KLB v BRITISH COLUMBIA [2003] 2 SCR 403
FACTS:-
The Claimants, KLB, PB, HB and VERB were siblings. Prior to placement in foster care, they lived in extreme poverty. All four were placed in two separate foster care homes with the agreement of their mother. They suffered abuse in both placements. There had been warnings about the first foster mother made to social services and during the placements, infrequent visits were made by social services. In relation to the second set of foster parents, there had also been serious concerns notified to the authorities. During this placement, the children were exposed to inappropriate sexual behaviour, and KLB was sexually assaulted by an older adopted son. After a disclosure of physical abuse, the children were removed.
The trial judge found that the government had failed to exercise reasonable care, and rejected the limitation defence. There was a finding of direct liability on the government in negligence and also for fiduciary duty. The trial judge also found the government vicariously liable for the torts of the foster parents. The British Columbia Court of Appeal allowed the government’s appeal. All the Claimants’ claims were statute barred with the exception of KLB’s claim for sexual assault. In addition, the government was not in breach of its fiduciary duty to the children. However two appeal judges upheld the finding of vicarious liability.
HELD:-
McLachlin CJ delivered the judgement of the majority of the court. She considered the facts of the case:-
Direct Negligence
Both courts below held that the government had a duty under the Protection of Children Act RSBC 1960 c 303 to place children in adequate foster homes and to supervise their stay, and that this duty had been breached, subject to the defence on the limitation period.
Vicarious liability of the government for the torts of the foster parents
McLachlin J referred to the two cases of Bazley v Curry [1999] 2 SCR 534 and Jacobi v Griffiths [1999] 2 SCR 570. Two things needed to be established here:-
These two issues were related.
However imposing vicarious liability in the context of an employer/independent contractor relationship would not generally satisfy the policy goals of vicarious liability namely a) effective compensation and b) deterrence. Compensation would not be fair where the organisation fixed with responsibility for the tort was too remote from the tortfeasor for the latter to be acting on behalf of it.
In the case of 671122 Ontario Ltd v Sagaz Industries Canada Inc [2001] 2 SCR 983 the court held that the existence of a contract referring to the parties as an employer and independent contractor was not determinative. There had to be a search for the relationship between the parties.
The following factors would be relevant:-
Those factors suggested that the government was not vicariously liable for wrongs committed by foster parents against the children entrusted to them. Foster parents were essentially independent and they were intended to give the child a proper family life. They did not have to check with the state before making day to day decisions. If it were otherwise, they would not have the authority that children came to expect from parents. They were too far removed from the government for them to be reasonably perceived as acting “on account” of the government.
Furthermore imposition of vicarious liability would have little if any deterrent effect. Government liability was unlikely to result in heightened deterrence nor was stricter monitoring a realistic option.
This case was significantly different from Lister v Hesley Hall Limited [2002] 1 AC 215 where the House of Lords held a company that ran a private boarding home vicariously liable for the sexual assaults committed by the warden. This was clearly designed to act as a kind of foster family, but the warden was an employee of the company, and received a salary.
This case was also very different from Bazley v Curry. Therefore the case for extending vicarious liability to the relationship between governments and foster parents had not been established.
Liability for breach of a non delegable duty
This liability was based on the case of Cassidy v Ministry of Health [1951] where Lord Denning said that where a person was himself under a duty to use care, he could get rid of his responsibility be delegating the performance of it to someone else, whether they were an employee or an independent contractor.
The issue here was whether the Protection of Children Act placed the same type of duty on the government. McLachlin J said that this Act offered no basis for imposing on the government a non-delegable duty to ensure that no harm came to children through the abuse or negligence of foster parents.
Liability for breach of fiduciary duty
There was no dispute that there was a fiduciary duty here. However there was a dispute as to the content of that duty. Fiduciary duties arose in a number of different contexts, including express rusts, relationships marked by discretion power and trust and the special responsibilities of the Crown in dealing with aboriginal interests. However this could not be extended to foster care because the statute evinced the clear intent that the children should be nurtured in a private home environment.
Case law had traditionally described the parental fiduciary duty in narrow terms. What then was the content of the parent fiduciary duty? The duty imposed was to act loyally and not to put one’s own or other’s interests ahead of the child’s in a manner that abuses the child’s trust. There was no evidence that the government had put its own interests ahead of those of the children in a way that amounted to betrayal of trust or disloyalty.
Were the Claimants’ claims barred by the Limitation Act?
The Claimant had argued that their causes of action were not reasonably discoverable prior to commencement of these actions. Their psychologist had said that they lacked a thorough understanding of the psychological connection between their past abuse and their current state.
All of the Claimants were aware of the physical abuse that they sustained. They may not have been aware of the existence of a government duty. In 1986 K and V had consulted a lawyer, but this was not followed up. In 1990, three of the Claimants made a complaint to the Ombudsman and in June 1991 all the Claimants met with a government representative. Consequently the Claimant must have had an awareness that the government might have breached a duty owed to them.
The Claimants also argued that they were under a disability, but McLachlin J said that they had not established this. Therefore their claims were statute barred.
Arbour J dissented. He felt that the government was vicariously liable for foster parents. The categories of relationship in which vicarious liability had been found were not closed. The government had sufficient power of control over the foster parents’ activities to justify finding vicarious liability. There was a foster care agreement, which indicated that foster parents had significant independent control over foster children’s activities. However the agreement also recognised the right of the government to plan for the children’s future. Foster care was by its nature a temporary agreement. Arbour J did not agree that the imposition of vicarious liability would result in no deterrence.
However Arbour J agreed that the claims were statute barred, and the claims for non delegable duty and breach of fiduciary duty could not succeed.
FACTS:-
The Claimants, KLB, PB, HB and VERB were siblings. Prior to placement in foster care, they lived in extreme poverty. All four were placed in two separate foster care homes with the agreement of their mother. They suffered abuse in both placements. There had been warnings about the first foster mother made to social services and during the placements, infrequent visits were made by social services. In relation to the second set of foster parents, there had also been serious concerns notified to the authorities. During this placement, the children were exposed to inappropriate sexual behaviour, and KLB was sexually assaulted by an older adopted son. After a disclosure of physical abuse, the children were removed.
The trial judge found that the government had failed to exercise reasonable care, and rejected the limitation defence. There was a finding of direct liability on the government in negligence and also for fiduciary duty. The trial judge also found the government vicariously liable for the torts of the foster parents. The British Columbia Court of Appeal allowed the government’s appeal. All the Claimants’ claims were statute barred with the exception of KLB’s claim for sexual assault. In addition, the government was not in breach of its fiduciary duty to the children. However two appeal judges upheld the finding of vicarious liability.
HELD:-
McLachlin CJ delivered the judgement of the majority of the court. She considered the facts of the case:-
Direct Negligence
Both courts below held that the government had a duty under the Protection of Children Act RSBC 1960 c 303 to place children in adequate foster homes and to supervise their stay, and that this duty had been breached, subject to the defence on the limitation period.
Vicarious liability of the government for the torts of the foster parents
McLachlin J referred to the two cases of Bazley v Curry [1999] 2 SCR 534 and Jacobi v Griffiths [1999] 2 SCR 570. Two things needed to be established here:-
- Firstly the Claimant must show that the relationship between the tortfeasor and the person against whom liability was sought was sufficiently close as to make a claim for vicarious liability appropriate.
- Secondly Claimants must demonstrate that the tort was sufficiently connected to the tortfeasor’s assigned task so that the tort could be regarded as materialisation of the risks created by the enterprise.
These two issues were related.
However imposing vicarious liability in the context of an employer/independent contractor relationship would not generally satisfy the policy goals of vicarious liability namely a) effective compensation and b) deterrence. Compensation would not be fair where the organisation fixed with responsibility for the tort was too remote from the tortfeasor for the latter to be acting on behalf of it.
In the case of 671122 Ontario Ltd v Sagaz Industries Canada Inc [2001] 2 SCR 983 the court held that the existence of a contract referring to the parties as an employer and independent contractor was not determinative. There had to be a search for the relationship between the parties.
The following factors would be relevant:-
- The level of control that the employer had over the worker’s activities would always be a factor
- Whether the worker provided his own equipment
- Whether the worker hired his or her own helpers
- Whether the worker had managerial responsibilities
Those factors suggested that the government was not vicariously liable for wrongs committed by foster parents against the children entrusted to them. Foster parents were essentially independent and they were intended to give the child a proper family life. They did not have to check with the state before making day to day decisions. If it were otherwise, they would not have the authority that children came to expect from parents. They were too far removed from the government for them to be reasonably perceived as acting “on account” of the government.
Furthermore imposition of vicarious liability would have little if any deterrent effect. Government liability was unlikely to result in heightened deterrence nor was stricter monitoring a realistic option.
This case was significantly different from Lister v Hesley Hall Limited [2002] 1 AC 215 where the House of Lords held a company that ran a private boarding home vicariously liable for the sexual assaults committed by the warden. This was clearly designed to act as a kind of foster family, but the warden was an employee of the company, and received a salary.
This case was also very different from Bazley v Curry. Therefore the case for extending vicarious liability to the relationship between governments and foster parents had not been established.
Liability for breach of a non delegable duty
This liability was based on the case of Cassidy v Ministry of Health [1951] where Lord Denning said that where a person was himself under a duty to use care, he could get rid of his responsibility be delegating the performance of it to someone else, whether they were an employee or an independent contractor.
The issue here was whether the Protection of Children Act placed the same type of duty on the government. McLachlin J said that this Act offered no basis for imposing on the government a non-delegable duty to ensure that no harm came to children through the abuse or negligence of foster parents.
Liability for breach of fiduciary duty
There was no dispute that there was a fiduciary duty here. However there was a dispute as to the content of that duty. Fiduciary duties arose in a number of different contexts, including express rusts, relationships marked by discretion power and trust and the special responsibilities of the Crown in dealing with aboriginal interests. However this could not be extended to foster care because the statute evinced the clear intent that the children should be nurtured in a private home environment.
Case law had traditionally described the parental fiduciary duty in narrow terms. What then was the content of the parent fiduciary duty? The duty imposed was to act loyally and not to put one’s own or other’s interests ahead of the child’s in a manner that abuses the child’s trust. There was no evidence that the government had put its own interests ahead of those of the children in a way that amounted to betrayal of trust or disloyalty.
Were the Claimants’ claims barred by the Limitation Act?
The Claimant had argued that their causes of action were not reasonably discoverable prior to commencement of these actions. Their psychologist had said that they lacked a thorough understanding of the psychological connection between their past abuse and their current state.
All of the Claimants were aware of the physical abuse that they sustained. They may not have been aware of the existence of a government duty. In 1986 K and V had consulted a lawyer, but this was not followed up. In 1990, three of the Claimants made a complaint to the Ombudsman and in June 1991 all the Claimants met with a government representative. Consequently the Claimant must have had an awareness that the government might have breached a duty owed to them.
The Claimants also argued that they were under a disability, but McLachlin J said that they had not established this. Therefore their claims were statute barred.
Arbour J dissented. He felt that the government was vicariously liable for foster parents. The categories of relationship in which vicarious liability had been found were not closed. The government had sufficient power of control over the foster parents’ activities to justify finding vicarious liability. There was a foster care agreement, which indicated that foster parents had significant independent control over foster children’s activities. However the agreement also recognised the right of the government to plan for the children’s future. Foster care was by its nature a temporary agreement. Arbour J did not agree that the imposition of vicarious liability would result in no deterrence.
However Arbour J agreed that the claims were statute barred, and the claims for non delegable duty and breach of fiduciary duty could not succeed.