Victim’s counsel argues workplace arrangements enabled abuse. Court examines limits of employer’s vicarious liability
The Court of Appeal for British Columbia recently dealt with a case involving vicarious liability where an organisation was sued for sexual abuse perpetrated by a volunteer against a young person in their care.
The volunteer had been arranged by the organisation to provide services that brought him into regular contact with the victim.
The victim argued that the organisation should be held responsible for the abuse, claiming that the arrangements put in place created the conditions that allowed the grooming and subsequent abuse to occur.
The victim's legal team argued that the organisation failed to properly apply established legal tests and precedents when determining liability, and that the initial contact facilitated by the organisation was sufficient to establish a strong connection between the institutional arrangements and the harm that followed.
The court examined whether institutions can be held responsible for abuse that occurs primarily off-site, despite the relationship between abuser and victim beginning within the organisational environment.
The case started when a grade 6 student began writing a novel and his teacher recognised that regular English classes weren't challenging enough. Both the teacher and the student's mother thought he would benefit from additional tutoring help.
The School District No. 61 (Greater Victoria) didn't have resources to provide a tutor, but the teacher knew a qualified, recently retired teacher who agreed to volunteer for the role.
From late 1999 until June 2000, the volunteer tutor and student met once a week for about 40 minutes in an empty classroom during English class. They worked on the novel together, with the tutor helping with editing, grammar, and structure.
The school secretary knew where they were and directed them to available classrooms. There was no evidence the door was closed, and the teacher checked in from time to time.
The trial judge applied the established test for vicarious liability set out in Bazley v. Curry and Jacobi v. Griffiths. This test requires demonstrating a "strong connection" between the employer's enterprise and the wrongful act, moving beyond simple "but for" causation.
The Supreme Court of Canada has explained that employers must significantly increase the risk of harm through the position and assigned tasks given to the employee.
The Court of Appeal noted the importance of examining: "the powers, duties and responsibilities conferred on [the tutor] by the respondent [employer] in relation to students like [the victim], keeping in mind of course the general environment of the school to the extent it can be said to have contributed to [the tutor's] predatory activities."
According to records, the student began visiting the tutor's home during grade 6, first to do yard work and then to work on the novel.
Over five years, the student visited the tutor's house about 50 times, but only two visits occurred while he was still in grade 6 and receiving tutorials at school. The rest happened after the school year ended in June 2000.
The visits to the tutor's home were arranged between the tutor, student, and his parents. Before grade 6 ended, the teacher became aware that the student had visited the tutor's house for tutoring.
The tutor told the teacher they were doing this because he had a computer and printer that was moving the work along faster. The teacher didn't give permission or discourage them, and didn't inform the school principal.
The trial judge made important findings about these home visits, distinguishing between school-authorised activities and private arrangements. The judge found that: "When meeting with [the student] at his own home, however, [the tutor] was not doing so for the School in any sense. The School's authorities did not authorize, organize, facilitate, control or benefit from these meetings at [the tutor's] house. They were tutorials and visits organized by [the tutor], [the student], and his family for their own purposes and without School involvement."
The victim argued that the judge artificially distinguished between events at school and those at the tutor's home. However, the Court of Appeal found the judge properly evaluated whether school arrangements created sufficient connection to later abuse.
The case included expert evidence about grooming patterns from a psychological expert, whose opinion the trial judge accepted. The former described sexual grooming as a process involving victim selection, gaining access and isolation, trust development, desensitisation to sexual content and physical contact, and post-abuse maintenance behaviours. The expert found that all these steps occurred in this case.
The expert noted the significance of the school's role in introducing the tutor to the student. The expert stated:
"Because the introduction of [the tutor] to [the student] was initiated by [the teacher] and the administration at [the] School, [the tutor] was able to access [the student], gain his trust and that of his parents, and begin desensitizing [the student] to physical contact."
This initial contact then allowed the tutor to isolate the student at his private residence where grooming continued.
However, the Court of Appeal found this expert evidence didn't change the legal analysis required. The court noted that similar grooming patterns were evident in the Jacobi case, where the Supreme Court nevertheless declined to impose vicarious liability.
The court explained: "While it may deepen the understanding of how abusers exploit opportunities available to them, it does not displace the need to examine whether there is a strong connection between what the employee/abuser is tasked to do and the abuse."
The trial judge examined the specific duties and responsibilities assigned to the tutor by the School District No. 61 (Greater Victoria). The tutor's role was limited to providing 40-minute weekly sessions to help with novel editing, grammar, and structure.
This wasn't part of the school curriculum or the student's English grade. The arrangement didn't involve any expectation of physical contact or time alone with the student outside school or school hours.
The tutor had no disciplinary power or authority over the student comparable to teachers or parents. He wasn't placed in a position of trust regarding the student's care, protection, or nurturing, unlike situations in foster homes or school dormitories.
The relationship could have been terminated at any time and involved less intimate contact than recreational facilities examined in the Jacobi case.
The court noted that seeking to provide a positive role model or mentoring doesn't automatically create the intimacy required for vicarious liability. As the Supreme Court had stated in Jacobi:
"I do not accept that an enterprise that seeks to provide a positive role model thereby encourages intimacy. Nor do I believe that 'mentoring', as such, puts one on the slippery slope to sexual abuse."
The Court of Appeal examined whether the trial judge erred in treating Jacobi as controlling precedent.
The student argued the judge failed to apply his own findings to the vicarious liability test and should have found sufficient connection between tutorial arrangements and subsequent abuse.
However, the Court of Appeal found the judge correctly identified and applied the relevant legal test.
The trial judge found that the tutoring arrangement provided only an opportunity to begin grooming, establishing "but for" causation rather than the required strong connection.
The Court of Appeal dismissed the appeal, finding no error in the trial judge's analysis. The court emphasised that vicarious liability requires more than "but for" causation or vulnerability of potential victims.
The court noted the judge's finding that: "The arrangements for [the student] to visit [the tutor's] house for academic and social activities is what gave rise to the serious risks that ultimately materialized. These arrangements were made entirely between [the tutor], [the student], and [the student's] parents. Representatives of the School played no role in organizing or carrying out that arrangement."
The judgment reinforced that courts balance competing interests when determining vicarious liability, noting the "historical reluctance of judges in this country to fix employers with no-fault liability on the basis merely of job-created opportunity even where accompanied by privileged access to the victim."
The court concluded: "In my view, the judge applied the correct test to establish vicarious liability and the findings underlying his conclusion that vicarious liability was not made out were open to him on the evidence."
