The Evolution Of Vicarious Liability In Sexual Abuse Cases (Part 1)

For Lawyers

Apr 23

Authored by: Erika Tower and Zahra Vaid.

Background

In Canada, the legal doctrine of vicarious liability can be used to hold organizations liable for the wrongful conduct of their employees, agents and volunteers. The doctrine has been held to apply to sexual misconduct in the context of school boards, religious institutions and volunteer organizations, and in various circumstances, including where it occurred outside of the organization’s premises.

In Part One of this two-part series, we will provide an overview of the legal framework for vicarious liability, examine the background and context for application in sexual abuse cases, the significance for survivors, and the test set out by the Supreme Court of Canada for establishing vicarious liability. Part Two will look at cases decided in the past five years, how the application of the test for vicarious liability has evolved during that timeframe, and what it means for future cases.

For survivors of sexual abuse, vicarious liability is a crucial legal tool. Without a finding of liability against a party with the means to pay compensation, or with insurance coverage to respond to a claim, survivors of sexual abuse are less likely to be able to recover their damages. Holding these organizations accountable also helps encourage better policies and safeguards to prevent future abuse.

The Test

Vicarious liability is not a distinct tort, but a legal theory of liability based on the relationship between the wrongdoer and the entity against which liability is sought. It requires no proof of wrongdoing on the part of the entity.

The test for determining vicarious liability in relation to sexual misconduct was first set out by the Supreme Court of Canada in Bazley v. Curry, [1999] 2 S.C.R. 534 (“Bazley”) and Jacobi v. Griffiths, [1992] 2 S.C.R. 570 (“Jacobi”), and expanded in K.L.B. v. British Columbia, 2003 SCC 51 (“K.L.B.”).

First, the Court must consider whether there is any binding precedent that applies. Where there is not, or there are differing precedents, then the court must proceed to examine the relationship between the wrongdoer and the entity.

This part of the test is described in K.L.B. v British Columbia as requiring that the relationship between the wrongdoer and the entity against whom vicarious liability is sought be sufficiently close as to make a claim for vicarious liability appropriate. This does not require a formal employment relationship. What is key is whether the entity, institution or principle was able to “manage the risk” posed by the wrongdoer.

The next step is the “strong connection test,” which was set out in Bazley and Jacobi. It requires a strong connection between the wrongful acts and the conduct authorized by the organization. In other words, the Court must ask: is there a sufficient connection between the creation or enhancement of a risk and the wrong that occurred? Factors that may be considered, but are not limited to:

a) the opportunity the enterprise afforded the employee to abuse his or her power;

b) the extent to which the wrongful act may have furthered the employer’s aims (and hence be more likely to have been committed by the employee);

c) the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s enterprise;

d) the extent of power conferred on the employee in relation to the victim; and

e) the vulnerability of potential victims to wrongful exercise of the employee’s power.

Courts must also evaluate broader policy considerations, including whether fair and effective compensation and deterrence of future harm will be achieved by a finding of vicarious liability.

The doctrine of vicarious liability remains an essential tool for holding organizations accountable, providing survivors of sexual misconduct with a means of recovering damages and prompting the development of safeguards against future abuse.

In the next part of this series, attention will turn to key judicial decisions from the past five years that illustrate how vicarious liability has been applied in cases of sexual misconduct, offering further insights into its evolution and impact.

This article was originally published by Law360 Canada, part of LexisNexis Canada Inc.