SUPREME
COURT OF CANADA
Citation: E.B. v. Order of the
Oblates of Mary Immaculate in the Province of British Columbia, [2005] 3
S.C.R. 45, 2005 SCC 60
|
Date: 20051028
Docket: 29890
|
Between:
E.B.
Appellant
and
Order
of the Oblates of Mary Immaculate
in
the Province of British Columbia
Respondent
‑ and ‑
Attorney
General of Canada and
Attorney
General of British Columbia
Interveners
Coram:
McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella
and Charron JJ.
Reasons for
Judgment:
(paras. 1 to 58)
Dissenting
reasons:
(paras. 59 to 112)
|
Binnie J. (McLachlin C.J. and Major, Bastarache, LeBel,
Deschamps, Fish and Charron JJ. concurring)
Abella J.
|
______________________________
E.B. v.
Order of the Oblates of Mary Immaculate in the Province of British Columbia,
[2005] 3 S.C.R. 45, 2005 SCC 60
E.B. Appellant
v.
Order of
the Oblates of Mary Immaculate
in the
Province of British Columbia Respondent
and
Attorney General
of Canada and
Attorney
General of British Columbia Interveners
Indexed
as: E.B. v. Order of the Oblates of Mary
Immaculate in the Province of British Columbia
Neutral
citation: 2005 SCC 60.
File
No.: 29890.
2004: December 7;
2005: October 28.
Present:
McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella
and Charron JJ.
on appeal from
the court of appeal for british columbia
Torts — Vicarious liability — Intentional torts — Sexual abuse —
Enterprise risk creation test — Child sexually abused while in residential
school — Whether Catholic Order operating school vicariously liable for sexual
assaults committed by lay employee — Whether strong connection between
employee’s duties and wrongful acts — Whether case falls to be determined by
legal precedents or broad policy rationales — Whether appellate review is
foreclosed by trial judge’s findings.
Between 1957 and 1962, B attended a residential school for First
Nations children run by the Oblates. S, a lay employee, worked as a baker,
boat driver and odd‑job man. He resided upstairs in a building located
on the school grounds. The trial judge found that S sexually assaulted B from
the age of 7 and that the assaults continued on a regular and frequent basis
until B was 11 or 12 years old. All the assaults took place in S’s living
quarters. B did not bring S’s misconduct to the attention of anyone at the
school. Based on his finding that the operational characteristics of the residential
school created and materially enhanced the risk of the assaults, the trial
judge found the Oblates vicariously liable. These characteristics included the
separation of the children from their families, the fact that employees lived
in close proximity to the children and the fact that the children were under a
regime where they were to respect and obey all staff. The Court of Appeal set
aside the trial judge’s decision, holding that he had erred in overemphasizing
job‑created opportunity and in failing to have sufficient regard to the
specific employment duties and responsibilities assigned to S and the
connection, if any, between those duties and responsibilities and the wrongs S
committed against the appellant.
Held (Abella J. dissenting): The appeal should be
dismissed.
Per McLachlin C.J. and Major, Bastarache, Binnie, LeBel,
Deschamps, Fish and Charron JJ.: To impose vicarious (as opposed to
direct) liability on the school, the law requires a strong connection between
what the employer was asking the employee to do and the wrongful conduct. The
trial judge stressed the “operational characteristics” of the school and the
potential risk it created in general terms for its students. However if, as
the appellant contends, the school as organized and operated created a
significant risk to every student by every employee regardless of the
particulars of his or her job, this would argue for direct liability rather
than vicarious liability. What is required for the imposition of vicarious liability
is a demonstration that school‑created features of the employment
relationship of S contributed to the ability of S to do what he did in this
case. Taking the trial judge’s approach to its logical conclusion, the
employer would be liable for all tortious acts of all of its employees, no
matter how remote the wrongdoing from the job‑created power or status or
how distanced the employee was from any position of authority over, or intimacy
with, the students. This is not consistent with legal precedent. A “mere
opportunity” to commit the wrongful act does not suffice. Here, the “strong
connection” test was not met. While vicarious liability does not require a
claimant to establish that the wrongdoer was placed in a “parent‑like”
position of authority, the law does require consideration of the job‑created
power and the nature of an employee’s duties as a fundamental component of
determining if a particular enterprise increased the risk of particular
wrongdoing in relation to a claimant by the employee complained about. [2] [4]
[25] [29] [52]
The Bazley factors show that while the residential setting in
which the abuse took place would favour a finding of vicarious liability, the
limited duties and role of S at the school are conclusive against it. S did
not have authority to insinuate himself into the intimate life of B or any of
the other students except his own children and grandchildren. First, S was not
“permitted or required” to be with the children, apart from trips in the
motorboat which were supervised by one of the religious brothers. Second, the
conduct in the course of which the wrongful acts occurred had nothing to do
with furthering the employer’s aims. Third, intimacy was prohibited. S was
expected to devote himself to baking, doing maintenance work and driving the
motorboat, and his quarters were located in an area off‑limits to
students. Fourth, the employer did not confer any power on S in relation to
B. Despite the loose structure of the school, S’s position was not one
involving regular or meaningful contact with the students. Fifth, the
vulnerability of the students resulted from the nature of the institution
(which is the subject of the appellant’s claim of direct liability), not from power
conferred by the employer on S (which is the subject of the appellant’s claim
of vicarious liability). The Court of Appeal was thus correct in concluding
that while the employment relationship in this case provided S with the
opportunity to commit the wrongful acts, his assigned role in relation to the
students fell short of what is required to attract vicarious liability. A
strong connection between what the Oblates were asking S to do and the wrongful
acts was not established. [37] [41] [47‑52]
Appellate review was not foreclosed by the trial judge’s findings. The
essential difference between the trial judge and the Court of Appeal related to
the proper application of the Bazley test. A court of appeal does not
owe a trial judge any deference on a question of law. [23]
Per Abella J. (dissenting): In order to find
an employer vicariously liable for the intentional torts of an employee, a
strong connection must be found between the enterprise, the authority conferred
on the employee by the employer, and the tort. A court must look at the
enterprise as a whole to determine whether the specific features of the
enterprise and of the employment relationship created — or materially enhanced
— the risk that the tort would occur. Here, the trial judge correctly stated
and applied the Bazley test and made findings available on the record
that supported his conclusion that the residential school, as an enterprise,
and in the authority it provided to S, materially enhanced the risk that eventually
materialized, namely the sexual assault of B by S. [59-60] [65] [70]
An analysis of the Bazley factors confirms the trial judge’s
conclusion of vicarious liability in this case. First, although mere
opportunity is insufficient to support a finding of vicarious liability, the
link between the opportunity and the tort committed in this case is
particularly strong. S was given quarters in the middle of the school
property, was permitted to form relationships with vulnerable children, and
could not have been unaware of the lax supervision prevalent at the residential
school. Second, given that sexual molestation will never be any organization’s
aim, the absence of evidence supporting this factor has no bearing on this
case. Third, the power structure inherent in the employer’s enterprise greatly
increased the level of friction and confrontation, thereby helping to create
the conditions that led to the sexual assault of B. The discipline was strict
and harsh, and children were ordered to obey all staff members. Fourth, the
trial judge concluded that B viewed S as a person of power and authority. He
found that S had responsibility for helping the religious staff with all school‑related
tasks, including child care and supervision, and a role that included
supervising children on a daily basis and assigning chores to them. The
breadth and amorphous nature of the employment duties given to him, and the way
in which those duties were allocated by the school’s administration, gave him
both actual and perceived power over the students. The Oblates’ failure to
strictly delineate S’s official duties served to increase his authority.
Fifth, the children at the residential school were profoundly vulnerable. They
were separated from their parents for long periods of time. Although the trial
judge recognized that B had a number of adult relatives living at the school,
including grandparents, he was prevented from maintaining close relationships
with them. In addition, the residential school was remote and access was
limited. This geographic and personal isolation, combined with a harsh
disciplinary regime consisting of routine corporal punishment, threats of
punishment, and repeated orders to obey all staff members resulted in an
extremely vulnerable group of potential victims. [78-91]
Where, as here, the legal test for vicarious liability is properly
articulated and applied, a trial judge’s conclusions are entitled to
deference. There is no basis in this case for disturbing the trial judge’s
unchallenged findings of fact or the legal conclusion he drew from them that
vicarious liability should be imposed. The Court of Appeal substituted its own
and sometimes contrary findings of fact without explaining why those of the
trial judge should be disregarded. The trial judge made no error of law in
applying the Bazley test; his reasons fit squarely into established
vicarious liability jurisprudence. Even if the standard of correctness is
applied, there is no basis for interfering with the trial judge’s legal
conclusion. [60] [98] [107-111]
Cases Cited
By Binnie J.
Applied: Bazley v. Curry, [1999]
2 S.C.R. 534; Jacobi v. Griffiths, [1999]
2 S.C.R. 570; referred to: K.L.B. v. British
Columbia, [2003] 2 S.C.R. 403, 2003 SCC 51; John Doe
v. Bennett, [2004] 1 S.C.R. 436, 2004 SCC 17, aff’g
(2002), 218 D.L.R. (4th) 276, 2002 NFCA 47; H.L. v.
Canada (Attorney General), [2005] 1 S.C.R. 401,
2005 SCC 25, rev’g in part (2002), 227 Sask. R. 165,
2002 SKCA 131; G. (E.D.) v. Hammer (1998), 53 B.C.L.R.
(3d) 89, aff’d (2001), 197 D.L.R. (4th) 454,
2001 BCCA 226, aff’d [2003] 2 S.C.R. 459,
2003 SCC 52; Housen v. Nikolaisen, [2002]
2 S.C.R. 235, 2002 SCC 33; Canadian Pacific Railway Co.
v. Lockhart, [1942] A.C. 591; Lister v. Hesley Hall Ltd.,
[2002] 1 A.C. 215, [2001] UKHL 22; McDonald v. Mombourquette
(1996), 152 N.S.R. (2d) 109; K. (W.) v. Pornbacher (1997),
32 B.C.L.R. (3d) 360; H. (S.G.) v. Gorsline, [2005]
2 W.W.R. 716, 2004 ABCA 186; M. (F.S.) v. Clarke,
[1999] 11 W.W.R. 301; H. (T.E.G.) v. K. (P.), [2001]
6 W.W.R. 546, 2001 ABQB 43; A. (C.) v. Critchley
(1998), 166 D.L.R. (4th) 475; B. (J.‑P.) v. Jacob
(1998), 166 D.L.R. (4th) 125; C.S. v. Miller (2002),
306 A.R. 289, 2002 ABQB 152.
By
Abella J. (dissenting)
Bazley v. Curry, [1999] 2 S.C.R. 534; Jacobi v.
Griffiths, [1999] 2 S.C.R. 570; K.L.B. v. British Columbia,
[2003] 2 S.C.R. 403, 2003 SCC 51; John Doe v. Bennett,
[2004] 1 S.C.R. 436, 2004 SCC 17; M. (F.S.) v. Clarke,
[1999] 11 W.W.R. 301; B. (W.R.) v. Plint (1998),
52 B.C.L.R. (3d) 18; D.W. v. Canada (Attorney General) (1999),
187 Sask. R. 21, 1999 SKQB 187; V.P. v. Canada
(Attorney General) (1999), 186 Sask. R. 161,
1999 SKQB 180; G. (E.D.) v. Hammer (1998), 53 B.C.L.R.
(3d) 89; Housen v. Nikolaisen, [2002] 2 S.C.R. 235,
2002 SCC 33.
Authors Cited
Canada. Law Commission of Canada. Restoring
Dignity: Responding to Child Abuse in Canadian Institutions.
Ottawa: The Commission, 2000.
Canada. Royal Commission on Aboriginal
Peoples. Report of the Royal Commission on Aboriginal Peoples,
vol. 1, Looking Forward, Looking Back. Ottawa: The
Commission, 1996.
Claes, Rhonda, and Deborah Clifton. Needs and
Expectations for Redress of Victims of Abuse at Residential Schools.
Ottawa: Law Commission of Canada, 1998.
APPEAL from a judgment of the British Columbia Court of Appeal (Esson,
Hall, Saunders, Low and Smith JJ.A.) (2003), 14 B.C.L.R. (4th) 99,
182 B.C.A.C. 288, 300 W.A.C. 288, 227 D.L.R.
(4th) 298, [2003] 7 W.W.R. 421, 16 C.C.L.T. (3d) 149,
[2003] B.C.J. No. 1123 (QL), 2003 BCCA 289, setting aside a
decision of Cohen J., [2001] B.C.J. No. 2700 (QL),
2001 BCSC 1783. Appeal dismissed, Abella J. dissenting.
John R. Shewfelt and Darrell W. Roberts,
Q.C., for the appellant.
Azool Jaffer‑Jeraj and Mobina Jaffer, Q.C.,
for the respondent.
Mitchell R. Taylor, for the intervener the Attorney
General of Canada.
Karen A. Horsman, for the intervener the Attorney
General of British Columbia.
The judgment of McLachlin C.J. and Major, Bastarache, Binnie, LeBel,
Deschamps, Fish and Charron JJ. was delivered by
1
Binnie J. _ The appellant attended a residential
school for First Nations children run by the respondent Order of the Oblates of
Mary Immaculate in the Province of British Columbia (“Oblates”) on Meares
Island, British Columbia. In the years 1957 to 1962, he suffered sexual abuse
at the hands of a lay employee, Martin Saxey, also of First Nations origin, who
worked in the school bakery and operated the school motorboat. Saxey is now
dead. His estate may be liable for damages but it has no money to pay. The
appellant therefore seeks damages from the Oblates on two legal grounds,
firstly because of its direct fault in permitting the sexual abuse to
occur (an issue on which the trial judge has not yet expressed an opinion);
secondly, on the basis of vicarious liability, irrespective of any
direct fault on the part of the respondent, for the misconduct of its employee,
Saxey.
2
Children who have suffered sexual abuse in residential schools are
extremely vulnerable people, and where fault is established on the school’s
part, substantial compensation will be awarded. At this point in the
litigation, however, no fault has been established on the part of anybody
except Saxey. To impose vicarious (as opposed to direct) liability on the
school, the law requires “a strong connection between what the employer was
asking the employee to do (the risk created by the employer’s enterprise) and
the wrongful act. It must be possible to say that the employer significantly
increased the risk of the harm by putting the employee in his or her position
and requiring him to perform the assigned tasks”: Bazley v. Curry, [1999]
2 S.C.R. 534, at para. 42 (emphasis deleted). The critical inquiry concerns
the powers, duties and responsibilities conferred on Saxey by the respondent
Oblates in relation to students like the appellant, keeping in mind of course
the general environment of the school to the extent it can be said to have
contributed to Saxey’s predatory activities.
3
The trial judge found vicarious liability because in his view, the
“operational characteristics” of the residential school created a risk of
sexual abuse, and the risk materialized in harm to the appellant ([2001] B.C.J.
No. 2700 (QL), 2001 BCSC 1783). The Court of Appeal overturned that result
((2003), 14 B.C.L.R. (4th) 99, 2003 BCCA 289). In its view, the trial judge
had paid insufficient attention to the absence of any strong connection between
the sexual abuse and Saxey’s job on the fringes of school life as a baker,
part-time motorboat operator and odd-job man. As a matter of law, the
conclusion of the Court of Appeal is correct. The argument that vicarious
liability should be strictly imposed without regard to the connection between
the misconduct at issue and the job held by the particular wrongdoing employee
was decisively rejected in Bazley and Jacobi v. Griffiths, [1999]
2 S.C.R. 570. The trial judge’s approach effectively put all the respondent’s
employees on the same footing without giving due weight to the fact that it was
Saxey who harmed the appellant by intentional wrongs that for present
purposes must be taken to have been unknown, unauthorized, unforeseen and
unforeseeable by the respondent. Saxey’s work in the bakery did not involve
any degree of intimacy. Nor did driving the motorboat or doing odd maintenance
jobs confer any such authority or intimacy. In the absence of a strong
connection between the job Saxey was employed to do and the circumstances in
which the abuse took place, the most that can be said is that working in a
residential school offered Saxey an opportunity for contact with young boys
like the appellant and a deference to authority on their part that otherwise
might not exist. However, in a series of cases dealing with employer’s
vicarious liability for sexual abuse, the Court has repeatedly stated that
“‘mere opportunity’ . . . does not suffice”. See Bazley, at
para. 40; Jacobi, at para. 45; K.L.B. v. British Columbia, [2003]
2 S.C.R. 403, 2003 SCC 51, at para. 94. See also John Doe v. Bennett,
[2004] 1 S.C.R. 436, 2004 SCC 17, and H.L. v. Canada (Attorney General),
[2005] 1 S.C.R. 401, 2005 SCC 25. Such general liability, if it is to be
created, is a matter for the legislature.
4
The trial judge stressed the “operational characteristics” of the school
and the potential risk it created in general terms for its students. However
if, as the appellant contends, the school as organized and operated created a
significant risk to every student by every employee regardless of the
particulars of his or her job, this would argue for direct liability
rather than vicarious liability for Saxey’s misconduct. In terms of the
latter, the trial judge did not take his analysis far enough. He did not put
adequate weight on the school-created features of the relationship between this
claimant and this wrongdoing employee, and the contribution of the respondent’s
enterprise to enabling the wrongdoer Saxey to do what he did in this
case. Taking the trial judge’s approach to its logical conclusion, the
respondent would be liable for all tortious acts of all of its employees, no
matter how remote the wrongdoing from the job-created power or status or how
distanced Saxey was from any position of authority over, or intimacy with, the
students. When the full analysis is undertaken, as will be seen, the
imposition of vicarious liability in this case does not conform with our
jurisprudence. I would therefore dismiss the appeal.
I. Facts
5
Christie Residential School (“Christie”) was located on Meares Island,
about four miles by water from Tofino, a town that is at the end of the highway
that crosses Vancouver Island. The school was accessible only in good weather
by boat from Tofino or floatplane. It ceased operating in 1971, but prior to
that it taught First Nations children from the west coast of Vancouver Island.
At all relevant times, the school was owned, operated and staffed by the
Oblates, a Roman Catholic missionary order comprised of priests and lay
brothers, and is incorporated by a special Act of the Legislature of British
Columbia. During the years in question, the school was staffed by 16 to 20
adult employees and populated by 145 to 158 children.
6
The appellant began attending the school at the age of six, on September 18,
1956. He was a student there until June of 1965. His siblings also attended
the school.
7
Martin Saxey began his employment at the school on September 14, 1955.
Some years prior to that time, he had been convicted of manslaughter and
imprisoned. There is no finding, at least at this stage, that the Oblates were
negligent either in hiring Saxey or in supervising his conduct.
8
At the relevant period, the educational and social functions of the
school were under the direction of the respondent Oblates (including priests
and lay brothers), assisted by different orders of nuns from time to time. The
federal government contributed a per capita grant to assist in sustaining the
fiscal operations of the school. (Statutory provisions contained in successive
versions of the Indian Act provided that Canada could enter into
agreements with parties to operate school facilities and that school attendance
was compulsory.) While the direct care of the children and the educational
functions were performed by religious personnel, the maintenance services and
physical operation of the school were in the hands of First Nations staff,
mostly recruited from adult relatives of the students. (For instance, male and
female relatives of the appellant worked at maintenance jobs during the time
the appellant was at the school.) Several of these employees and their
families resided on the school property. Saxey had several children and
grandchildren who attended the school at the same time as the appellant. One
of Saxey’s sons was a classmate of the appellant’s.
9
Students were not allowed to be in or about the staff quarters. Nor
were they supposed to be in the bakery because hot appliances and dough-making
machinery could present a hazard. Despite the rules, the records showed, and
the appellant testified, that on occasion children did work in the kitchen and
bakery (in part as “practical training”) during the time of Saxey’s tenure as
baker. The appellant testified that he never went in the bakery.
10
Saxey resided upstairs in a building located on the school grounds.
Some downstairs residential rooms were occupied by relatives of the appellant.
The appellant testified that around 1957, when he was in his second year at the
school, Saxey began luring him to his room by promising to give him candy. He
said that when he went up to the room he was sexually assaulted by Saxey. He
testified that for the next four or five years Saxey continued to lure him to
his room with the promise of candy and performed numerous sexual assaults upon
him. The appellant testified that he went with Saxey because he felt
threatened. He did not at the time bring Saxey’s misconduct to the attention
of anyone at the school.
11
The appellant graduated from Christie in 1965. Thereafter, he attended a
secondary school on the mainland of British Columbia for a few months and
afterwards began to work in the logging industry. Employment was interrupted
by an injury and he was off work for some time. Generally over the years, he
was engaged in work related to forestry. He had recurring difficulties with
alcohol abuse, and by 1970 he was in trouble with the law and on occasion was
jailed. The appellant testified that he had mentioned something about his
prior sexual abuse to a lawyer acting for him around the end of the 1970s, but
he did not report the behaviour of Saxey in any detailed way prior to 1995,
when he was approached by members of the RCMP who were then investigating cases
of possible abuse at residential schools across the country. Saxey had died
around 1986. Subsequently, the appellant described the assaults to various
health professionals, some of whom testified at trial.
II. Judicial History
A. Supreme Court of
British Columbia
12
Cohen J. found that the appellant was sexually assaulted by Saxey
beginning when he was seven years old; that the assaults continued on a regular
and frequent basis until he was 11 or 12 years old; that all of the assaults
took place in Saxey’s living quarters at the school; and that the sexual
assaults consisted of fondling, masturbation and simulated intercourse, which
included partial anal penetration. The facts of the sexual abuse were
therefore extremely serious and outrageous.
13
The trial judge accepted the appellant’s explanation that he did not
tell anyone about the assaults prior to the time that he left Christie because
he did not know of any other children being sexually abused while he was there.
He said that he used to think he was the only one and he was “too scared and
ashamed” to seek help.
14
Turning to the issue of vicarious liability, the trial judge referred to
the principles discussed by this Court in Bazley and Jacobi. He
noted correctly that a school-created parent-like relationship between the
abuser and the victim was not a prerequisite to imposing vicarious liability.
He also distinguished the case of G. (E.D.) v. Hammer (1998), 53
B.C.L.R. (3d) 89 (S.C.), because it involved a janitor at a day school rather
than a residential school.
15
The trial judge reviewed testimony about the discipline at the school
finding that fear played a large role in keeping order. Children were told to
show respect to all of the adult staff members and to do what they were told.
There was evidence put forward by one witness that the lay staff could assign
chores, occasionally on the spot. The trial judge heard testimony that a child
at the school would reasonably perceive all staff members as having blanket
authority and that due to understaffing, the delineation of duties for the
employees was not rigid. Although there was some debate about whether children
were ever seen in the bakery, some of the children had spent time in the
adjacent kitchen. According to the plaintiff’s expert Dr. Paul Janke, the fact
that the appellant never helped Saxey in the bakery did not mean that he was
shielded from Saxey’s power or authority, as children would perceive Saxey as
having authority regardless of where they encountered him. Dr. Janke
testified:
Q: But if the alleged abuser was, as in Mr. Saxey’s case – and I’ll put
these assumptions to you, Doctor, that he was a baker at the school, he had no
positional authority over the children, Mr. Saxey had children and
grandchildren at the school, [E.B.] had numerous family members at the school,
and there were no children working in the bakery with Mr. Saxey, what – how
would this change?
A: The fact that there were no children working in the bakery would
[not] eliminate even a perceived position of authority, it would remain my
opinion that children in that setting would perceive adults as having
authority. The presence of family members of [E.B.] there clearly reduces the
isolation and gives him the opportunity to disclose to someone. It doesn’t mean
the abuse wouldn’t happen, but it certainly reduces it. The fact that Mr. Saxey
had other relatives there would play a role only in – well, it would play two
possible roles, one, reducing his opportunity to be unsupervised with a child
from the school and, two, he would have access to other potential victims in a
much more intimate setting where he would have more power and control.
16
Applying the two-stage analysis set out in Bazley, the trial
judge first found that the cases did not unambiguously determine on which side
of the vicarious liability line the case should fall.
17
Having regard, then, to the policy considerations at the second stage of
the Bazley analysis, the trial judge held that the key was whether the
operational characteristics at Christie created and materially enhanced the
risk of the assaults. These characteristics included the separation of the
children from their families, the fact that the school was overcrowded and
understaffed, the fact that employees lived in close proximity to the children
and had unrestricted access to them, and the fact that the children were under
a regime where they were to respect and obey all staff. A list of the
operational characteristics had been presented to the appellant’s expert
witness, Dr. Janke, who found that they were conducive to sexual assault. The
trial judge found this evidence convincing, and held that the principles set
out in Bazley regarding the imposition of vicarious liability had been
satisfied:
I conclude that the evidence regarding the
operational characteristics of Christie, as well as Dr. Janke’s opinion based
upon that evidence, satisfies the principles to be followed in finding
vicarious liability as set out by McLachlin J. in Children’s Foundation
. . . . [para. 131]
Having found
the respondent Oblates vicariously liable, the judge declined to make a
finding on whether or not the Oblates were also directly liable in
negligence.
18
In the result, the trial judge concluded that the sexual abuse had
caused or contributed to the appellant’s interpersonal difficulties, anxiety,
symptoms of post-traumatic stress disorder, depression and alcohol abuse. He
assessed $150,000 in general damages (including $25,000 in aggravated damages),
$80,000 for loss of past earning capacity and $3,400 for future care costs.
B. Court of Appeal of British Columbia
19
After reviewing the facts and the law of vicarious liability, Hall J.A.
for a five-judge panel of the court observed that “the more closely an
employment situation mimics a parental type relationship, the more likely it is
that liability will be imposed on a vicarious basis” (para. 51). The court was
of the opinion that the appeal could be resolved at the first stage of the Bazley
analysis because case law unambiguously indicated that no vicarious liability
should lie against the respondent. After a wide-ranging analysis of the cases,
Hall J.A. held that the trial judge had erred in overemphasizing opportunity
and in failing to have sufficient regard to the specific employment duties and
responsibilities of Saxey:
Saxey, in this case, was not part of the school
administration and he was assigned no supervisory or child-care duties
respecting pupils at the school. Those responsibilities were looked after by
the religious personnel. None of his employment duties had the remotest
connection to dealing with the pupils at the school in any supervisory or
parental fashion. There was no job-related requirement for him to establish any
particular rapport with students as existed, for instance, in Jacobi.
His employment was not designed to provide opportunities for intimacy, the type
of situation found to exist in Bazley. I perceive no nexus in this
case between the general employment duties of Saxey and the assaults that were
found to have been committed on [E.B.]. Saxey, in my opinion, occupied a
position quite comparable to that of the school janitor, Hammer, in the [G.
(E.D.)] case. Although the present case involves a residential school
setting that perhaps would tend to enhance some risk of improper contact
between students and staff because everyone was there for 24 hours every day, what
occurred with respect to [E.B.] had absolutely no connection to any duty that
Saxey was required or authorized to perform on behalf of his employer, the
[Oblates]. No authority had been conferred on Saxey to direct, care for or
discipline the pupils. [Emphasis added; para. 54.]
20
In the result, the Court of Appeal set aside the trial judgment and
remitted the case for further proceedings in the trial court on the issue of direct
liability (negligent conduct) alleged against the respondent.
III. Analysis
21
The British Columbia courts in this case differed in their approaches as
well as the result in determining where to draw the line on vicarious
liability. The differing approaches reflect a different philosophy about how
far the law should go. The trial judge concluded that the sexual abuse
suffered by the appellant was part and parcel of the disciplined residential
school model operated by the respondent Oblates. Having created a risky
situation, the respondent should bear the cost when the risk ripened into harm
to one of the innocent children entrusted to its care. He accepted the
appellant’s argument that liability in this case flowed directly from the
“operational characteristics” of the school rather than the specific work
situation of Saxey. In effect, the trial judge moved directly from the
“operational characteristics” of the school to the conclusion that vicarious
liability should be imposed without passing through the necessary intermediate
stage of analysis of the contribution to Saxey’s intentional tort made by the
respondent’s job-created “power and authority”.
22
The British Columbia Court of Appeal, on the other hand, took the view
that this broad-brush treatment overgeneralized the respondent employer’s
vicarious liability. Hall J.A. examined Saxey’s job-conferred power and
authority. On his analysis, Saxey was a member of the bakery and maintenance
staff who, in his entrapment of the appellant, was operating without reference
to anything related to the school or his job. The residential school model
operated by the Oblates undoubtedly demanded a degree of deference from
students to all adults. Nevertheless vicarious liability is concerned not with
the direct fault of the employer but with making the employer liable for the
fault of Saxey. A primary focus, therefore, is on the employment relationship
between the respondent employer and its wrongdoing employee. This requires an
examination of Saxey’s actual powers, duties and responsibilities to determine
whether or not there was “a strong connection between what the employer was
asking the employee to do (the risk created by the employer’s enterprise)
and the wrongful act” (Bazley, at para. 42 (emphasis added), per McLachlin
J.).
A. Is Appellate Review Foreclosed by the Trial
Judge’s Findings?
23
A finding of vicarious liability is a mixed question of fact and law.
The appellant says that the Court of Appeal substituted its own version of the
facts for the facts found by the trial judge but I do not think this is the
case. Undoubtedly the Court of Appeal sketched in broad strokes what the trial
judge had taken several hundred paragraphs to set out. The appellant argues
that the Court of Appeal ignored certain factual findings and did not pay
sufficient deference to the trial judge’s review of the evidence. However, it
is clear from the trial judge’s reasons that his decision to impose vicarious
liability rested almost entirely on the “operational characteristics” of
Christie. At paragraph 131 of his reasons, he says:
I conclude that the evidence regarding the
operational characteristics of Christie, as well as [the plaintiff’s expert]
Dr. Janke’s opinion based upon that evidence, satisfies the principles to be
followed in finding vicarious liability as set out by McLachlin J. in [Bazley],
supra. In my opinion, the evidence establishes “a significant
connection between the creation or enhancement of a risk and the wrong that
accrues therefrom”.
The reasoning
thus jumped directly from the enterprise to liability, whereas in Bazley the
Court had equally emphasized that “[s]ervants may commit acts, even on working
premises and during working hours, which are so unconnected with the employment
that it would seem unreasonable to fix an employer with responsibility for
them” (para. 35). The trial judge continued:
This being so, I find the Oblates vicariously liable to the plaintiff
for the injuries he sustained as a result of the sexual assaults upon him by
Saxey. [para. 131]
Thus, the
essential difference between the trial judge and the Court of Appeal was the
proper application of the Bazley test. This is a legal issue that can
be readily “extricated” from the factual context. The Court in Housen v.
Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33, at para. 36, held that where
the trial judge’s error
can be attributed to the application of an incorrect standard, a
failure to consider a required element of a legal test, or similar error in
principle, such an error can be characterized as an error of law, subject to a
standard of correctness.
The Court of
Appeal did not owe the trial judge any deference on the proper application of
the law of vicarious liability to the facts.
B. The Need to Pay Attention to the Wrongful
Employee’s Powers, Duties and Responsibilities
24
A convenient starting point for the debate about how far vicarious
liability should extend is Canadian Pacific Railway Co. v. Lockhart,
[1942] A.C. 591. In that case at p. 599, the Privy Council stated that an
employer is only vicariously liable if the employee’s unauthorized acts are “so
connected with acts [that the employer] has authorized that they may rightly be
regarded as modes — although improper modes — of doing [what has been
authorized]” (known as the Salmond test). The focus was clearly placed
on the employee, and the legal test required a comparison between what the
employee was authorized to do and what he or she actually did
that was wrong. If the employee was adjudged to be “off on a frolic of his
own”, vicarious liability would not attach to his or her employer.
25
A weakness of the Salmond test, as analyzed by McLachlin J. in Bazley,
is that it glosses over rather than addresses the policy considerations that
argue for and against a finding of vicarious liability and substitutes a debate
about semantics in which the outcome is frequently unpredictable. Was Saxey’s
assault an “unauthorized mode” of doing what he was hired to do, or was he
engaged in conduct entirely unrelated to his duties? The Court in Bazley
did not dispute the emphasis placed by the Salmond test on looking at
what the employee was authorized to do, but insisted that it be placed in the
larger context of the employer’s enterprise and the risk that the enterprise
has introduced into the community. Thus McLachlin J. wrote that “[f]irst and
foremost is the concern to provide a just and practical remedy” (para. 30), but
to be “just” is to require that “[a] wrong that is only coincidentally linked
to the activity of the employer and duties of the employee cannot
justify the imposition of vicarious liability on the employer” (para. 36
(emphasis added)). Further, “‘mere opportunity’ to commit [the] tort, in the
common ‘but-for’ understanding of that phrase, does not suffice” (para. 40).
26
Bazley also shows why vicarious liability can be imposed on an
employer for an intentional tort carried out by an employee in defiance of an
employer’s specific prohibition (as in Lockhart itself). Bypassing the
debate about “modes”, Bazley goes directly to the strength of the
connection between the tortfeasor’s employment and the tort. Improper or not,
the “abuse of his position and the abnegation of his duty does not sever the
connection with his employment”: Lister v. Hesley Hall Ltd., [2002] 1
A.C. 215, [2001] UKHL 22, at para. 50, per Lord Clyde, after reviewing Bazley
and Jacobi. This again, “requires trial judges to investigate the
employee’s specific duties and determine whether they gave rise to special
opportunities for wrongdoing” (Bazley, at para. 46 (emphasis added)).
27
One of the insights offered by Bazley was its recognition that
the Salmond test did not adequately take into account the potential
contribution to the wrongdoing made by the general environment created by the
employer, and which provided the setting within which the employee exercised
his or her job-conferred power. The employer may be accountable vicariously as
well as directly for the fact that it puts in the community an enterprise which
carries with it certain risks (Bazley, at para. 31). However, the
“plaintiffs must demonstrate that the tort is sufficiently connected to the
tortfeasor’s assigned tasks that the tort can be regarded as a
materialization of the risks created by the enterprise” (K.L.B., at
para. 19 (emphasis added)). A similar statement can be found in this Court’s
recent unanimous decision in John Doe.
28
Therefore, the appellant is right to say that the connection has to be
made between the tort and the risk created by the enterprise, but this is not
the end of the matter. The nature of the “risk created by the enterprise” must
be considered in relation to the wrong done by Saxey to the appellant.
It therefore calls for an examination of the job-created power and duties given
to Saxey, recognizing of course that those powers and duties are discharged in
a particular residential school environment.
29
The trial judge suggested that the “operational characteristics” of the
school swept virtually all employees into the same “enterprise risk” for which
the respondent employer should be held vicariously liable, but this pushes
vicarious liability too far. While vicarious liability does not require a
claimant to establish that the wrongful employee was placed in a “parent-like”
position of authority, it does require consideration of the job-created power
and the nature of an employee’s duties as a fundamental component of
determining if a particular enterprise increased the risk of the employee’s
wrongdoing in relation to the claimant. As the Court held in Bazley, at
para. 42:
What is required is a material increase in the risk as a consequence of
the employer’s enterprise and the duties he entrusted to the employee,
mindful of the policies behind vicarious liability. [Emphasis added.]
30
The appellant’s global inclusion of all employees, including odd-job
men, in the “enterprise risk” paints with too broad a brush. It goes against
the policy goal of ensuring that compensation is both effective and fair.
The Court in Bazley was quite insistent that this is not the law:
In summary, the test for vicarious liability for an
employee’s sexual abuse of a client should focus on whether the employer’s
enterprise and empowerment of the employee materially increased the risk
of the sexual assault and hence the harm. The test must not be applied
mechanically, but with a sensitive view to the policy considerations that
justify the imposition of vicarious liability — fair and efficient compensation
for wrong and deterrence. This requires trial judges to investigate the
employee’s specific duties and determine whether they gave rise to special
opportunities for wrongdoing. [Emphasis added; para. 46.]
31
To the same effect are both the majority and minority judgments in Jacobi,
which applied the Bazley analysis to the case of sexual abuse inflicted
by the recreational director of an after-school non-residential club on one of
his campers. Members of the Court divided on the significance of the
wrongdoer’s job-created power and authority, which caused the Court to divide
in the result, but all members agreed on the need to determine (as McLachlin J.
wrote for the minority) whether the respondent’s torts were “sufficiently
linked to his employment duties to justify the imposition of vicarious
liability” (Jacobi, at para. 12 (emphasis added)).
32
Reference may also usefully be made to the decision of the House of
Lords in Lister v. Hesley Hall Ltd., where a residential school in
England was held vicariously liable for the sexual predation of the warden it
had placed in charge of the boarders. Lord Clyde commented, at para. 50:
It appears that the care and safekeeping of the boys had been entrusted
to the respondents and they in turn had entrusted their care and safekeeping,
so far as the running of the boarding house was concerned, to the warden. That
gave him access to the premises, but the opportunity to be at the premises
would not in itself constitute a sufficient connection between his wrongful
actings and his employment. In addition to the opportunity which access gave
him, his position as warden and the close contact with the boys which that work
involved created a sufficient connection between the acts of abuse which he
committed and the work which he had been employed to do. It appears that
the respondents gave the warden a quite general authority in the supervision
and running of the house as well as some particular responsibilities. His
general duty was to look after and to care for, among others, the appellants.
That function was one which the respondents had delegated to him. That he
performed that function in a way which was an abuse of his position and an
abnegation of his duty does not sever the connection with his employment.
[Emphasis added.]
33
The B.C. Court of Appeal was therefore quite correct to refocus the
debate on Saxey’s role at the school and on the particular circumstances that
brought the appellant into Saxey’s entrapment.
C. The Appellant’s Evidence Regarding the
Job-Related Powers of Saxey
34
Clearly at Christie, there was a broad range of responsibilities, from
the principal to the religious teachers and dormitory supervisors, all of whom
were intimately involved with the students, to lay employees such as Saxey who
performed various roles supporting the operations of the school but who were
permitted no intimate contact with the students (other than their own children)
and had no responsibility for their day-to-day lives. Within these various
levels of staff authority and responsibilities, there were important
differences. In this area of the law, questions of degree are important (Bazley,
at para. 38; Jacobi, at para. 82).
35
The job-created role (or lack of it) of Saxey in relation to the
appellant may usefully be compared to that of the caregiver at issue in Bazley,
whose job included bathing and tucking the children into bed at night. The
appellant himself testified as follows:
Q: And you did not help Mr. Saxey in the bakery?
A: No.
Q: In fact, you never went into the bakery; is that correct?
A: No.
Q: Now, at the school, when you were at the
school, when you were sleeping in the dormitories you never saw Mr. Saxey in
the dormitories, did you?
A: No.
Q: And Mr. Saxey never had any jobs to do in the dormitories, did he?
A: No.
Q: And he did not come into the dormitories?
A: No.
Q: And when you were at the school did you see
Mr. Saxey in the classrooms?
A: No.
Q: And he had no jobs in the classrooms; is that correct?
A: No, no.
Q: And while you were doing chores in the kitchen you did not see Mr.
Saxey working in the kitchen itself, did you?
A: No.
Q: And while you were in the gym you did not see Mr. Saxey in the
gym; is that correct?
A: Might have been the odd time.
Q: But he wasn’t playing with the children in the gym?
A: No.
Q: And while you were with the other children, Mr. Saxey would not be
playing with the other children; is that correct?
A: He would be, yeah. Like his –
Q: His children?
A: His daughter and – yeah.
Q: I’m sorry, I didn’t clarify that, I apologize.
I don’t mean his four children and his grandchildren, but he wasn’t seen
playing with the other children?
A: Like when he ran that – that tractor, it –
you know, he used to give rides and that.
Q: Now, the rides that he would give is when the
children arrived at the dock; is that correct?
A: No, like he was on garbage detail too, eh,
and he would run the garbage down the beach, and after dumping the garbage he
would give them a ride around the beach.
Q: So he would give the children a ride on the tractor?
A: Yes.
Q: But he wouldn’t be playing with the children?
A: No, not playing with them.
36
The trial judge acknowledged that the respondent had taken precautions
to prevent improper contact between the students and the lay employees.
Although Saxey’s living quarters were on a part of the grounds to which the
children had access, the staff quarters were segregated from the school
dormitories. Further, the appellant himself testified that the students were
not allowed to enter the staff living quarters. The respondent thus imposed a
degree of geographic separation. With respect to Saxey’s motorboat
responsibilities, school policy required a religious brother (or equivalent) to
travel on the boat when boys were present. If the school can be shown to have
been negligent in supervising adherence to these and similar instructions,
thereby creating a risk which led directly to the commission of the sexual
assaults on the appellant, that would nourish the claim in relation to direct
liability. At present, however, we are dealing only with vicarious
liability.
37
As it stands, the evidence is that Saxey did not have authority to
insinuate himself into the intimate life of the appellant or any of the other
students except his own children and grandchildren.
D. Applying the Bazley Test to the Facts
38
This Court in Bazley stated that assessing whether vicarious
liability should be imposed in a given case requires that in the first
instance, the court look to whether “there are precedents which unambiguously
determine on which side of the line between vicarious liability and no
liability the case falls” (para. 15). If prior cases do not clearly suggest a
solution, the next step is to determine whether vicarious liability should be
imposed in light of the broader policy rationales behind this form of indirect
liability (Bazley, at para. 15).
39
In undertaking a consideration of both precedent and policy, the Court
in Bazley, at para. 41, listed a number of factors, which could usefully
be considered in assessing whether an employer created or materially enhanced
the risk of the employee committing an intentional tort and thereby should
incur vicarious liability. These were:
(a) the opportunity that 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;
(e) the vulnerability of potential victims to
wrongful exercise of the employee’s power.
40
This test for determining the sufficiency of the connection must “not be
applied mechanically, but with a sensitive view to the policy considerations
that justify the imposition of vicarious liability — fair and efficient
compensation for wrong and deterrence” (Bazley, at para. 46; John Doe,
at para. 21).
1. Stage One: Is the Outcome of This Case
Dictated by Precedent?
41
In reaching his conclusion that the outcome of this case was not
determined by existing precedent, the trial judge perhaps insisted on too high
a degree of correlation on the facts. It is true that this case is not on all
fours with decided precedents, but the courts have now dealt with a sufficient
number of cases of sexual abuse in different residential settings to provide
adequate guidance with respect to vicarious liability in this context. There was
no need here to return to the first principles of a policy-oriented analysis.
Overly frequent resort to general principles opens the door to subjective
judicial evaluations that may promote uncertainty and litigation at the expense
of predictability and settlement.
42
Of course one of the challenges in applying the case law is that in
different fact situations the evaluation of the several factors may tug in
different directions. This is evident in the cluster of cases decided in this
Court since Bazley. For example, the employer’s enterprise in this case
(a residential school run along authoritarian lines) creates greater risk of
sexual misconduct than did the after-school non-residential recreational club
in Jacobi; yet the extent of the power and responsibility conferred by
the respondent Oblates on Saxey was much less than the authority conferred on Jacobi’s
director of recreation, let alone on Bazley’s caregiver who, as stated,
was charged with “intimate duties like bathing and tucking in at bedtime”
(para. 2). While the Oblates themselves had spiritual and temporal power
comparable to that of the employer bishop in John Doe, the respondent
delegated no significant power over the children to the odd-job men, bakers and
motorboat operators at Christie. This stands in stark contrast to John Doe
itself where not only the environment created by the church compelled obedience
but the power conferred on the parish priest materially increased the risk of
abuse. The parishes in which the priest worked were geographically isolated,
the communities in which he was placed were devoutly religious, the main form
of community leadership came from the church, and the only schools were
denominational. The priest had broad authority in his parish. It is difficult
to imagine greater “job-conferred power” than that vouchsafed to a priest who
not only has power in this world but claims stewardship of the child’s immortal
soul. Saxey’s employment responsibilities, by contrast, were mundane and
remote from actually looking after the children under the respondent’s care.
43
Reference should also be made to Hammer (aff’d (2001), 197 D.L.R.
(4th) 454, 2001 BCCA 226, aff’d on other grounds, [2003] 2 S.C.R. 459, 2003
SCC 52). In that case, sexual abuse was committed by a janitor who had no
direct duties relating to students. Occasionally he helped them find something
or someone. The trial judge in that case found that “[a]ll that can be said to
support a finding of vicarious liability is that Mr. Hammer was employed as a
janitor at the school and his duties provided him with the opportunity to
commit the wrongful acts” ((1998), 53 B.C.L.R. (3d) 89, at para. 52)). In Hammer,
the enterprise, being a day school, was less risky, but the janitor’s
job-conferred power was comparable to Saxey’s. Vicarious liability was
denied. A still different mix was provided in K.L.B., where the
defendant government was found to have exercised little control over foster
parents, who were classified as independent contractors rather than employees.
At the same time, the power and responsibility of foster parents in relation to
the foster children were, by definition, parent-like. It was held that there
was no vicarious liability.
44
The interveners put forward a number of additional cases. McDonald
v. Mombourquette (1996), 152 N.S.R. (2d) 109 (C.A.), involved sexual
assault perpetrated by a religious official. A limitation period, however,
rendered the issue of liability moot, and the liability analysis was in any
event vigorously contested in K. (W.) v. Pornbacher (1997), 32 B.C.L.R.
(3d) 360 (S.C.), and effectively overruled in John Doe. In H. (S.G.)
v. Gorsline, [2005] 2 W.W.R. 716, 2004 ABCA 186, the Alberta Court of Appeal
declined to interfere with the trial judge’s finding that a school board was
not vicariously liable for the sexual assaults committed by a physical
education teacher. The Court of Appeal agreed with the trial judge that the
duties of the teacher did not require anything approaching intimate contact.
In M. (F.S.) v. Clarke, [1999] 11 W.W.R. 301 (B.C.S.C.), vicarious
liability for abuse in the context of a residential school was imposed.
However in that case the wrongdoing employee was a dormitory supervisor, and
thus had a much greater role in dealing with the children than Saxey in the
present appeal. In H. (T.E.G.) v. K. (P.), [2001] 6 W.W.R. 546, 2001
ABQB 43, the Alberta Court of Queen’s Bench declined to find an employer
vicariously liable for the sexual assaults of the manager of a recreation
centre.
45
The Saskatchewan Court of Appeal considered the sexual assaults
committed by an administrator of a school residence against a pupil in H.L.
v. Canada (Attorney General) (2002), 227 Sask. R. 165, 2002 SKCA 131
(appealed on other issues to this Court). In that case the plaintiff was not a
resident at the school but participated in an after-school boxing program which
the employee ran as part of his job. The Court found that there was a
sufficient connection between Starr’s job-imposed duties and extensions of
those duties authorized by the Department of Indian and Northern Affairs to
ground a finding of vicarious liability against Canada.
46
The British Columbia Court of Appeal upheld a trial judge’s finding of
vicarious liability against the provincial Crown in A. (C.) v. Critchley
(1998), 166 D.L.R. (4th) 475. McEachern C.J.B.C. held unanimously for the
court that the Crown was liable for sexual and physical assaults committed by a
man called Critchley, who operated a wilderness camp for troubled youth. The
plaintiffs in this case had been committed to the care of the Crown but could
not be accommodated in the usual facilities or foster homes. The court held
that “the wrongs were committed by a surrogate parent in the course of
discharging on behalf of the Crown the very responsibilities imposed by law
upon the Crown” (para. 116). In B. (J.-P.) v. Jacob (1998), 166 D.L.R.
(4th) 125, the New Brunswick Court of Appeal upheld a trial judge’s decision
that a hospital was not vicariously liable for sexual assault committed by its
employee nurse. The nurse had entered the patient’s room and, while the
patient was sleeping, touched his penis with his hands or mouth. The nurse had
not been assigned to work with that patient and the court found that his
employment provided him with mere opportunity, and no more. As such, vicarious
liability was not imposed. In C.S. v. Miller (2002), 306 A.R. 289, 2002
ABQB 152, the Boy Scouts of Canada were found vicariously liable for the
failure of one of their employees, a camp chief, to remove a child from a
situation of sexual assault. Acton J. of the Alberta Court of Queen’s Bench
found that the employee’s duties were directly related to her negligence. This
sad list of cases (and many other cases could be added) is not before us for
decision, and we are not called upon to express an opinion on their particular
circumstances, but they do demonstrate, I think, a strong judicial focus on the
employment relationship between the particular wrongdoer and the employer
sought to be held vicariously liable, a focus that was overwhelmed in the
present case by the trial judge’s preoccupation with the “operational
characteristics” of the school as a whole.
47
While the residential setting in which the abuse took place here would
favour a finding of vicarious liability, the limited duties and role of Saxey
militate against such a finding. None of the cases reviewed above contain the
precise configuration of facts that exist in this case. Reference was made to
the dictum of Cameron J.A. of the Newfoundland and Labrador Court of
Appeal in her partly concurring judgment in John Doe v. Bennett (2002),
218 D.L.R. (4th) 276, 2002 NFCA 47 (affirmed by this Court):
Precedent is beneficial in this context only if
the facts are very similar and it unambiguously determines
the issue of whether vicarious liability applies. [Italics in original;
underlining added; para. 171.]
The view that
“[p]recedent is beneficial in this context only if the facts are very
similar”, in my view, overstates the requirement. While Bazley spoke of
“precedents which unambiguously determine on which side of the line between
vicarious liability and no liability the case falls” (para. 15), it must be
remembered that Bazley was a pioneering judgment that developed an
approach to vicarious liability across a broad swath of social and economic
relationships. In considering the particular context of sexual abuse by employees
in school or equivalent settings, the cases since Bazley provide
sufficient guidance for the disposition of this appeal. While a parent-like
relationship is not required, the facts must connect the tort sufficiently “to
the tortfeasor’s assigned tasks that the tort can be regarded as a
materialization of the risks created by the enterprise” (K.L.B., at
para. 19 (emphasis added)).
48
I therefore turn to the “five factors” listed in Bazley to
consider in light of the precedents whether the strength of the “connection
between what the employer was asking the employee to do . . . and the
wrongful act” (Bazley, at para. 42), was sufficient to impose vicarious
liability:
(1) The respondent provided Saxey with the
opportunity to come into contact with the children. Opportunity will often be
a question of degree. “As the opportunity for abuse becomes greater, so the
risk of harm increases” (Bazley, at para. 43). The review of previously
decided cases shows that opportunity in this case lies at the low end of
significance. As put in Bazley, “[i]f an employee is permitted or
required to be with children for brief periods of time, there may be a small
risk of such harm — perhaps not much greater than if the employee were a
stranger” (para. 43). Here, Saxey was not “permitted or required” to be with
the children at all, apart from trips in the motorboat which were supervised by
one of the religious brothers or equivalent and occasionally in the bakery.
(2) The wrongful acts had nothing to do with
furthering the respondent’s aims. No one disputes that Saxey’s conduct was
abhorrent and in direct opposition to the Oblates’ aims.
(3) While a degree of intimacy with staff is
inherent in any residential school, such intimacy did not involve Saxey, who
was expected to devote himself to baking, maintenance and driving the
motorboat. Saxey’s duties required no significant contact with the students,
and his quarters where the sexual abuse took place was located in an area off
limits to students.
(4) The respondent did not confer any power on
Saxey in relation to the appellant. Despite the loose structure of the school,
as discussed by the trial judge, Saxey’s position was not one involving regular
or meaningful contact with the students. Of course, as the trial judge pointed
out, the very fact that Saxey was an adult in a children’s school conferred a
certain status, but to find that Saxey’s status as an “adult” in the school was
sufficient to attract vicarious liability would in practice cross the line into
making the employer an “involuntary insurer” (Bazley, at para. 36).
(5) The students in any residential school are
vulnerable and require protection, but it is the nature of a residential
institution rather than the power conferred by the respondent on Saxey that fed
the vulnerability. In Bazley, at para. 42, the Court said that “[i]t
must be possible to say that the employer significantly increased the risk of
harm by putting the employee in his or her position and requiring him to
perform the assigned tasks” (emphasis added; emphasis in original
deleted). Such a statement cannot fairly be said of the respondent employer in
this case.
In summary,
the appellant did not establish “a strong connection between what the
employer was asking the employee to do . . . and the wrongful
act” (Bazley, at para. 42 (emphasis added)).
49
I have read with interest the reasons of my colleague Abella J. who
assesses these factors differently than I do. The difference in interpretation
is due in part to the way in which the trial judge formulated his reasons,
often reiterating the evidence of the plaintiff or the submissions of his
counsel, but at critical junctures declining to make clear findings of fact.
For example, in considering the role of the lay staff, rather than making
findings of fact, the trial judge re-stated evidence heard during the course of
the trial:
[E.B.] testified that he and other children
at Christie had to do what they were told to do by adult staff members. L.B.
testified that he recalled children being told at the beginning of the
year, and just about every month, that the children had to listen to the lay
staff if they requested children to do something. [Emphasis added; para. 87.]
50
Similarly, with respect to the specific duties of lay staff, the trial
judge reviewed evidence but made no clear finding, stating: “Counsel also
said that due to understaffing at Christie, there could be no rigid
delineation of employment duties for any staff member” (para. 94 (emphasis
added)). With respect to Saxey’s authority over children at the school, the
trial judge stated:
Counsel argued that as the staff member
responsible for bread baking, Saxey would certainly have had implicit, and
probably had explicit authority over the children performing kitchen and
bakery-related chores, such as clean-up, bread slicing and dough preparation.
[Emphasis added; para. 103.]
51
I would need clearer words from the trial judge before assuming that he
intended his narrative of submissions to be taken as findings of fact. Be that
as it may, my view, having read and re-read the reasons, is that while the residential
school setting and the nature of the discipline at the school clearly
contributed to the vulnerability of the children to abuse, there was no finding
of a “strong connection” between the particulars of Saxey’s employment and the
outrages he committed by luring the appellant to his private quarters as is
required by our jurisprudence. The fact that Saxey was permitted on occasion
to ask children to do chores, and that children were inevitably in occasional
contact with him, is not enough. The employment of Saxey as a baker, boat
driver and odd-job man did not put him in a position of power, trust or
intimacy with respect to the children. His job did not include regular or
private contact with the children. He was not encouraged or required to develop
any sort of personal relationship with the children. His role did not include
supervising any intimate activities. I conclude that the Court of Appeal was
correct that while the employment relationship in this case provided Saxey with
the opportunity to commit the wrongful acts, his assigned role in relation to
the students fell short of what is required to attract vicarious liability. An
analysis of general “operational characteristics” is more properly undertaken
in relation to the claim of direct liability.
52
In my view, therefore, the Court of Appeal was correct in finding that
the earlier cases preclude a finding of vicarious liability in the
circumstances of this case. The precedents hold that to make an employer
vicariously liable for the intentional wrongdoing of its employee, there must
be established, to repeat, a “strong connection between what the employer was
asking the employee to do . . . and the wrongful act” (Bazley,
at para. 42). The “operational characteristics” of the enterprise which
preoccupied the trial judge are not enough to attract vicarious
liability. The “strong connection” was not established.
53
Given this conclusion, it is not strictly necessary to move on to the
second stage of Bazley. However, the policy considerations underlying
vicarious liability confirm the correctness of the result.
2. Stage Two: Consideration of Policy
54
The second stage under the Bazley analysis requires the Court to
consider whether the imposition of vicarious liability on the facts of the case
would further the broader policy rationales used to justify it, namely to
provide effective compensation and to deter such misconduct in future. These
policy concerns, however, are part of a broader balancing of interests. Bazley
held that the twin policy concerns “are served only where the wrong is so
connected with the employment that it can be said that [by the
employment] the employer has introduced the risk of the wrong (and is thereby
fairly and usefully charged with its management and minimization)” (Bazley,
at para. 37 (emphasis added)). Further, as noted by the majority in Jacobi:
These policy considerations have to be balanced with a measure of
fairness to the employer and adherence to legal principle because standing on
their own these particular policies will generally favour vicarious liability,
i.e., a solvent employer will almost always be in a better position to provide
effective compensation to an assault victim than the assailant, and the higher
the likelihood of financial liability on the employer, generally speaking, the
more potent the deterrent. These pro-liability policies have therefore been
restrained historically by a recognition that competing social objectives also
have to be weighed in the balance. [para. 67]
55
With respect to deterrence, for example, both Bazley and Jacobi
were careful to point out that unless deterrence is confined to situations
where it can be effective, there is a danger that the general community will be
overdeterred from activities which are socially useful and ought to be
promoted rather than penalized.
56
In the present case, the respondent Oblates contend that consideration
should be given to their good intentions towards the students in their care,
the fact that the misconduct by Saxey contradicts every value and principle the
Oblates stand for, and the fact that the Oblates attempted on a not-for-profit
basis to meet a need for education of First Nations’ children that otherwise
would perhaps have gone unmet. The fact is however that the trial judge found
that the appellant suffered serious injury from Saxey’s abuse and it is clear
from our decision in John Doe that a church organization, while
non-profit in nature, will generally have sufficient capacity for loss
spreading and taking measures to deter future misconduct to merit the
imposition of vicarious liability where the “strong connection” test is met.
57
There is no doubt that the imposition of no-fault liability here would
benefit the victim and deter similar conduct in the future. Also, the notion
of fairness to the not-for-profit organization remains compatible with
vicarious liability, provided that a strong connection is established
between the job-conferred authority and the sexual assault. As the
analysis above demonstrates, however, the strong connection test cannot be met
in this case, given Saxey’s limited role at Christie. Thus, legal principle as
well as precedent supports the conclusion that vicarious liability should not
be imposed in this case. Whether or not the respondent can be shown to be
directly at fault in a way that contributed to Saxey’s sexual assault on the
appellant is a matter that will have to be determined by the trial judge.
IV. Conclusion
58
In the result, the matter should be remitted to the trial court for a
determination as to whether the respondent is liable for negligence on the
whole of the evidence. The present appeal, based as it is purely on the
attribution of vicarious liability, should be dismissed without costs,
but in circumstances where the issue of direct liability remains open.
The following are the reasons delivered by
59
Abella J. — This appeal
turns on the proper application of the “enterprise risk creation” test set out
in Bazley v. Curry, [1999] 2 S.C.R. 534, and its progeny. As those
cases stipulate, in order to find an employer vicariously liable for the
intentional torts of an employee, a strong connection must be found between the
enterprise, the authority conferred on the employee by the employer and the
tort.
60
The Bazley test is complex, context-sensitive and flexible. It
requires that attention be paid to the enterprise as a whole. An enterprise
can, as the trial judge concluded this one did, operate in a way that
authorizes conduct beyond the duties set out in a job description. If the
legal test for vicarious liability has been properly articulated and applied, a
trial judge’s conclusions are entitled to deference. In my view, Cohen J.
correctly stated and applied the test ([2001] B.C.J. No. 2700 (QL), 2001 BSCS
1783). His conclusions therefore ought not to have been disturbed by the Court
of Appeal ((2003), 14 B.C.L.R. (4th) 99, 2003 BCCA 289).
I. Background
61
The legal test this Court has developed for assessing vicarious
liability in cases of intentional torts like sexual assault was first described
in Bazley. It has been characterized as the enterprise risk creation
test. McLachlin J. summarized the appropriate inquiry as follows:
The question in each case is whether there is a connection or nexus
between the employment enterprise and that wrong that justifies imposition
of vicarious liability on the employer for the wrong . . . .
Where the risk [created or materially enhanced by
the enterprise] is closely associated with the wrong that occurred, it seems
just that the entity that engages in the enterprise . . . should
internalize the full cost of operation, including potential torts.
. . . On the other hand, when the wrongful act lacks meaningful
connection to the enterprise, liability ceases to flow. [Emphasis added; paras.
37-38.]
62
McLachlin J. stressed two important features of this test. The first is
that the inquiry must focus on the strength of the causal link between the
opportunity and the wrongful act. Mere opportunity to commit a tort is
insufficient (Bazley, at para. 40; Jacobi v. Griffiths, [1999] 2
S.C.R. 570, at para. 51). Secondly, the employee’s specific duties must be
examined to determine whether they generated special opportunities for
wrongdoing (Bazley, at para. 46; K.L.B. v. British Columbia,
[2003] 2 S.C.R. 403, 2003 SCC 51, at para. 19; and John Doe v. Bennett,
[2004] 1 S.C.R. 436, 2004 SCC 17, at para. 20).
63
McLachlin J. provided a non‑exhaustive list of five factors in Bazley
(at para. 41) which she held were relevant to an evaluation of the strength of
the causal link between the enterprise and the wrongdoing in the context of
intentional torts:
(a) the opportunity that 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 . . .;
(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 the power conferred on the
employee in relation to the victim;
(e) the vulnerability of potential victims to
wrongful exercise of the employee’s power.
64
In discussing how this analysis unfolds when the tort is sexual abuse,
McLachlin J. explained:
[T]he test for vicarious liability for an employee’s sexual abuse of a
client should focus on whether the employer’s enterprise and empowerment of the
employee materially increased the risk of the sexual assault and hence the
harm. [para. 46]
65
In other words, in assessing whether an employer should be held
vicariously liable for the sexual assault of an employee, we look at the
enterprise as a whole to determine whether the specific features of the
enterprise and of the employment relationship created — or materially enhanced
— the risk that the tort would occur.
66
No one in this appeal impugns Cohen J.’s explication of the test for
vicarious liability. Nor does anyone suggest that his findings of fact were
not supported by the evidence, that he misapprehended the evidence or that he
committed a palpable and overriding error. What is disputed is his application
of the legal test to the facts.
67
Hall J.A., writing for a unanimous five-judge panel of the Court of
Appeal (Esson, Saunders, Low and Smith JJ.A.), found that the trial judge, in
focusing too heavily on opportunity and on what Cohen J. termed the
“operational characteristics” of the Christie Residential School, had paid
insufficient attention to the connection between Mr. Saxey’s employment duties
and the tort. His approach, the court felt, inappropriately broadened the test
for vicarious liability, and did not
pa[y] sufficient heed to the circumstance that, aside from opportunity,
there was little else on which to base a finding of vicarious liability in this
case. [para. 26]
68
In the court’s view, the more closely an employment situation mimics a
parent-type relationship, the more appropriate is the imposition of vicarious
liability. The Court of Appeal concluded that Mr. Saxey’s job duties were
insufficiently supervisory or parental in nature to support a finding of
vicarious liability. With respect, I disagree with the Court of Appeal’s
approach and conclusions.
69
I acknowledge that the trial judge did not always make his findings of
fact explicitly. He frequently set out witnesses’ testimony and counsels’
arguments without directly stating that he was adopting the testimony or
argument he was describing. It is my view, however, that a careful reading of
his reasons as a whole makes it clear that he often implicitly adopted the
interpretation of the testimony urged by plaintiff’s counsel. Unless he stated
the contrary, the trial judge appears to have discussed mainly the testimony
and arguments he agreed with. They, along with his explicit ones, seem to me
to represent his findings.
70
Cohen J. made findings available on the record which supported his
conclusion that Christie, both as an enterprise and in the authority it
provided to Mr. Saxey, materially enhanced the risk that eventually
materialized, namely the sexual assault of E.B. by Mr. Saxey.
II. Analysis
71
As was pointed out in the reasons of Binnie J., the abuse of E.B. was
systematic and horrifying. The trial judge found that the victim was sexually
assaulted multiple times weekly for four to five years from 1957 to 1962 while
he was a resident student at Christie. The assaults consisted of partial anal
penetration, fondling and masturbation. They were committed by Martin Saxey, a
violent offender convicted of manslaughter who was hired by the Order of the
Oblates of Mary Immaculate (“Oblates”) shortly after his release from prison.
72
These events occurred in the context of a residential school, where
children were forcibly removed and segregated from their families to facilitate
the obliteration of their Aboriginal identity. Few environments could be more
conducive to enhancing the vulnerability of children. See, e.g., Report of
the Royal Commission on Aboriginal Peoples, vol. 1, Looking Forward,
Looking Back (1996), ch. 10; R. Claes and D. Clifton, Needs and
Expectations for Redress of Victims of Abuse at Residential Schools (1998);
Law Commission of Canada, Restoring Dignity: Responding to Child Abuse in
Canadian Institutions (2000).
73
These are the pertinent realities which introduce the analysis in this
case.
74
The Bazley vicarious liability test is focused on the creation
and enhancement of enterprise risk. The term used by Cohen J., “operational
characteristics”, is simply another way of saying “enterprise”. It seems to me
that a proper application of this Court’s vicarious liability jurisprudence,
far from precluding an examination of an enterprise’s operational
characteristics, invites exactly this kind of scrutiny. The relevance of the
five factors in Bazley lies in the realities of the operational workings
of the enterprise under review.
A. The Bazley Factors
75
The first factor in Bazley is “the opportunity that the
enterprise afforded the employee to abuse his or her power”. Cohen J.
thoroughly discussed the question of opportunity and made a number of key
factual findings. His first was about the high level of access Mr. Saxey was
given to the children, observing:
Saxey lived in the upper floor of a building situated on that portion
of the grounds of Christie to which the junior and senior boys were given free
access. Directly outside his window were the swings where children played. He
had unrestricted access to everywhere where children might be found playing.
[para. 108]
Cohen J. also
noted that, in the words of one student, Mr. Saxey “lived in amongst us” (para.
109).
76
He also found that the school authorities permitted the students to form
casual relationships with the lay staff. Not only did the children and the lay
staff refer to each other by their first names, lay staff members were
permitted to play with the children, including activities that involved
physical contact.
77
Finally, Cohen J. found that the children were not always carefully
supervised and were allowed to roam around school property, both outdoors and
indoors, until bedtime. During much of this free time, no child care workers
were present.
78
Although mere opportunity is insufficient to support a finding of
vicarious liability, the link between the opportunity and the tort committed in
this case is particularly strong. Mr. Saxey was given quarters in the middle
of the school’s property, was permitted to form relationships with vulnerable
children, and could not have been unaware of the lax supervision prevalent at
Christie.
79
The second Bazley factor is “the extent to which the wrongful act
. . . further[s] the employer’s aims”. As McLachlin J. explained in
Jacobi, sexual molestation will never be any organization’s aim:
A second factor, whether these acts could be said
to further the employer’s aims, militates against finding liability. Clearly
the Club was not in the business of molesting children. But this observation is
almost tautological. This suggests that whether the wrongful act furthers the
employer’s aims is more relevant when it points the other way, i.e., because we
assume that intentional torts do not further employers’ ends, it is only
remarkable when the intentional torts do, in fact, further those ends,
making imposition of vicarious liability in those instances almost always
appropriate. In the instant appeal, however, this factor is of little
significance. [Emphasis in original; para. 15.]
The absence of
evidence supporting this factor, therefore, has no bearing on this case.
80
The third Bazley factor is “the extent to which the wrongful act
was related to friction, confrontation or intimacy inherent in the employer’s
enterprise”. In Bazley, McLachlin J. expressly recognized that in
sexual assault cases,
[t]he more the employer encourages the employee to stand in a position
of respect and suggests that the child should emulate and obey the employee,
the more the risk may be enhanced. [para. 44]
81
I agree with the trial judge that the power structure inherent in the
employer’s enterprise greatly increased the level of friction and
confrontation, helping to create the conditions that led to the sexual assault
of E.B. He found that the discipline at Christie was strict and harsh, and
that order was maintained largely through fear and the threat of punishment. The
students’ daily life included physical and emotional violence, deprivation,
belittling, and intimidation. Quoting a student, the trial judge observed:
[F]ear played a large role in maintaining order and discipline within
Christie during the time of the plaintiff’s attendance. [para. 81]
82
He found further that the students were repeatedly told that they had to
obey all staff members, including lay staff like Mr. Saxey. One student
testified that the children were “slapped around” if they didn’t listen to the
staff, and E.B. testified that the religious staff would “threaten to shove a
bar of soap in your mouth and wash out your mouth” if a child dared to speak
out against a lay staff member. The trial judge found it particularly noteworthy
that it was not only the children, but also two of the religious staff members,
Brother Thomas Richard Cavanaugh and Sister Concepcion Anita Tavera, who
confirmed that children were ordered to obey all staff members.
83
Finally, although it is unclear whether the lay staff had the same power
to administer corporal punishment to the children as the religious staff, the
trial judge accepted the expert testimony of Dr. Paul Janke in this regard.
Dr. Janke was of the view that this was “[o]nly slightly” relevant because he
“would expect a child in that setting to generalize that fear to all the adults
that were dealing with him”. The trial judge was entitled to accept this
evidence of what a child in these circumstances would perceive. As McLachlin
J. explained in Jacobi:
[I]t is certainly appropriate to consider what a reasonable child would
think of the employee’s position in assessing whether the employer should be
held vicariously liable for the employee’s tort. [para. 18]
84
The fourth Bazley factor is “the extent of power conferred on the
employee”. It is under the rubric of this factor that the actual job duties and
responsibilities of the employee are best assessed. Job duties are undoubtedly
also connected to other Bazley factors, such as the “opportunity that
the enterprise afforded the employee to abuse his or her power”. However, in
my view, Mr. Saxey’s job duties and responsibilities, and the way in which
those duties and responsibilities were allocated, are most relevant to the
question of how much power the Oblates gave him.
85
The trial judge found that Mr. Saxey’s employment duties, powers and
responsibilities were not clearly delineated. He was variably described as a
baker, a boat operator, a maintenance person, a freight worker, a garbage
person, or some combination of these. The ambiguity surrounding Mr. Saxey’s
job duties was exacerbated by the fact that work assignments were entirely
verbal.
86
Moreover, it was the evidence of the religious staff members that
Christie was the kind of place where everyone was expected to contribute to all
tasks. As a number of them said, Christie was not the kind of place where
staff members refused to help out because a particular task was not in their
job description. Consequently, all employees were expected to help out with
the supervision of the children.
87
Significant too is the trial judge’s finding that Mr. Saxey’s job as
baker required him to directly supervise children during their kitchen and
bakery-related chores. Within this domain, Mr. Saxey was completely in charge
and had powers second only to the principal. Not only did this include
supervising children, it also included assigning them “on the spot” chores
while supervising their assigned chores at the bakery. The trial judge was
well aware that E.B. never worked directly with Mr. Saxey in the bakery, but
because he made a factual finding that E.B. knew about Mr. Saxey’s supervisory
role there, he concluded that E.B. viewed Mr. Saxey as a person of power and
authority.
88
The Court of Appeal concluded that there was an insufficient nexus
between the employment duties of Mr. Saxey and the tort of sexual assault, and
designated Mr. Saxey as a “modest labour[er]” (para. 56). This is in stark
contradiction to the trial judge’s factual findings that strongly support the
existence of a strong connection and his findings that Mr. Saxey had
responsibility for helping the religious staff with all school-related tasks,
including child care and supervision, and a role that included supervising
children on a daily basis and assigning chores to them. A July 1960 letter
written by Principal Allan Noonan describes Mr. Saxey as the “main cog around
here right now”. The failure to strictly delineate his official duties served
to increase his authority. The breadth and amorphous nature of the employment
duties given to him, and the way in which those duties were allocated by the
school’s administration, gave him both actual and perceived power over the
students.
89
The final Bazley factor is “the vulnerability of potential
victims to wrongful exercise of the employee’s power”. Cohen J. found, in
discussing Christie’s “operational characteristics”, that, consistent with all
of the official inquiries into and research on Indian residential schools, the
children at Christie were profoundly vulnerable.
90
He focused on their isolation. The children at Christie were separated
from their parents for long periods of time, year after year; sisters and
brothers were separated; and older siblings were separated from younger ones.
The trial judge recognized that although E.B. had a number of adult relatives
living at Christie, including grandparents, he was prevented from maintaining a
close relationship with them. There was, as a result, no meaningful mitigation
of his sense of isolation. This familial isolation was aggravated by
geography. Christie, accessible only by boat and only in good weather, had no docking
facilities.
91
The vulnerability created by this geographic and personal isolation was
compounded by the harsh disciplinary regime consisting of routine corporal
punishment, threats of such punishment and repeated orders to obey all staff
members. The result, as found by the trial judge, was children who were young,
afraid, isolated, intimidated and conditioned to obey adults, especially school
staff members. It is difficult to imagine a more vulnerable group of potential
victims.
B. The Court of Appeal’s Assessment
92
It is against this background that I return to the Court of Appeal’s
analysis. The Court of Appeal made a number of factual assertions which are,
with respect, unsupported by the record and in unexplained contradiction to the
findings made by the trial judge. There was no suggestion that the trial judge
misapprehended the evidence or committed any palpable or overriding error. Nor
did it purport to overturn his findings. Rather, the Court of Appeal took a
different view of the evidence, appropriating the trial judge’s function by
substituting its own findings of fact. It was of course open to the Court of
Appeal to find, on reviewing the record, that the trial judge’s findings were
unsupported by the evidence. By ignoring instead many of his key factual
findings and substituting its own version of the evidence, the Court of Appeal
was replacing, rather than reviewing, his reasons.
93
The Court of Appeal’s independent finding, for example, that the
inspections at the school revealed an enthusiastic body of students and staff,
is reflective of its reinterpretation of the evidence heard at trial:
It appears from the evidence that, although the buildings were getting
on in age and the growing enrolment strained the school facilities, it was
perceived by those conducting inspections at the school that there was
enthusiasm on the part of the teaching staff and the students. [para. 7]
The trial
judge, in his extensive reasons of 335 paragraphs after 15 days of trial, never
discussed the inspection reports in his judgment and made no findings about
their reliability. What he clearly did find, however, was that E.B.’s
testimony about his abuse was “reliable” (para. 31), and that the testimony of
religious staff members at Christie was “self‑serving” and “not [to] be
accorded substantial weight” (para. 41). His findings are consistent with the
Royal Commission on Aboriginal Peoples’ conclusion that inspection reports are
rarely reliable, often resulting from duplicity on the part of school
officials. The trial judge’s conclusions are, at the very least, implicit
rejections of the suggestions in the inspection reports that the environment at
Christie was a halcyon one.
94
The Court of Appeal also observed that a school principal at Christie
testified that children were not permitted to work in areas like the kitchen or
bakery. The trial judge, however, extensively discussed the contradictions in
the oral and documentary evidence on this issue and concluded that it supported
the position that children did in fact work in the kitchen and/or bakery and
that Mr. Saxey supervised them there. The Court of Appeal simply disregarded
this factual finding and substituted its own.
95
The Court of Appeal also found that another adult staff member, Barney
Williams, sometimes shared Mr. Saxey’s upstairs quarters. At trial, this was
relevant to the question of whether the sexual assaults had been proven. The
Court of Appeal’s finding contradicts that of the trial judge that there was
insufficient evidence to support Mr. Williams’ residence there. As the trial
judge explained:
[T]he defendant Williams’ testimony about Mr. Barney Williams sharing
Saxey’s living quarters was by way of an affirmative answer to a leading
question in cross‑examination, and . . . there was no other
evidence on this point from any source, nor an indication of where the factual
or evidentiary foundation for the leading question came from. [para. 46]
He explained
further that he drew an adverse inference from defence counsel’s failure to
question any other witnesses about whether Mr. Williams actually lived upstairs
with Mr. Saxey.
96
The Court of Appeal’s conclusions, moreover, that Mr. Saxey “was
assigned no supervisory or child-care duties respecting pupils at the school”,
that “[n]one of his employment duties had the remotest connection to dealing
with the pupils at the school in any supervisory or parental fashion”, and that
“[n]o authority had been conferred on Saxey to direct, care for or discipline
the pupils” (para. 54) are in direct contradiction to Cohen J.’s findings that
children who worked in the kitchen were instructed by the kitchen staff, that
lay staff supervised the children’s chores, that Mr. Saxey gave rides to the
children on the tractor and that children were involved in the daily task of
bread baking, supervised by Mr. Saxey. The trial judge also found that
as the staff member responsible for bread baking, Saxey would certainly
have had implicit, and probably had explicit authority over the children
performing kitchen and bakery‑related chores . . . .
[para. 103]
97
Arguably the most problematic of the Court of Appeal’s new factual
finding was its statement that
[t]hose witnesses who could recall E.B. testified that he was perceived
as a happy and satisfactory student with no particular problems. [para. 13]
98
There is no reference in the Court of Appeal’s reasons to the trial
judge’s explicitly contrary credibility findings in connection with this
issue. E.B.’s evidence, which the trial judge accepted, was that he was very
unhappy at Christie. Four religious staff members had testified that E.B. was
happy and well-adjusted. Not only did the trial judge find these witnesses to
be unreliable and not credible, but only one of them was even at Christie
during the period when the sexual assaults occurred. The exception, Sister
Mary Laura, arrived at Christie in 1960, four years after E.B. arrived there.
99
In addition to substituting its own and sometimes contrary findings of
fact without explaining why those of the trial judge should be disregarded, the
Court of Appeal appears to have mischaracterized the trial judge’s reasons in
at least one significant way, namely its observation that vicarious liability
was imposed by the trial judge because adults at the school were to be treated
with respect:
The trial judge in the case at bar appeared to take
the view that because the children at the residential school were advised to
treat adults at the school with respect, that this somehow conferred an ability
on Saxey to exert authority over [E.B.] and increased the risk that [he] would
be sexually assaulted by Saxey. [para. 52]
This unfairly
oversimplifies the trial judge’s reasons. The trial judge made many factual
findings supportive of his conclusion that vicarious liability should be
imposed, of which only one was his finding that children were required to treat
adults with respect. By condensing the trial judge’s lengthy and thorough
analysis into a single sentence, the Court of Appeal was insufficiently
attentive to the complexity of his analysis.
100
The articulation and application of the legal test is also somewhat
problematic. In Jacobi, both the majority (at para. 64) and the dissent
(at para. 26) held that the creation of a parent‑like relationship is not
a precondition to imposing vicarious liability. In contradiction to this
conclusion, as Binnie J. points out, the Court of Appeal appears to have
overemphasized the existence or lack thereof of a parent-type relationship.
The Court of Appeal stated:
[I]t appears to me that the more closely an employment situation mimics
a parental type relationship, the more likely it is that liability will be
imposed on a vicarious basis. . . . There is often in such cases a
measurable risk created by the position and employment duties assigned by the
defendant employer to the tortfeasor employee. [para. 51]
101
I also have difficulty with the Court of Appeal’s proposition that its
conclusion is driven in part by established precedent:
[T]he earlier precedents of the decided cases should be found to
unambiguously point in the direction of not supporting a finding of vicarious
liability against the [Oblates] for the wrongful conduct of Saxey. [para. 55]
102
I agree with Binnie J. that there is no clear governing precedent. Only
four previous cases have addressed the issue of vicarious liability for sexual
assaults committed in the residential school context. Two involved dorm
supervisors: M. (F.S.) v. Clarke, [1999] 11 W.W.R. 301 (B.C.S.C.), and
B. (W.R.) v. Plint (1998), 52 B.C.L.R. (3d) 18 (S.C.). Two others
involved the same school administrator who had parent‑like authority and
the power to discipline children: D.W. v. Canada (Attorney General)
(1999), 187 Sask. R. 21, 1999 SKQB 187; and V.P. v. Canada (Attorney
General) (1999), 186 Sask. R. 161, 1999 SKQB 180. The courts in all four
cases imposed vicarious liability.
103
These cases are distinguishable because they all involve employees whose
job responsibilities, unlike Mr. Saxey’s, explicitly centred on supervising,
disciplining and caring for the students. In other cases relied on by the
Court of Appeal, like G. (E.D.) v. Hammer (1998), 53 B.C.L.R. (3d) 89
(S.C.), the sexual assaults did not take place in the residential facility
context. This is relevant because of the unique and extreme vulnerability
residential schools created. G. (E.D.) involved a sexual assault
perpetrated by a janitor at a public school. A public school is not the
functional equivalent of a residential school like Christie.
104
I have the most difficulty with the Court of Appeal’s conclusion
essentially ignoring the trial judge’s textured legal and factual Bazley
analysis and suggesting that his conclusion was based merely on opportunity:
If Saxey, in his modest labouring position at Christie school, could be
held to be an individual whose assaultive conduct should result in the
imposition of vicarious liability on the [Oblates] for such actions, then it is
difficult to envisage any residential school situation involving intentional
wrongdoing by an employee where such liability would not be imposed. [para. 56]
105
There is no doubt that if the trial judge had imposed vicarious
liability on the basis of “mere opportunity”, without due regard for employment
duties, vicarious liability would be improperly transformed into strict
liability. The Court of Appeal was rightly alive to this concern. However,
the trial judge did not rely on “mere opportunity”. His decision was based on
his assessment of this particular employee’s duties in this particular
setting. Christie was found to operate in a way that increased the risk of
sexual assault, and Mr. Saxey was found to have been given job duties and
responsibilities that, because of their substance and the way they were
allocated, exploited this risk.
106
Because the trial judge’s decision was anchored in the specifics of Mr.
Saxey’s situation, the torts of other employees at Christie will not
necessarily lead to vicarious liability on the part of the Oblates. As for
this case’s application to other residential schools, if those schools are
found to have different operational characteristics, or if an employee’s duties
are found to be less integral to the facility or to the management of children,
vicarious liability will not be imposed.
C. The
Standard of Review
107
As Binnie J. points out, the standard of review for questions of mixed
fact and law, defined as those that involve the application of a legal standard
to a set of facts, is usually the deferential palpable and overriding error
standard: Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33, at
paras. 26-28. However, the Housen majority also noted that an error
about a question of mixed fact and law can, when the legal principle is easily
extricable, be subject to the less deferential standard of correctness. The
Court explained that, generally, however,
where the issue on appeal involves the trial judge’s interpretation of
the evidence as a whole, it should not be overturned absent palpable and
overriding error. [para. 36]
108
Binnie J. concludes that Cohen J. failed to properly apply the Bazley
test and thus committed an extricable error of principle that amounts to an
error of law. With respect, I see no such error. As this Court made clear in Bazley,
the test for vicarious liability is not a mechanical one, and the list of
factors enumerated is not exhaustive. The trial judge’s reasons fit squarely
into the blueprint created by this Court’s established vicarious liability
jurisprudence. He not only correctly stated the legal test, but made the
necessary factual findings to support his decision to impose liability.
109
In any event, I have difficulty seeing how any such error, even if it
does exist, can so easily be extricated from the factual conclusions the trial
judge reached. The application of this test is necessarily a complex
undertaking. It involves weighing multiple interrelated, and sometimes
contradictory, factors. The trial judge’s consideration of the relevant
factors was necessarily a highly integrated one and, consequently, not easily
amenable to extricating law from fact.
110
To gain a thorough understanding of the dynamics at work at Christie and
to determine whether the Oblates materially enhanced the risk of sexual
assault, the nature and operation of the enterprise had to be assessed. The
trial judge did not ignore Mr. Saxey’s employment duties; he reviewed them in
the context of the work environment created by the Oblates. This review led
him to conclude that there was a strong connection between the job duties and
job-related powers given to Mr. Saxey and the tort committed.
111
I see no basis for disturbing his unchallenged findings of fact or the
legal conclusion he drew from them that vicarious liability should be imposed.
However, even applying the higher threshold, I see no basis for interfering
with the trial judge’s legal conclusion.
112
In light of the foregoing, I would allow the appeal with costs
throughout.
Appeal dismissed, Abella J.
dissenting.
Solicitors for the appellant: Miller Thomson, Vancouver.
Solicitors for the respondent: Dohm, Jaffer & Jeraj,
Vancouver.
Solicitor for the intervener the Attorney General of Canada:
Attorney General of Canada, Vancouver.
Solicitor for the intervener the Attorney General of British
Columbia: Attorney General of British Columbia, Vancouver.