BC Civil Sexual Assault Lawsuits Part 2- The Law of Vicarious Liability

This is the second in my series of posts on some of the unique topics in BC Civil sexual assault lawsuits.  Yesterday I wrote about limitation periods, today I’ll address another important topic, the legal principle of “Vicarious Liability“.
Civil Lawsuits are designed to compensate victims who suffered harm at the hands of others.  Since one of the primary goals of civil litigation is compensation it is important to obtain judgement against a Defendant who has the ability to pay.  Otherwise the judgement may be worth little more than the paper it’s written on.
Lawyers call a judgement where a Defendant can’t pay a ‘dry judgement‘.  Given the stress, expense and time invested in a civil lawsuit the process is hardly worth the effort if a successful plaintiff ends up with a dry judgement.  In Civil sexual assault cases this often is a possibility.
Insurance contracts often contain exclusions for “intentional harm“.  Civil suits for damages for sexual assault are ‘intentional tort claims‘ and these are often caught by intentional harm exclusion clauses.  For this reason if a Defendant does not have assets (or applicable insurance coverage) a Plaintiff will have to consider whether a civil lawsuit will be worth the effort.
That is where the law of vicarious liability comes in.  Vicarious liability is a legal principle which in certain circumstances extends liability (fault) for a wrongful act to governments, corporations and institutions.  This doctrine can apply to intentional torts.
So in what circumstances can Courts impose vicarious liability in Canada?  This was addressed by the Supreme Court of Canada in a case called John Doe v. Bennett.  Specifically the Canadian High Court set out the following test:

20                              In Bazley, the Court suggested that the imposition of vicarious liability may usefully be approached in two steps. First, a court should determine whether there are precedents which unambiguously determine whether the case should attract vicarious liability.  “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”: Bazley, at para. 15;Jacobi, at para. 31. Vicarious liability is based on the rationale that the person who puts a risky enterprise into the community may fairly be held responsible when those risks emerge and cause loss or injury to members of the public.  Effective compensation is a goal.  Deterrence is also a consideration.  The hope is that holding the employer or principal liable will encourage such persons to take steps to reduce the risk of harm in the future. Plaintiffs must show that the rationale behind the imposition of vicarious liability will be met on the facts in two respects. First, the relationship between the tortfeasor and the person against whom liability is sought must be sufficiently close. Second,  the wrongful act must be sufficiently connected to the conduct authorized by the employer. This is necessary to ensure that the goals of fair and effective compensation and deterrence of future harm are met: K.L.B., supra, at para. 20.

21                               In determining whether there is a sufficient connection in the case of intentional torts, factors to be considered  include, but are not limited to the following (Bazley, supra, at para. 41):

(a)   the opportunity that the enterprise afforded the employee to abuse his or her power;

(b)  the extent to which the wrongful act may have furthered the employer’s aims (and hence be more likely to have been committed by the employee);

(c)   the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s enterprise;

(d)  the extent of power conferred on the employee in relation to the victim;

(e)   the vulnerability of potential victims to wrongful exercise of the employee’s power.

The employer’s control over the employee’s activities is one indication of whether the employee is acting on his or her employer’s behalf: K.L.B., supra, at para. 22.  At the heart of the inquiry lies the question of power and control by the employer: both that exercised over and that granted to the employee. Where this power and control can be identified, the imposition of vicarious liability will compensate fairly and effectively.

In the Bennett Case the Supreme Court of Canada went on to find that ‘diocesan enterprise‘ could be held liable for the intentional abuse of a priest.  The Court stated as follows:

32                              In summary, the evidence overwhelmingly satisfies the tests affirmed in Bazley, Jacobi and K.L.B.  The relationship between the diocesan enterprise and Bennett was sufficiently close. The enterprise substantially enhanced the risk which led to the wrongs the plaintiff-respondents suffered. It provided Bennett with  great power in relation to vulnerable victims and with the opportunity to abuse that power.  A strong and direct connection is established between the conduct of the enterprise and the wrongs done to the plaintiff-respondents. The majority of the Court of Appeal erred in failing to apply the right test.  Had it performed the appropriate analysis, it would have found the Roman Catholic Episcopal Corporation of St. George’s vicariously liable for Father Bennett’s assaults on the plaintiff-respondents.

This was a crucial finding since priests take a vow of poverty.  Accordingly the Plaintiff may have faced a dry judgement if not for the doctrine of vicarious liability.  When considering a civil action for damages from sexual assault its important to consider if a Defendant has the ability to pay.  If not the analysis should extend to whether a Defendant with the ability to satisfy a judgement may be vicariously liable.

BC Civil Sexual Assault Claims, John Doe v. Bennett, vicarious liability

Comments (51)

  • THANK FOR YOUR INTEREST ON SUCH A SENSATIVE, LITTLE UNDERSTOOD PROCESS OF THE LAW ERIK, WAY TO GO WHERE YOU FIND THE TIME TO BE SO ACTIVE.. WELL WE NEED LAWYERS/ MEN SENSATIVE TO VICTOMS NEEDS AND THE LONG, SOME TIME SEEMELY ENDELESS RECOVERY PROCESS.
    IRENE TRONTO/BC

  • THANK FOR YOUR INTEREST ON SUCH A SENSATIVE, LITTLE UNDERSTOOD PROCESS OF THE LAW ERIK, WAY TO GO WHERE YOU FIND THE TIME TO BE SO ACTIVE.. WELL WE NEED LAWYERS/ MEN SENSATIVE TO VICTOMS NEEDS AND THE LONG, SOME TIME SEEMELY ENDELESS RECOVERY PROCESS.
    IRENE TRONTO/BC

  • Good site! I truly love how it is easy on my eyes and the data are well written. I’m wondering how I could be notified when a new post has been made. I’ve subscribed to your RSS which must do the trick! Have a nice day!

  • Interesting post right here. One thing I would like to say is always that most professional domains consider the Bachelor’s Degree like thejust like the entry level requirement for an online course. Even though Associate Certification are a great way to get started on, completing your Bachelors starts up many entrances to various employment opportunities, there are numerous on-line Bachelor Diploma Programs available via institutions like The University of Phoenix, Intercontinental University Online and Kaplan. Another issue is that many brick and mortar institutions make available Online versions of their qualifications but typically for a extensively higher cost than the providers that specialize in online degree programs.

  • Have you ever thought about publishing an ebook or guest authoring on other sites? I have a blog based on the same ideas you discuss and would really like to have you share some stories/information. I know my viewers would value your work. If you are even remotely interested, feel free to shoot me an email.

  • Do you mind if I quote a couple of your posts as long as I provide credit and sources back to your weblog? My blog site is in the very same niche as yours and my visitors would genuinely benefit from a lot of the information you provide here. Please let me know if this alright with you. Thank you!

  • Today, I went to the beach with my kids. I found a sea shell and gave it to my 4 year old daughter and said “You can hear the ocean if you put this to your ear.” She put the shell to her ear and screamed. There was a hermit crab inside and it pinched her ear. She never wants to go back! LoL I know this is entirely off topic but I had to tell someone!

  • I’m really inspired along with your writing skills and also with the format to your blog. Is that this a paid theme or did you customize it your self? Either way keep up the excellent quality writing, it is uncommon to look a nice blog like this one these days..

  • I know this if off topic but I’m looking into starting my own weblog and was wondering what all is required to get setup? I’m assuming having a blog like yours would cost a pretty penny? I’m not very web smart so I’m not 100 sure. Any tips or advice would be greatly appreciated. Appreciate it

  • Many thanks to you for sharing these kinds of wonderful posts. In addition, the ideal travel in addition to medical insurance program can often reduce those considerations that come with traveling abroad. Some sort of medical emergency can before long become too expensive and that’s absolute to quickly place a financial burden on the family finances. Putting in place the best travel insurance offer prior to setting off is definitely worth the time and effort. Cheers

  • I have not checked in here for a while because I thought it was getting boring, but the last few posts are great quality so I guess I will add you back to my daily bloglist. You deserve it my friend 🙂

  • Generally I don’t read article on blogs, but I wish to say that this write-up very forced me to try and do so! Your writing style has been amazed me. Thanks, quite nice article.

  • Excellent goods from you, man. I have understand your stuff previous to and you are just extremely fantastic. I really like what you’ve acquired here, certainly like what you’re stating and the way in which you say it. You make it enjoyable and you still care for to keep it wise. I cant wait to read much more from you. This is really a wonderful web site.

  • Can I simply say what a relief to find somebody who truly knows what theyre talking about on the internet. You undoubtedly know methods to deliver a difficulty to gentle and make it important. Extra people have to learn this and perceive this aspect of the story. I cant consider youre no more popular since you positively have the gift.

  • An impressive share, I just given this onto a colleague who was doing just a little analysis on this. And he the truth is bought me breakfast as a result of I found it for him.. smile. So let me reword that: Thnx for the treat! But yeah Thnkx for spending the time to discuss this, I feel strongly about it and love reading extra on this topic. If possible, as you turn out to be expertise, would you mind updating your blog with extra particulars? It is extremely helpful for me. Huge thumb up for this weblog post!

  • Great post. I was checking continuously this blog and I’m inspired! Extremely helpful information particularly the closing phase 🙂 I take care of such information much. I used to be seeking this certain information for a very lengthy time. Thank you and best of luck.

  • I have seen many useful issues on your web site about desktops. However, I’ve the judgment that lap tops are still not nearly powerful enough to be a sensible choice if you usually do tasks that require a lot of power, like video modifying. But for internet surfing, word processing, and majority of other prevalent computer functions they are all right, provided you never mind the screen size. Appreciate sharing your notions.

  • Useful information. Fortunate me I found your site by accident, and I am stunned why this twist of fate did not took place in advance! I bookmarked it.

  • Thank you for sharing superb informations. Your site is so cool. I’m impressed by the details that you have on this website. It reveals how nicely you perceive this subject. Bookmarked this web page, will come back for more articles. You, my pal, ROCK! I found just the information I already searched everywhere and just could not come across. What an ideal web site.

  • Hi there, I found your blog by the use of Google at the same time as searching for a comparable subject, your web site came up, it seems to be good. I’ve bookmarked it in my google bookmarks.

  • I’m truly enjoying the design and layout of your site. It’s a very easy on the eyes which makes it much more pleasant for me to come here and visit more often. Did you hire out a designer to create your theme? Fantastic work!

  • I’ve observed that in the world these days, video games are definitely the latest trend with children of all ages. Periodically it may be out of the question to drag the kids away from the video games. If you want the best of both worlds, there are lots of educational games for kids. Great post.

  • We are a bunch of volunteers and starting a new scheme in our community. Your web site offered us with valuable information to work on. You’ve performed a formidable job and our whole group can be thankful to you.

  • A person necessarily assist to make seriously posts I might state. This is the very first time I frequented your web page and up to now? I amazed with the analysis you made to make this actual post extraordinary. Magnificent process!

  • Hmm is anyone else encountering problems with the images on this blog loading? I’m trying to determine if its a problem on my end or if it’s the blog. Any feed-back would be greatly appreciated.

  • Hey there just wanted to give you a brief heads up and let you know a few of the images aren’t loading properly. I’m not sure why but I think its a linking issue. I’ve tried it in two different internet browsers and both show the same results.

  • Do you have a spam problem on this website; I also am a blogger, and I was wanting to know your situation; many of us have created some nice methods and we are looking to trade strategies with other folks, why not shoot me an e-mail if interested.

Comments are closed.

Contact

If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy

Disclaimer