P.A.B. v. Children’s Foundation (1999), 124 B.C.A.C. 119 (SCC);
203 W.A.C. 119
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[French language version follows English language version]
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Temp. Cite: [1999] B.C.A.C. TBEd. JN.037
The Children’s Foundation, The Superintendent of Family and Child Services in the Province of British Columbia and Her Majesty The Queen in right of the Province of British Columbia as represented by the Ministry of Social Services and Housing (appellants) v. P.A.B. (respondent) and Her Majesty The Queen in right of Alberta as represented by the Minister of Justice and Attorney General of Alberta, the Canadian Conference of Catholic Bishops, the United Church of Canada, the General Synod of the Anglican Church of Canada, Wunnumin Lake First Nation, William Richard Blackwater et al. and Barrie Caldwell, Samuel McNad and Glen Pelletier (interveners)
(26013)
Indexed As: P.A.B. v. Children’s Foundation et al.
Supreme Court of Canada
L’Heureux-Dubé, Cory, McLachlin, Iacobucci, Major, Bastarache, and Binnie, JJ.
June 17, 1999.
Summary:
A childcare counsellor, employed by a nonprofit society to fulfil a “parental” role for apprehended children now living in group homes, sexually abused one of the children. The child (now an adult) sued the society, among others, for damages. The parties stated a case to determine whether the society was vicariously liable for the employee’s conduct. The trial judge, in a decision reported in 9 B.C.L.R.(3d) 217, held that the society was vicariously liable. The society appealed.
The British Columbia Court of Appeal, in a decision reported 89 B.C.A.C. 93; 145 W.A.C. 93, dismissed the appeal. The society appealed.
The Supreme Court of Canada dismissed the appeal. The court remitted the matter for trial.
Master and Servant – Topic 3675
Liability of master for acts of servant – Torts – General – The Salmond test provided that “employers are vicariously liable for (1) employee acts authorized by the employer; or (2) unauthorized acts so connected with authorized acts that they may be regarded as modes (albeit improper modes) of doing an authorized act” – The Supreme Court of Canada stated that “the second branch of the Salmond test may usefully be approached in two steps. First, a court should determine whether there are precedents which unambiguously determine on which side of the line between vicarious liability and no liability the case falls. If prior cases do not clearly suggest a solution, the next step is to determine whether vicarious liability should be imposed in light of the broader policy rationales behind strict liability.” – See paragraph 15.
Master and Servant – Topic 3675
Liability of master for acts of servant – Torts – General – The Supreme Court of Canada set out principles to guide a court in determining whether an employer was vicariously liable for an employee’s unauthorized, intentional wrong in cases where precedent is inconclusive – The court stated, inter alia, that “[t]he fundamental question is whether the wrongful act is
sufficiently related
to conduct authorized by the employer to justify the imposition of vicarious liability. Vicarious liability is generally appropriate where there is a significant connection between the
creation or enhancement of a risk
and the wrong that accrues therefrom, even if unrelated to the employer’s desires. Where this is so, vicarious liability will serve the policy considerations of provision of an adequate and just remedy and deterrence. Incidental connections to the employment enterprise, like time and place (without more), will not suffice. Once engaged in a particular business, it is fair that an employer be made to pay the generally foreseeable costs of that business. In contrast, to impose liability for costs unrelated to the risk would effectively make the employer an involuntary insurer.” – The court suggested relevant factors in determining the sufficiency of the connection between the employer’s creation or enhancement of the risk and the wrong complained of – See paragraph 41.
Master and Servant – Topic 3679
Liability of master for acts of servant – Torts – Acts in course of employment – Sexual abuse – A nonprofit society operated a residential care facility for treatment of emotionally troubled children – The society, as substitute parent, practised total intervention in all aspects of the children’s lives – Employees acted as parent figures for the children and were to do everything a parent would do, including bathing and tucking the child into bed – One employee sexually abused one of the resident children – The abuse occurred while the employee was on duty – The child sued, inter alia, the society – The Supreme Court of Canada affirmed that the society was vicariously liable for the intentional misconduct of the employee – “The opportunity for intimate private control, and the parental relationship and power required by the terms of employment, created a special environment that nurtured and brought to fruition the sexual abuse. The [society’s] enterprise created and fostered the risk that led to the ultimate harm.”
Master and Servant – Topic 3679
Liability of master for acts of servant – Torts – Acts in course of employment – Sexual abuse – The Supreme Court of Canada stated that “the test for vicarious liability for an employee’s sexual abuse of a client should focus on whether the employer’s enterprise and empowerment of the employee materially increased the risk of the sexual assault and hence the harm. The test must not be applied mechanically, but with a sensitive view to the policy considerations that justify the imposition of vicarious liability — fair and efficient compensation for wrong and deterrence. This requires trial judges to investigate the employee’s specific duties and determine whether they gave rise to special opportunities for wrongdoing. Because of the peculiar exercises of power and trust that pervade cases such as child abuse, special attention should be paid to the existence of a power or dependency relationship, which on its own often creates a considerable risk of wrongdoing.” – See paragraph 46.
Master and Servant – Topic 3703
Liability of master for acts of servant – Torts – Wilful acts – Sexual abuse – [See both
Master and Servant – Topic 3679
].
Torts – Topic 2525
Vicarious liability – Master and servant – General – [See both
Master and Servant – Topic 3675
].
Torts – Topic 2530
Vicarious liability – Master and servant – Employer – Liability for acts of employees – Sexual abuse – [See both
Master and Servant – Topic 3679
].
Torts – Topic 2649
Vicarious liability – Particular persons – Nonprofit organizations – The Supreme Court of Canada held that nonprofit organizations should not be exempt from vicarious liability otherwise properly imposed at law – See paragraphs 47 to 56.
Torts – Topic 2649
Vicarious liability – Particular persons – Nonprofit organizations – [See first
Master and Servant – Topic 3679
].
Cases Noticed
:
London Drugs Ltd. v. Brassart and Vanwinkel, [1992] 3 S.C.R. 299; 143 N.R. 1; 18 B.C.A.C. 1; 31 W.A.C. 1; 97 D.L.R.(4th) 261, refd to. [para. 14].
London Drugs v. Kuehne & Nagle International Ltd. et al. – see London Drugs Ltd. v. Brassart and Vanwinkel.
Kay v. I.T.W. Ltd., [1968] 1 Q.B. 140 (C.A.), refd to. [para. 18].
Ryan v. Fildes, [1938] 3 All E.R. 517 (K.B.D.), refd to. [para. 19].
Daniels v. Whetstone Entertainments and Allender, [1962] 2 Lloyd’s Rep. 1 (C.A.), refd to. [para. 19].
Dyer v. Munday, [1895] 1 Q.B. 742 (C.A.), refd to. [para. 19].
Lakatosh v. Ross (1974), 48 D.L.R.(3d) 694 (Man. Q.B.), refd to. [para. 19].
Cole v. California Entertainment Ltd., [1989] B.C.J. No. 2162 (C.A.), refd to. [para. 19].
Lloyd v. Grace, Smith & Co., [1912] A.C. 176 (H.L.), refd to. [para. 20].
Canada v. Levy Brothers Co., [1961] S.C.R. 189, refd to. [para. 20].
Boothman v. Canada, [1993] 3 F.C. 381; 63 F.T.R. 48 (T.D.), refd to. [para. 20].
Warren v. Henlys Ltd., [1948] 2 All E.R. 935 (K.B.D.), refd to. [para. 21].
S.T. v. North Yorkshire County Council, [1999] I.R.L.R. 98 (C.A.), not folld. [para. 23].
G.T.-J. v. Griffiths, [1995] B.C.J. No. 2370 (S.C.), refd to. [para. 24].
Palsgraf v. Long Island R. Co. (1928), 162 N.E. 99 (N.Y.), refd to. [para. 30].
Plains Engineering Ltd. et al. v. Barnes Security Services Ltd. and Meinig (1987), 83 A.R. 170; 43 C.C.L.T. 129 (Q.B.), refd to. [para. 35].
Poland v. Parr (John) & Sons, [1927] 1 K.B. 236 (C.A.), refd to. [para. 38].
Morris v. Martin (C.W.) & Sons Ltd., [1966] 1 Q.B. 716 (C.A.), refd to. [para. 40].
Authors and Works Noticed:
Atiyah, P.S., Vicarious Liability in the Law of Torts (7th Ed. 1967), pp. 6, 7 [para. 28]; 263 [paras. 21, 24].
Feldthusen, Bruce, Vicarious Liability for Sexual Torts in Torts Tomorrow: A Tribute to John Fleming (1998), pp. 221, 224 [para. 30].
Fleming, John G., The Law of Torts (9th Ed. 1998), pp. 409 [para. 26]; 410 [paras. 14, 26, 30]; 421 [para. 12]; 422 [para. 39].
Fridman, Gerald Henry Louis, The Law of Torts in Canada (1990), vol. 2, pp. 314, 315 [para. 28].
Laski, Harold J., The Basis of Vicarious Liability (1916), 26 Yale L.J. 105, generally [para. 18]; p. 121 [para. 21].
Prosser and Keeton, The Law of Torts (5th Ed. 1984), pp. 500, 501 [para. 38].
Salmond and Heuston, R.F.V., The Law of Torts (19th Ed. 1987), pp. 230 [para. 6]; 438 [para. 12]; 521 [para. 6]; 522 [paras. 6, 13].
Sykes, Alan O., The Boundaries of Vicarious Liability: An Economic Analysis of the Scope of Employment Rule and Related Legal Doctrines (1988), 101 Harv. L. Rev. 563, generally [para. 38].
Williams, Glanville, Vicarious Liability: Tort of the Master or of the Servant (1956), 72 L.Q. Rev. 522, generally [para. 28].
Counsel:
William M. Holburn, Q.C., and Dale Stewart, for the appellant, Children’s Foundation;
Richard J. Meyer and J. Douglas Eastwood, for the appellant, Her Majesty the Queen in right of British Columbia;
D. Brent Adair, for the respondent;
William C. Olthuis and Tim Hurlburt, for the intervener, Her Majesty the Queen in right of Alberta;
William J. Sammon, for the intervener, the Canadian Conference of Catholic Bishops;
Christopher E. Hinkson, Q.C., and Elizabeth Campbell, for the intervener, the United Church of Canada;
George E.H. Cadman, Q.C., and Heather Craig, for the intervener, the General Synod of the Anglican Church of Canada;
Susan M. Vella and Jonathan Eades, for the intervener, Wunnumin Lake First Nation;
Peter R. Grant and Diane Soroka, for the interveners, William Richard Blackwater et al.;
Robert G. Richards and Dana Schindelka, for the interveners, Barrie Caldwell, Samuel McNab and Glen Pelletier.
Solicitors of Record:
Alexander, Holburn, Beaudin & Lang, Vancouver, British Columbia, for the appellant, Children’s Foundation;
Ministry of the Attorney General, Victoria, British Columbia, for the appellant, Her Majesty The Queen in right of British Columbia;
D. Brent Adair, Trail, British Columbia, for the respondent;
Alberta Justice, Edmonton, Alberta, for the intervener, Her Majesty The Queen in right of Alberta;
Barnes, Sammon, Ottawa, Ontario, for the intervener, the Canadian Conference of Catholic Bishops;
Harper Grey Easton, Vancouver, British Columbia, for the intervener, the United Church of Canada;
Boughton Peterson Yang Anderson, Vancouver, British Columbia, for the intervener, the General Synod of the Anglican Church of Canada;
Goodman & Carr, Toronto, Ontario, for the intervener, Wunnumin Lake First Nation;
Hutchins, Soroka & Grant, Vancouver, British Columbia, for the interveners, William Richard Blackwater et al.;
MacPherson Leslie & Tyerman, Regina, Saskatchewan, for the interveners, Barrie Caldwell, Samuel McNab and Glen Pelletier.
This appeal was heard on October 6, 1998, before L’Heureux-Dubé, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie, JJ., of the Supreme Court of Canada.
On June 17, 1999, McLachlin, J., delivered the following judgment for the court in both official languages.
