K.L.B. v. British Columbia

K.L.B. v. British Columbia
Collection
Supreme Court Judgments
Date
2003-10-02
Neutral citation
2003 SCC 51
Report
[2003] 2 SCR 403
Case number
28612
Judges
McLachlin, Beverley; Gonthier, Charles Doherty; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis; Deschamps, Marie
On appeal from
British Columbia
Subjects
Action
Torts
Notes
SCC Case Information: 28612
Decision Content
K.L.B. v. British Columbia, [2003] 2 S.C.R. 403, 2003 SCC 51
K.L.B., P.B., H.B. and V.E.R.B. Appellants
v.
Her Majesty The Queen in Right of
the Province of British Columbia Respondent
and
Attorney General of Canada, Nishnawbe Aski Nation, Patrick
Dennis Stewart, F.L.B., R.A.F., R.R.J., M.L.J., M.W., Victor Brown,
Benny Ryan Clappis, Danny Louie Daniels, Robert Daniels,
Charlotte (Wilson) Guest, Daisy (Wilson) Hayman, Irene
(Wilson) Starr, Pearl (Wilson) Stelmacher, Frances Tait,
James Wilfrid White, Allan George Wilson, Donna Wilson,
John Hugh Wilson, Terry Aleck, Gilbert Spinks, Ernie James
and Ernie Michell Interveners
Indexed as: K.L.B. v. British Columbia
Neutral citation: 2003 SCC 51.
File No.: 28612.
2002: December 5, 6; 2003: October 2.
Present: McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps JJ.
on appeal from the court of appeal for british columbia
Torts — Liability — Intentional torts — Abuse of children by foster parents — Whether government can be held liable for harm children suffered in foster care — Whether government negligent — Whether government vicariously liable for torts of foster parents — Whether government liable for breach of non-delegable duty — Whether government liable for breach of fiduciary duty.
Limitation of actions — Torts — Intentional torts — Abuse of children by foster parents — Whether government can be held liable for harm children suffered in foster care — Whether tort actions barred by Limitation Act — Limitation Act, R.S.B.C. 1996, c. 266, ss. 3(2), 7(1)(a)(i).
Torts — Damages — Intentional torts — Abuse of children by foster parents — Whether government can be held liable for harm children suffered in foster care — Proper basis for assessing damages for child abuse by parent or foster parent.
The appellants suffered abuse in two successive foster homes. In the second home the appellants were also exposed to inappropriate sexual behaviour by the older adopted sons. On one occasion, K. was sexually assaulted by one of these young men. The trial judge found that the government had failed to exercise reasonable care in arranging suitable placements for the children and in monitoring and supervising these placements. She also found that the children had suffered lasting damage as a result of their stays in the two homes. She rejected the defence that the tort actions were barred by the British Columbia Limitation Act. Consequently, in addition to allowing K.’s claim for sexual abuse, she found the government: (1) directly liable to all four children for its negligence in the placement and the supervision of the children and for breach of its fiduciary duty to the children; and (2) vicariously liable for the torts committed by the foster parents. However, the trial judge made low damage awards, on the ground that the children would in any case have had difficulties as adults because of the impoverished circumstances of their birth family. The Court of Appeal allowed the Crown’s appeal. All three judges found that the appellants’ claims were statute-barred, with the exception of K.’s claim for sexual assault. In addition, all three judges overturned the ruling that the government had breached its fiduciary duty to the children. However, the majority upheld the trial judge’s conclusion that the government was vicariously liable and in breach of a non-delegable duty of care in the placement and supervision of the children.
Held: The appeal should be dismissed.
Per McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie, LeBel and Deschamps JJ.: The government is liable to the appellants on the basis of direct negligence, subject to the defence of the limitation period. Both courts below held that the government had a duty under the Protection of Children Act to place children in adequate foster homes and to supervise their stay, and that this duty had been breached. These unchallenged findings are fully supported on the record. The trial judge proceeded on the basis that the standards of the time required: (1) proper assessment of the proposed foster parents and whether they could meet the children’s needs; (2) discussion of the acceptable limits of discipline with the foster parents; and (3) frequent supervisory visits in view of the fact the foster homes were “overplaced” and had a documented history of breach. She found that the government negligently failed to meet this standard, and that this negligence was causally linked to the physical and sexual abuse suffered by the children and their later difficulties. It is clear from these conclusions that the government failed to put in place proper placement and supervision procedures, as required by the Act. The system of placement and supervision was faulty, permitting the abuse that contributed to the children’s subsequent problems.
The case for extending vicarious liability to the relationship between governments and foster parents has not been established. To make out a successful claim for vicarious liability, plaintiffs must demonstrate first that the relationship between the tortfeasor and the person against whom liability is sought is sufficiently close as to make a claim for vicarious liability appropriate. In determining whether the tortfeasor was acting “on his own account” or acting on behalf of the employer, the level of control the employer has over the worker’s activities will always be a factor. Other relevant factors include whether the worker provides his or her own equipment, whether the worker hires his or her own helpers and whether the worker has managerial responsibilities. These factors suggest that the government is not vicariously liable for wrongs committed by foster parents against the children entrusted to them. It is inherent in the nature of family-based care for children that foster parents are in important respects independent, and that the government cannot exercise sufficient control over their activities for them to be seen as acting “on account” of the government. Foster parents do not hold themselves out as government agents in their daily activities with their children, nor are they reasonably perceived as such. Foster families serve a public goal — the goal of giving children the experience of a family, so that they may develop into confident and responsible members of society. However, they discharge this public goal in a highly independent manner, free from close government control.
The Protection of Children Act offers no basis for imposing on the Superintendent of Child Welfare a non-delegable duty to ensure that no harm comes to children through the abuse or negligence of foster parents. Nor did the government breach its fiduciary duty to the appellants. There is no evidence that the government put its own interests ahead of those of the children or committed acts that harmed the children in a way that amounted to betrayal of trust or disloyalty.
The Court of Appeal’s conclusion that the appellants’ claims were statute-barred should be upheld. The meetings between the appellants and various members of the government suggest that the appellants, by June of 1991 at the latest, had acquired sufficient awareness of the relevant facts to start the limitation period running. The appellants have not established disability as required by the Act.
Had the appellants been successful in their appeal, the trial judge’s findings of fact and the factual inferences she drew from them on the appropriate quantum of damages would have been upheld. The trial judge’s assessment of the evidence before her is a question of fact, which an appellate court cannot set aside absent palpable and overriding error.
Per Arbour J.: The majority’s analysis as to direct negligence by the government was substantially agreed with. The appellants have also made out the elements of a successful claim of vicarious liability against the government for the abuse inflicted by their foster parents. The central question, when determining whether a relationship is close enough to justify the imposition of vicarious liability in the context of a non-profit enterprise, is whether the tortfeasor was acting on his or her own behalf or acting on behalf of the defendant. The relevant factors, properly weighed, indicate that foster parents do in fact act on behalf of the government when they care for foster children. The government has sufficient power of control over the foster parents’ activities to justify finding vicarious liability. It is clear that the government, as the legal guardian of foster children and by the terms of the government’s agreement with foster parents, maintains ongoing control, or at the very least an ongoing right of control, over the care of children living in foster homes. While foster parents do control the organization and management of their household to the extent permitted by government standards, the government does indeed supervise via the social workers, and may interfere to a significant degree, precisely to ensure that the child’s needs are being met. A secondary factor indicating that foster parents act on behalf of the government is the perception that children have of who in fact is ultimately responsible for their well-being. It is clear that the relationship between foster parents and foster children is a more transient relationship than the usual parent/child relationship. Where children stay successively in a number of homes for relatively short periods, the government may — through assigned social workers — remain the only steady authority figure for foster children. In such circumstances, foster parents may well be perceived as acting on behalf of the government by the foster children, and by the larger community. A useful indicator of whether the relationship between government and foster parents is sufficiently close to justify vicarious liability is whether the imposition of vicarious liability could in fact deter harm to children. The evidence reveals that as the government becomes aware of risks to children in foster care, it can respond, and has responded, by imposing rules and restrictions on how foster parents exercise their authority. These measures often involve continuing control over foster parents’ activities and yet they need not undermine foster parents’ relationships with foster children or deny foster children the experience of a real family. Rather, they reflect the reality that children in foster care remain the responsibility of the government, which is their legal guardian.
The wrongful act at issue here was sufficiently connected to the tortfeasor’s assigned tasks for vicarious liability to be imposed. It is clear that the foster care arrangement reflects the highest possible degrees of power, trust, and intimacy. The relationship does more than merely provide an opportunity for child abuse; it materially increases the risk that foster parents will abuse. As well, the policy goals that justify vicarious liability, namely just compensation and deterrence of future harm, are served by finding vicarious liability in the present circumstances. However, as vicarious liability is a form of tort liability, the claim is statute-barred, for the reasons set out by the majority. As a result, it is unnecessary to decide issues related to damages.
The appellants cannot succeed in their claims for breach of non-delegable duty and breach of fiduciary duty, substantially for the reasons given by the majority.
Cases Cited
By McLachlin C.J.
Distinguished: Bazley v. Curry, [1999] 2 S.C.R. 534, aff’g (1997), 30 B.C.L.R. (3d) 1; Lister v. Hesley Hall Ltd., [2002] 1 A.C. 215; referred to: M.B. v. British Columbia, [2003] 2 S.C.R. 477, 2003 SCC 53; E.D.G. v. Hammer, [2003] 2 S.C.R. 459, 2003 SCC 52; Wilsher v. Essex Area Health Authority, [1988] 2 W.L.R. 557; Snell v. Farrell, [1990] 2 S.C.R. 311; Challand v. Bell (1959), 18 D.L.R. (2d) 150; Ali v. Sydney Mitchell & Co., [1980] A.C. 198; Durham v. Public School Board of Township School Area of North Oxford (1960), 23 D.L.R. (2d) 711; McKay v. Board of Govan School Unit No. 29 of Saskatchewan, [1968] S.C.R. 589; Myers v. Peel County Board of Education, [1981] 2 S.C.R. 21; Jacobi v. Griffiths, [1999] 2 S.C.R. 570; 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., [2001] 2 S.C.R. 983, 2001 SCC 59; Cassidy v. Ministry of Health, [1951] 2 K.B. 343; Lewis (Guardian ad litem of) v. British Columbia, [1997] 3 S.C.R. 1145; M. (K.) v. M. (H.), [1992] 3 S.C.R. 6; Wewaykum Indian Band v. Canada, [2002] 4 S.C.R. 245, 2002 SCC 79; Blueberry River Indian Band v. Canada (Department of Indian Affairs and Northern Development), [1995] 4 S.C.R. 344; Guerin v. The Queen, [1984] 2 S.C.R. 335; Lac Minerals Ltd. v. International Corona Resources Ltd., [1989] 2 S.C.R. 574; Emery v. Emery, 289 P.2d 218 (1955); Evans v. Eckelman, 265 Cal. Rptr. 605 (1990); M. (M.) v. F. (R.) (1997), 52 B.C.L.R. (3d) 127; C. (P.) v. C. (R.) (1994), 114 D.L.R. (4th) 151; J. (L.A.) v. J. (H.) (1993), 13 O.R. (3d) 306; Norberg v. Wynrib, [1992] 2 S.C.R. 226; Athey v. Leonati, [1996] 3 S.C.R. 458; Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33; Stein v. The Ship “Kathy K”, [1976] 2 S.C.R. 802.
By Arbour J.
Distinguished: Jacobi v. Griffiths, [1999] 2 S.C.R. 570; referred to: Bazley v. Curry, [1999] 2 S.C.R. 534; 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., [2001] 2 S.C.R. 983, 2001 SCC 59; Yewens v. Noakes (1880), 6 Q.B.D. 530.
Statutes and Regulations Cited
Limitation Act, R.S.B.C. 1996, c. 266, ss. 3(2), 7(1)(a), (9).
Protection of Children Act, R.S.B.C. 1960, c. 303, ss. 8(5), (12), 10(1), 14, 15(1), (3).
Authors Cited
Atiyah, P. S. Vicarious Liability in the Law of Torts. London: Butterworths, 1967.
British Columbia. Ministry for Children and Families; B.C. Federation of Foster Parent Associations. Foster Family Handbook, 3rd ed. Victoria: The Ministry, 2001.
British Columbia. Ministry of Children and Family Development. Standards for Foster Homes. Victoria: The Ministry, 2001.
British Columbia. Ministry of Children and Family Development; B.C. Federation of Foster Parent Associations. B.C. Foster Care Education Program. Program Schedule and Registration Guide, Fall 2002.
Flannigan, Robert. “Enterprise control: The servant-independent contractor distinction” (1987), 37 U.T.L.J. 25.
Meagher, Gummow and Lehane’s Equity, Doctrines and Remedies, 4th ed. by R. P. Meagher, J. D. Heydon and M. J. Leeming. Australia: Butterworths Lexis Nexis, 2002.
APPEAL from a judgment of the British Columbia Court of Appeal (2001), 197 D.L.R. (4th) 431 (sub nom. B. (K.L.) v. British Columbia), [2001] 5 W.W.R. 47, 151 B.C.A.C. 52, 87 B.C.L.R. (3d) 52, 249 W.A.C. 52, 4 C.C.L.T. (3d) 225, [2001] B.C.J. No. 584 (QL), 2001 BCCA 221, affirming in part a decision of the British Columbia Supreme Court, [1998] 10 W.W.R. 348, 51 B.C.L.R. (3d) 1, 41 C.C.L.T. (2d) 107, [1998] B.C.J. No. 470 (QL). Appeal dismissed.
Gail M. Dickson, Q.C., Megan R. Ellis, Karen E. Jamieson and Cristen L. Gleeson, for the appellants.
John J. L. Hunter, Q.C., Douglas J. Eastwood and Kim Knapp, for the respondent.
David Sgayias, Q.C., and Kay Young, for the intervener the Attorney General of Canada.
Susan M. Vella and Elizabeth K. P. Grace, for the intervener the Nishnawbe Aski Nation.
David Paterson and Diane Soroka, for the interveners Patrick Dennis Stewart et al.
The judgment of McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie, LeBel and Deschamps JJ. was delivered by
1 The Chief Justice — This appeal raises the question of whether, and on what grounds, the government can be held liable for the tortious conduct of foster parents toward children whom the government has placed under their care. The appeal was heard together with M.B. v. British Columbia, [2003] 2 S.C.R. 477, 2003 SCC 53, and E.D.G. v. Hammer, [2003] 2 S.C.R. 459, 2003 SCC 52, which raise many of the same issues.
I. Background
2 The appellants, K.L.B., P.B., H.B. and V.E.R.B., are siblings. Prior to placement in foster care, they lived in extreme poverty. Although their mother, in the trial judge’s words, “was resilient, resourceful and loved the children” ((1998), 51 B.C.L.R. (3d) 1, at para. 2), their father was an alcoholic and frequently violent toward their mother. After an incident in 1966, she brought the two elder boys to social services and requested an emergency placement. Shortly after this, the two younger children were apprehended as well. All four children were placed in the same foster home, the Pleasance home. Later, the children were placed in a second foster home, the Hart home. Placement was not fought by either parent. Their mother felt it would be better for them. She was confident they would be placed in a stable, nurturing home.
3 The children suffered abuse in both foster homes. Instead of being treated as family members and shown love and trust, they were subjected to harsh and arbitrary disciplinary measures. They were blamed for things they did not do, humiliated in front of each other, and made to feel worthless.
4 Prior to placing the children in the Pleasance home, Ministry social workers had interviewed Mrs. Pleasance. They judged her to be cooperative and caring. Her file, however, contained a 1959 report stating that she was dishonest and insincere about what went on in her home. It also contained repeated warnings from subsequent years that placements should only be made in her home on a short-term basis. The social workers disregarded these warnings because they believed it was most important to keep children from the same family together and the Pleasance home was one of the few homes that would take all of them. The Pleasances normally took on up to eight foster children, four times what was regarded as the ideal number. The children did not tell anyone about the abuse. Because social workers assumed they would be unhappy in any type of foster home, their unhappiness was not probed. Social workers visited the home only infrequently, sometimes not for several months, because of personnel shortages.
5 The social workers did, however, continue their search for a more permanent placement for the children, and eventually they were moved to the Hart home. This home, too, was overplaced; but again, social workers did not want to separate the children. Because there was no exchange of records between offices at the time, the Ministry social workers did not know that the Harts had been rejected for further foster placement in Alberta out of concern that they had drugged a child in their care. Nor did they know that when living in Dawson Creek, B.C., the Harts had their foster children removed after Mrs. Hart had hit a foster child with a knife. The social workers met with the Harts and were favourably impressed. They did not read the little file information they had on the Harts prior to making the placement and they did not ask the Harts about their history as foster parents. They assumed the home was a good one because the Harts had several adopted sons. When a social worker finally read the Hart file, she concluded the placement was “iffy”; but on the assumption that it was only short term, she decided not to alter the placement.
6 The abuse and humiliation continued at the Hart home. The children were also exposed to inappropriate sexual behaviour by the Harts’ older adopted sons. On one occasion, K. was sexually assaulted by one of these young men. The children said nothing to their mother. After the first six weeks, social workers assumed all was well and stopped their regular visits. Finally, on a visit with their mother, the children blurted out that Mrs. Hart had beaten K. with an electric cord, and that he had welts from the beating. Upon discovery of this, social workers removed all four children from the Hart home.
7 At trial, Dillon J. found that the government had failed to exercise reasonable care in arranging suitable placements for the children and in monitoring and supervising these placements. She also found that the children suffered lasting damage as a result of their stays in the two homes. She rejected the defence that the tort actions were barred by the British Columbia Limitation Act, R.S.B.C. 1996, c. 266. Consequently, in addition to allowing K.’s claim for sexual abuse, she found the government directly liable to all four children for its negligence in the placement and the supervision of the children and for breach of its fiduciary duty to the children; and she found it vicariously liable for the torts committed by the foster parents (including both their physical and their sexual abuse). However, Dillon J. made low damage awards, on the grounds that the children would in any case have had difficulties as adults because of the impoverished circumstances of their birth family.
8 The British Columbia Court of Appeal allowed the Crown’s appeal ((2001), 87 B.C.L.R. (3d) 52, 2001 BCCA 221). All three judges found that the appellants’ claims were statute-barred, with the exception of K.’s claim for sexual assault. In addition, all three judges overturned the ruling that the government had breached its fiduciary duty to the children. However, Mackenzie and Prowse JJ.A. upheld the trial judge’s conclusion that the government was vicariously liable and in breach of a non-delegable duty of care in the placement and supervision of the children. McEachern C.J.B.C. held that liability could not be grounded on either of these headings.
II. Issues
9 The appellants appeal to this Court on three issues: first, whether their claims are statute-barred; second, whether the Court of Appeal erred in failing to find a breach of fiduciary duty; and third, whether the trial judge erred in her approach to damages. The Crown has not cross-appealed the Court of Appeal’s holdings on the issues of vicarious liability and breach of a non-delegable duty. However, because these doctrines are at issue in the companion cases of M.B. v. British Columbia, supra, and E.D.G. v. Hammer, supra, and because it is desirable to develop the doctrines of negligence, vicarious liability, non-delegable duty and fiduciary duty in a coordinated and systematic way, all of the doctrines will be discussed here.
10 The questions to be dealt with are therefore:
(1) Is there any legal basis on which the government could be held liable for the harm that the appellants suffered in foster care?
(2) Are the appellants’ tort actions barred by the Limitation Act?
(3) What is the proper basis for assessing damages for child abuse by a parent or foster parent, and did the trial judge err in her assessment?
III. Analysis
A. Is There Any Legal Basis on Which the Government Could Be Held Liable for the Harm That the Appellants Suffered in Foster Care?
11 Three grounds of government liability were canvassed by the trial judge, and a fourth added by the Court of Appeal: (1) direct negligence by the government; (2) vicarious liability of the government for the tortious conduct of the foster parents; (3) breach of non-delegable duty by the government; and (4) breach of fiduciary duty by the government.
1. Direct Negligence by the Government
12 This ground of liability requires a finding that the government itself was negligent. Direct negligence, when applied to legal persons such as bodies created by statute, turns on the wrongful actions of those who can be treated as the principal organs of that legal person. Both courts below held that the government had a duty under the Protection of Children Act, R.S.B.C. 1960, c. 303, to place children in adequate foster homes and to supervise their stay, and that this duty had been breached.
13 These unchallenged findings are fully supported on the record. Before turning to this, however, it is worth noting that the private nature of the abuse may heighten the difficulty of proving the abuse and its connection to the government’s conduct in placement and supervision. As in other areas of negligence law, judges should assess causation using what Sopinka J., citing Lord Bridge in Wilsher v. Essex Area Health Authority, [1988] 2 W.L.R. 557 (H.L.), at p. 569, referred to as a “robust and pragmatic approach” (Snell v. Farrell, [1990] 2 S.C.R. 311, at p. 330). As Sopinka J. emphasized, “[c]ausation need not be determined [with] scientific precision” (Snell, at p. 328). A common sense approach sensitive to the realities of the situation suffices.
14 Turning first to the duty of care, the Act stipulates, in s. 8(12), that the Superintendent of Child Welfare must make such arrangements for the placement of a child in a foster home “as will best meet the needs of the child”. (The relevant legislative provisions are reproduced in the Appendix.) This imposes a high standard of care. In most contexts, the law of negligence requires reasonable care, not perfection: Challand v. Bell (1959), 18 D.L.R. (2d) 150 (Alta. S.C.); Ali v. Sydney Mitchell & Co., [1980] A.C. 198 (H.L.). In the case of those exercising a form of control over a child comparable to that of a parent, however, the law imposes a heightened degree of attentiveness. The “careful parent test” imposes the standard of a prudent parent solicitous for the welfare of his or her child (Durham v. Public School Board of Township School Area of North Oxford (1960), 23 D.L.R. (2d) 711 (Ont. C.A.), at p. 717; McKay v. Board of Govan School Unit No. 29 of Saskatchewan, [1968] S.C.R. 589; Myers v. Peel County Board of Education, [1981] 2 S.C.R. 21). This is the test that governs the placement and supervision of children in foster care under the Protection of Children Act. It does not make the government a guarantor against all harm. But it holds it responsible for harm sustained by children in foster care, when, judged by the standards of the day, it was reasonably foreseeable that the government’s conduct would expose these children to harm of the sort that they sustained.
15 It is reasonably foreseeable that some people, if left in charge of children in difficult or overcrowded circumstances, will use excessive physical and verbal discipline. It is also reasonably foreseeable that some people will take advantage of the complete dependence of children in their care, and will sexually abuse them. To lessen the likelihood that either form of abuse will occur, the government must set up adequate procedures to screen prospective foster parents. And it must monitor homes so that any abuse that does occur can be promptly detected.
16 This appeal and the appeals in the two companion cases stand to be judged by the standards of the day for placement and supervision, in other words the standard of a prudent parent at that time. The standards prevailing in the 1960s and early 1970s were lower than those of today, because there was less awareness of the risk of abuse in foster homes. The trial judge did not apply today’s standards, but proceeded on the basis that the standards of the time required proper assessment of the proposed foster parents and whether they could meet the children’s needs; discussion of the acceptable limits of discipline with the foster parents; and frequent supervisory visits in view of the fact the foster homes were “overplaced” and had a documented history of breach. She found that the government negligently failed to meet this standard (para. 74), and that this negligence was causally linked to the physical and sexual abuse suffered by the children and their later difficulties (para. 143). It is clear from these conclusions that the government failed to put in place proper placement and supervision procedures, as required by the Act. The system of placement and supervision was faulty, permitting the abuse that contributed to the children’s subsequent problems.
17 It follows that the government is liable to the appellants on the basis of direct negligence, subject to the defence of the limitation period, discussed below.
2. Vicarious Liability of the Government for the Torts of Foster Parents
18 Direct liability in negligence law requires tortious conduct by the person held liable, in this case, the government. The doctrine of vicarious liability, by contrast, does not require tortious conduct by the person held liable. Rather, liability is imposed on the theory that the person may properly be held responsible where the risks inherent in his or her enterprise materialize and cause harm, provided that liability is both fair and useful: Bazley v. Curry, [1999] 2 S.C.R. 534; Jacobi v. Griffiths, [1999] 2 S.C.R. 570.
19 To make out a successful claim for vicarious liability, plaintiffs must demonstrate at least two things. First, they must show that the relationship between the tortfeasor and the person against whom liability is sought is sufficiently close as to make a claim for vicarious liability appropriate. This was the issue in 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., [2001] 2 S.C.R. 983, 2001 SCC 59, where the defendant argued that the tortfeasor was an independent contractor rather than an employee, and hence was not sufficiently connected to the employer to ground a claim for vicarious liability. Second, plaintiffs must demonstrate that the tort is sufficiently connected to the tortfeasor’s assigned tasks that the tort can be regarded as a materialization of the risks created by the enterprise. This was the issue in Bazley, supra, which concerned whether sexual assaults on children by employees of a residential care institution were sufficiently closely connected to the enterprise to justify imposing vicarious liability. These two issues are of course related. A tort will only be sufficiently connected to an enterprise to constitute a materialization of the risks introduced by it if the tortfeasor is sufficiently closely related to the employer.
20 Whether vicarious liability can fairly be imposed in the case at bar depends on the first of these issues — that is, on whether the relationship between the foster parent tortfeasors and the government is sufficiently close. The relationship that most commonly attracts vicarious liability is that of employer/employee. Imposing vicarious liability in the context of an employer/employee relationship will often serve both of the policy goals outlined in Bazley: fair and effective compensation and deterrence of future harm. As I noted in Bazley, when an employer creates a risk and that risk materializes and causes injury, “it is fair that the person or organization that creates the enterprise and hence the risk should bear the loss” (para. 31). And assigning responsibility to an employer for an employee’s tort will often have a deterrent effect, because “[e]mployers are often in a position to reduce accidents and intentional wrongs by efficient organization and supervision” (para. 32). By contrast, imposing vicarious liability in the context of an employer/independent contractor relationship will not generally satisfy these two policy goals. Compensation will not be fair where the organization fixed with responsibility for the tort is too remote from the tortfeasor for the latter to be acting on behalf of it: in such a case, the tort cannot reasonably be regarded as a materialization of the organization’s own risks. And vicarious liability will have no deterrent effect where the tortfeasor is too independent for the organization to be able to take any measures to prevent such conduct. Hence, the relationship of employer to independent contractor does not generally give rise to vicarious liability (subject to certain exceptions: see P. S. Atiyah, Vicarious Liability in the Law of Torts (1967), at p. 327).
21 In Sagaz, supra, this Court considered the appropriate test for determining whether a tortfeasor is to be considered an employee or an independent contractor for the purposes of vicarious liability. The Court held that the existence of a contract referring to the parties as employer and independent contractor is not determinative (para. 49). The inquiry is rather a functional one: “what must always occur is a search for the total relationship of the parties” (para. 46). In Sagaz, the Court held that the “central question” in this functional inquiry “is whether the person who has been engaged to perform the services is performing them as a person in business on his own account” (para. 47). This way of putting the question reflects the type of enterprise that Sagaz was concerned with – namely, a for-profit enterprise. In the case at bar, we are concerned with a non-profit enterprise: the government-administered foster care system. In this context, the focus of the inquiry will be simply on whether the tortfeasor was acting “on his own account” or acting on behalf of the employer.
22 Which factors are relevant in making this determination? As the Court held in Sagaz, “the level of control the employer has over the worker’s activities will always be a factor” (para. 47). This is related to the obvious fact that it would be unjust to impose vicarious liability for a tort committed in pursuit of the tortfeasor’s own private purposes, or for tortious conduct that could not have been influenced or prevented by the person held vicariously liable (Sagaz, at para. 34). Control is not, however, the sole consideration. Workers can have considerable independence and yet still act on behalf of their employer. Many skilled professionals, for instance, perform specialized work that is far beyond the abilities of their employers to supervise; and yet they may reasonably be perceived as acting “on account of” these employers. Control is simply one indication of whether a worker is acting on behalf of his or her employer; it is not, in itself, determinative of whether vicarious liability is appropriate. Other relevant factors include, as the Court noted in Sagaz, “whether the worker provides his or her own equipment”, “whether the worker hires his or her own helpers” and whether the worker has managerial responsibilities (para. 47).
23 These factors suggest that the government is not vicariously liable for wrongs committed by foster parents against the children entrusted to them. Foster families serve a public goal — the goal of giving children the experience of a family, so that they may develop into confident and responsible members of society. However, they discharge this public goal in a highly independent manner, free from close government control. Foster parents provide care in their own homes. They use their own “equipment”, to use the language of Sagaz. While they do not necessarily “hire” their own helpers, they are responsible for determining who will interact with the children and when. They have complete control over the organization and management of their household; they alone are responsible for running their home. The government does not supervise or interfere, except to ensure that the child and the foster parents meet regularly with their social workers, and to remove the child if his or her needs are not met.
24 The independence of the foster family is essential to the government’s goal of providing family care. If foster parents had to check with the state before making ordinary day-to-day decisions, they not only would be less effective as parents, but would be unable to deliver the spontaneous, loving responses and guidance that the children need. Foster families must be left to arrange their own family routine, in their own way. They must deal with day-to-day challenges and problems by working them out within the family, and by sharing responsibility for doing this, demonstrating to foster children that it is possible to resolve difficulties by working together. Moreover, foster children must know that their foster parents have this responsibility. Only in this way can foster children come to understand that authority figures can be loving and consistent and worthy of trust. Foster parents cannot function as loving and consistent authority figures unless they have some authority to exercise. Hence, while foster parents act in furtherance of a public purpose, they must operate independently of day-to-day state control if they are to meet the goals of foster care.
25 The fact that foster parents must operate so independently in managing the day-to-day affairs of foster children and in resolving the children’s immediate problems, and the fact that they exercise full managerial responsibility over their own household are indications that, in their daily work, they are not acting on behalf of the government. It is also important to note, in this connection, that they do not hold themselves out as government agents in the community; nor are they perceived as such. Although foster parents are indeed acting in the service of a public goal, their actions are too far removed from the government for them to be reasonably perceived as acting “on account of” the government in the sense necessary to justify vicarious liability.
26 This conclusion finds confirmation in the fact that imposing vicarious liability in the face of a relationship of such independence would be of little use. Given the independence of foster parents, government liability is unlikely to result in heightened deterrence. Exacting supervision cannot prevent abuse when the supervising social worker is absent, as must often be the case in a private family setting. Nor is stricter monitoring a real option. Governments can and do provide instruction and training to foster parents. They can and do put in place periodic monitoring. They can and do encourage social workers to develop communication between social workers and foster children. These are now standard practice and are encouraged by direct liability. But given the nature of foster care, governments cannot regulate foster homes on a day-to-day basis. Imposition of vicarious liability can do little to deter what direct liability does not already deter. Not only would imposing vicarious liability do little good; it could do harm. It might deter governments from placing children in foster homes in favour of less efficacious institutional settings. And it would raise the question of why the government should not be vicariously liable for other torts by foster parents such as negligent driving causing injury to a foster child. While these concerns might not be insurmountable, they tend to confirm the conclusion that the relationship between foster parents and the government is not close enough to support a finding that the government is vicariously liable.
27 I note in conclusion on this point that this case is significantly different from Lister v. Hesley Hall Ltd., [2002] 1 A.C. 215, where the House of Lords held a company that ran a private boarding annex vicariously liable for the sexual assaults committed by the warden of the annex. The boarding annex was designed to provide a home environment for a number of troubled boys, in the company of the warden and his wife; in this respect, it was similar to a foster home. In that case, the warden was clearly an employee acting on behalf of the company. The care was given in the boarding annex, not in a private home. The warden received a salary, instead of the cost-recovery payments made per child to foster parents. The warden would have been perceived as acting on behalf of the company. By contrast, the foster parents in the present appeal are not reasonably perceived as acting on behalf of the government.
28 For similar reasons, the case at bar differs conside