BROOKS V REGINA, 2000 BCSC 735 (CanLII)
FACTS:-
The Claimant was a foster child in the home of a married couple, Mr and Mrs P from May 1975 to June 1976. She had already been sexually abused by her natural father and after making complaints, she was taken into care by the provincial Ministry of Social Services and immediately placed with Mr and Mrs P. The Claimant claimed that Mrs P was often drunk and had little involvement with her.
She claimed that she was sexually harassed and assaulted by her foster father. Following an incident of rape, she left the foster home and moved back in with her mother. Thereafter she was primarily responsible for looking after her mother and younger brother, although social services were providing some support.
The Claimant claimed damages from the Crown for negligence and breach of duty in relation to her placement with Mr and Mrs P. In particular she claimed that the Crown had a non-delegable duty of care in connection with its role as guardian of the Claimant and was also vicariously liable for breaches of fiduciary duty.
HELD:-
Justice Levine considered the facts of the case. She found that the sexual assaults had occurred almost entirely as the Claimant described them. She then considered the issues in the case which were:-
In relation to the first issue, Canadian caselaw suggested that the inherent purpose of the family relationship imposed certain obligations on a parent to act in his children’s best interests. There was also a case from the Supreme Court of California (Emery v Emerby, 289 P.2d 218 (Cal.1955) where the court sadi that although the parent had a wide discretion on how to rear his child, that discretion did not include the right wilfully to inflict personal injuries beyond the limits of reasonable parental disclipline.
Levine J found that whilst the foster father had breached his fiduciary duties to the Claimant, the foster mother had not because she was simply a bystander. A bystander would not be liable, for not acting to prevent a sexual assault by another person unless she had actual knowledge of the potential danger or taking into account her subjective characteristics. There was no evidence that the foster mother knew about the foster father’s behaviour.
Breach of fiduciary duty
Levine J considered caselaw, including the case of A.(C.) v C.(J.W.) 1998 CanLII 9129 (BC C.A.) the Canadian Supreme Court had determined whether, as a matter of law, this characterisation of the fiduciary duty and imputation of liability, absent personal fault on the part of Crown officials and employees, was supported by the authorities. There were a number of differences between breach of fiduciary duty and the more traditional basis of liability, namely negligence. The Supreme Court of Canada had found that breach of fiduciary duty was linked directly to the fact that the Defendants themselves had failed to live up to the standards of good faith and loyalty by succumbing to the temptation of self interest. Here there was no breach of fiduciary duty, because there was no evidence that the Ministry officials took advantage of a relationship of trust or confidence for any direct or indirect personal advantage.
Negligence
Whilst the foster father was clearly in breach of the standard of reasonable care and the intention tort of sexual assault, the foster mother was not liable, either in fiduciary duty or negligence for not having become aware of her husband’s activities.
Levine J considered the case of Lewis v British Columbia 1995 CanLII 2637 (BC C.A.) where McEacher CJBC outlined a four step process to determine liability.
The relevant statute was the Protection of Children Act RSBC 1960. There was also the Ministry’s “Policies and Procedures” manual. Previous caselaw had recognized a standard of “special diligence.” Levine J said that there was here a special duty to exercise “special diligence.”
However there was available to the Crown a defence of “good faith” in exercising its statutory discretion. Reliance was placed on Home Office v Dorset Yacht Co. [1970] 2 All ER 294, where Lord Reid had said that there could be no liability where discretion was exercised with due care. Levine J said that the defence of good faith was not a licence to ignore the requirements of special diligence.
There was also the distinction to be drawn between policy decisions and operational decisions. In this case the Claimant’s allegations of negligence related predominantly to the failure of social workers to adequately supervise and monitor the foster home. The Crown could not claim that its servants possessed an honest belief that a decision was reasonable or made in good faith, if they did not at least reasonably supervise and monitor the circumstances of a child in care to reveal facts that the decision maker ought to know.
In this case, the Crown did not satisfy its duty of special diligence with respect to the placement of the Claimant in foster care. The defence of good faith did not apply on the facts or in law.
Non-Delegable Duty of the Crown for Negligence
Levine J referred to another case Lewis (Guardian ad litem of) v British Columbia 1997 CanLII 304 (SCC) where the Ministry of Transportation was held liable for the negligence of an independent contractor, hired to prevent rocks falling from a rock face.The work was carried out negligently and a motorist was killed by a falling rock. In that case, the court had said that it was only fair when a public authority exercised its statutory authority and power granted to it in circumstances which might have serious consequences for the public interest, that it be held liable for a breach of duty occasioned by the negligent acts of its contractor.
The Crown argued that the duties delegated to foster parents were independent of the duties of the Crown in respect of the care and custody of children under its guardianship. Levine J said that this did not absolve the Crown. The Crown was ultimately responsible for ensuring that that the duties under the Act were carried out, and therefore they were liable to the Claimant for the negligent and intentionally tortuous acts of the foster father.
Vicarious Liability
The Claimant relied on recent authorities, Bazley v Curry 1999 Can LII 692 (S.C.C), Jacobi v Griffith 1999 CanLII 693 2 S.C.R. and A.(C.) v C.(J.W.) 1998 CanLII 9129 (BC C.A.)
In the last case, the Crown was held liable for wrongful acts committed by foster parents.
Bazley was the leading case on the question of vicarious liability of employers for the misconduct of employees acting within the scope of their employment. This case concerned the abuse of children within residential care facilities operated by a children’s foundation. Levine J went over the judgement of McLachlin J.
A.(C.) v C.(J.W.) concerned the operator of a wilderness group home for troubled male youths of 14 to 16. The Crown funded the operator and had direct involvement in this operations, as well as the amount of resources supplied, including staffing levels. They also had the power to suspend and dismiss the operator. The court said that it was difficult to envisage how the Crown’s control over the operator of the home would have been enhanced had he been an employee rather than an owner operator. The court found that vicarious liability should be imposed on the Crown.
In this case, there was no dispute that the Claimant’s placement in the foster home provided the opportunity and materially increased the risk of sexual assault.
FACTS:-
The Claimant was a foster child in the home of a married couple, Mr and Mrs P from May 1975 to June 1976. She had already been sexually abused by her natural father and after making complaints, she was taken into care by the provincial Ministry of Social Services and immediately placed with Mr and Mrs P. The Claimant claimed that Mrs P was often drunk and had little involvement with her.
She claimed that she was sexually harassed and assaulted by her foster father. Following an incident of rape, she left the foster home and moved back in with her mother. Thereafter she was primarily responsible for looking after her mother and younger brother, although social services were providing some support.
The Claimant claimed damages from the Crown for negligence and breach of duty in relation to her placement with Mr and Mrs P. In particular she claimed that the Crown had a non-delegable duty of care in connection with its role as guardian of the Claimant and was also vicariously liable for breaches of fiduciary duty.
HELD:-
Justice Levine considered the facts of the case. She found that the sexual assaults had occurred almost entirely as the Claimant described them. She then considered the issues in the case which were:-
- Was the Crown directly liable for breach of fiduciary duty or negligence for failing to supervise and monitor the foster home and take appropriate action once problems were known?
- Was the Crown liable for wrongful acts of the foster parents on the grounds that it breached its non-delegable duty of care to the Claimant?
- Was the Crown vicariously liable for breaches of fiduciary duty and wrongful acts of the foster parents?
In relation to the first issue, Canadian caselaw suggested that the inherent purpose of the family relationship imposed certain obligations on a parent to act in his children’s best interests. There was also a case from the Supreme Court of California (Emery v Emerby, 289 P.2d 218 (Cal.1955) where the court sadi that although the parent had a wide discretion on how to rear his child, that discretion did not include the right wilfully to inflict personal injuries beyond the limits of reasonable parental disclipline.
Levine J found that whilst the foster father had breached his fiduciary duties to the Claimant, the foster mother had not because she was simply a bystander. A bystander would not be liable, for not acting to prevent a sexual assault by another person unless she had actual knowledge of the potential danger or taking into account her subjective characteristics. There was no evidence that the foster mother knew about the foster father’s behaviour.
Breach of fiduciary duty
Levine J considered caselaw, including the case of A.(C.) v C.(J.W.) 1998 CanLII 9129 (BC C.A.) the Canadian Supreme Court had determined whether, as a matter of law, this characterisation of the fiduciary duty and imputation of liability, absent personal fault on the part of Crown officials and employees, was supported by the authorities. There were a number of differences between breach of fiduciary duty and the more traditional basis of liability, namely negligence. The Supreme Court of Canada had found that breach of fiduciary duty was linked directly to the fact that the Defendants themselves had failed to live up to the standards of good faith and loyalty by succumbing to the temptation of self interest. Here there was no breach of fiduciary duty, because there was no evidence that the Ministry officials took advantage of a relationship of trust or confidence for any direct or indirect personal advantage.
Negligence
Whilst the foster father was clearly in breach of the standard of reasonable care and the intention tort of sexual assault, the foster mother was not liable, either in fiduciary duty or negligence for not having become aware of her husband’s activities.
Levine J considered the case of Lewis v British Columbia 1995 CanLII 2637 (BC C.A.) where McEacher CJBC outlined a four step process to determine liability.
- The first step was to decide what duty was owed to the public by the public authority
- The second step was to consider whether the applicable legislation or other considerations negatived, limited or exempt the public authority from that duty of care
- The third step was to decide whether the public authority had breached whatever duty of care the law imposed upon it.
- The fourth step was to determine if the policy operations dichotomy arose in this case.
The relevant statute was the Protection of Children Act RSBC 1960. There was also the Ministry’s “Policies and Procedures” manual. Previous caselaw had recognized a standard of “special diligence.” Levine J said that there was here a special duty to exercise “special diligence.”
However there was available to the Crown a defence of “good faith” in exercising its statutory discretion. Reliance was placed on Home Office v Dorset Yacht Co. [1970] 2 All ER 294, where Lord Reid had said that there could be no liability where discretion was exercised with due care. Levine J said that the defence of good faith was not a licence to ignore the requirements of special diligence.
There was also the distinction to be drawn between policy decisions and operational decisions. In this case the Claimant’s allegations of negligence related predominantly to the failure of social workers to adequately supervise and monitor the foster home. The Crown could not claim that its servants possessed an honest belief that a decision was reasonable or made in good faith, if they did not at least reasonably supervise and monitor the circumstances of a child in care to reveal facts that the decision maker ought to know.
In this case, the Crown did not satisfy its duty of special diligence with respect to the placement of the Claimant in foster care. The defence of good faith did not apply on the facts or in law.
Non-Delegable Duty of the Crown for Negligence
Levine J referred to another case Lewis (Guardian ad litem of) v British Columbia 1997 CanLII 304 (SCC) where the Ministry of Transportation was held liable for the negligence of an independent contractor, hired to prevent rocks falling from a rock face.The work was carried out negligently and a motorist was killed by a falling rock. In that case, the court had said that it was only fair when a public authority exercised its statutory authority and power granted to it in circumstances which might have serious consequences for the public interest, that it be held liable for a breach of duty occasioned by the negligent acts of its contractor.
The Crown argued that the duties delegated to foster parents were independent of the duties of the Crown in respect of the care and custody of children under its guardianship. Levine J said that this did not absolve the Crown. The Crown was ultimately responsible for ensuring that that the duties under the Act were carried out, and therefore they were liable to the Claimant for the negligent and intentionally tortuous acts of the foster father.
Vicarious Liability
The Claimant relied on recent authorities, Bazley v Curry 1999 Can LII 692 (S.C.C), Jacobi v Griffith 1999 CanLII 693 2 S.C.R. and A.(C.) v C.(J.W.) 1998 CanLII 9129 (BC C.A.)
In the last case, the Crown was held liable for wrongful acts committed by foster parents.
Bazley was the leading case on the question of vicarious liability of employers for the misconduct of employees acting within the scope of their employment. This case concerned the abuse of children within residential care facilities operated by a children’s foundation. Levine J went over the judgement of McLachlin J.
A.(C.) v C.(J.W.) concerned the operator of a wilderness group home for troubled male youths of 14 to 16. The Crown funded the operator and had direct involvement in this operations, as well as the amount of resources supplied, including staffing levels. They also had the power to suspend and dismiss the operator. The court said that it was difficult to envisage how the Crown’s control over the operator of the home would have been enhanced had he been an employee rather than an owner operator. The court found that vicarious liability should be imposed on the Crown.
In this case, there was no dispute that the Claimant’s placement in the foster home provided the opportunity and materially increased the risk of sexual assault.