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Precedent lacking for holding school boards vicariously liable

Supreme Court of Canada cases Bazley v. Curry [1999] S.C.J. No. 35 and Jacobi v. Griffiths [1999] S.C.J. No. 36 changed how lawyers for plaintiffs and defendants handle certain kinds of sexual abuse claims. Bazley and Jacobi clarify when vicarious liability will attach to an employer for its employee’s intentional tortious conduct.

However, Toronto personal injury lawyer Elizabeth Grace writes in Lawyers Weekly that strangely there is no consistent precedent either for or against holding school boards vicariously liable for sexual misconduct committed by teachers against students – even where this occurs on school premises and during school hours.

“There is now established precedent for holding religious bodies vicariously liable for abuse committed by their clergy and for making those who operate residential youth facilities vicariously liable for their staff’s sexual misconduct,” writes Grace, partner with Lerners LLP. “This greater clarity in the law means most such cases now settle, sometimes without or after only partial discoveries.”

The article, co-written by Lerners associate Anna Matas, states “Vicarious liability is often described as a no-fault or strict form of liability. Irrespective of their lack of knowledge or disapproval for what happened, employers can be held vicariously liable for the harms caused by their employees’ torts where these fall within the employee’s ‘scope of employment.’ The result can sometimes appear harsh.”

Deciding whether or not to impose vicarious liability on a school authority appears to be a highly fact-specific exercise that depends to a great degree on the strength of the causal link between the job and the wrongful conduct in question, writes Grace.

“Courts are clearly finding the policy-driven imperatives that underlie vicarious liability challenging to apply in the education sphere,” the article says. “As a result, the stakes remain high and there is considerable uncertainty for those advancing and defending claims based on abuse of students by teachers.”

AdvocateDaily.com

Elizabeth Grace

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