



COURT OF APPEAL FOR ONTARIO

CITATION: Sataur v. Starbucks Coffee Canada Inc., 2017 ONCA
    1017

DATE: 20171222

DOCKET: C64000

Laskin, Miller and Paciocco JJ.A.

BETWEEN

Abigail Sataur, a minor by her Litigation
    Guardian, Emran Sataur

Plaintiff

(Appellant)

and

Starbucks Coffee Canada Inc., Danielle Bovenberg
    and Jane Doe

Defendants

(Respondents)

Gavin Mackenzie, Brooke Mackenzie and Doug Strelshik,
    for the appellant

Bruno Roti, for the respondents

Heard and released orally: December 20, 2017

On appeal from the order of Justice Stewart of the
    Superior Court of Justice, dated May 29, 2017.

REASONS FOR DECISION

[1]

The appellant Abigail Sataur pleaded that she was injured when a barista
    at a Starbucks store in Brampton poured scalding hot water on her hands. Through
    her Litigation Guardian, Ms. Sataur sued Starbucks, the barista (Jane Doe) and
    the manager of the store, Danielle Bovenberg, for negligence. She has alleged
    that each of the two individual defendants owed her a duty of care and that each
    was personally liable for breaching her duty.

[2]

On a motion brought by Starbucks the motion judge struck the Statement
    of Claim against the two individual defendants on two grounds: first, the Statement
    of Claim did not disclose a reasonable cause of action against either
    individual defendant; and, second, suing the two individual defendants amounted
    to an abuse of process.

[3]

On her appeal Ms. Sataur submits that the motion judge erred in law in striking
    the Statement of Claim against both individual defendants on either ground. We agree.

[4]

The motion judge held that the claim against the individual defendants
    did not disclose a reasonable cause of action because the general rule remains
    that employees are not liable for what they do within the scope of their
    authority and on behalf of their corporation. Respectfully, the general rule
    is the opposite. As Justice McLachlin said succinctly in
London Drugs Ltd.
    v. Kuehne & Nagel International Ltd.
, [1992] 3 S.C.R. 299. It has
    always been accepted that a plaintiff has the right to sue the person who was
    negligent, regardless of whether the employee was working for someone else or
    not. Put in the negative, there is no general rule in Canada that an employee
    acting in the course of her employment cannot be sued personally for breaching a
    duty of care owed to a customer.

[5]

Here Ms. Sataur has pleaded specific acts of negligence against each
    individual defendant for which each may be personally liable - in the case of
    Jane Doe, the pouring of hot water, and in the case Ms. Bovenberg not
    supervising Jane Doe properly.

[6]

The motion judges ruling conflates two separate concepts: the
    employers vicarious liability for its employees acting within the scope of
    their employment; and employees personal liability for their own negligence
    while acting within the scope of their employment. Under Canadian law the two
    concepts can live together.

[7]

The motion judge also held that the pleading against the individual
    defendants was an abuse of process because they were named parties solely to
    obtain discovery. Even accepting that the two defendants were named solely to
    examine them for discovery, doing so in this case does not amount to an abuse
    of process. Quite the contrary. It is not an abuse of process to bring a
    lawsuit against individual defendants for the purpose of obtaining discovery
    from them, if the plaintiff has pleaded a proper cause of action against those
    individual defendants, as we have found that the plaintiff has in this case.

[8]

Again, as Justice McLachlin said in
London Drugs Ltd. v. Kuehne
    & Nagel International Ltd.,
unless the alleged individual tortfeasor is
    named, the right to discovery and use of evidence of the testimony of the
    person who was actually negligent might be lost. The situation would be
    different if the plaintiff had named defendants who had no direct involvement
    in the substance of the claim. That is not the situation here.

[9]

Accordingly, the appeal is allowed, the order of the motion judge is set
    aside and the defendants motion to strike the Statement of Claim against the
    two individual defendants is dismissed. The appellant is entitled to her costs
    of the appeal in the agreed upon amount of $15,000 all inclusive. The parties
    also agree that the successful party before the motion judge - the appellant 
    is entitled to the costs of the motion in the amount of $2,500, all inclusive.

John
    Laskin J.A.

B.W.
    Miller J.A.

David
    M. Paciocco J.A.


