E.B. v. Order of the Oblates of Mary Immaculate in the Province of British Columbia

E.B. v. Order of the Oblates of Mary Immaculate in the Province of British Columbia
Collection
Supreme Court Judgments
Date
2005-10-28
Neutral citation
2005 SCC 60
Report
[2005] 3 SCR 45
Case number
29890
Judges
McLachlin, Beverley; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise
On appeal from
British Columbia
Subjects
Torts
Notes
SCC Case Information: 29890
Decision Content
SUPREME COURT OF CANADA
Citation: E.B. v. Order of the Oblates of Mary Immaculate in the Province of British Columbia, [2005] 3 S.C.R. 45, 2005 SCC 60
Date: 20051028
Docket: 29890
Between:
E.B.
Appellant
and
Order of the Oblates of Mary Immaculate
in the Province of British Columbia
Respondent
‑ and ‑
Attorney General of Canada and
Attorney General of British Columbia
Interveners
Coram: McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.
Reasons for Judgment:
(paras. 1 to 58)
Dissenting reasons:
(paras. 59 to 112)
Binnie J. (McLachlin C.J. and Major, Bastarache, LeBel, Deschamps, Fish and Charron JJ. concurring)
Abella J.
______________________________
E.B. v. Order of the Oblates of Mary Immaculate in the Province of British Columbia, [2005] 3 S.C.R. 45, 2005 SCC 60
E.B. Appellant
v.
Order of the Oblates of Mary Immaculate
in the Province of British Columbia Respondent
and
Attorney General of Canada and
Attorney General of British Columbia Interveners
Indexed as: E.B. v. Order of the Oblates of Mary Immaculate in the Province of British Columbia
Neutral citation: 2005 SCC 60.
File No.: 29890.
2004: December 7; 2005: October 28.
Present: McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.
on appeal from the court of appeal for british columbia
Torts — Vicarious liability — Intentional torts — Sexual abuse — Enterprise risk creation test — Child sexually abused while in residential school — Whether Catholic Order operating school vicariously liable for sexual assaults committed by lay employee — Whether strong connection between employee’s duties and wrongful acts — Whether case falls to be determined by legal precedents or broad policy rationales — Whether appellate review is foreclosed by trial judge’s findings.
Between 1957 and 1962, B attended a residential school for First Nations children run by the Oblates. S, a lay employee, worked as a baker, boat driver and odd‑job man. He resided upstairs in a building located on the school grounds. The trial judge found that S sexually assaulted B from the age of 7 and that the assaults continued on a regular and frequent basis until B was 11 or 12 years old. All the assaults took place in S’s living quarters. B did not bring S’s misconduct to the attention of anyone at the school. Based on his finding that the operational characteristics of the residential school created and materially enhanced the risk of the assaults, the trial judge found the Oblates vicariously liable. These characteristics included the separation of the children from their families, the fact that employees lived in close proximity to the children and the fact that the children were under a regime where they were to respect and obey all staff. The Court of Appeal set aside the trial judge’s decision, holding that he had erred in overemphasizing job‑created opportunity and in failing to have sufficient regard to the specific employment duties and responsibilities assigned to S and the connection, if any, between those duties and responsibilities and the wrongs S committed against the appellant.
Held (Abella J. dissenting): The appeal should be dismissed.
Per McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish and Charron JJ.: To impose vicarious (as opposed to direct) liability on the school, the law requires a strong connection between what the employer was asking the employee to do and the wrongful conduct. The trial judge stressed the “operational characteristics” of the school and the potential risk it created in general terms for its students. However if, as the appellant contends, the school as organized and operated created a significant risk to every student by every employee regardless of the particulars of his or her job, this would argue for direct liability rather than vicarious liability. What is required for the imposition of vicarious liability is a demonstration that school‑created features of the employment relationship of S contributed to the ability of S to do what he did in this case. Taking the trial judge’s approach to its logical conclusion, the employer would be liable for all tortious acts of all of its employees, no matter how remote the wrongdoing from the job‑created power or status or how distanced the employee was from any position of authority over, or intimacy with, the students. This is not consistent with legal precedent. A “mere opportunity” to commit the wrongful act does not suffice. Here, the “strong connection” test was not met. While vicarious liability does not require a claimant to establish that the wrongdoer was placed in a “parent‑like” position of authority, the law does require consideration of the job‑created power and the nature of an employee’s duties as a fundamental component of determining if a particular enterprise increased the risk of particular wrongdoing in relation to a claimant by the employee complained about. [2] [4] [25] [29] [52]
The Bazley factors show that while the residential setting in which the abuse took place would favour a finding of vicarious liability, the limited duties and role of S at the school are conclusive against it. S did not have authority to insinuate himself into the intimate life of B or any of the other students except his own children and grandchildren. First, S was not “permitted or required” to be with the children, apart from trips in the motorboat which were supervised by one of the religious brothers. Second, the conduct in the course of which the wrongful acts occurred had nothing to do with furthering the employer’s aims. Third, intimacy was prohibited. S was expected to devote himself to baking, doing maintenance work and driving the motorboat, and his quarters were located in an area off‑limits to students. Fourth, the employer did not confer any power on S in relation to B. Despite the loose structure of the school, S’s position was not one involving regular or meaningful contact with the students. Fifth, the vulnerability of the students resulted from the nature of the institution (which is the subject of the appellant’s claim of direct liability), not from power conferred by the employer on S (which is the subject of the appellant’s claim of vicarious liability). The Court of Appeal was thus correct in concluding that while the employment relationship in this case provided S with the opportunity to commit the wrongful acts, his assigned role in relation to the students fell short of what is required to attract vicarious liability. A strong connection between what the Oblates were asking S to do and the wrongful acts was not established. [37] [41] [47‑52]
Appellate review was not foreclosed by the trial judge’s findings. The essential difference between the trial judge and the Court of Appeal related to the proper application of the Bazley test. A court of appeal does not owe a trial judge any deference on a question of law. [23]
Per Abella J. (dissenting): In order to find an employer vicariously liable for the intentional torts of an employee, a strong connection must be found between the enterprise, the authority conferred on the employee by the employer, and the tort. A court must look at the enterprise as a whole to determine whether the specific features of the enterprise and of the employment relationship created — or materially enhanced — the risk that the tort would occur. Here, the trial judge correctly stated and applied the Bazley test and made findings available on the record that supported his conclusion that the residential school, as an enterprise, and in the authority it provided to S, materially enhanced the risk that eventually materialized, namely the sexual assault of B by S. [59-60] [65] [70]
An analysis of the Bazley factors confirms the trial judge’s conclusion of vicarious liability in this case. First, although mere opportunity is insufficient to support a finding of vicarious liability, the link between the opportunity and the tort committed in this case is particularly strong. S was given quarters in the middle of the school property, was permitted to form relationships with vulnerable children, and could not have been unaware of the lax supervision prevalent at the residential school. Second, given that sexual molestation will never be any organization’s aim, the absence of evidence supporting this factor has no bearing on this case. Third, the power structure inherent in the employer’s enterprise greatly increased the level of friction and confrontation, thereby helping to create the conditions that led to the sexual assault of B. The discipline was strict and harsh, and children were ordered to obey all staff members. Fourth, the trial judge concluded that B viewed S as a person of power and authority. He found that S had responsibility for helping the religious staff with all school‑related tasks, including child care and supervision, and a role that included supervising children on a daily basis and assigning chores to them. The breadth and amorphous nature of the employment duties given to him, and the way in which those duties were allocated by the school’s administration, gave him both actual and perceived power over the students. The Oblates’ failure to strictly delineate S’s official duties served to increase his authority. Fifth, the children at the residential school were profoundly vulnerable. They were separated from their parents for long periods of time. Although the trial judge recognized that B had a number of adult relatives living at the school, including grandparents, he was prevented from maintaining close relationships with them. In addition, the residential school was remote and access was limited. This geographic and personal isolation, combined with a harsh disciplinary regime consisting of routine corporal punishment, threats of punishment, and repeated orders to obey all staff members resulted in an extremely vulnerable group of potential victims. [78-91]
Where, as here, the legal test for vicarious liability is properly articulated and applied, a trial judge’s conclusions are entitled to deference. There is no basis in this case for disturbing the trial judge’s unchallenged findings of fact or the legal conclusion he drew from them that vicarious liability should be imposed. The Court of Appeal substituted its own and sometimes contrary findings of fact without explaining why those of the trial judge should be disregarded. The trial judge made no error of law in applying the Bazley test; his reasons fit squarely into established vicarious liability jurisprudence. Even if the standard of correctness is applied, there is no basis for interfering with the trial judge’s legal conclusion. [60] [98] [107-111]
Cases Cited
By Binnie J.
Applied: Bazley v. Curry, [1999] 2 S.C.R. 534; Jacobi v. Griffiths, [1999] 2 S.C.R. 570; referred to: K.L.B. v. British Columbia, [2003] 2 S.C.R. 403, 2003 SCC 51; John Doe v. Bennett, [2004] 1 S.C.R. 436, 2004 SCC 17, aff’g (2002), 218 D.L.R. (4th) 276, 2002 NFCA 47; H.L. v. Canada (Attorney General), [2005] 1 S.C.R. 401, 2005 SCC 25, rev’g in part (2002), 227 Sask. R. 165, 2002 SKCA 131; G. (E.D.) v. Hammer (1998), 53 B.C.L.R. (3d) 89, aff’d (2001), 197 D.L.R. (4th) 454, 2001 BCCA 226, aff’d [2003] 2 S.C.R. 459, 2003 SCC 52; Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33; Canadian Pacific Railway Co. v. Lockhart, [1942] A.C. 591; Lister v. Hesley Hall Ltd., [2002] 1 A.C. 215, [2001] UKHL 22; McDonald v. Mombourquette (1996), 152 N.S.R. (2d) 109; K. (W.) v. Pornbacher (1997), 32 B.C.L.R. (3d) 360; H. (S.G.) v. Gorsline, [2005] 2 W.W.R. 716, 2004 ABCA 186; M. (F.S.) v. Clarke, [1999] 11 W.W.R. 301; H. (T.E.G.) v. K. (P.), [2001] 6 W.W.R. 546, 2001 ABQB 43; A. (C.) v. Critchley (1998), 166 D.L.R. (4th) 475; B. (J.‑P.) v. Jacob (1998), 166 D.L.R. (4th) 125; C.S. v. Miller (2002), 306 A.R. 289, 2002 ABQB 152.
By Abella J. (dissenting)
Bazley v. Curry, [1999] 2 S.C.R. 534; Jacobi v. Griffiths, [1999] 2 S.C.R. 570; K.L.B. v. British Columbia, [2003] 2 S.C.R. 403, 2003 SCC 51; John Doe v. Bennett, [2004] 1 S.C.R. 436, 2004 SCC 17; M. (F.S.) v. Clarke, [1999] 11 W.W.R. 301; B. (W.R.) v. Plint (1998), 52 B.C.L.R. (3d) 18; D.W. v. Canada (Attorney General) (1999), 187 Sask. R. 21, 1999 SKQB 187; V.P. v. Canada (Attorney General) (1999), 186 Sask. R. 161, 1999 SKQB 180; G. (E.D.) v. Hammer (1998), 53 B.C.L.R. (3d) 89; Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33.
Authors Cited
Canada. Law Commission of Canada. Restoring Dignity: Responding to Child Abuse in Canadian Institutions. Ottawa: The Commission, 2000.
Canada. Royal Commission on Aboriginal Peoples. Report of the Royal Commission on Aboriginal Peoples, vol. 1, Looking Forward, Looking Back. Ottawa: The Commission, 1996.
Claes, Rhonda, and Deborah Clifton. Needs and Expectations for Redress of Victims of Abuse at Residential Schools. Ottawa: Law Commission of Canada, 1998.
APPEAL from a judgment of the British Columbia Court of Appeal (Esson, Hall, Saunders, Low and Smith JJ.A.) (2003), 14 B.C.L.R. (4th) 99, 182 B.C.A.C. 288, 300 W.A.C. 288, 227 D.L.R. (4th) 298, [2003] 7 W.W.R. 421, 16 C.C.L.T. (3d) 149, [2003] B.C.J. No. 1123 (QL), 2003 BCCA 289, setting aside a decision of Cohen J., [2001] B.C.J. No. 2700 (QL), 2001 BCSC 1783. Appeal dismissed, Abella J. dissenting.
John R. Shewfelt and Darrell W. Roberts, Q.C., for the appellant.
Azool Jaffer‑Jeraj and Mobina Jaffer, Q.C., for the respondent.
Mitchell R. Taylor, for the intervener the Attorney General of Canada.
Karen A. Horsman, for the intervener the Attorney General of British Columbia.
The judgment of McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish and Charron JJ. was delivered by
1 Binnie J. _ The appellant attended a residential school for First Nations children run by the respondent Order of the Oblates of Mary Immaculate in the Province of British Columbia (“Oblates”) on Meares Island, British Columbia. In the years 1957 to 1962, he suffered sexual abuse at the hands of a lay employee, Martin Saxey, also of First Nations origin, who worked in the school bakery and operated the school motorboat. Saxey is now dead. His estate may be liable for damages but it has no money to pay. The appellant therefore seeks damages from the Oblates on two legal grounds, firstly because of its direct fault in permitting the sexual abuse to occur (an issue on which the trial judge has not yet expressed an opinion); secondly, on the basis of vicarious liability, irrespective of any direct fault on the part of the respondent, for the misconduct of its employee, Saxey.
2 Children who have suffered sexual abuse in residential schools are extremely vulnerable people, and where fault is established on the school’s part, substantial compensation will be awarded. At this point in the litigation, however, no fault has been established on the part of anybody except Saxey. To impose vicarious (as opposed to direct) liability on the school, the law requires “a strong connection between what the employer was asking the employee to do (the risk created by the employer’s enterprise) 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 his or her position and requiring him to perform the assigned tasks”: Bazley v. Curry, [1999] 2 S.C.R. 534, at para. 42 (emphasis deleted). The critical inquiry concerns the powers, duties and responsibilities conferred on Saxey by the respondent Oblates in relation to students like the appellant, keeping in mind of course the general environment of the school to the extent it can be said to have contributed to Saxey’s predatory activities.
3 The trial judge found vicarious liability because in his view, the “operational characteristics” of the residential school created a risk of sexual abuse, and the risk materialized in harm to the appellant ([2001] B.C.J. No. 2700 (QL), 2001 BCSC 1783). The Court of Appeal overturned that result ((2003), 14 B.C.L.R. (4th) 99, 2003 BCCA 289). In its view, the trial judge had paid insufficient attention to the absence of any strong connection between the sexual abuse and Saxey’s job on the fringes of school life as a baker, part-time motorboat operator and odd-job man. As a matter of law, the conclusion of the Court of Appeal is correct. The argument that vicarious liability should be strictly imposed without regard to the connection between the misconduct at issue and the job held by the particular wrongdoing employee was decisively rejected in Bazley and Jacobi v. Griffiths, [1999] 2 S.C.R. 570. The trial judge’s approach effectively put all the respondent’s employees on the same footing without giving due weight to the fact that it was Saxey who harmed the appellant by intentional wrongs that for present purposes must be taken to have been unknown, unauthorized, unforeseen and unforeseeable by the respondent. Saxey’s work in the bakery did not involve any degree of intimacy. Nor did driving the motorboat or doing odd maintenance jobs confer any such authority or intimacy. In the absence of a strong connection between the job Saxey was employed to do and the circumstances in which the abuse took place, the most that can be said is that working in a residential school offered Saxey an opportunity for contact with young boys like the appellant and a deference to authority on their part that otherwise might not exist. However, in a series of cases dealing with employer’s vicarious liability for sexual abuse, the Court has repeatedly stated that “‘mere opportunity’ . . . does not suffice”. See Bazley, at para. 40; Jacobi, at para. 45; K.L.B. v. British Columbia, [2003] 2 S.C.R. 403, 2003 SCC 51, at para. 94. See also John Doe v. Bennett, [2004] 1 S.C.R. 436, 2004 SCC 17, and H.L. v. Canada (Attorney General), [2005] 1 S.C.R. 401, 2005 SCC 25. Such general liability, if it is to be created, is a matter for the legislature.
4 The trial judge stressed the “operational characteristics” of the school and the potential risk it created in general terms for its students. However if, as the appellant contends, the school as organized and operated created a significant risk to every student by every employee regardless of the particulars of his or her job, this would argue for direct liability rather than vicarious liability for Saxey’s misconduct. In terms of the latter, the trial judge did not take his analysis far enough. He did not put adequate weight on the school-created features of the relationship between this claimant and this wrongdoing employee, and the contribution of the respondent’s enterprise to enabling the wrongdoer Saxey to do what he did in this case. Taking the trial judge’s approach to its logical conclusion, the respondent would be liable for all tortious acts of all of its employees, no matter how remote the wrongdoing from the job-created power or status or how distanced Saxey was from any position of authority over, or intimacy with, the students. When the full analysis is undertaken, as will be seen, the imposition of vicarious liability in this case does not conform with our jurisprudence. I would therefore dismiss the appeal.
I. Facts
5 Christie Residential School (“Christie”) was located on Meares Island, about four miles by water from Tofino, a town that is at the end of the highway that crosses Vancouver Island. The school was accessible only in good weather by boat from Tofino or floatplane. It ceased operating in 1971, but prior to that it taught First Nations children from the west coast of Vancouver Island. At all relevant times, the school was owned, operated and staffed by the Oblates, a Roman Catholic missionary order comprised of priests and lay brothers, and is incorporated by a special Act of the Legislature of British Columbia. During the years in question, the school was staffed by 16 to 20 adult employees and populated by 145 to 158 children.
6 The appellant began attending the school at the age of six, on September 18, 1956. He was a student there until June of 1965. His siblings also attended the school.
7 Martin Saxey began his employment at the school on September 14, 1955. Some years prior to that time, he had been convicted of manslaughter and imprisoned. There is no finding, at least at this stage, that the Oblates were negligent either in hiring Saxey or in supervising his conduct.
8 At the relevant period, the educational and social functions of the school were under the direction of the respondent Oblates (including priests and lay brothers), assisted by different orders of nuns from time to time. The federal government contributed a per capita grant to assist in sustaining the fiscal operations of the school. (Statutory provisions contained in successive versions of the Indian Act provided that Canada could enter into agreements with parties to operate school facilities and that school attendance was compulsory.) While the direct care of the children and the educational functions were performed by religious personnel, the maintenance services and physical operation of the school were in the hands of First Nations staff, mostly recruited from adult relatives of the students. (For instance, male and female relatives of the appellant worked at maintenance jobs during the time the appellant was at the school.) Several of these employees and their families resided on the school property. Saxey had several children and grandchildren who attended the school at the same time as the appellant. One of Saxey’s sons was a classmate of the appellant’s.
9 Students were not allowed to be in or about the staff quarters. Nor were they supposed to be in the bakery because hot appliances and dough-making machinery could present a hazard. Despite the rules, the records showed, and the appellant testified, that on occasion children did work in the kitchen and bakery (in part as “practical training”) during the time of Saxey’s tenure as baker. The appellant testified that he never went in the bakery.
10 Saxey resided upstairs in a building located on the school grounds. Some downstairs residential rooms were occupied by relatives of the appellant. The appellant testified that around 1957, when he was in his second year at the school, Saxey began luring him to his room by promising to give him candy. He said that when he went up to the room he was sexually assaulted by Saxey. He testified that for the next four or five years Saxey continued to lure him to his room with the promise of candy and performed numerous sexual assaults upon him. The appellant testified that he went with Saxey because he felt threatened. He did not at the time bring Saxey’s misconduct to the attention of anyone at the school.
11 The appellant graduated from Christie in 1965. Thereafter, he attended a secondary school on the mainland of British Columbia for a few months and afterwards began to work in the logging industry. Employment was interrupted by an injury and he was off work for some time. Generally over the years, he was engaged in work related to forestry. He had recurring difficulties with alcohol abuse, and by 1970 he was in trouble with the law and on occasion was jailed. The appellant testified that he had mentioned something about his prior sexual abuse to a lawyer acting for him around the end of the 1970s, but he did not report the behaviour of Saxey in any detailed way prior to 1995, when he was approached by members of the RCMP who were then investigating cases of possible abuse at residential schools across the country. Saxey had died around 1986. Subsequently, the appellant described the assaults to various health professionals, some of whom testified at trial.
II. Judicial History
A. Supreme Court of British Columbia
12 Cohen J. found that the appellant was sexually assaulted by Saxey beginning when he was seven years old; that the assaults continued on a regular and frequent basis until he was 11 or 12 years old; that all of the assaults took place in Saxey’s living quarters at the school; and that the sexual assaults consisted of fondling, masturbation and simulated intercourse, which included partial anal penetration. The facts of the sexual abuse were therefore extremely serious and outrageous.
13 The trial judge accepted the appellant’s explanation that he did not tell anyone about the assaults prior to the time that he left Christie because he did not know of any other children being sexually abused while he was there. He said that he used to think he was the only one and he was “too scared and ashamed” to seek help.
14 Turning to the issue of vicarious liability, the trial judge referred to the principles discussed by this Court in Bazley and Jacobi. He noted correctly that a school-created parent-like relationship between the abuser and the victim was not a prerequisite to imposing vicarious liability. He also distinguished the case of G. (E.D.) v. Hammer (1998), 53 B.C.L.R. (3d) 89 (S.C.), because it involved a janitor at a day school rather than a residential school.
15 The trial judge reviewed testimony about the discipline at the school finding that fear played a large role in keeping order. Children were told to show respect to all of the adult staff members and to do what they were told. There was evidence put forward by one witness that the lay staff could assign chores, occasionally on the spot. The trial judge heard testimony that a child at the school would reasonably perceive all staff members as having blanket authority and that due to understaffing, the delineation of duties for the employees was not rigid. Although there was some debate about whether children were ever seen in the bakery, some of the children had spent time in the adjacent kitchen. According to the plaintiff’s expert Dr. Paul Janke, the fact that the appellant never helped Saxey in the bakery did not mean that he was shielded from Saxey’s power or authority, as children would perceive Saxey as having authority regardless of where they encountered him. Dr. Janke testified:
Q: But if the alleged abuser was, as in Mr. Saxey’s case – and I’ll put these assumptions to you, Doctor, that he was a baker at the school, he had no positional authority over the children, Mr. Saxey had children and grandchildren at the school, [E.B.] had numerous family members at the school, and there were no children working in the bakery with Mr. Saxey, what – how would this change?
A: The fact that there were no children working in the bakery would [not] eliminate even a perceived position of authority, it would remain my opinion that children in that setting would perceive adults as having authority. The presence of family members of [E.B.] there clearly reduces the isolation and gives him the opportunity to disclose to someone. It doesn’t mean the abuse wouldn’t happen, but it certainly reduces it. The fact that Mr. Saxey had other relatives there would play a role only in – well, it would play two possible roles, one, reducing his opportunity to be unsupervised with a child from the school and, two, he would have access to other potential victims in a much more intimate setting where he would have more power and control.
16 Applying the two-stage analysis set out in Bazley, the trial judge first found that the cases did not unambiguously determine on which side of the vicarious liability line the case should fall.
17 Having regard, then, to the policy considerations at the second stage of the Bazley analysis, the trial judge held that the key was whether the operational characteristics at Christie created and materially enhanced the risk of the assaults. These characteristics included the separation of the children from their families, the fact that the school was overcrowded and understaffed, the fact that employees lived in close proximity to the children and had unrestricted access to them, and the fact that the children were under a regime where they were to respect and obey all staff. A list of the operational characteristics had been presented to the appellant’s expert witness, Dr. Janke, who found that they were conducive to sexual assault. The trial judge found this evidence convincing, and held that the principles set out in Bazley regarding the imposition of vicarious liability had been satisfied:
I conclude that the evidence regarding the operational characteristics of Christie, as well as Dr. Janke’s opinion based upon that evidence, satisfies the principles to be followed in finding vicarious liability as set out by McLachlin J. in Children’s Foundation . . . . [para. 131]
Having found the respondent Oblates vicariously liable, the judge declined to make a finding on whether or not the Oblates were also directly liable in negligence.
18 In the result, the trial judge concluded that the sexual abuse had caused or contributed to the appellant’s interpersonal difficulties, anxiety, symptoms of post-traumatic stress disorder, depression and alcohol abuse. He assessed $150,000 in general damages (including $25,000 in aggravated damages), $80,000 for loss of past earning capacity and $3,400 for future care costs.
B. Court of Appeal of British Columbia
19 After reviewing the facts and the law of vicarious liability, Hall J.A. for a five-judge panel of the court observed that “the more closely an employment situation mimics a parental type relationship, the more likely it is that liability will be imposed on a vicarious basis” (para. 51). The court was of the opinion that the appeal could be resolved at the first stage of the Bazley analysis because case law unambiguously indicated that no vicarious liability should lie against the respondent. After a wide-ranging analysis of the cases, Hall J.A. held that the trial judge had erred in overemphasizing opportunity and in failing to have sufficient regard to the specific employment duties and responsibilities of Saxey:
Saxey, in this case, was not part of the school administration and he was assigned no supervisory or child-care duties respecting pupils at the school. Those responsibilities were looked after by the religious personnel. None of his employment duties had the remotest connection to dealing with the pupils at the school in any supervisory or parental fashion. There was no job-related requirement for him to establish any particular rapport with students as existed, for instance, in Jacobi. His employment was not designed to provide opportunities for intimacy, the type of situation found to exist in Bazley. I perceive no nexus in this case between the general employment duties of Saxey and the assaults that were found to have been committed on [E.B.]. Saxey, in my opinion, occupied a position quite comparable to that of the school janitor, Hammer, in the [G. (E.D.)] case. Although the present case involves a residential school setting that perhaps would tend to enhance some risk of improper contact between students and staff because everyone was there for 24 hours every day, what occurred with respect to [E.B.] had absolutely no connection to any duty that Saxey was required or authorized to perform on behalf of his employer, the [Oblates]. No authority had been conferred on Saxey to direct, care for or discipline the pupils. [Emphasis added; para. 54.]
20 In the result, the Court of Appeal set aside the trial judgment and remitted the case for further proceedings in the trial court on the issue of direct liability (negligent conduct) alleged against the respondent.
III. Analysis
21 The British Columbia courts in this case differed in their approaches as well as the result in determining where to draw the line on vicarious liability. The differing approaches reflect a different philosophy about how far the law should go. The trial judge concluded that the sexual abuse suffered by the appellant was part and parcel of the disciplined residential school model operated by the respondent Oblates. Having created a risky situation, the respondent should bear the cost when the risk ripened into harm to one of the innocent children entrusted to its care. He accepted the appellant’s argument that liability in this case flowed directly from the “operational characteristics” of the school rather than the specific work situation of Saxey. In effect, the trial judge moved directly from the “operational characteristics” of the school to the conclusion that vicarious liability should be imposed without passing through the necessary intermediate stage of analysis of the contribution to Saxey’s intentional tort made by the respondent’s job-created “power and authority”.
22 The British Columbia Court of Appeal, on the other hand, took the view that this broad-brush treatment overgeneralized the respondent employer’s vicarious liability. Hall J.A. examined Saxey’s job-conferred power and authority. On his analysis, Saxey was a member of the bakery and maintenance staff who, in his entrapment of the appellant, was operating without reference to anything related to the school or his job. The residential school model operated by the Oblates undoubtedly demanded a degree of deference from students to all adults. Nevertheless vicarious liability is concerned not with the direct fault of the employer but with making the employer liable for the fault of Saxey. A primary focus, therefore, is on the employment relationship between the respondent employer and its wrongdoing employee. This requires an examination of Saxey’s actual powers, duties and responsibilities to determine whether or not there was “a strong connection between what the employer was asking the employee to do (the risk created by the employer’s enterprise) and the wrongful act” (Bazley, at para. 42 (emphasis added), per McLachlin J.).
A. Is Appellate Review Foreclosed by the Trial Judge’s Findings?
23 A finding of vicarious liability is a mixed question of fact and law. The appellant says that the Court of Appeal substituted its own version of the facts for the facts found by the trial judge but I do not think this is the case. Undoubtedly the Court of Appeal sketched in broad strokes what the trial judge had taken several hundred paragraphs to set out. The appellant argues that the Court of Appeal ignored certain factual findings and did not pay sufficient deference to the trial judge’s review of the evidence. However, it is clear from the trial judge’s reasons that his decision to impose vicarious liability rested almost entirely on the “operational characteristics” of Christie. At paragraph 131 of his reasons, he says:
I conclude that the evidence regarding the operational characteristics of Christie, as well as [the plaintiff’s expert] Dr. Janke’s opinion based upon that evidence, satisfies the principles to be followed in finding vicarious liability as set out by McLachlin J. in [Bazley], supra. In my opinion, the evidence establishes “a significant connection between the creation or enhancement of a risk and the wrong that accrues therefrom”.
The reasoning thus jumped directly from the enterprise to liability, whereas in Bazley the Court had equally emphasized that “[s]ervants may commit acts, even on working premises and during working hours, which are so unconnected with the employment that it would seem unreasonable to fix an employer with responsibility for them” (para. 35). The trial judge continued:
This being so, I find the Oblates vicariously liable to the plaintiff for the injuries he sustained as a result of the sexual assaults upon him by Saxey. [para. 131]
Thus, the essential difference between the trial judge and the Court of Appeal was the proper application of the Bazley test. This is a legal issue that can be readily “extricated” from the factual context. The Court in Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33, at para. 36, held that where the trial judge’s error
can be attributed to the application of an incorrect standard, a failure to consider a required element of a legal test, or similar error in principle, such an error can be characterized as an error of law, subject to a standard of correctness.
The Court of Appeal did not owe the trial judge any deference on the proper application of the law of vicarious liability to the facts.
B. The Need to Pay Attention to the Wrongful Employee’s Powers, Duties and Responsibilities
24 A convenient starting point for the debate about how far vicarious liability should extend is Canadian Pacific Railway Co. v. Lockhart, [1942] A.C. 591. In that case at p. 599, the Privy Council stated that an employer is only vicariously liable if the employee’s unauthorized acts are “so connected with acts [that the employer] has authorized that they may rightly be regarded as modes — although improper modes — of doing [what has been authorized]” (known as the Salmond test). The focus was clearly placed on the employee, and the legal test required a comparison between what the employee was authorized to do and what he or she actually did that was wrong. If the employee was adjudged to be “off on a frolic of his own”, vicarious liability would not attach to his or her employer.
25 A weakness of the Salmond test, as analyzed by McLachlin J. in Bazley, is that it glosses over rather than addresses the policy considerations that argue for and against a finding of vicarious liability and substitutes a debate about semantics in which the outcome is frequently unpredictable. Was Saxey’s assault an “unauthorized mode” of doing what he was hired to do, or was he engaged in conduct entirely unrelated to his duties? The Court in Bazley did not dispute the emphasis placed by the Salmond test on looking at what the employee was authorized to do, but insisted that it be placed in the larger context of the employer’s enterprise and the risk that the enterprise has introduced into the community. Thus McLachlin J. wrote that “[f]irst and foremost is the concern to provide a just and practical remedy” (para. 30), but to be “just” is to require that “[a] wrong that is only coincidentally linked to the activity of the employer and duties of the employee cannot justify the imposition of vicarious liability on the employer” (para. 36 (emphasis added)). Further, “‘mere opportunity’ to commit [the] tort, in the common ‘but-for’ understanding of that phrase, does not suffice” (para. 40).
26 Bazley also shows why vicarious liability can be imposed on an employer for an intentional tort carried out by an employee in defiance of an employer’s specific prohibition (as in Lockhart itself). Bypassing the debate about “modes”, Bazley goes directly to the strength of the connection between the tortfeasor’s employment and the tort. Improper or not, the “abuse of his position and the abnegation of his duty does not sever the connection with his employment”: Lister v. Hesley Hall Ltd., [2002] 1 A.C. 215, [2001] UKHL 22, at para. 50, per Lord Clyde, after reviewing Bazley and Jacobi. This again, “requires trial judges to investigate the employee’s specific duties and determine whether they gave rise to special opportunities for wrongdoing” (Bazley, at para. 46 (emphasis added)).
27 One of the insights offered by Bazley was its recognition that the Salmond test did not adequately take into account the potential contribution to the wrongdoing made by the general environment created by the employer, and which provided the setting within which the employee exercised his or her job-conferr