JACOBI V GRIFFITHS 17TH JUNE 1999 CANADIAN SUPREME COURT
The case involved a claim for damages by a brother and sister against the Vernon Boys’ and Girls’ Club for incidents of sexual abuse by one of the Club’s employees. The employee had been employed by the Club as Program Director from 1980 to 1992 and he was encouraged to cultivate positions of trust and respect with the children under his care. One of his victims complained and he was prosecuted. He pleaded guilty to 14 counts of sexual assault.
The Claimants sought damages against the Club on the legal theory that it should be held vicariously liable for the intentional sexual abuse of its employee. The trial judge held the Club vicariously liable, and the Court of Appeal allowed the Club’s appeal. The Claimants then appeal to the Canadian Supreme Court.
Binnie J referred to the case of Bazley v Curry  2 SCR 534 which had been decided concurrent with this case in the Canadian Supreme Court. However he took a different view to the one expressed by the court in that case. If the Defendant in this case were vicariously liable for damage arising out of the criminal conduct of its employee (which was unknown, unforeseen and unauthorised), then it would be difficult to imagine any enterprises whose mandate included mentoring or role models for children being able to escape liability. Consequently great care needed to be taken when applying the test of vicarious liability as adopted by the court in Bazley v Curry.
In Bazley, McLachlin J had said that if the employer put into the community an enterprise that carried with it certain risks, then it was fair that the employer should bear the loss. The touchstone of fairness depended not on foreseeability of risks from specific conduct, but foreseeability of the broad risks incident to the whole enterprise. There should be a strong connection between what the employer was asking the employee to do 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 that position.
The two tests set out in Bazley were 1) to see whether there were supporting precedents and 2) if 1) if failed, to determine whether vicarious liability should be imposed in light of the broader policy rationales behind strict liability.
Stage 1 – Analysis of the Case Law
Binnie J said that in his view, this case, reflecting policy judgments by various courts over many years would overshoot the existing judicial consensus about appropriate limits of an employer’s no fault liability. The same conclusion was reached under the second test in Bazley. Therefore the court below had correctly denied vicarious no fault liability in this case.
Binnie J went over the facts of the case. The difference between this case and that of Bazley was that the children’s club in this case had no power or authority over the children. It did not stand in loco parentis. In Bazley the opportunity for intimate private control and the parental relationship and power required by the terms of the employment created the special environment that nurtured the sexual abuse. However an employee who encouraged an employee to create no more than a positive rapport with children was not at the same end of the spectrum of risk as the employer in Bazley.
The children’s club in this case provided the employee with the opportunity to meet children and authorised him to develop a rapport with those children. The club also offered recreation in a public setting as opposed to the privacy of the abuser’s home. The abuser in this case had no job created authority to insinuate himself into the intimate lives of the children.
Binnie J considered previous cases.
The “Opportunity” cases
Mere opportunity to commit a tort did not suffice to impose no-fault liability and that would apply to the example of a school janitor abusing a child. In another case, Q v Minto Management Limited (1985) 15 DLR (4th) 581 the Ontario Court of Appeal had declined to impose vicarious liability on a landlord whose employee had raped a tenant. A similar conclusion was reached in the case of Goodwin v Commission scolaire Laurenval  RRA 673 where the court held that there was no vicarious liability on a school for the sexual abuse committed by a janitor. This was even though the school had ordered the janitor to follow children around the school after school hours, in order to ensure that they did not wander about without supervision. In B (J-P) v Jacob (1998) 166 DLR (4th) 125 the new Brunswick Court of Appeal found that the hospital corporation was not vicariously liable when one of the male nurses sexually assaulted a sleeping patient. There was a similar decision in Barrett v The Ship “Arcadia” (1977) 76 DLR (3d) 535 where there was a sexual assault by an officer’s steward on board a ship against a passenger.
Binnie J also made reference to cases from the United States, where the conclusions in relation to the imposition of vicarious liability were broadly similar.
The “Employers Aims” cases
Binnie J said that it was difficult to think of a situation where sexual assault by an employee would advance the aims of the employer’s enterprise. McLachlin J considered that the employer’s aims were of little significance. However if the Defendant’s vicarious liability was to be based on a type of “role modelling” inferred from the Club’s mission statement, it was only fair that the context of its aims and objectives should be taken into account. Courts in the United States had placed considerable emphasis on the antithesis between the employer’s aims and the employee’s personal agenda. There was also the case of ST v North Yorkshire County Council  IRLR 98 where the Court of Appeal had decided that there was no vicarious liability, where a teacher had abused a mentally handicapped pupil on a school holiday. McLachlin had criticised the reasoning in that case.
Cases of risks inherent and foreseeable in the nature of the employer’s enterprise
Binnie J considered a number of Canadian cases, where vicarious liability had been found, including one involving abuse by foster parents. Whilst he would not want to be taken as suggesting that creation of a parent-type relationship constituted a precondition for vicarious liability, the courts had set a high bar before imposing no-fault liability. He referred to two cases from the United States, Mary M v City of Los Angeles, 81 P.2d 1341 (1991) the Supreme Court of California had found the City of Los Angeles liable for a rape committed by a policeman on a motorist. The court was persuaded by the significant power and authority granted to the officer by the City. By contrast in John R v Oakland Unified School District 769 P.2d 948 (Cal. 1989) the job created power of a high school teacher over his pupil was considered by the same court to be insufficient to impose vicarious liability.
Stage 2 – Consideration of Policy
Binne J said that the “enterprise risk” rationale held the employer vicariously liable because the employer had introduced the seeds of the potential problem into the community, or aggravated the risks that were already there, but only if its enterprise materially increased the risk of harm that happened. Once materiality was established under the “strong connection” test, the imposition of no-fault liability was justified by policy considerations, including in particular:-
These policy considerations had to be balanced with a measure of fairness to the employer and adherence to legal principle, because standing on their own these particular policies would always favour vicarious liability. In others a solvent employer would always be a better Defendant than a penniless abuser.
In relation to compensation, the law sought to provide a just and practical remedy. The “strong connection” test limited the ability of the court to reach into an employer’s deep pocket, simply because it was there. In the case of a non profit making corporation such as the respondent, there was the further reality that the employer did not operate in a market environment, and had little or no ability to absorb the cost of such a no-fault liability by raising prices to consumers.
In relation to deterrence, the criminal law already provided a heavy sentence for sexual abuse and there might be little an employer might do, if the employer could deter such conduct in its employees.
Binnie J said that the imposition of no-fault liability in this case would tell non-profit recreational organisations dealing with children that even if they took all of the precautions that could reasonably be expected of them, they would still be held financially responsible for what were unforeseen and unforeseeable criminal assaults by their employees. The same concern had been expressed by the Supreme Court of California in John R v Oakland Unified School District 769 P.2d 948 (Cal. 1989) (see above).
The trial judge in this case had found in favour of the Claimants. Binnie J disagreed on the grounds that the “strong connection” test should be applied with appropriate fairness.
Application of the Analysis to this Case
Binnie J said that to find a strong connection, there had to be a material increase in the risk of harm occurring in the sense that the employment had significantly contributed to the occurrence of the harm. In Bazley the court had pointed to five factors that might enhance such a risk.
- the opportunity that the enterprise afforded the employee to abuse his or her power
- the extent to which the wrongful act may have furthered the employer’s aims
- the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s enterprise
- the extent of power conferred on the employee in relation to the victim
- the vulnerability of potential victims to wrongful exercise of the employee’s power
The key in this case was that the Club’s “enterprise” offered group recreational activities to be enjoyed in the presence of volunteers and other members. In this case, the sexual abuse only became possible when the abuser managed to subvert the public nature of the activities, by isolating his victims from the group. The situation was quite different from that in Bazley.
Binnie J said that whilst he accepted that had it not been for the opportunity created by the abuser’s employer, the abuse would not have happened, but the relevant nexus had to be between the job related conduct and the criminal assault. That did not preclude a claim in negligence.
An enterprise that sought to provide a positive role model did not thereby encourage intimacy. In relation to mentoring, that was not a slippery slope to sexual abuse. The Defendant in this case, the Club did not confer any meaningful power over the Claimants. Although one of the abuser’s victims had thought that he exercised a “god like” power over her, that could not be intended to be attributed to the Club. whereas in Bazley the abuser exercised a “god like” power.
Therefore the Defendant would not be liable in vicarious liability. The case should be sent back to trial for a determination as to whether the Club was liable under a fault based action.
L’Heureux-Dube J, McLachlin J and Bastarache J dissented. Cory J, Iacobucci J and Major J agreed with Binnie J and so the appeal of the Claimants was dismissed.
McLachlin J said that the care, protection and nurturing of children to which the trial judge alluded clearly encouraged relationships of intimacy. The abuser exercised a “god like” power over his victims, and this power was either expressly or implicitly conferred. His victims were moreover vulnerable. The assaults had nearly all taken place off site and after the hours for which the Club operated. However whilst spatial and temporal factors were relevant, they were not determinative on their own. The incidents of abuse were not isolated from the Club, because the Club gave the abuser the opportunity to entrap the children and the Club had introduced the abuser to the community, and clothed him with special responsibilities and powers. Therefore he would allow the appeal.