E.D.G. v. Hammer, 2003 SCC 52, [2003] 2 SCR 459

E.D.G. v. Hammer, [2003] 2 S.C.R. 459, 2003 SCC 52

E.D.G.                                                                                                              Appellant/

                                                                                             Respondent on cross‑appeal

v.

Board of School Trustees of School District No. 44

(North Vancouver)                                                                                       Respondent/

                                                                                                Appellant on cross‑appeal

and

Attorney General of Canada, Nishnawbe Aski Nation,

Patrick Dennis Stewart, F.L.B., R.A.F., R.R.J., M.L.J., M.W.,

Victor Brown, Benny Ryan Clappis, Danny Louie Daniels,

Robert Daniels, Charlotte (Wilson) Guest, Daisy (Wilson)

Hayman, Irene (Wilson) Starr, Pearl (Wilson) Stelmacher,

Frances Tait, James Wilfrid White, Allan George Wilson,

Donna Wilson, John Hugh Wilson, Terry Aleck, Gilbert Spinks,

Ernie James and Ernie Michell                                                                    Interveners

Indexed as:  E.D.G. v. Hammer

Neutral citation:  2003 SCC 52.

File No.:  28613.

2002:  December 5, 6; 2003:  October 2.

Present:  McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps JJ.

on appeal from the court of appeal for british columbia

Torts — Liability — Intentional torts — Sexual assault — Pupil sexually assaulted by school janitor — Whether school board liable for breach of fiduciary duty or breach of non‑delegable duty — Whether trial judge properly apportioned damages between janitor and subsequent abusers.

The night janitor at a public elementary school began a series of sexual assaults on the appellant in 1978, when she was in Grade 3.  When she came down to the boiler room to clean blackboard brushes, he would take her into an adjacent storage area, lock the door, and engage in sexual acts.  There were at least 20 sexual assaults over a two‑year period.  The appellant did not tell anyone what was happening.  The trial judge found that “no person employed by the Board had any reason to suspect [the janitor] was engaged or might be likely to engage in any inappropriate behaviour with the children”.  Although the appellant once asked her teacher if she could be taken off brush duty and assigned some other task, she did not explain why or pursue the matter further when her request was denied.  So her teacher, not suspecting that anything serious lay behind the request, did not follow up with further inquiries.  The janitor’s assaults on the appellant ended in 1980, when he was transferred to another school.  Most unfortunately, the appellant was subjected to further sexual assaults after this time, by as many as seven uncles and distant cousins on the reserve.  The assaults ended only when she reached grade eight.  At trial, the appellant successfully recovered damages from the janitor, but her claims against the respondent Board, based on vicarious liability, breach of non‑delegable duty and breach of fiduciary duty, were unsuccessful.  The appellant did not appeal the trial judge’s holding on vicarious liability, because it was explicitly endorsed by the majority of this Court in Jacobi v. Griffiths, but she did appeal the trial judge’s holdings on the issues of fiduciary duty and breach of non‑delegable duty.  The Court of Appeal dismissed her appeal.  The appellant appealed to this Court on the issues of fiduciary duty and non‑delegable duty.  The Board cross‑appealed on the question of whether the trial judge properly apportioned the damages between the janitor and the appellant’s subsequent sexual abusers.

Held:  The appeal and the cross‑appeal should be dismissed.

Per McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie, LeBel and Deschamps JJ.:  The appellant’s claim for breach of non‑delegable duty cannot succeed.  Aside from circumstances in which vicarious liability is engaged, the specific duties pertaining to student health and safety set out in the School Act do not permit the inference that school boards are generally and ultimately responsible for the health and safety of school children on school premises, in a way as would render them liable for abuse at the hands of a school employee.  The same is true of the provisions laying out the general duties of school boards.

The Board does not have a broad fiduciary duty to act in the best interests of the child.  While the maxim that parents should act in their child’s best interests may help to justify particular parental fiduciary duties, it does not constitute a basis for liability.  Nor does the Board have a fiduciary duty to ensure that no employee harms school children on school premises regardless of fault.  Such a proposal amounts to an attempt to recast the appellant’s claim for breach of non‑delegable duty into the language of fiduciary duty and extends fiduciary law beyond its natural boundaries.  Since none of the conduct alleged against the Board involves the type of wrong traditionally associated with breach of fiduciary duty, the appellant’s claim for breach of fiduciary duty fails.

The trial judge’s factual conclusion that 90 percent of the damage was indivisible and was caused both by the janitor and by the subsequent tortfeasors cannot be overturned absent palpable and overriding error, and it is not evident that the trial judge committed such an error in this case.

Per Arbour J.:  There was substantial agreement with the majority’s reasons as regards breach of fiduciary duty and breach of non‑delegable duty.  Moreover, the appellant was correct not to pursue the matter of vicarious liability either in the Court of Appeal or in this Court.

Cases Cited

By McLachlin C.J.

Applied:  K.L.B. v. British Columbia, [2003] 2 S.C.R. 403, 2003 SCC 51; referred to:  M.B. v. British Columbia, [2003] 2 S.C.R. 477, 2003 SCC 53; Jacobi v. Griffiths, [1999] 2 S.C.R. 570; Lewis (Guardian ad litem of) v. British Columbia, [1997] 3 S.C.R. 1145; Lac Minerals Ltd. v. International Corona Resources Ltd., [1989] 2 S.C.R. 574; A. (C.) v. C. (J.W.) (1998), 60 B.C.L.R. (3d) 92; Athey v. Leonati, [1996] 3 S.C.R. 458.

By Arbour J.

Referred to:  K.L.B. v. British Columbia, [2003] 2 S.C.R. 403, 2003 SCC 51; M.B. v. British Columbia, [2003] 2 S.C.R. 477, 2003 SCC 53; Jacobi v. Griffiths, [1999] 2 S.C.R. 570.

Statutes and Regulations Cited

Negligence Act, R.S.B.C. 1996, c. 333, ss. 4(1), (2)(a).

School Act, R.S.B.C. 1979, c. 375 [now R.S.B.C. 1996, c. 412], ss. 88, 89, 108, 109, 155(1)(e), 178(a).

APPEAL and CROSS‑APPEAL from a judgment of the British Columbia Court of Appeal (2001), 197 D.L.R. (4th) 454 (sub nom. G. (E.D.) v. Hammer), [2001] 5 W.W.R. 70, 151 B.C.A.C. 34, 249 W.A.C. 34, 86 B.C.L.R. (3d) 191, 4 C.C.L.T. (3d) 204, [2001] B.C.J. No. 585 (QL), 2001 BCCA 226, affirming a decision of the British Columbia Supreme Court (1998), 53 B.C.L.R. (3d) 89, [1998] B.C.J. No. 992 (QL).  Appeal and cross‑appeal dismissed.

Megan R. Ellis and Shannon Aldinger, for the appellant/respondent on cross‑appeal.

Ravi R. Hira, Q.C., and Harmon C. Hayden, for the respondent/appellant on cross‑appeal.

David Sgayias, Q.C., and Kay Young, for the intervener the Attorney General of Canada.

Susan M. Vella and Elizabeth K. P. Grace, for the intervener the Nishnawbe Aski Nation.

David Paterson and Diane Soroka, for the interveners Patrick Dennis Stewart et al.

The judgment of McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie, LeBel and Deschamps JJ. was delivered by

1                                   The Chief Justice — This appeal concerns the potential liability of a School Board for sexual assaults on a pupil by a school janitor.  It was heard together with K.L.B. v. British Columbia, [2003] 2 S.C.R. 403, 2003 SCC 51, and M.B. v. British Columbia, [2003] 2 S.C.R. 477, 2003 SCC 53, and is determined by the principles established in K.L.B.

2                                   The appellant claims that the School Board should be held liable for breach of fiduciary duty and breach of non-delegable duty.  Both claims were dismissed at trial ((1998), 53 B.C.L.R. (3d) 89), and by a majority of the Court of Appeal ((2001), 197 D.L.R. (4th) 454, 2001 BCCA 226).  On the basis of the principles established in K.L.B., I would uphold the result reached in the lower courts, and would dismiss the appeal.

I.    Background

3                                   The appellant, E.D.G., lived on the Burrard Indian reserve in British Columbia as a child.  Along with other reserve children, she was bussed every day to Sherwood Park Elementary School, a public school in North Vancouver.  The children from the reserve were the only First Nations children at the school.  They were taught by the Band to respect school staff, and not to question their directives.  E.D.G. was particularly quiet and deferential.

4                                   All of the children at the school were expected to help out in the classroom, as needed.  When E.D.G. was in Grade 3, in 1978, she was given the task of cleaning blackboard brushes.  This involved taking the brushes down to the boiler room and using the brush cleaner that was kept there.  The boiler room was the domain of the school janitors, who had their own table across from the brush cleaner.  The school had a day janitor and a night janitor.  The night janitor worked from 3 p.m. to 11 p.m. each day.

5                                   The main function of the janitors was to maintain the school building and to repair school equipment.  In addition, janitors would assist students and staff with any questions they had concerning the location of equipment within the school.  Janitors had no direct duties relating to the care or instruction of students.  Nor did they have direct authority over the students — not even the authority to discipline them.  If a janitor saw a student misbehaving, the most he could do was report the behaviour to the principal, who would then discipline the child herself.  The janitors were not, like the teaching staff, under the supervision of the principal.  They were supervised by a Custodial Operations Manager, who was not on site all of the time.

6                                   Mr. Hammer was the night janitor at Sherwood Park Elementary School from 1978 to 1980.  In the fall of 1978, he began a series of sexual assaults on E.D.G.  When she came down to the boiler room to clean the brushes, he would take her into an adjacent storage area, lock the door, and engage in sexual acts.  The trial judge found that there were at least 20 sexual assaults over the two-year period.  On most occasions, E.D.G. simply “went numb”, hoping to dissociate herself from the pain and fear caused by Mr. Hammer’s actions.  She did not tell anyone what was happening.  Mr. Hammer had told her that if she did, he would lose his job and his family; and  E.D.G. had been taught by her elders to show deference toward adults.  She also worried that if she did try to tell someone at the school, she would be disbelieved because she was part of the native minority at the school.

7                                   The trial judge found that “no person employed by the Board had any reason to suspect he [Mr. Hammer] was engaged or might be likely to engage in any inappropriate behaviour with the children” (para. 17).  Throughout this time, Mr. Hammer discharged his custodial duties to the full satisfaction of the Custodial Operations Manager.  Moreover, he was known by all of the teachers to be friendly with all of the children.  The school did have a mechanism in place whereby teachers and other members of the staff could report negative performances by janitorial staff to the principal, who would inform the Custodial Operations Manager.  But as it was not suspected that anything was amiss, this mechanism was never used.  Although E.D.G. once asked her teacher if she could be taken off brush duty and assigned some other task, she did not explain why or pursue the matter further when her request was denied.  So her teacher, not suspecting that anything serious lay behind the request, did not follow up with further inquiries.

8                                   Mr. Hammer’s assaults on the appellant ended in 1980, when he was transferred to another school.  Most unfortunately, the appellant was subjected to further sexual assaults after this time, by as many as seven uncles and distant cousins on the reserve.  The assaults ended only when she reached Grade 8.  At this point, partly as a result of a school program in sexual education, she realized that she could take steps to avoid interacting with her abusers and to avoid entering into situations that would leave her vulnerable to new abusers.

9                                   At trial, E.D.G. successfully recovered damages from Mr. Hammer.  Her claims against the Board, however, were unsuccessful.  She had initially made claims against the Board based upon negligence, vicarious liability, breach of non-delegable duty and breach of fiduciary duty.  She abandoned the claim based on negligence during the trial.  The trial judge, Vickers J., agreed that it would not have succeeded.  He found that “[o]n the evidence it would be impossible to conclude the Board failed to adequately supervise its employees; failed to protect the students from assault; [or] failed to investigate credentials and qualifications of persons involved with students” (para. 41).  Moreover, he noted that E.D.G.’s teacher could not be faulted for failing to inquire further into her request to be removed from brush duty, because the teacher had no other grounds for suspecting that E.D.G. was being abused by Mr. Hammer.  Vickers J. then dismissed the remaining claims.  He held that because the Board had not abused its authority over E.D.G., it could not be held liable for breach of fiduciary duty.  He dismissed the claim for breach of non-delegable duty on the grounds that the Board had not delegated to the janitor any of the tasks for which it retained ultimate responsibility.  Finally, he held that it would not be fair to impose vicarious liability on the Board, because Mr. Hammer’s actions were not sufficiently connected to his employment to constitute a materialization of risks created by the Board.  All that the Board did was provide Mr. Hammer with the opportunity to commit the assaults; it did not entrust him with the type of authority, or the kinds of tasks, that would significantly increase the risk of abuse.

10                               E.D.G. did not appeal Vickers J.’s holding on vicarious liability, because it was  explicitly endorsed by the majority of this Court in Jacobi v. Griffiths, [1999] 2 S.C.R. 570, per Binnie J.  At para. 45, Binnie J. cited the case as an illustration of the principle that  “creation of opportunity without job-created power over the victim or other link between the employment and the tort will seldom constitute the ‘strong connection’ required to attract vicarious liability”.  The mere fact that an organization provides a person with the opportunity to commit a tort does not, on its own, render that tort a manifestation of risks created by the organization.

11                               E.D.G. did appeal the trial judge’s holdings on the issues of fiduciary duty and breach of non-delegable duty.  The Court of Appeal held unanimously that the Board had not breached its fiduciary duty toward the appellant.  In its view, a breach of fiduciary duty required the exploitation of another person’s trust for one’s own personal advantage.  The court divided, however, on the question of whether the Board had breached a non-delegable duty.  Prowse J.A. held that it had.  In her view, the Board was under a non-delegable duty to see that reasonable care was taken in the operation of the school.  Prowse J.A. regarded this duty as a duty to ensure that no employee committed a tort.  Consequently, she held that Mr. Hammer’s tort was sufficient to constitute a breach of the Board’s duty, even in the absence of negligence on the part of the Board.  By contrast, Mackenzie J.A. and McEachern C.J.B.C. held that the doctrine of non-delegable duty did not apply.  In their view, the doctrine applies only in cases where the tortfeasor is an independent contractor and not an employee, because its purpose is to supplement vicarious liability in cases where the tortfeasor is an independent contractor.

II.    Issues

12                               The appellant appeals to this Court on the issues of fiduciary duty and non-delegable duty.  The Board has cross-appealed on the question of whether Vickers J. properly apportioned the damages between Mr. Hammer and E.D.G.’s subsequent sexual abusers.

13                               The questions to be dealt with are therefore:

(1)     Is the Board liable for breach of non-delegable duty?

(2)     Is the Board liable for breach of fiduciary duty?

(3)     Did the trial judge properly apportion the damages between Mr. Hammer and  E.D.G.’s subsequent abusers?

III.    Analysis

14                               The principles governing this appeal have been discussed in the companion judgment of K.L.B.  Consequently, we need only summarize these principles briefly in what follows, before applying them to the circumstances of this case.

1.  Is the Board Liable for Breach of Non-delegable Duty?

15                               In the case at bar, as in K.L.B., our focus is on non-delegable duties generated by statute. 

16                               The starting point for analysis of non-delegable duties arising from statute is Lewis (Guardian ad litem of) v. British Columbia, [1997] 3 S.C.R. 1145, where the Court held that the applicable statutes placed full responsibility on the Ministry for ensuring that due care was taken in maintenance work on the highways.  The duty was “non-delegable” in the sense that the Ministry could not discharge its responsibility simply by delegating the work to competent contractors and by taking reasonable care in supervising them.  As I stated in my concurring judgment, it was no answer for the employer to say “I was not negligent” (para. 50).

17                               The issue in the case at bar is whether the School Act, R.S.B.C. 1979, c. 375, places the same sort of duty on school boards that the statutes in Lewis placed upon the Ministry.  Does it place school boards under a non-delegable duty to ensure that children are kept safe while on school premises, such that school boards are liable for abuse or harm inflicted by school employees upon school children while at school? Or are the duties it imposes more limited? 

18                               The duties and powers of school boards are laid out in ss. 88-89 of the Act: see Appendix.  Section 88 lays out the general duties.  They include a duty to “determine local policy in conformity with this Act” (s. 88(b)); to “delegate those specific and general administrative duties which require delegation to one or more employees of the board” (s. 88(c)); to deduct from teachers’ salaries the membership fees payable to the British Columbia Teachers’ Federation (s. 88(d)); to prepare reports for meetings of electors (s. 88(e)); and to “visit a public school in the school district” when necessary or desirable (s. 88(f)). 

19                               Subsequent sections of the Act place school boards under a number of specific duties pertaining to student health and safety.  Section 108 states that boards shall “provide each school in the school district with suitable first aid equipment” and shall ensure that there is at least one teacher on staff qualified to administer first aid.  Section 109 states that boards must “ensure that the Health Act and regulations are carried out in regard to the pupils”.  Section 155(1)(e) requires boards to close schools temporarily when inclement weather may endanger the health of pupils or when so ordered by the appointed medical officer.  Finally, s. 178(a) stipulates that boards must, when necessary, arrange for the repair and improvement of school buildings. 

20                               These specific duties do not permit the inference that boards are generally and ultimately responsible for the health and safety of school children on school premises, in a way as would render them liable for abuse at the hands of a school employee.  The same is true of the provisions laying out the general duties of school boards.  None of the general duties gives school boards full responsibility for students’ welfare while on school premises, in the way that the statutes in Lewis gave the Ministry full responsibility for overseeing maintenance projects and for ensuring that workers exercised reasonable care.  Consequently, the Act does not appear to impose a general non-delegable duty upon school boards to ensure that children are kept safe while on school premises, such as would render the Board liable for abuse of a child by an employee on school premises.

21                               It follows that the appellant’s claim for breach of non-delegable duty cannot succeed.

2.  Is the Board Liable for Breach of Fiduciary Duty?

22                               The parties agree that the relationship between the Board and the students was fiduciary in nature.  As the trial judge noted, a school board “enjoys a position of overriding power and influence over its students.  It is a power dependent relationship, one characterized by unilateral discretion” (para. 40).  The parties disagree, however, over the content of the fiduciary duty that the Board stands under.  The Board claims that the parental fiduciary duty is to refrain from harmful acts involving disloyalty, bad faith or a conflict of interest.  The appellant asserts a broader duty, alternately described as a duty to promote the “best interests” of school children and a duty to ensure that no employee inflicts injury on a child on school premises.

23                               For the reasons discussed in K.L.B., supra, the appellant’s assertion of a broad fiduciary duty to act in the best interests of the child must be rejected.  The maxim that parents should act in their child’s best interests may help to justify particular parental fiduciary duties, but it does not constitute a basis for liability.  The cases on the parental fiduciary duty focus not on achieving what is in the child’s best interest, but on specific conduct that causes harm to children in a manner involving disloyalty, self-interest, or abuse of power — failing to act selflessly in the interests of the child.  This approach is well grounded in policy and common sense.  Parents may have limited resources and face many demands, rendering it unrealistic to expect them to act in each child’s best interests.  Moreover, since it is often unclear what a child’s “best” interests are, the idea does not provide a justiciable standard.  Finally, the objective of promoting the best interests of the child, when stated in such general and absolute terms, overshoots the concerns that are central to fiduciary law.  These are, as La Forest J. noted in Lac Minerals Ltd.  v. International Corona Resources Ltd., [1989] 2 S.C.R. 574, at pp. 646-47: loyalty and  “the avoidance of a conflict of duty and interest and a duty not to profit at the expense of the beneficiary”.

24                              The appellant’s claim that the Board has a fiduciary duty to ensure that no employee harms school children on school premises regardless of fault fares no better.  This proposal amounts to an attempt to recast the appellant’s claim for breach of non-delegable duty into the language of fiduciary duty and extends fiduciary law beyond its natural boundaries.  Fiduciary obligations are not obligations to guarantee a certain outcome for the vulnerable party, regardless of fault.  They do not hold the fiduciary to a certain type of outcome, exposing the fiduciary to liability whenever the vulnerable party is harmed by one of the fiduciary’s employees.  Rather, they hold the fiduciary to a certain type of conduct.  As Ryan J.A. held in A. (C.) v. C. (J.W.) (1998), 60 B.C.L.R. (3d) 92 (C.A.), at para. 154, “A fiduciary is not a guarantor.”  A fiduciary “does not breach his or her duties by simply failing to obtain the best result for the beneficiary”.

25                               The fact that a breach of fiduciary duty requires fault is one of the features that distinguishes this type of claim both from claims based upon statutory non-delegable duties of the sort at issue in Lewis, supra, and from claims based upon vicarious liability. The latter two types of claim are no-fault claims.  Breaches of fiduciary duty, however, require fault.  As the trial judge, Vickers J., noted at para. 46:

No fault obligations are imposed in the context of a claim for vicarious liability.  Breach of fiduciary duty is not a no fault claim.

26                              In the case at bar, the only fault to which the appellant was able to point was the fault of the school janitor.  The appellant was unable to identify any action or omission on the part of the School Board that might itself amount to a breach of a fiduciary duty.  The fiduciary duty in this case lies upon the Board.  The object for analysis, then, is not the conduct of the janitor but the conduct of the fiduciary, the Board.  The trial judge specifically found that “no person employed by the Board had any reason to suspect  he [Mr. Hammer] was engaged or might be likely to engage in any inappropriate behaviour with the children” (para. 17).

27                               I conclude that none of the conduct alleged against the School Board involves the type of wrong traditionally associated with breach of fiduciary duty and that the appellant’s claim for breach of fiduciary duty fails.

3.      Did the Trial Judge Properly Apportion the Damages Between Mr. Hammer and E.D.G.’s Subsequent Abusers?

28                               Since I have concluded that the Board is not liable to E.D.G. for any of the damage caused by Mr. Hammer, it is not strictly necessary to consider the issue raised on the Board’s cross-appeal.  However, because the Board rests its challenge on the claim that Vickers J. misapplied a principle laid out in Athey v. Leonati, [1996] 3 S.C.R. 458, it will be useful to consider the Board’s challenge.

29                               The Board’s challenge concerns that portion of the damages that was, in the view of Vickers J., caused jointly by Mr. Hammer and the subsequent abusers. Vickers J. held Mr. Hammer liable for the sum total of these damages, stating that “[a]s long as he [Mr. Hammer] is a part of the cause of the injury, even though his acts alone did not create the entire injury, his responsibility for the [entire] damage that flows from that injury is established” (para. 57).  As an authority for this proposition, Vickers J. cited Major J.’s claim in Athey, supra, at para. 17, that “[a]s long as a defendant is part of the cause of an injury, the defendant is liable, even though his act alone was not enough to create the injury” (emphasis in original).

30                               In the Board’s submission, Vickers J. was incorrect in applying this principle to the case at bar.  The principle applies, the Board claims, only where the other cause is non-tortious and is a precondition of the injury, not where it is tortious and occurs subsequently.

31                               In my view, the Board’s reading of the principle articulated in Athey is overly narrow.  After making the claim cited above, Major J. further expanded upon his reasoning, stating at para. 19 that:

The law does not excuse a defendant from liability merely because other causal factors for which he is not responsible also helped produce the harm . . . .  It is sufficient if the defendant’s negligence was a cause of the harm . . . . [First emphasis added; second emphasis in original.]

This principle is not confined to cases involving non-tortious preconditions.  It applies to any case in which the injuries caused by a number of factors are indivisible.

32                               The matter is governed by the Negligence Act, R.S.B.C. 1996, c. 333, s. 4, which provides that “[i]f damage or loss has been caused by the fault of 2 or more persons”, then “(a) they are jointly and severally liable to the person suffering the damage or loss”.  This rule implies that Mr. Hammer is liable to E.D.G. for the full cost of any injuries that are indivisible and caused both by Mr. Hammer and by the subsequent tortfeasors.

33                              The Board’s real disagreement may lie, not with the principles applied by the trial judge, but with the trial judge’s factual conclusions, in particular, his conclusion that 90 percent of the damage was indivisible and was caused both by Mr. Hammer and by the subsequent tortfeasors.  This is, however, a finding of fact, and cannot be overturned absent palpable and overriding error.  It is not evident to me that the trial judge committed such an error in this case.

IV. Conclusion

34                               For the reasons given above, I would dismiss both the appeal and the cross-appeal.

The following are the reasons delivered by

35                               Arbour J. — This appeal concerns the potential liability of a school board for sexual assaults inflicted on a pupil by a school janitor.  The appellant claims that the School Board should be held liable for breach of fiduciary duty and for breach of non-delegable duty.  As regards these issues, I would dismiss the appeal substantially for the reasons given by McLachlin C.J.

36                               I also agree with McLachlin C.J. that vicarious liability cannot be imposed in this case.  In K.L.B. v. British Columbia, [2003] 2 S.C.R. 403, 2003 SCC 51, and in M.B. v. British Columbia, [2003] 2 S.C.R. 477, 2003 SCC 53, which were heard at the same time as this case, I disagreed with the Chief Justice and found that the elements for a vicarious liability claim were made out. However, in light of the specific reference to this case in Jacobi v. Griffiths, [1999] 2 S.C.R. 570, in which Binnie J., writing for the majority, endorsed the trial judge’s view that there was no vicarious liability in this case, I believe that the appellant was correct not to pursue the matter either in the Court of Appeal or in this Court.

APPENDIX

Relevant Legislative Provisions

School Act, R.S.B.C. 1979, c. 375

Board Duties

88.  The board of each school district shall

(a)   abide by this Act and the regulations;

(b)   determine local policy in conformity with this Act for the effective and efficient operation of schools in the school district;

(c)   delegate those specific and general administrative duties which require delegation to one or more employees of the board;

(d)   deduct from the salary of a teacher the amount of the regular annual membership fees payable by the teacher to the British Columbia Teachers’ Federation . . . .

(e)   where one or more annual meetings of electors is held under this Act in the school district, cause to be prepared and presented to each meeting a report on the operation of the public schools in the school district . . . .

(f)    when necessary or desirable, visit a public school in the school district.

Board powers

89.  The board of a school district may

(a)   make bylaws, not inconsistent with this Act or the regulations, relative to the organization of meetings of the board and to any matter over which power or authority is by this Act expressly vested exclusively in the board . . . .

(b)   provide, with respect to a school in its district, under rules of the board approved by the council of the municipality in which the school is situated, a system of school patrols by which pupils may assist in the control of motor vehicle traffic on highways or elsewhere so far as the traffic may affect pupils going to or from the school;

(c)   authorize the appointment of employees, in addition to teachers, considered necessary by the board to secure the efficient operation of the public schools of the school district, fix wages or remuneration, and, by lawful process, dismiss a person so appointed;

(d)   become a member of the British Columbia School Trustees Association . . . .

(e)   make bylaws, not inconsistent with any Act or regulations, regulating and controlling the use of property owned or administered by the board.

First aid equipment

108.  Each board of school trustees shall provide each school in the school district with suitable first aid equipment, and shall also, so far as practicable, provide that on each school staff there shall be at least one teacher or other person qualified to administer first aid.

Health Act to be adhered to

109.  Each board of school trustees shall ensure that the Health Act and regulations are carried out in regard to the pupils attending public school in the school district.

Duties of board

155. (1) The board of each school district shall,

                                                                   . . .

(e)   when so ordered by the medical health officer appointed under this Act, or when inclemency of weather might endanger the health of the pupils, close a school temporarily without permission of the ministry;

Board duties

178.  The board of each school district shall,

(a)   when considered necessary, arrange and authorize the purchase, erection, enlargement, alteration, repair, renting, insuring and improvement of school buildings . . . .

Appeal and cross‑appeal dismissed.

Solicitors for the appellant/respondent on cross‑appeal:  Stowe Ellis, Vancouver.

Solicitors for the respondent/appellant on cross‑appeal:  Watson Goepel Maledy, Vancouver.

Solicitor for the intervener the Attorney General of Canada:  Deputy Attorney General of Canada, Ottawa.

Solicitors for the intervener the Nishnawbe Aski Nation:  Goodman and Carr; Lerner & Associates, Toronto.

Solicitors for the interveners Patrick Dennis Stewart et al.:  David Paterson Law Corp., Surrey, B.C.; Hutchins, Soroka & Grant, Vancouver, B.C.