Jacobi v. Griffiths

Jacobi v. Griffiths
Collection
Supreme Court Judgments
Date
1999-06-17
Report
[1999] 2 SCR 570
Case number
26041
Judges
L'Heureux-Dubé, Claire; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil
On appeal from
British Columbia
Subjects
Labour law
Torts
Notes
SCC Case Information: 26041
Decision Content
Jacobi v. Griffiths, [1999] 2 S.C.R. 570
Randal Craig Jacobi and Jody Marlane Saur Appellants
v.
Boys’ and Girls’ Club of Vernon and
Harry Charles Griffiths Respondents
and
The Canadian Conference of Catholic Bishops
and Wunnumin Lake First Nation Interveners
Indexed as: Jacobi v. Griffiths
File No.: 26041.
1998: October 6; 1999: June 17.
Present: L’Heureux‑Dubé, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.
on appeal from the court of appeal for british columbia
Torts -- Vicarious liability -- Intentional torts -- Sexual abuse -- Children sexually abused by employee of boys’ and girls’ club -- Most of assaults occurring at employee’s home -- Whether club vicariously liable for employee’s sexual assault of children.
Employment law -- Liability of employers -- Intentional torts of employees -- Children sexually abused by employee of boys’ and girls’ club -- Most of assaults occurring at employee’s home -- Whether club vicariously liable for employee’s tortious conduct.
The respondent Boys’ and Girls’ Club, a non-profit organization incorporated under the Societies Act, employed the respondent G as Program Director. The Club required G to supervise volunteer staff and organize recreational activities and the occasional outing. G was also encouraged to form friendships and a positive rapport with the children at the Club. Both of the appellants testified that all of their friends and activities centred on the Club. There was essentially a single incident of sexual assault by G involving the male appellant and one incident of sexual intercourse involving the female appellant at G’s home outside working hours following several lesser incidents, including one incident of sexual touching in the Club van. The disclosure of these events was first made in 1992, some ten years after they occurred. After having his employment terminated following a police investigation, G pled guilty to 14 counts of sexual assault involving the appellants and other children. The appellants sought civil damages against the Club on the legal theory that it should be held vicariously liable for the intentional sexual abuse by its employee, as well as directly liable to the appellants for negligence and breach of fiduciary duty. The trial judge addressed only the issue of vicarious liability and held the Club vicariously liable for the assaults committed by G. The Court of Appeal allowed the Club’s appeal.
Held (L’Heureux-Dubé, McLachlin and Bastarache JJ. dissenting): The appeal should be dismissed and the matter sent back to trial for a determination as to whether the respondent Club is directly liable under a fault-based cause of action.
Per Cory, Iacobucci, Major and Binnie JJ.: The companion decision to this appeal, Bazley v. Curry (hereinafter “Children’s Foundation”), sets out the two-step process for determining when an unauthorized act of an employee is sufficiently connected to the employer’s enterprise that vicarious liability should be imposed. A court should first 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.
Under the first phase of the Children’s Foundation analysis, the case law, reflecting policy judgments by various courts over many years and across many different jurisdictions, clearly suggests that the imposition of no-fault liability in this case would overshoot the existing judicial consensus about appropriate limits of an employer’s no-fault liability. Courts have consistently held that mere opportunity to commit a tort does not suffice to impose no-fault liability. Even where the job-created opportunity is accompanied (as in the present appeal) by privileged access to the victim, Canadian courts have not thought there to be a sufficiently strong connection between the type of risk created and the actual assault that occurred. The result has been otherwise, and the employer held vicariously liable, in sexual assault cases where the strong connection between the employment and the assault was enhanced by a combination of job-created power and job-created intimacy, neither of which was present in this case to the requisite degree.
As to the second phase of the analysis set out in Children’s Foundation, the imposition of no-fault liability is justified by the policy considerations of compensation and deterrence. The theory is that a person who employs others to advance his own economic interest should in fairness be placed under a corresponding liability for losses incurred in the course of the enterprise. Non-profit enterprises, however, lack an efficient mechanism to “internalize” such costs. They do not operate in a market environment and have little or no ability to absorb the cost of such no-fault liability by raising prices to consumers in the usual way to spread the true cost of “doing business”. Deterrence, which is another key policy reason supporting vicarious liability, also has to be assessed with some sensitivity to context, including the nature of the conduct sought to be deterred, the nature of the liability sought to be imposed, and the type of enterprise sought to be rendered liable. Given the weakness of the policy justification for the expansion of vicarious liability to non-profit organizations, the respondent is entitled to insist that the requirement of a “strong connection” between the enterprise risk and the sexual assault be applied with serious rigour.
To find a strong connection, there must be a material increase in the risk of harm occurring in the sense that the employment significantly contributed to the occurrence of the harm. In this case the Club’s “enterprise” was to offer group recreational activities for children to be enjoyed in the presence of volunteers and other members. The opportunity that the Club afforded G to abuse whatever power he may have had was slight. The sexual abuse only became possible when G managed to subvert the public nature of the activities. The success of his agenda of personal gratification, which ultimately progressed to sex acts, depended on his success in isolating the victims from the group. The progress from the Club’s program to the sexual assaults was a chain with multiple links, none of which could be characterized as an inevitable or natural “outgrowth” of its predecessor. It is not enough to postulate a series of steps each of which might not have happened “but for” the previous steps. Where, as here, the chain of events constitutes independent initiatives on the part of the employee for his personal gratification, the ultimate misconduct is too remote from the employer’s enterprise to justify “no fault” liability.
Per L’Heureux-Dubé, McLachlin and Bastarache JJ. (dissenting): Since the case law on the issue is inconclusive and unsatisfactory, it must be decided whether vicarious liability should be imposed in light of the considerations of principle and policy discussed in Bazley v. Curry (hereinafter “Children’s Foundation”). Applying the test set out, it must be decided whether G’s intentional torts were sufficiently linked to his employment duties to justify the imposition of vicarious liability. The evidence and the findings of the trial judge in this case establish that the employment materially and significantly enhanced the risk of the sexual assaults that occurred. Almost all of the factors listed in Children’s Foundation point in favour of liability. The first factor is the opportunity that the enterprise afforded G to perpetrate his attacks. An environment into which children are entrusted not just for adult supervision, but for adult mentoring, is one highly charged with potential for an abuse of that trust. G was authorized to interact with the children at the Club, and it seems logical to conclude that he was authorized to interact with the children outside the presence of other adults. While a second factor, whether these acts could be said to further the employer’s aims, militates against finding liability, this factor is of little significance here since it can be assumed that intentional torts do not further employers’ ends. With respect to the third factor, whether the wrongful act was related to intimacy inherent in the employer’s enterprise, the Club went further, in its nurturing activities, than encouraging rapport with a role model; it positively encouraged an intimate relationship to develop between G and his young charges. The risk associated with this position of trust was exacerbated by the troubled and vulnerable nature of many of the Club’s clients. The rationales of risk allocation and deterrence are engaged, and liability may more readily be imposed. With respect to the fourth consideration, the extent of power conferred on the employee in relation to the victim, the trial judge’s finding that G exercised a “god-like” authority over his victims shows that this factor also points toward liability. The fifth factor is the vulnerability of potential victims to the wrongful exercise of employees’ power. It goes without saying that children are vulnerable as potential victims of intentional torts such as sexual abuse. These children, troubled adolescents, were more vulnerable than most. While G’s assaults, other than the van incident, all took place off site (at his home) and after hours, it was his fostering of trust at the Club, flowing from the requirement of his employment that he forge bonds of intimacy and respect, that enabled him to commit his despicable acts. It is not the mere coincidence of location and interaction that led G to prey upon his victims -- it is rather that he worked at a job where he was put in a special position of trust and power over vulnerable people and used that position to carry out an abuse of the power with which he was conferred to carry out his duties. It is this connection that justifies the Club being held liable to bear the costs of the losses inflicted by G. The policy rationales underpinning vicarious liability __ fair compensation and deterrence __ support this conclusion.
Cases Cited
By Binnie J.
Distinguished: Bazley v. Curry, [1999] 2 S.C.R. 534, aff’g (1997), 30 B.C.L.R. (3d) 1 (sub nom. B. (P.A.) v. Curry); disapproved: S.T. v. North Yorkshire County Council, [1999] I.R.L.R. 98; referred to: Boothman v. Canada, [1993] 3 F.C. 381; The Queen v. Levy Brothers Co., [1961] S.C.R. 189; E.D.G. v. Hammer, [1998] B.C.J. No. 992 (QL); Q. v. Minto Management Ltd. (1985), 15 D.L.R. (4th) 581, aff’d (1986), 34 D.L.R. (4th) 767; Goodwin v. Commission scolaire Laurenval, [1991] R.R.A. 673, 8 C.C.L.T. (2d) 267; B. (J.-P.) v. Jacob (1998), 166 D.L.R. (4th) 125; Barrett v. The Ship “Arcadia” (1977), 76 D.L.R. (3d) 535; Boykin v. District of Columbia, 484 A.2d 560 (1984); Lourim v. Swensen, 936 P.2d 1011 (1997); Ciarochi v. Boy Scouts of America, Inc., Alaska Sup. Ct., Ketchikan Registry IKE-89-42 CI, August 6, 1990; Lloyd v. Grace, Smith & Co., [1912] A.C. 716; Lockhart v. Canadian Pacific Railway Co., [1941] S.C.R. 278; W. W. Sales Ltd. v. City of Edmonton, [1942] S.C.R. 467; McDonald v. Mombourquette (1996), 152 N.S.R. (2d) 109, leave to appeal refused, [1997] 2 S.C.R. xi; Destefano v. Grabrian, 763 P.2d 275 (1988); Tichenor v. Roman Catholic Church of the Archdiocese of New Orleans, 32 F.3d 953 (1994); Milla v. Tamayo, 232 Cal. Rptr. 685 (1986); Canadian Pacific Railway Co. v. Lockhart, [1942] A.C. 591; Big Brother/Big Sister of Metro Atlanta, Inc. v. Terrell, 359 S.E.2d 241 (1987); Rabon v. Guardsmark, Inc., 571 F.2d 1277 (1978); Webb by Harris v. Jewel Companies, Inc., 485 N.E.2d 409 (1985); Doe v. Village of St. Joseph, Inc., 415 S.E.2d 56 (1992); Noto v. St. Vincent’s Hospital and Medical Center of New York, 537 N.Y.S.2d 446 (1988); A. (C.) v. Critchley (1998), 166 D.L.R. (4th) 475; D.C.B. v. Boulianne, [1996] B.C.J. No. 2183 (QL); B. (K.L.) v. British Columbia (1998), 51 B.C.L.R. (3d) 1; B. (W.R.) v. Plint (1998), 161 D.L.R. (4th) 538; K. (W.) v. Pornbacher (1997), 32 B.C.L.R. (3d) 360; Doe v. Samaritan Counseling Center, 791 P.2d 344 (1990); Mary M. v. City of Los Angeles, 814 P.2d 1341 (1991); John R. v. Oakland Unified School District, 769 P.2d 948 (1989); London Drugs Ltd. v. Kuehne & Nagel International Ltd., [1992] 3 S.C.R. 299; Bradley Egg Farm, Ltd. v. Clifford, [1943] 2 All E.R. 378; Dodd v. Cook, [1956] O.R. 470; Olinski v. Johnson (1997), 32 O.R. (3d) 653; Armagas Ltd. v. Mundogas SA, [1986] 2 All E.R. 385.
By McLachlin J. (dissenting)
Bazley v. Curry, [1999] 2 S.C.R. 534, aff’g (1997), 30 B.C.L.R. (3d) 1 (sub nom. B. (P.A.) v. Curry); McDonald v. Mombourquette (1996), 152 N.S.R. (2d) 109.
Statutes and Regulations Cited
Criminal Code, R.S.C., 1985, c. C-46, s. 271 .
Societies Act, R.S.B.C. 1960, c. 362, s. 3(1).
Authors Cited
Atiyah, P. S. Vicarious Liability in the Law of Torts. London: Butterworths, 1967.
Baty, T. Vicarious Liability. Oxford: Clarendon Press, 1916.
Flannigan, Robert. “The Liability Structure of Nonprofit Associations: Tort and Fiduciary Liability Assignments” (1998), 77 Can. Bar Rev. 73.
Fleming, John G. The Law of Torts, 9th ed. Sydney: LBC Information Services, 1998.
Fridman, G. H. L. The Law of Torts in Canada, vol. 2. Toronto: Carswell, 1990.
Laski, Harold J. “The Basis of Vicarious Liability” (1916), 26 Yale L.J. 105.
Salmond and Heuston on the Law of Torts, 21st ed. By R. F. V. Heuston and R. A. Buckley. London: Sweet & Maxwell, 1996.
APPEAL from a judgment of the British Columbia Court of Appeal (1997), 31 B.C.L.R. (3d) 1 (sub nom. T. (G.) v. Griffiths), 89 B.C.A.C. 126, 145 W.A.C. 126, [1997] 5 W.W.R. 203, 27 C.C.E.L. (2d) 307, [1997] B.C.J. No. 695 (QL) (sub nom. G.J. v. Griffiths), reversing a decision of the British Columbia Supreme Court, [1995] B.C.J. No. 2370 (QL), finding the respondent Club vicariously liable for intentional sexual abuse by one of its employees. Appeal dismissed, L’Heureux-Dubé, McLachlin and Bastarache JJ. dissenting.
Christopher R. Penty, for the appellants.
Gordon G. Hilliker and Julie D. Fisher, for the respondent Boys’ and Girls’ Club of Vernon.
William J. Sammon, for the intervener the Canadian Conference of Catholic Bishops.
Susan M. Vella and Jonathan Eades, for the intervener Wunnumin Lake First Nation.
The reasons of L’Heureux-Dubé, McLachlin and Bastarache JJ. were delivered by
//McLachlin J.//
McLachlin J. (dissenting) __
Introduction
1 This case involves claims for damages by a brother and sister against the Vernon Boys’ and Girls’ Club (“the Club”) for incidents of sexual assault by one of the Club’s employees. The plaintiffs 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 appeal from the trial judge’s finding that the Club was vicariously liable was heard before the British Court of Appeal as a companion appeal to the Children’s Foundation appeal ((1997), 30 B.C.L.R. (3d) 1 (sub nom. B. (P.A.) v. Curry)).
2 My colleague Binnie J. adopts the test set out in Bazley v. Curry, [1999] 2 S.C.R. 534 (hereinafter “Children’s Foundation”), which the reasons in this case do not alter. However, he finds that on the facts in this case, that test is not met. I cannot, with respect, agree. The findings of fact of the trial judge, who concluded the Club should be held vicariously liable, confirm the same conclusion on the test set out in Children’s Foundation.
Facts
3 The Club employed Harry Griffiths as Program Director from 1980 to 1992. Among others, the objectives of the Club were “to provide behaviour guidance and to promote the health, social, educational, vocational and character development of boys and girls”. As Program Director during this time, Griffiths was encouraged to cultivate positions of trust and respect with his young charges. His relationship with the appellants in this case resulted in one incident of sexual assault against the male appellant and several incidents of assault, culminating in sexual intercourse, with the female appellant. The disclosure of these events was first made in 1992, some ten years after they occurred. After being removed from office, pursuant to the instigation of a police investigation, Griffiths pled guilty to 14 counts of sexual assault involving the plaintiffs and other children. The appellants in this appeal sought civil damages from both Griffiths and the Club.
4 Activities at the Club generally were carried on after school and on Saturdays. While most activities occurred on Club premises, various outings took place for camping, sporting, and other purposes. During the appellants’ time at the Club, Griffiths developed a friendship with them and paid particular attention to them. Every effort was made to present the Club as a trusted place to be and safe environment. The Club held Griffiths out to be a trusted confidant and role model.
5 The appellants were among the children who frequented the Club. There they met and developed relationships with Griffiths. In the beginning, the relationships were entirely appropriate. In the end, it is alleged, they culminated in sexual assaults. In the case of the male appellant, then 10 or 11 years old, the allegation is that while at the Club, Griffiths invited him to his home and engaged him in a conversation of a sexual nature that devolved into an assault. In the case of the female appellant, it is alleged that after a period of working with her and encouraging her to develop a leadership role, Griffiths repeatedly assaulted her. In one of the incidents, on board a van drive to a Club-related sporting event, Griffiths allegedly placed her hand on his exposed penis.
Judgments Below
British Columbia Supreme Court, [1995] B.C.J. No. 2370 (QL)
6 The trial judge, Wilkinson J., found that Griffiths had cultivated a “god-like” relationship with the children. Wilkinson J. also found that it was Griffiths’ position at the Club that allowed him to create the relationships of trust that predicated the attacks: “the cultivation of his victims by Griffiths took place on Club premises during Club working hours and that without that special relationship and the cultivation that took place, the actual acts would not have taken place” (para. 74). Comparing the case to the precedents discussed in our Children’s Foundation decision, Wilkinson J. found that the incidents fell closer to the dishonest employee cases. He also, however, resorted to policy-based considerations for the ascription of vicarious liability (at paras. 67-70):
The principles set out in the authorities on vicarious liability rely on the usual questions, “Was he engaged on his master’s business?” or “Was he acting as a stranger to his contract of employment?” Unless the business of the principal is to molest children, the answers to these and other questions may result in a denial of liability. Is that a result to be desired in the case of children who are sexually molested while in the care of adults?
Institutions engaged in the care of children are able to protect themselves with insurance and, more importantly, are in a better position than the children to prevent sexual misconduct.
If the scourge of sexual predation is to be stamped out, or at least controlled, there must be powerful motivation acting upon those who control institutions engaged in the care, protection and nurturing of children. That motivation will not in my view be sufficiently supplied by the likelihood of liability in negligence. In many cases evidence will be lacking or have long since disappeared. The proof of appropriate standards is a difficult and uneven matter.
In my view liability ought to, and does, follow where an employee’s responsibility and employment involve the care and protection of children and the actions in question amount to doing wrongfully or criminally that which the employee was to do properly.
7 Based on these conclusions, Wilkinson J. held the Club vicariously liable for Griffiths’ intentional torts.
British Columbia Court of Appeal (1997), 31 B.C.L.R. (3d) 1
8 The same panel that decided the Children’s Foundation appeal presided over the proceedings below. Newbury J.A., applying the multi-faceted test she formulated in the Children’s Foundation decision, would have allowed the appeal in part. For her, a critical factor was that most of the assaults occurred off Club property. Only the one incident of assault (involving the van trip to the Club-related sporting event) could anchor vicarious liability, as the others, which occurred off site and in Griffiths’ own home, were too disconnected from the performance of Griffiths’ job functions. Finch J.A. concurred, noting his independent reasons in Children’s Foundation. Huddart J.A., however, applying the control-oriented test she developed in Children’s Foundation, would have allowed the appeal in toto. In her opinion, there was no exercise of authority under which Griffiths carried out his assaults. As such, there could be no basis for vicarious liability. Hollinrake J.A. (for himself and Donald J.A.) concurred with Huddart J.A., also noting his separate reasons in Children’s Foundation. Accordingly, the appeal was allowed and the finding of vicarious liability against the Club was reversed.
Issue
9 The issue in this appeal is whether vicarious liability should attach to the Club for Griffiths’ intentional sexual torts.
Analysis
10 The reasons in Children’s Foundation outline the preferable focus of inquiry for whether vicarious liability should attach for intentional torts such as the child abuse in this case. It might be noted at the outset that the learned trial judge proceeded much in the manner we suggest: he first analysed the relevant case law and then focussed the analysis through the lens of policy (albeit in a cursory manner).
11 The trial judge concluded that the case law clearly supported holding the employer vicariously liable on this case. By contrast, Justice Binnie concludes that the cases point against holding the employer vicariously liable. Some courts have found vicarious liability in circumstances such as these. Others, some of which are emphasized by my colleague, have reasoned formalistically that no vicarious liability can lie when sexual abuse is antithetical to the employer’s aims (e.g. McDonald v. Mombourquette (1996), 152 N.S.R. (2d) 109 (C.A.)). As discussed in Children’s Foundation, the state of the case law on the issue is inconclusive and unsatisfactory. The cases therefore do not advance us. We must focus rather on the considerations of principle and policy discussed in the companion appeal.
12 Applying the test expressed in the companion appeal of Children’s Foundation and mindful of the policy reasons for which vicarious liability exists, we must decide whether Griffiths’ intentional torts were sufficiently linked to his employment duties to justify the imposition of vicarious liability. As explained in Children’s Foundation, the key question is whether the Club’s operation of its business and use of Griffiths in his employment position created or materially enhanced the risk of the sexual assaults that took place. We must be mindful not to reduce this inquiry to mere “but-for” causation analysis. Clearly “but for” his employment, Griffiths would never have even been introduced to the complainants. The analysis is more nuanced. Did the Club’s operation throw into the community a very real risk that something like Griffiths’ molestations would occur, and hence, should it be held liable to compensate for the realized losses accruing from that risk?
13 I conclude that this question must be answered in the affirmative, given the findings of fact of the trial judge. In Children’s Foundation, in addition to general principles, I listed a number of factors that can aid a court in considering this question. I turn now to those factors, almost all of which point in favour of liability.
14 The first factor is the opportunity that the enterprise afforded Griffiths to perpetrate his attacks. An environment into which children are entrusted not just for adult supervision, but for adult mentoring, is one highly charged with potential for an abuse of that trust. Griffiths was authorized to interact with the children at the Club, and it seems logical to conclude that he was authorized to interact with the children outside the presence of other adults (there were only two permanent staff members at the Club, himself and the Executive Director). The evidence reveals no requirement that he be in the presence of other adults when working with the children. The trial judge explicitly emphasized opportunity in imposing vicarious liability, finding that it was only because Griffiths was put in this special position vis-à-vis these children that he was able to effect his illicit plan.
15 A second factor, whether these acts could be said to further the employer’s aims, militates against finding liability. Clearly the Club was not in the business of molesting children. But this observation is almost tautological. This suggests that whether the wrongful act furthers the employer’s aims is more relevant when it points the other way, i.e., because we assume that intentional torts do not further employers’ ends, it is only remarkable when the intentional torts do, in fact, further those ends, making imposition of vicarious liability in those instances almost always appropriate. In the instant appeal, however, this factor is of little significance.
16 Although the sexual tort itself was not in furtherance of the Club’s aims, the securing of a position of trust, power and intimacy in order to effectively mentor the children was squarely within the organization’s objectives. The trial judge found that according to its own constitution, the Club’s mandate was “to provide behaviour guidance and to promote the health, social, education, vocational and character development of boys and girls” (emphasis added). He characterized the enterprise as devoted to “the care, protection, and nurturing of children” (para. 69). The employer’s objective of a trusting and intimate relationship between its employees and the children flowed from this objective. The evidence and findings establish that it was crucial for Griffiths to secure a position of trust in order to cultivate his victim pool. Thus while the intentional tort of sexual assault itself was unauthorized, its necessary predicate __ cultivation of a position of trust and intimacy __ was. It is this authorization of the trusting relationship that favours the attribution of vicarious liability under the second factor. I thus draw a distinction between a situation where, for example, an intimate situation of trust develops serendipitously, as a matter of chance, and one where the relationship develops as a necessity of the employer’s objectives. (I would contrast a situation where a school student quite by chance befriends, and subsequently trusts, a school janitor whose work does not require trust-like contact with students, with one where a school student develops a situation of trust with the guidance counsellor.) The Club, by making one of its goals “to provide behaviour guidance”, and thus authorizing the development of a trusting and intimate relationship, introduced the risks associated with such relationships between adults and children. This strengthens the argument that it should be held financially responsible for those risks when they materialized.
17 This brings us to the third factor discussed in Children’s Foundation: whether the wrongful act was related to intimacy inherent in the employer’s enterprise and the opportunity for abuse it afforded. On this point, I part company with my colleague Binnie J. The care, protection and nurturing of children to which the trial judge alluded on the facts of how the Club and Mr. Griffiths operated clearly encouraged relationships of intimacy. The Club went further, in its nurturing activities, than encouraging rapport with a role model; it positively encouraged an intimate relationship to develop between Griffiths and his young charges. The risk associated with this position of trust was exacerbated by the troubled and vulnerable nature of many of the Club’s clients. The Boys’ and Girls’ Club was not a garden-variety sports league. It rather took as its function the goal of guidance and moral direction to youths, many of whom had disadvantaged or even troubled backgrounds, like the appellants in this appeal. For this, the Club cannot be criticized. Indeed, it may be lauded. But the fact remains that having assumed this special mentoring responsibility, the Club may also be properly viewed as having assumed responsibility for the heightened risks it introduced. The rationales of risk allocation and deterrence discussed in Children’s Foundation are engaged, and liability may more readily be imposed.
18 A fourth consideration is the extent of power conferred on the employee in relation to the victim. Courts must be conscious of both expressly and implicitly conferred power. In this case, I need go no further than the trial judge’s finding that Griffiths exercised a “god-like” authority over his victims to conclude that yet another factor points toward liability. This negates the suggestion that “[t]he Club did not confer any meaningful ‘power’ over the appellants” (Binnie J., at para. 83). While the child’s subjective assessment of the situation is not alone conclusive of the nature of the power the employee exercised, when analysing the degree of power a job carries, it is certainly appropriate to consider what a reasonable child would think of the employee’s position in assessing whether the employer should be held vicariously liable for the employee’s tort. While Griffiths was hardly a police officer or foster parent, power must be understood in context. Here, as a role model at a club that dealt with vulnerable children, there is little to negate the trial judge’s conclusion that Griffiths’ position over the children was one of power. By clothing the employee with that power, the employer introduced a risk, small but real, of its abuse. This, in turn, supports the view that the employer may fairly be held responsible for the misuses of such power.
19 The fifth factor is the vulnerability of potential victims to the wrongful exercise of employees’ power. When victims are vulnerable, a heightened risk exists that a predatory employee will exploit the chance to abuse positions of trust or power. It goes without saying that children are vulnerable as potential victims of intentional torts such as sexual abuse. These children, troubled adolescents, were more vulnerable than most.
20 The analysis does not end with the non-exhaustive list of factors in Children’s Foundation provided to give guidance to lower courts. The ultimate focus must be on the connection between the employment and the tort, and whether the former materially and significantly enhanced or exacerbated the risk of the latter. As suggested in Children’s Foundation, negativing factors may come into play in making this determination. This case provides such an example. Other than the van incident, Griffiths’ assaults all took place off site (at his home) and after hours. This fact weighs against holding the Club liable for the Griffiths’ torts, buttressing the submission that Griffiths’ conduct was perverse personal frolic, wholly unrelated to the scope of his employment.
21 The force of that suggestion, however, is largely dissipated by two countervailing considerations. First, spatial and temporal factors such as when and where the torts occurred must be considered together with all the other relevant factors. They are not per se determinative. The issue of whether a sufficient connection to posit vicarious liability exists between the wrongful act and the employment involves much more than when and where the wrongful act occurred. This leads to the second countervailing consideration. To treat the torts simply as discrete incidents that occurred at Griffiths’ house ignores the careful plan of entrapment that Griffiths laid. It was his fostering of trust at the Club, flowing from the requirement of his employment that he forge bonds of intimacy and respect, that enabled him to commit his despicable acts. Again, a comparison might be useful. If one cashier at a supermarket invites another over to dinner and assaults him, the tort cannot be said to arise out of the employment. This is so even though the employment provided the opportunity, through on-the-job socialization, to convince the co-worker to accept the invitation. The incident would remain an example of otherwise unremarkable “mere opportunity”. Without more, it provides no basis to draw the tort back to the supermarket. The current case, however, is entirely different. It is not the mere coincidence of location and interaction that led Griffiths to prey upon his victims __ it is rather that he worked at a job where he was put in a special position of trust and power over particularly vulnerable people and used that position to carry out an abuse of the power with which he was conferred to carry out his duties. It is this considerably stronger connection that justifies the Club being held liable to bear the costs of the losses inflicted by Griffiths.
22 Almost all the relevant factors suggest that Griffiths’ torts were, in fact, linked to his employment. I would therefore hold the Club vicariously liable for his conduct. The policy rationales underpinning vicarious liability __ fair compensation and deterrence __ support this conclusion. The Club introduced Griffiths to the community’s children and clothed him with special responsibilities and powers over those children who were most vulnerable. It created and sustained the risk that materialized. Compensation for the harm that followed may fairly be viewed as a cost of the Club’s operations. The rationales of risk distribution and deterrence support vicarious liability in these circumstances.
23 I differ from the Court of Appeal, not on the factors they considered, but on how those factors relate to the ultimate issue of the relationship between the employee’s wrongful act and his employment. The ultimate issue is not the time and place of the wrongs (emphasized by Newbury J.A.), nor whether Griffiths could have perpetrated his wrongs as a friendly neighbour (emphasized by Huddart J.A. ). These factors, while relevant, must be considered with the other factors to which I have alluded to determine whether the employment materially and significantly enhanced the risk of the abuse that occurred. While the connection between employment and wrong in this case may have been less compelling than the overwhelmingly close connection established in the Children’s Foundation appeal, the evidence and the findings of the trial judge suffice to establish that the employment materially and significantly enhanced the risk of the sexual assaults that occurred.
24 I add three brief comments on related points. First that I do not see the issue as a contest between fairness and liability. The goal of compensation is not simply a deep pockets rule. Fair compensation involves internalizing the cost of a risk on the appropriate party, judged not by terms of ability to pay but by introduction of the risk that led to the tort. To cast the issue in terms of “pro-liability” versus “fairness” is to posit a false dichotomy between vicarious liability and what is fair. Our ultimate goal is a rule of vicarious liability that is fair to the plaintiff, the defendant, and society.
25 Second, for the reasons set out in Children’s Foundation, I cannot agree that the goals of compensation and deterrence are not served in this case, notwithstanding the non-profit character of the Club. I note that the old common law charitable immunity rule has long been abolished. The animation of such a rule was that many charities, performing needed and valuable services to the public, might have had to cease operations had they been inundated with tort claims (either fault-based or non-fault-based claims). The rule having been rejected, the logic on which it was based __ that charities should be exempted from tort claims lest they be forced to cease good works __ should also be rejected, absent legislative countermand.
26 Finally, I would reject any suggestion that an employee’s job must bear a sufficient similarity to parenting to invoke vicarious liability in child abuse cases. Such an analysis seems to me to focus inordinately on the power exercised by the employee to the exclusion of other factors in the test propounded in Children’s Foundation and is to be eschewed.
27 In the end, however one may parse this tort, it arose from the risks created by the special situation of trust and respect fostered by Griffiths as part of the Club’s enterprise. The Club is an institution that has the explicit agenda of taking in troubled youths like the appellants and providing behavioural guidance through activities such as sport. That enterprise carries risks. Those risks materialized here, with grave physical and emotional consequences. The Club’s goals are laudable, but they cannot immunize it from responsibility for the losses generated by its employee’s conduct.
Conclusion
28 The appeal should be allowed with costs and the judgment of the trial court restored.
The judgment of Cory, Iacobucci, Major and Binnie JJ. was delivered by
//Binnie J.//
29 Binnie J. __ The attribution of vicarious liability is not so much a “deduction from legalistic premises” as it is a matter of policy, as the Court observes in Bazley v. Curry, [1999] 2 S.C.R. 534, released concurrently (hereinafter “Children’s Foundation”), at para. 26. Nevertheless, as the Court adds, “[a] focus on policy is not to diminish the importance of legal principle” (para. 27). In Children’s Foundation, the employer set out to create, from the highest of motives, a quasi-parental relationship between its employees and the children in their care, with all of the authority and intimacy of such relationships, and thereby “materially increased the risk of the harm that ensued” (para. 43). The physical touching associated with the quasi-parental relationship precipitated into sexual abuse. In my opinion, however, the present case falls on the other side of the line, and does not warrant the imposition of vicarious liability. Much as the Court may wish to take advantage of the deeper pockets of the respondent to see the appellants compensated, we have no jurisdiction ex aequo et bono to practise distributive justice. On the facts of this case, legal principle and precedents favour the respondent.
30 If the Boys’ and Girls’ Club of Vernon were vicariously responsible for damages arising out of the criminal conduct of its employee Griffiths, which so far as this appeal is concerned must be taken to have been unknown, unauthorized and unforeseen, then it would be difficult to imagine many enterprises whose mandate includes mentoring or role models for children being able to escape vicarious liability to provide financial compensation for criminal sexual abuse by an employee. While on the positive side such an all-embracing attribution of no-fault liability would assist victims in the position of the appellants,