February 16, 2024
Newsletter – February 2024
NEW HISTORICAL ABUSE DECISION
PROVIDES GREATER CLARITY IN
ASSESSING RISK OF VICARIOUS
LIABILITY AGAINST SCHOOLS AND
SCHOOL BOARDS
By Caitlin Merritt, Dolden Calgary, Janis McAfee, Dolden Kelowna,
and Cecilia Hoover, Dolden Calgary
The Supreme Court of British Columbia recently dismissed a Plaintiff’s claim for vicarious liability against the defendant school board (the “School Board”) which had arranged for private tutoring sessions with a tutor (the “Tutor”) who later sexually abused the Plaintiff.
Background
In H.N. v. School District No. 61 (Greater Victoria), 2024 BCSC 128, the 35-year-old Plaintiff sued the Estate of the Tutor, and the School Board which had recommended the Tutor to him, for sexual abuse that occurred when the Plaintiff was 11 years old.
When the Plaintiff was in grade six, he was a bright and high-achieving student who was particularly interested in reading and writing, and who was working on a novel outside of class. His grade six teacher recommended a retired teacher who he knew reasonably well to act as a private Tutor, who he could meet with on school property.
The Plaintiff met with the Tutor on school property a number of times, and the two also regularly exchanged emails, typically about chapters of the Plaintiff’s novel or books the Tutor had recommended to the Plaintiff. The Plaintiff did not allege any inappropriate behaviour during this time period, other than one or two minor instances, such as when the Tutor hugged him on his birthday.
The Tutor and the Plaintiff’s parents then began to arrange private sessions at the Tutor’s home, where the Tutor’s behaviour became increasingly inappropriate, including the Tutor insisting that the Plaintiff lay on top of him, exposing his erect penis to the Plaintiff and asking to perform oral sex on the Plaintiff (which the Plaintiff refused, and never occurred), as well as telling the Plaintiff that he was his best friend, confessing feelings of love, and threatening to self-harm or commit suicide if the Plaintiff told anyone or cut off contact. Eventually, the relationship petered out as the Plaintiff aged and the Tutor lost interest.
No Vicarious Liability without “Strong Connection” between official duties and abuse
The Plaintiff claimed that the School Board ought to be held vicariously liable for the misconduct of the Tutor, whether or not the abuse occurred on school property. In dismissing this claim, the Court applied the “strong connection” test from the seminal Supreme Court of Canada decision, Jacobi v. Griffiths, [1999] 2 SCR 570: in order for the School Board to be liable, there would need to be a strong connection between the actual duties imposed by the School Board and the abusive conduct which occurred. It is not enough to establish that that the School Board merely put the Tutor in a position to develop a trusting relationship with the Plaintiff.
In this case, the actual duties imposed by the School Board on the tutor were to provide English tutoring on school grounds, during school hours, where other adults could (and frequently did) check in on them. No abuse occurred during these initial sessions.
It was not until the Plaintiff’s parents arranged private sessions with the Tutor in the Tutor’s home that the Tutor saw his opportunity to begin grooming the Plaintiff for abuse and actively abusing him. This progression could not be characterized as “natural” or “inevitable”, and therefore the School Board could not be held liable.
Takeaway
This case is another in a long line of examples showing that merely creating an opportunity for a trusting relationship to develop between an abuser and a minor plaintiff will not be enough to create liability if the actual abuse occurs outside the abuser’s official role. In order to establish vicarious liability against an institution for acts of sexual abuse committed by one of that institution’s volunteers or employees, plaintiffs must establish there is a strong connection between the official duties imposed by the institution and the opportunity for abuse.
For further information or if you have any questions about the above article, please contact the author: Caitlin Merritt, Dolden Calgary, Email: [email protected], Janis McAfee, Dolden Kelowna, Email: [email protected], and Cecilia Hoover, Dolden Calgary, Email: [email protected].
| Editor |
| Cody Mann |
| Tel: 604 891 0366 |
| Email: [email protected] |
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