Tag: Sexual Abuse Civil Cases

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Today’s case is unpublished however, as always, I’m happy to share a copy of the reasons for judgement with anyone who contacts me and requests a copy.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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