Vicarious liability in sexual abuse cases lagging in Canada?

While the doctrine of vicarious liability is one of the more powerful legal tools to deter and prevent sexual misconduct because it targets employers and organizations, Canada is arguably falling behind other jurisdictions in its application, says Toronto civil sexual abuse lawyer Elizabeth Grace.

This judge-made doctrine holds organizations accountable for both the negligent and intentional misconduct of their personnel. “It is meant to serve as a deterrent and to compel powerful entities to do more to stamp out sexual misconduct,” says Grace, partner with Lerners LLP.

“Employers and organizations can indirectly facilitate sexual abuse by conferring power and authority on their personnel which, if unchecked, can be misused to harm vulnerable parties. Vicarious liability makes these entities responsible for compensating victims and thereby provides a strong incentive on them to implement measures to discourage this type of wrongful behaviour,” she tells AdvocateDaily.com.

Grace notes Canada was on the leading edge in this area back in 1999 when the Supreme Court of Canada (SCC) advanced the common law to allow for vicarious liability — a no-fault form of strict liability — to attach to employers. The matter involved a claim for damages against a non-profit organization that ran a residential care facility for troubled children based on sexual assaults committed by one of its employees. The plaintiff sought damages on the basis that the organization should be held vicariously liable for the damages caused by its employee.

“Since then, we’ve fallen behind other jurisdictions,” Grace says, pointing to two 2003 SCC decisions involving appellants who suffered abuse in foster homes. In those cases, the SCC found there was no vicarious liability that attached to the public entity in charge of child welfare based on abuse children in foster care had suffered at the hands of their foster parents, Grace says.

“Canada’s top court ruled it was not going to hold the government vicariously liable for misconduct by foster parents against their foster children. But the United Kingdom’s top court recently found a local authority was vicariously liable in a case of foster parent abuse. Likewise, the New Zealand Court of Appeal has found vicarious liability in similar circumstances,” Grace says.

There are contexts in Canada where there is clearly established vicarious liability, such as with clergy sexual misconduct, but Grace says there are other contexts in which Canadian courts have ruled both ways, such as where sexual abuse has been committed against students by school personnel, including teachers.

Grace characterizes a 2017 Ontario Court of Appeal (OCA) decision involving a taxi driver who sexually assaulted his female passenger as “troubling” for the evolution of vicarious liability in Canada.

According to court documents, the plaintiff was at a party late one evening, intoxicated and feeling unwell. A friend called a taxi company to dispatch a taxi to drive her home. The taxi arrived, and the plaintiff alleged that she was sexually assaulted by its driver. The plaintiff sued the driver and the taxi company for damages, claiming the company was vicariously liable for the misconduct of its driver.

The OCA found the taxi company was not vicariously liable and the SCC denied leave to appeal.

“In this era of #MeToo and heightened concern about the prevalence of sexual harassment and sexual assault and the serious harms these cause, we need our courts to grapple with how to extend, not limit, vicarious liability because it is truly one of the best legal tools at our disposal,” Grace says.

“We have to use the law to stop the pervasive problem of sexual abuse and target the more powerful entities in society who can make a real difference,” Grace adds. “I fear Canada may be falling behind other Commonwealth jurisdictions when it comes to applying vicarious liability to sexual abuse committed in novel contexts. We need this form of legal liability to evolve and be used as a tool to reduce instances of sexual misconduct.”

This article originally appeared on AdvocateDaily.com
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