Vicarious Liability: Two New Supreme Court Decisions

Published February 2, 2000

In almost every newsletter and law update we have read recently, two new Supreme Court of Canada decisions have been written up. So, not to be left out in the cold, we will write about them, too. In reality, these two decisions are very important to any sport organization. They also speak directly, although in limited fashion, to the coach/athlete relationship.

Both cases deal with the extent to which employers must take responsibility for the wrongful actions of employees or volunteers. The Court was asked, "should an organization be held responsible for the actions of an employee or volunteer who commits sexual abuse against children (minors) even where the organization has not itself been negligent?" This "no-fault" or indirect form of liability is known as "vicarious liability".

In Bazley v. Curry [subsequently referred to here as the Children's Foundation] the Children's Foundation, a non-profit organization that ran a residential youth facility in Vancouver, was found vicariously liable by both the trial and appeal courts in British Columbia for the sexual abuse committed by an employee against several youths under its care. In a second case heard at the same time, Jacobi v. Griffiths [subsequently referred to here as the Boys and Girls Club], Griffith, a program director with the Boys and Girls Club of Vernon, B.C. was found guilty of 14 counts of sexual assault against children involved in the Club's activities. Both the B.C. trial and appeal courts found the Club vicariously liable for the acts of the employee even though the assaults took place outside of work hours, off the work site and in Griffith's own home.

Before the Supreme Court heard these cases, the old test for determining vicarious liability was to ask whether the wrongful acts of the employee or volunteer were authorized by the employer or were so connected to authorized acts as to be considered "modes", or ways, of performing an authorized act (albeit improperly), or were they acts that could be considered wholly independent of the employer? The Supreme Court has now set out a new approach for determining whether wrongful acts were authorized and the employer thus vicariously liable for the consequences of such wrongdoing.

Courts will now focus on whether, in setting up and carrying on the program or activity, the employer has created or enhanced the possibility of harm occurring. Essentially, the Supreme Court has said, "[v]icarious liability is generally appropriate where there is a significant connection between the creation or enhancement of a risk and a wrong that accrues therefrom, even if unrelated to the employer's desires."

In considering the extent of risk introduced by the employer, the Court was clear that the mere opportunity created simply by the existence of a program is not sufficient to attract vicarious liability. The nature and manner in which the activity or program is set up and run must "significantly increase the risk" of harm occurring.

From this flows the question, what is a "significant" risk? A court will consider the following five main factors in assessing significance:

1. The opportunity for the employee or volunteer to abuse his or her power. For example, is the employee or volunteer going to be alone with individuals or will others be around? Will the employee or volunteer be travelling with participants to other locations? Will a trip be over night?
2. The extent of the power over the victim that is conferred to the employee or volunteer. For example, is the employee or volunteer expected to act as a parent, or as a supervisor? Is the person in a position to grant benefits?
3. The vulnerability of the victim. For example, are participants young people, mentally or physically challenged, or suffering from low self-esteem?
4. The nature of the employer's activity or enterprise. For example, is the activity part of a day program, a residential program, a treatment program? Is participation voluntary or mandatory?
5. The degree of intimacy, confrontation or friction in the environment. For example, does the environment allow or condone a degree of intimacy? Is itagonistic , hostile or secretive?

In the Children's Foundation decision, the Supreme Court had little difficulty establishing the necessary relationship between the risk created by the employer and the wrongful acts of the employee. Curry worked in a residential environment with emotionally troubled children and was authorized to act as a parent figure, doing everything a parent would do. In the Court's view, the setting that created an opportunity for intimate private control combined with the parental-like authority vested in Curry by the terms of his employment, introduced and fostered an environment that led to the sexual abuse and justified a finding of vicarious liability against the Foundation. The Court upheld the B.C. appeal court decision.

This is in contrast to the decision in the Boys and Girls Club, in which the employee was responsible for organizing and supervising an after-school recreation program on the premises of the Club. While he was encouraged to makes friends with the participants, he was not expected to be alone with them. The Court noted the Club had no power or authority over the youths, as Griffith was not comparable to a parent and the children were free to leave at any time. The situation itself did not create any degree of intimacy. As noted by the court, "[there was] no job-created authority for [Griffith] to insinuate himself into the private lives of these children". The enterprise or activity of the Club itself did not therefore significantly increase the risk of harm to the participants at the hands of Griffith. As a result, the Court found that there was no vicarious liability and thus overturned the B.C. appeal court decision.

The Court took pains to emphasize that putting individuals such as coaches in the position of a role model does not necessarily invite liability. Mr. Justice Binnie in the Children's Foundation decision wrote:

I do not accept that an enterprise that seeks to provide a positive role model thereby encourages intimacy. Nor do I believe that mentoring, as such, puts one on the slippery slope to sexual abuse. If it did, any organization that offered "role models" would be looking at no-fault liability [vicarious liability]. Most organizations dealing with children inevitably involve role models, from the neighbourhood soccer league to Girl Guides to the Duke of Edinburgh awards program.

The gist of these two decisions is that an organization can make decisions, particularly in the five areas considered by the Court, that so enhance the risk of harm as to make the organization vicariously liable for such harm should it occur. The onus is thus on the organization to manage its own risk exposure. Firstly, it can do this by consciously and systematically making decisions about the nature of its programs and the extent of risk each program or activity introduces. Secondly, it can institute reasonable and appropriate risk management measures in the area of recruitment, screening and supervision, as well as in the design and implementation of program activities.

Originally published: Coaches Report (2000) Vol. 6(3)