The Evolution Of Vicarious Liability In Sexual Abuse Cases (Part 2)

For Lawyers

Apr 30

Authored by: Erika Tower and Zahra Vaid.

Application in Recent Cases

There have been several decisions in the past five years where Canadian courts have considered vicarious liability in the context of sexual misconduct. For the second installment of our two-part series, we delve into the application of vicarious liability in recent Canadian judicial decisions in the context of sexual misconduct. Building upon the foundational principles and framework outlined in Part One, we will examine key cases from the past five years, highlighting the courts' considerations, the evolving contours of the legal doctrine, and its impact on survivors' ability to seek justice.

1. C.O. v. Williamson 2020 ONSC 3874

In this case, the plaintiff (represented by Elizabeth Grace of Lerners) was sexually abused by her high school music teacher and band leader, Mr. Williamson, both on school premises and while driving her to and from band related events in his personal vehicle. The trial judge, Justice Salmers, held that the school board was vicariously liable for Mr. Williamson’s misconduct as it was strongly connected with his employment with the school board, which employment materially and significantly increased the risk of harm to the plaintiff.

Mr. Williamson was found to have power over the plaintiff, which was conferred on him by the school board due to the school’s approval of his role and associated activities (including leading band trips and transporting students home from school and school-related activities). In imposing vicarious liability on the school board, the trial judge did not differentiate between the abuse Mr. Williamson committed on and off school premises, nor suggest that drives home after a school field trip or after a band rehearsal (when he assaulted the plaintiff) were unrelated to his job as a teacher. Relying on the Supreme Court of Canada’s requirement for a strong connection between the misconduct and the tasks assigned to the wrongdoer, the trial judge found all of the abuse Mr. Williamson perpetrated against the plaintiff was connected with his job as a teacher and band leader.

2. John Doe (G.E.B. #25) v. The Roman Catholic Episcopal Corporation of St. John’s, 2020 NLCA 27, leave to appeal denied 2021 CanLII 1097 (SCC)

The Newfoundland Court of Appeal also imposed vicarious liability on a Catholic Archdiocese in in this case, where four boys were sexually abused by the Brothers of Mount Cashell, an orphanage established and funded by the Roman Catholic Episcopal Corporation of St. John’s. The court held that the Archdiocese not only established the orphanage, but had an ongoing role in administering, servicing, operating, and financially supporting it, and ensured that the Roman Catholic faith informed the education and religious training of the residents.

The court found there was also a strong connection between the risk of harm introduced by the Archdiocese and the materialization of that risk, as it provided the Brothers staffing Mount Cashel with the power, environment, and tools to carry out their wrongdoing. The wrongdoing was “virtually undetected, while they were supposed to be carrying out the Archdiocese’s legitimate objectives of caring for and educating” its residents.

There was a sufficiently close relationship between the Archdiocese and the Brothers, and a strong enough connection between the sexual assaults and the assigned duties of the Brothers, to result in a finding of vicarious liability. Doing so also upheld the policy objectives of the doctrine.

3. HN v School District No. 61, 2024 BCSC 128,

In this British Columbia decision, vicarious liability was not imposed against the school district for sexual abuse committed by a private tutor it had recommended to the plaintiff’s parents. The school allowed the tutoring sessions to occur in an empty classroom, but there were no allegations of any significant inappropriate behaviour occurring at the school itself. Eventually, the tutor, Mr. Redgate, began inviting the plaintiff to his home for tutoring, and unrelated activities such as watching movies, playing cards and working on home projects, which is where the sexual abuse occurred.

The court found that the only relationship the school had with Mr. Redgate was when he tutored the plaintiff in the classroom at the school, but when he was doing it in his own home, it was not “for the school” in any sense as the school did not authorize, organize, facilitate, control or benefit from those meetings. Accordingly, there was not a sufficiently strong connection between the school and Mr. Redgate, or what the school was asking him to do and Mr. Redgate’s wrongful acts. In other words, the school’s connection to Mr. Redgate did not significantly increase the type of harm that actually occurred.

4. Dunford v. Hamilton-Wentworth District School Board, 2024 ONSC 2991

Vicarious liability was also held not to apply in this recent Ontario decision. The plaintiff attended an alternative school which was funded by two provincial ministries through Chedoke-McMaster Hospital and operated on Hospital grounds. While a student, the plaintiff was sexually abused by the director of and “tutor” (the title given to teachers) at the school, who was also a doctor at the Hospital. When the plaintiff was absent from school for an extended period, the defendant director attended the plaintiff’s apartment with schoolwork and alcohol that they consumed together. After the plaintiff returned to the school, he started attending the defendant director’s home to talk about his future, and the two continued to consume alcohol together. The plaintiff was driven home afterwards and was sexually assaulted on two occasions in his apartment.

In determining whether the Hospital (that funded the school) was vicariously liable for the defendant director’s misconduct, the Court concluded in the context of his role at the school, that the defendant was acting on his own account and not on behalf of the Hospital. There was not a close enough relationship between the director and the Hospital. With respect to policy considerations, Justice Vermette stated: “[c]ompensation would not be fair given that the Hospital was too remote from [the defendant] for it to be acting on his behalf and for his conduct to be regarded as a materialization of the Hospital’s own risks” and would have no deterrent effect.

Conclusion

Practically speaking, the ability of a plaintiff survivor of sexual abuse to recover their damages depends significantly on whether vicarious liability is imposed on an organization with the ability to pay, or with insurance coverage

The recent decisions in HN v School District No. 61 and Dunford v. Hamilton-Wentworth District School Board should not be interpreted as a shift away from the imposition of vicarious liability in civil sexual abuse claims. In both cases, there was not a sufficiently close relationship between the wrongdoer and the schools, or a strong enough connection between the abuse and the conduct authorized by the school, and therefore the test for vicarious liability could not be met. The abuse in both these cases occurred off school properly, but more importantly, was found by the courts not to be sufficiently connected to school approved activities.

The facts of these two cases are different and distinguishable from C.O. v. Williamson and John Doe (G.E.B. #25) v. The Roman Catholic Episcopal Corporation of St. John’s, where there was a close relationship between the school and the wrongdoer, and a strong connection between the wrongful acts of the perpetrators whose conduct was authorized by the organizations in question. To date, neither of these two earlier decisions have received negative treatment by any Canadian court, and they remain good law and persuasive authority for vicarious liability in sexual abuse cases.

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