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John McKiggan Q.C.
John McKiggan Q.C.
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Vicarious Liability for Sexual Abuse – When Should Peter Pay for Paul?

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What is vicarious liability?

As a lawyer who deals with sexual abuse compensation claims, I frequently have to explain the concept of vicarious liability to my clients.

Black’s Law Dictionary defines it as:

“Liability that a supervisory party (such as an employer) bears for the actionable conduct of a subordinate or associate (such as an employee) because of the relationship between the two parties.”

Basically vicarious liability holds an employer responsible for the wrongful acts of an employee, even when the employer didn't necessarily know about the wrongful acts.

The generally accepted approach to employer liability has been that an employer can be found liable if the employee committed a wrongful act within their course of employment and it is authorized or connected to an authorized act. Usually an employee who acts outside of the scope of their employment in committing a wrong will not incur liability to the employer.

The example I usually use is if a courier driver runs over a pedestrian while delivering a package, the courier company is vicariously liable because the accident happened in the course of the couriers job duties. On the other hand, if the courier is driving a get-away car during a bank robbery and runs someone over, the accident didn't happen in the course of their job duties and the courier company is not vicarioulsy liable.

Bazley v. Curry

In 1999 the Supreme Court of Canada's landmark decision in Bazley v. Curry dramatically changed the law regarding employers liability for sexual abuse by employees.

The Court in Bazley decided that the Children’s Foundation (a non-profit organization for emotionally troubled children) could be held vicariously liable for the sexual misconduct of one of its employees. The defence argued that they clearly had not authorized Curry’s (the employee) sexual abuse and therefore vicarious liability should not attach to them. The Supreme Court held that vicarious liability should attach where there is a significant connection between the enhancement or creation of the risk by the employer and the wrongful act that flowed from the risk.

In the particular case, Curry was left unsupervised for long periods of time with his victims, it was known and expected that he bathed them and there was a definite connection between what the foundation was asking Curry to do and the wrongful acts he committed.

Vicarious Liability of the Church

A subsequent Supreme Court of Canada case John Doe v. Bennett specifically dealt with vicarious liability of a religious organization. Bennett answered the question of whether an ecclesiastical corporation could be vicariously liable for the misdeeds of a priest.

The Court ultimately concluded that (i) the bishop provided the priest with the opportunity to abuse his power; (ii) his wrongful acts were related to the psychological intimacy inherent to his role as a priest; (iii) an enormous degree of power was conferred on Bennett relative to his victims. Considering these factors the Court determined that the episcopal corporation could be vicariously liable for the wrongful actions of the priest.

I have discussed the possible ramifications of the Doe decision before, for example: Can the Pope Learn a Lesson From Spiderman? Vatican Claims Bishops Not Employees of Church

Vicarious Liability for Sexual Abuse by Police

What about sexual by other persons in a position of authority? Perhaps the most obvious and universal authority figure is a police office. It seems obvious that police departments should be vicariously liable for police officers who abuse their authority to commit sexual abuse. But that is not necessarily the case as a recent decision from British Columbia shows.

R.G. v. Vancouver Police Board

Recently the B.C. Supreme Court decided a matter between a complainant of sexual abuse and the City of Vancouver: R.G. v. Vancouver Police Board . The complainant sued the Vancouver Police Board for sexual abuse he suffered at the hands of a police officer (Mr. Hughes) of the Vancouver Police Department. The complainant alleged that the abuse occurred during Mr. Hughes’ duties to the City. He alleged that the City should be vicariously liable as they put Mr. Hughes in a position (as an officer) in which he could abuse his power to commit the wrongful acts.

However, the Court held that Mr. Hughes was not an employee of the City (so vicarious liability didn't apply) and that the wrongful acts were not sufficiently related to the conduct authorized by the city. The B.C. Court distinguished the case from Bazley and ruled that the City of Vancouver was not responsible for the wrongful actions of one of their police officers because (at least in this case) the actions were not significantly connected to his employment.

What does this mean?

Vicarious liability will attach to an employer when an employee has committed a wrong where the employer has put an employee in such a position that they substantially increased the risk of the wrongful act occurring, without taking reasonable measures to prevent the risk.

While the law from Bazley and Bennett still applies, R.G. clarified that there must be a significant connection between the wrongful actions of the employee and the acts authorized by the employer. Unless the officer commits a wrongful act significantly connected to an action authorized by his employer, the employer will not be responsible for the employees actions.