employee implementing a specific company policy that they were authorized by the company to implement in terms of not selling liquor to minors and due to the company benefiting monetarily from such sales.
Discussion Activity 5.1: Reconciling R v. Fitzpatrick’s Fuel and The Rhône
3 responses to “Discussion Activity 5.1: Reconciling R v. Fitzpatrick’s Fuel and The Rhône”
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Ya this is a tough one! I struggled to reconcile them while trying to write our last assignment :/ It’s an interesting distinction, and one I didn’t really think about, so thanks for sharing! I still can’t get passed what the court in Rhone says, and how the situation in Fitzpatrick’s could possibly fit… “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 a policy on an operational basis.” I just don’t see how the cashier could be considered to be doing anything more than “giving effect” (or rather failing to give effect…) to a company policy. I guess just one is a crim case and the other is tort law? Well actually Fitzpatrick’s is the Liquor Control Act… but ya. I guess different contexts, pursuing different ends? It definitely is influenced by public policy and wanting to hold the liquor store and not a lowly cashier responsible for the sale. Also, how would you punish the cashier? Could you fine them? I’m thinking about when I worked in a bar, we were always reminded to check IDs, and reminded that the bar would face major fines and possibly even a shut down if liquor were to be sold to a minor, but I never remember being told I could be personally fined… Seems like a stretch?
Thanks for your reply, Caitlyn! Yeah, I struggled with this one too and just thought of that distinction while reviewing my notes after doing the assignment. It seems ultimately be a public policy thing to me, as you said of wanting to hold the liquor store responsible for the sale and not the cashier. I didn’t think about punishment and personal liability. You’re right, the captain could be personally punished but it may be hard to personally fine the cashier. It’s definitely a tough one.
Great posts! I agree with Sania and Caitlyn in that there are significant policy considerations influencing the decisions in terms of what they are trying to achieve in their tort and criminal settings. The interesting thing in applying the doctrines to establish whether someone is a “directing mind” is that they are malleable and can go either way. Policy will be a big determinant factor but the execution of the arguments in these cases was certainly interesting.