Sex Abuse Settlements and the "Re-Victimization" of Confidentiality Agreements

Earlier this year I posed the question “are secret sex abuse settlements unethical?“.
This question was raised in the face of CBC’s reporting that Scouts Canada settled sex abuse claims and that confidentiality was a staple term.  CBC has continued to follow this matter.  Scouts Canada has softened their approach with respect to these settlements and now CBC reports that a historic abuse victim welcomes this development stating It means freedom to speak as I wish — should I choose to speak — or not speak.”

When asked about the consequences of the confidentiality agreement following settlement CBC reports the following quote attributed to the victim of historic abuse In a sense, you are revictimized...You become the isolated person who has to not tell anybody what the most important thing in your life is.”
Given this profound burden I repeat the question, is there any greater good that comes from the enforcement of these confidentiality agreements which outweighs their harm?

Employer Not Vicariously Liable for Abuse Between Adult Co-Workers in Commercial Enterprise

Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, addressing whether an employer should be found vicariously liable for harm caused by sexual abuse committed by one worker against another.  In short the Court found that without an employer giving more than an opportunity for abuse by virtue of “time and place” vicarious liability should not apply.
In last week’s case (Corfield v. Shaw) the Plaintiff was victimized on a number of occasions by her supervisor at work.   The supervisor was found liable and ordered to pay damages.  The Court was asked to find the employer vicariously liable for the abuse but refused to do so finding that the law should not extend liability in these circumstances.  In dismissing the claim against the employer Mr. Justice Butler provided the following reasons:

[73] The question a court must consider where there has been a sexual battery is whether the unauthorized acts of the employee are so connected with authorized acts that “they may be regarded as modes (albeit improper modes) of doing authorized acts”.  In Bazley, the court set out a two-step process for determining when an unauthorized act is so connected to the employer’s enterprises that vicarious liability should be imposed.  The first step is to consider whether there are precedents which unambiguously determine whether vicarious liability should apply in the circumstances.  The second step is to determine whether vicarious liability should be imposed in light of the policy rationales behind strict liability.

[74] The parties did not fully argue the first step analysis; whether there are precedents applicable to the vicarious liability analysis in this case.  This is likely because very few decisions which have considered the vicarious liability of employers since Bazley involve adult co-workers in commercial enterprises. ..

[76] In the absence of prior decisions which unambiguously determine whether vicarious liability should be found, I must proceed to the second step of the analysis.  This is described at paras. 41 and 42 in Bazley.  At this stage of the analysis, a court is to “openly confront the question of whether liability should lie against the employer”.  That is done by considering if there is “a significant connection between the creation or enhancement of a risk and the wrong that accrues”.  Incidental connections to the employment enterprise, like time and place (without more), will not suffice.  Once engaged in a particular business, it is fair that an employer be made to pay the generally foreseeable costs of that business.  In contrast, to impose liability for costs unrelated to the risk would effectively make the employer an involuntary insurer.

[77] At para. 41 of Bazley, McLachlin J. (as she then was) set out some of the factors that may be considered by a court to determine if there was a strong connection between what the employer was asking the employee to do (i.e. the risk created by the employer’s enterprise) and the wrongful act:

(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.

[78] At para. 46, McLachlin J. summarizes the approach to this step:

In summary, the test for vicarious liability for an employee’s sexual abuse of a client should focus on whether the employer’s enterprise and empowerment of the employee materially increased the risk of the sexual assault and hence the harm. The test must not be applied mechanically, but with a sensitive view to the policy considerations that justify the imposition of vicarious liability __ fair and efficient compensation for wrong and deterrence. This requires trial judges to investigate the employee’s specific duties and determine whether they gave rise to special opportunities for wrongdoing. Because of the peculiar exercises of power and trust that pervade cases such as child abuse, special attention should be paid to the existence of a power or dependency relationship, which on its own often creates a considerable risk of wrongdoing.

[79] When I apply the relevant factors to the circumstances of this case, I conclude that there was not a strong connection between what Mr. Shaw was asked to do and the sexual assaults he committed.  The opportunity afforded to Mr. Shaw to abuse his power was not significant or unusual.  The assignment of work was done openly.  There was ample opportunity for employees to raise issues about the work or work assignments with senior management, Mr. Baker.  The wrongful acts did not further the employer’s aims in any way.  It cannot be seriously contended that there was friction, confrontation or intimacy inherent in the business of Baker Industries.  There was nothing about the operation of a residential service plumbing business that created situations of intimacy between employees.  While Mr. Shaw was provided with supervisory authority in relation to Ms. Corfield and other employees, the power given to him was not extensive.  As I have already noted, it was not power that could be easily used for a wrongful purpose.  Finally, plumbers in the employ of Baker Industries would not be expected to be potentially vulnerable to the wrongful exercise of Mr. Shaw’s authority as a supervisor.

[80] In short, there is nothing about the enterprise of Baker Industries or the authority imparted to Mr. Shaw that materially increased the risk of sexual assault of fellow employees.  Quite simply, this is a situation where Mr. Shaw took advantage of incidental connections to Ms. Corfield that occurred in an employment relationship.  He took advantage of the opportunities of time and place.  That alone is not sufficient for a finding of vicarious liability.

BC Sexual Abuse Civil Cases and the Law of "Indivisible Injury"

As previously discussed, the law of damages in BC has developed as follows with respect to indivisible injury compensation:
[55] Indivisible injuries are those that cannot be separated, such as aggravation or exacerbation of an earlier injury, an injury to the same area of the body, or global symptoms that are impossible to separate: Bradley, at para. 20; see also Athey, at paras. 22-25.

[56] If the injuries are indivisible, the court must apply the “but for” test in respect of the defendant’s act. Even though there may be several tortuous or non-tortuous causes of injury, so long as the defendant’s act is a cause, the defendant is fully liable for that damage: Bradley, at paras. 32-37; see also Resurfice Corp. v. Hanke, 2007 SCC 7 at paras. 19-23.

This principle becomes particularly important with respect to civil sexual abuse claims.  The sad reality is that many abused people are repeat victims with a number of different wrongdoers taking advantage of them.  If this is the case, and if the overall harm caused by the abuse is “indivisible” then the victim can collect their damages for the whole of the indivisible injury from any one of their perpetrators.  This principle was demonstrated in reasons for judgment released this week by the BC Supreme Court, Victoria Registry.
In this week’s case (Corfield v. Shaw) the Plaintiff was the victim of childhood sexual abuse at the hands of her stepfather.  The abuse was “egregious and prolonged“.  Later she was the victim of sexual abuse at work.  The latter abuse was of a less severe character.  She sued for damages as a result of the workplace abuse.  The Defendant was ultimately found liable.
The Defendant argued that the damages should be modest because the Plaintiff “was still experiencing emotional and psychological difficulties from the Childhood abuse” and that these consequences “would have continued thereafter even without Mr. Shaw’s wrongful actions“.  Mr. Justice Butler rejected this argument and assessed damages on an indivisible basis.  In doing so the Court provided the following reasons:

[101] There is no question that the nature of the emotional and psychological injuries she suffered as a result of the Childhood Abuse is similar to, if not the same as, what she has experienced since the Assaults.  Any attempt to divide those injuries into causes as between the two tortfeasors would be artificial.  There was no evidence proffered which would allow me to conclude that some of the symptoms or emotional difficulties suffered by Ms. Corfield since 2005 were caused solely by the Childhood Abuse.  Accordingly, I conclude that all of Ms. Corfield’s emotional and psychological difficulties since 2005 were caused or contributed to by the Assaults.  In other words, the injuries she has suffered from since 2005 are indivisible from those injuries suffered from the Childhood Abuse.

[102] In reaching that conclusion, I am not suggesting that the Assaults were the only cause of her injuries, just that her “damage and loss has been caused by the fault of two or more persons”, one of whom is Mr. Shaw.  As a result, in accordance with the provisions of s. 4 of the Negligence Act, R.S.B.C. 1996, c. 333, Mr. Shaw is jointly and severally liable for the injuries suffered since the Assaults, and he is responsible for the full cost of loss and damage suffered since the Assaults subject to consideration of the crumbling skull principle.

[103] The difference between a thin skull and a crumbling skull is described in Athey at paras. 34 and 35:

… The “crumbling skull” doctrine is an awkward label for a fairly simple idea.  It is named after the well-known “thin skull” rule, which makes the tortfeasor liable for the plaintiff’s injuries even if the injuries are unexpectedly severe owing to a pre-existing condition. The tortfeasor must take his or her victim as the tortfeasor finds the victim, and is therefore liable even though the plaintiff’s losses are more dramatic than they would be for the average person.

The so-called “crumbling skull” rule simply recognizes that the pre-existing condition was inherent in the plaintiff’s “original position”.

[104] One aspect of Ms. Corfield’s “original position” was described by Dr. Bruce; she was “more vulnerable to experience a more intense emotional affect from stressful events”.  In other words, she was fragile and susceptible to suffering emotional damage.  There is no question that this condition falls within the “crumbling skull” category.  Ms. Corfield continues to have that susceptibility and Mr. Shaw does not have to compensate her for continuing vulnerability.

[105] However, the defendants also argue that Ms. Corfield was still experiencing emotional and psychological difficulties from the Childhood Abuse before she was assaulted by Mr. Shaw.  They say the symptoms she suffered from included anxiety, depression, poor sleep, nightmares, alcohol abuse and other symptoms.  The evidence of Ms. Corfield’s mother provides some support for this position.  Ms. Corfield herself said that she “felt herself fairly recovered” from the Childhood Abuse.  I take this to mean that she was doing reasonably well but had not fully recovered.  In cross-examination she admitted that her doctor recommended she attend counselling in 2003 and 2004.  This confirms that in the two years before she started working at Baker Industries she was experiencing emotional difficulties.  She also admitted to continuing intimacy problems arising from the Childhood Abuse…

[116] In these circumstances, an appropriate award for non-pecuniary damages including the aggravating circumstances is $70,000.  This must be reduced to take into account Ms. Corfield’s pre-existing condition.  A deduction of 15% results in an assessment of $59,500.  I will round that up and award the sum of $60,000 for non-pecuniary damages.

Woodlands Survivor Class Action Application Deadline Extended to September 2012

Earlier this year the BC Supreme Court refused to approve a class action settlement involving historic sexual abuse claims where the proposed settlement would impose a limitation period for class members where one would not otherwise exist.  Further reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dealing with the balancing act of sexual abuse class action settlements and imposed limitation periods.
This week’s case (Richard v. British Columbia) involved the Woodlands school class action settlement which was initially approved on July 7, 2010.  One of the terms of the settlement required class members to advance their claims by September 19, 2011.  The deadline came and went and due to the complexity of the claims only a handful met the filing deadline.  An application was brought to extend this deadline.  Such applications were contemplated in the original settlement agreement.
Mr. Justice Bauman agreed that an extension was appropriate although declined the Plaintiff’s request for an indefinite extension.  Instead the Court moved the claims deadline to September 19, 2012 “without prejudice to the plaintiffs’ right to apply for further extensions“.  In striking this balance the Court provided the following comments seeking to reconcile the need for certainty in resolution against the need to protect BC sex abuse victims who generally aren’t faced with a limitation period in advancing their civil claims for damages:
[17]         I agree with the defendant that the application requires the Court to strike a balance between the parties which recognizes that in the give and take of the settlement negotiation process, each side made compromises to achieve their respective goals. It would be unfair, after the fact, to effectively take from one party a critical part of what it gained in the process through negotiation and compromise.
[18]         But in all the circumstances of this settlement, I do not believe that a substantial extension of the claims deadline can be so construed (especially in light of the fact that no limitation period attaches to these claims or at least a very substantial number of them). Still, an indefinite extension is not appropriate. I would, at this time, extend the claims deadline by one year to 19 September 2012, without prejudice to the plaintiffs’ right to apply for further extensions. It is not appropriate to condition this extension, as the defendant proposes, by requiring the Class Members to file a so-called “without prejudice interim claim” within three months. In my view, such a condition would effectively make the claims deadline extension illusory in the circumstances of the difficulties facing the plaintiffs and their counsel in advancing the claims process.

Are Secret Sex Abuse Settlements Unethical?

When sex abuse lawsuits settle out of court confidentiality agreements are often an accompanying term.  The Abuser (or institutions who employed the abuser) often suggest such clauses.  If a victim of abuse enters into such a contract and later speaks out they can jeopardize their settlement.

The CBC has recently reported that “Scouts Canada has signed out-of-court confidentiality agreements with more than a dozen child sex-abuse victims in recent years“.   This issue has a connection to British Columbia with CBC’s interactive map documenting some Scouts related abuse cases in BC.

A reader of this blog recently asked the following pointed question: “Would your parents have put you in Scouts if those cases had been published?

This is a good question worth publicly posting here.  Is there any good that comes from confidentiality agreements in sex abuse litigation?  If not is there any reason why these agreements should be enforceable given the greater harm that secrecy can create?

Historic Sexual Abuse Claim Results In $59,000 Damage Assessment

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages for historic sexual abuse.
In this week’s case (R.D. v. G.S) the Defendant stepfather was found liable for abusing his stepdaughter when she was aged 8-12.  The Plaintiff suffered psychological harm as a consequence of this.  Her non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) were assessed at $35,000.  In arriving at this figure Madam Justice Smith made the following findings with respect to the harm caused by the abuse:

[145] I have considered all of the evidence regarding the plaintiff’s psychological injury, including her testimony and the opinion evidence of Dr. Hotz and of Dr. O’Shaughnessy.

[146] I accept the plaintiff’s evidence regarding the symptoms she has experienced.  She was cross-examined at some length, and was consistent and convincing in describing her enormous sense of betrayal and destruction of trust, as well as her persistent experience of intrusive dreams, intrusive thoughts, anxiety, depression, low self esteem and low self confidence.

[147] As to the experts, with respect to the existence of a psychiatric disorder I prefer the evidence of Dr. O’Shaughnessy over that of Dr. Hotz.  I reach that conclusion because Dr. O’Shaughnessy clearly separated out the facts upon which he was relying from his opinions, is highly experienced in this area, has a higher degree of expertise and seemed to retain more objectivity in his approach.  I accept, accordingly, that the plaintiff does not currently suffer from a psychiatric disorder and it is unlikely that she has suffered from one in the past.

[148] I find, however, that she does suffer from psychological dysfunction that has interfered with her ability to pursue education or a more rewarding career, and that has interfered with her ability to build good relationships and to enjoy life.  The extent to which the psychological dysfunction finds its origins in what the defendant did is the question.  I find that he is responsible for it in some measure, although it also has other causes…

[214] The defendant’s position is that there is no evidence of harm to the plaintiff caused by the defendant’s actions, and there should be no award of general damages.

[215] I will consider the factors referred to in Y.(S.) v. C.(F.G.), in assessing the appropriate award for non-pecuniary damages.

[216] I begin with the nature of the assault.  In comparison with the sexual assaults found to have occurred in many other cases, the sexual touching in this case was not violent, intrusive, frequent, coercive or egregious.

[217] The breach of trust, however, was egregious, both with respect to the sexual touching that began when the plaintiff was quite young, and with respect to the defendant’s addition of photographs of the plaintiff to his collection of child pornography.

[218] I did not see any evidence of remorse on the defendant’s part.  His conduct with his stepdaughter was callous and reprehensible.  I do not overlook that the defendant himself was the victim of blatant disregard for his property and disrespect for his attempts to preserve his household and its contents after the children moved in.  However, he was the parent and the plaintiff was the child.  The fact that the plaintiff behaved badly toward him provides no justification for his behaviour toward her.

[219] The evidence of Dr. Hotz and Dr. O’Shaughnessy shows that the conduct of the defendant had a significant impact on the plaintiff’s psychological state.  I note as well that she would likely have experienced some level of psychological dysfunction in any event, and that the impact is unlikely to be permanent.

[220] I assess general damages, taking into account the aggravating factors I have described, at $35,000.

Sex Abuse Class Action Not Certified Due To Limitation Period Concerns for Victims

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, highlighting the important benefits of BC’s open ended limitation period for victims of sexual abuse.
In this week’s case (Lakes v. MacDougall) the Defendant worked as a correctional guard in BC’s prison system for over 20 years.  During this time he sexually abused a number of convicts.  He was criminally convicted for these deeds.  He was also successfully sued by some of his victims.
The Plaintiff, an alleged victim of this abuse, sued the Defendant and the Province of BC alleging the Province was vicariously liable for the abuse.  He proposed to make his lawsuit a class action on behalf of all of the Defendant’s victims.  The Province of BC agreed that a class action was appropraite.  The Plaintiff and the Province asked the Court to certify a class action and further to approve a settlement process which would permit the victims to seek compensation by way of private arbitration.
One of the Defendant’s alleged victims opposed class action certification.  This individual argued that the proposed settlement method would impose a de facto limitation period for the victims where one otherwise would not exist.  Mr. Justice Grauer agreed and refused to certify the action unless this issue could be addressed.  In doing so the Court provided the following helpful reasons:
[14] The objections can be succinctly stated.  By definition, members of the proposed class are persons who have spent time in jail from a relatively young age, have developed drug and alcohol problems, have damaged senses of masculinity, and have maintained their silence for years.  Mr. Lakes has deposed that the sexual abuse he endured caused him a great deal of humiliation and embarrassment that prevented him from coming forward with the information until August 13, 2010, some 30 years after the events occurred.  Precisely because of such problems, the Limitation Act, R.S.B.C. 1979, c. 266, provides in s. 3(4)(l) that causes of action based on sexual assault are not governed by a limitation period and may be brought at any time.  Yet the certification of this action and approval of the settlement will deny the benefit of this provision to members of the class who have not yet come to a place where they are capable of disclosure.  Instead, their claims will become effectively barred by the expiry of the claims period.  This is particularly troublesome, it is suggested, because this population is not one known for reading newspapers, where notices of the settlement are to be published…

[22] As I see it, the question is whether the loss of that benefit in this particular case is appropriately balanced by the gains offered by certification and approval of the settlement.

[23] I have concluded that, in the circumstances before me, it is not, and accordingly this requirement has not been met.  The advantage to potential members of the class of the resolution of the single common issue, together with the efficiencies of the process, do not match the loss to this particularly vulnerable group that will arise from the imposition of a six-month claims period.  I do not say that such a balance cannot be achieved in relation to MacDougall’s victims.  I say only that it has not been achieved.  If the process were structured differently to allow for a significantly longer claims period and improved notification procedures, I might well take a different view.  I do not, of course, have the authority to alter the terms of the proposed settlement…

[24] In these circumstances, I exercise my discretion under s. 5(6) of the Class Proceeding Act, and direct that the plaintiff’s applications be adjourned to permit the parties to engage in further negotiations and amend their materials if they choose to do so.

BC Supreme Court Declines Jurisdiction in Out of Province Sexual Abuse Action


Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, addressing the jurisdiction of the BC Supreme Court to hear a claim involving alleged sexual abuse which took place out of  Province.
In this week’s case (TC v. AM) the Plaintiff sued her former father in law in the BC Supreme Court claiming he sexually abused her in Montreal.  The Defendant, at all material times, lived in Montreal and continued to reside there when the lawsuit started.  He did not respond to the lawsuit.  The Court ultimately found that no jurisdiction existed to hear this case pursuant to the Court Jurisdiction and Proceedings Transfer Act.  In doing so the Mr. Justice Harvey provided the following reasons:





[8] None of the presumptive categories under s. 10 of the CJPTA apply in these circumstances; however, the language of s. 10 clearly indicates that those categories do not limit “the right of the plaintiff to prove other circumstances that constitute a real and substantial connection between British Columbia and the facts on which a proceeding is based.”

[9] The common law threshold for a real and substantial connection is high. In Josephson v. Balfour Recreation Commission, 2010 BCSC 603, Loo J. stated:

[79] The real and substantial connection test requires that there be a significant or substantial connection: Beals v. Saldanha, [2003] 3 S.C.R. 416; and UniNet Technologies Inc. v. Communication Services Inc., 2005 BCCA 114.

[10] The jurisprudence in British Columbia suggests that the mere residence of the plaintiff in British Columbia is not sufficient to establish jurisdiction over a defendant resident outside of the province. Something more is required. This was discussed in Dembroski v. Rhainds, 2011 BCCA 185, where Hall J. referred to the decision of Bruce J. in Roed v. Scheffler, 2009 BCSC 731…

[11] This case lacks the additional element, beyond the mere residence of the plaintiff in this jurisdiction, to support a finding that there is a real and substantial connection between British Columbia and the facts on which a proceeding is based. The action concerns allegations of sexual assault in Quebec in relation to a defendant who continues to reside in Quebec. There is not a “significant connection” as required by the Supreme Court of Canada in Beals v. Saldanha, [2003] 3 S.C.R. 416.

[12] That the plaintiff suffers damages here is, as was the case in Roed, purely as a result of her residence in British Columbia. As stated by Dickson J. in Moran v. Pyle National (Canada) Ltd., [1975] 1 S.C.R. 393, and referred to in Dembroski, if the essence of a tort is injury, “a paramount factor in determining situs must be the place of the invasion of one’s right to bodily security.” That location in this case is Quebec. The motor vehicle scenarios in Roed and Dembroski are analogous for the purposes of determining territorial competence, as they concern tortious conduct in another jurisdiction. The presence of the plaintiff in British Columbia alone does not establish a real and substantial connection in relation to events that occurred in another jurisdiction where the defendant continues to reside.

[13] Accordingly, I dismiss the plaintiff’s application.





Sexual Assault and Vicarious Liability Claims are not "Too Complex" For a Jury

Useful reasons for judgement were recently released by the BC Supreme Court, Victoria Registry, addressing a jury strike application in a personal injury lawsuit for damages from sexual abuse.
In the recent case (JG v. Kolesar) the Plaintiff was sexually abused by her teacher.  He was criminally convicted for his acts.  The Plaintiff sued him and his employer for damages alleging negligence and vicarious liability on the part of the School District.  The matter was set for trial by jury.  The School District opposed this and brought an application to strike the Jury Notice under Rule 12-6(5) arguing that  “the law on the questions of causation (the concept of indivisible injury), vicarious liability, and assessment of damages is all too complex for a jury to understand
Master Bouck disagreed and dismissed the School District’s jury strike application.  In doing so the Court provided the following helpful reasons:
[31]  On the question of causation, damages and the concept of indivisible injury, some authorities cited by (the School Board’s lawyer) have since been refined by the court of appeal’s decision in Bradley v. Groves, 2010 BCCA 361.  Notably, the appellate court has refined the method by which a finder of fact can determine causation and apportion damages where there are multiple tortfeasors contributing to the plaintiff’s injury and loss.
[32]  In my view, the step-by-step analysis set out in Bradley v. Groves can be nicely imported into a set of instruction and questions for the jury.
[33]  Accordingly, I am not at all pessimistic about the jury’s ability to decide the questions which the defence says are too complex in this litigation.  A trial judge will be perfectly capable of instructing a jury on the relevant legal concepts of causation, apportionment of damages, and vicarious liability…
[35]   Once properly instructed, the assessment of the plaintiff’s damages is most certainly not a question beyond the capability of a modern jury.  In my observation and experience, juries are often called upon to assess damages where there are multiple tort-feasors and pre-existing conditions.
Today’s case is unpublished however, as always, I’m happy to share a copy of the reasons for judgement with anyone who contacts me and requests a copy.

More on BC Sex Abuse Civil Claims; Consent and School Board Liability

Important reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, awarding a Plaintiff just over $110,000 for damages flowing from a ‘consensual‘ sexual relationship she had with her high school teacher.
While today’s case is likely to receive media attention due to its sexual theme, it is worth discussing more so because it highlights two important topics that sometimes arise in sexual abuse civil prosecutions; consent and vicarious liability.
In today’s case (AB v. CD) the Plaintiff had several sexual encounters with her grade 12 English teacher.   Following this relationship she sued him for damages and the school board claiming they were vicariously liable for the harm caused by the relationship.  The claim against the teacher was successful but the claim against the school board was dismissed.
The nature of the sexual encounters are summarized at paragraphs 28-52 of the reasons for judgement.  There is no need to repeat them here.  The Plaintiff agreed that “she had consented to…the touching incidents“.   Despite this admission, however, people in authority cannot have consensual sexual contact with people under their authority who are under 18 years of age as this is contrary to section 150.1 of Canada’s Criminal Code.
The school board’s lawyer argued that despite this prohibition, “consent remains a defence in a civil action for sexual assault“.  Madam Justice Gray soundly rejected this argument finding as follows:
[102] The Criminal Code provisions recognize that young people are inherently vulnerable to persons in positions of authority or trust.  While such young people may think that they are making a free choice to engage in a relationship with a person in authority, the very nature of the relationship precludes a free choice.
[103]  Like Stromberg-Stein J., I conclude that it would introduce an odd and problematic inconsistency in the law if a young person were considered legally incapable of consenting to sexual activity for the purposes of the criminal law, but were capable of giving such consent in a related civil action.
[104]  The public policy set out in the Criminal Code has the effect that a young person under the age of 18 cannot consent to sexual contact with a person in authority, as a matter of law, whether the applicable proceedings are criminal or civil.
[105]  As a result, CD is liable to AB for any damages she suffered as a consequence of the sexual battery.
(on a related note, click here to read a BC Court of Appeal decision released this week upholding a criminal conviction of an individual who failed to let his partners know he was HIV positive finding this omission was a ‘fraudulent misrepresentation’ which overrides otherwise consensual sexual contact)
The next issue that was noteworthy was the Court’s discussion of vicarious liability.  As previously discussed, the law sometimes holds an employer responsible for the deeds of an employee even though the employer did not act negligently.  The law of the vicarious liability of School Boards for the sexual battery by teachers is still developing in Canada and there are relatively few judgements addressing this topic.
Madam Justice Gray found that the School Board should not be vicariously liable on the narrow facts of this case and in doing so provided a useful discussion of applicable legal principles at paragraphs 131-155 of the reasons for judgement and applied the Bazley principles to the facts of the case at paragraph 157.

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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.

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