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.