Psycho Papa Joe said:
Aren't the Nucks and their management vicariously libel for the actions of their employee, hence why they can be legally be named in the case?
Possibly.
The traditional common law test in Canada for applying vicarious liability to employers has two branches. Under this test, employers are vicariously liable for
1. employee acts authorized by the employer, and
2. for unauthorized acts so connected with authorized acts that they may be regarded as modes (albeit improper modes) of doing an authorized act.
I would imagine Moore would rely on both branches. Under the first that would fit in with his allegation of a civil conspiracy. If he proves a civil conspiracy involving Orca Bay/ Canucks then the employer would have authorized the act.
Negligent acts by employees usually result in a finding of vicarious liability. A more sticky point is when an employee commits an intentional wrongful act; civilly - "battery" and at criminal law "assault causing bodily harm" in this case. The employer may argue that Bertuzzi's actions were so far outside the "code" that they should not be liable since they clearly would not have authorized such an act.
If I had to place a bet on a court finding, I would go with vicarious liability but it is a close thing. Recently the courts have been more likely to find vicarious liability for criminal acts on the part of employees although many of those cases involve sexual abuse, particularly of a minor.
Even if the threats and assualts do not rise to the level of a civil conspiracy then Moore would likely argue that Bertuzzi's actions were so connected with authorized acts (the "pay back for hitting" a star theory so popular here) that the improper mode (the battery) amounted to the employer authorizing the act.