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SUPREME COURT OF CANADA
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Citation: E.B. v. Order of the Oblates of Mary Immaculate in the Province of British Columbia, [2005] 3 S.C.R. 45, 2005 SCC 60 |
Date: 20051028 Docket: 29890 |
Between:
E.B.
Appellant
and
Order of the Oblates of Mary Immaculate
in the Province of British Columbia
Respondent
‑ and ‑
Attorney General of Canada and
Attorney General of British Columbia
Interveners
Coram: McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.
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Reasons for Judgment: (paras. 1 to 58)
Dissenting reasons: (paras. 59 to 112)
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Binnie J. (McLachlin C.J. and Major, Bastarache, LeBel, Deschamps, Fish and Charron JJ. concurring)
Abella J. |
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E.B. v. Order of the Oblates of Mary Immaculate in the Province of British Columbia, [2005] 3 S.C.R. 45, 2005 SCC 60
E.B. Appellant
v.
Order of the Oblates of Mary Immaculate
in the Province of British Columbia Respondent
and
Attorney General of Canada and
Attorney General of British Columbia Interveners
Indexed as: E.B. v. Order of the Oblates of Mary Immaculate in the Province of British Columbia
Neutral citation: 2005 SCC 60.
File No.: 29890.
2004: December 7; 2005: October 28.
Present: McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.
on appeal from the court of appeal for british columbia
Torts — Vicarious liability — Intentional torts — Sexual abuse — Enterprise risk creation test — Child sexually abused while in residential school — Whether Catholic Order operating school vicariously liable for sexual assaults committed by lay employee — Whether strong connection between employee’s duties and wrongful acts — Whether case falls to be determined by legal precedents or broad policy rationales — Whether appellate review is foreclosed by trial judge’s findings.
Between 1957 and 1962, B attended a residential school for First Nations children run by the Oblates. S, a lay employee, worked as a baker, boat driver and odd‑job man. He resided upstairs in a building located on the school grounds. The trial judge found that S sexually assaulted B from the age of 7 and that the assaults continued on a regular and frequent basis until B was 11 or 12 years old. All the assaults took place in S’s living quarters. B did not bring S’s misconduct to the attention of anyone at the school. Based on his finding that the operational characteristics of the residential school created and materially enhanced the risk of the assaults, the trial judge found the Oblates vicariously liable. These characteristics included the separation of the children from their families, the fact that employees lived in close proximity to the children and the fact that the children were under a regime where they were to respect and obey all staff. The Court of Appeal set aside the trial judge’s decision, holding that he had erred in overemphasizing job‑created opportunity and in failing to have sufficient regard to the specific employment duties and responsibilities assigned to S and the connection, if any, between those duties and responsibilities and the wrongs S committed against the appellant.
Held (Abella J. dissenting): The appeal should be dismissed.
Per McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish and Charron JJ.: To impose vicarious (as opposed to direct) liability on the school, the law requires a strong connection between what the employer was asking the employee to do and the wrongful conduct. The trial judge stressed the “operational characteristics” of the school and the potential risk it created in general terms for its students. However if, as the appellant contends, the school as organized and operated created a significant risk to every student by every employee regardless of the particulars of his or her job, this would argue for direct liability rather than vicarious liability. What is required for the imposition of vicarious liability is a demonstration that school‑created features of the employment relationship of S contributed to the ability of S to do what he did in this case. Taking the trial judge’s approach to its logical conclusion, the employer would be liable for all tortious acts of all of its employees, no matter how remote the wrongdoing from the job‑created power or status or how distanced the employee was from any position of authority over, or intimacy with, the students. This is not consistent with legal precedent. A “mere opportunity” to commit the wrongful act does not suffice. Here, the “strong connection” test was not met. While vicarious liability does not require a claimant to establish that the wrongdoer was placed in a “parent‑like” position of authority, the law does require consideration of the job‑created power and the nature of an employee’s duties as a fundamental component of determining if a particular enterprise increased the risk of particular wrongdoing in relation to a claimant by the employee complained about. [2] [4] [25] [29] [52]
The Bazley factors show that while the residential setting in which the abuse took place would favour a finding of vicarious liability, the limited duties and role of S at the school are conclusive against it. S did not have authority to insinuate himself into the intimate life of B or any of the other students except his own children and grandchildren. First, S was not “permitted or required” to be with the children, apart from trips in the motorboat which were supervised by one of the religious brothers. Second, the conduct in the course of which the wrongful acts occurred had nothing to do with furthering the employer’s aims. Third, intimacy was prohibited. S was expected to devote himself to baking, doing maintenance work and driving the motorboat, and his quarters were located in an area off‑limits to students. Fourth, the employer did not confer any power on S in relation to B. Despite the loose structure of the school, S’s position was not one involving regular or meaningful contact with the students. Fifth, the vulnerability of the students resulted from the nature of the institution (which is the subject of the appellant’s claim of direct liability), not from power conferred by the employer on S (which is the subject of the appellant’s claim of vicarious liability). The Court of Appeal was thus correct in concluding that while the employment relationship in this case provided S with the opportunity to commit the wrongful acts, his assigned role in relation to the students fell short of what is required to attract vicarious liability. A strong connection between what the Oblates were asking S to do and the wrongful acts was not established. [37] [41] [47‑52]
Appellate review was not foreclosed by the trial judge’s findings. The essential difference between the trial judge and the Court of Appeal related to the proper application of the Bazley test. A court of appeal does not owe a trial judge any deference on a question of law. [23]
Per Abella J. (dissenting): In order to find an employer vicariously liable for the intentional torts of an employee, a strong connection must be found between the enterprise, the authority conferred on the employee by the employer, and the tort. A court must look at the enterprise as a whole to determine whether the specific features of the enterprise and of the employment relationship created — or materially enhanced — the risk that the tort would occur. Here, the trial judge correctly stated and applied the Bazley test and made findings available on the record that supported his conclusion that the residential school, as an enterprise, and in the authority it provided to S, materially enhanced the risk that eventually materialized, namely the sexual assault of B by S. [59-60] [65] [70]
An analysis of the Bazley factors confirms the trial judge’s conclusion of vicarious liability in this case. First, although mere opportunity is insufficient to support a finding of vicarious liability, the link between the opportunity and the tort committed in this case is particularly strong. S was given quarters in the middle of the school property, was permitted to form relationships with vulnerable children, and could not have been unaware of the lax supervision prevalent at the residential school. Second, given that sexual molestation will never be any organization’s aim, the absence of evidence supporting this factor has no bearing on this case. Third, the power structure inherent in the employer’s enterprise greatly increased the level of friction and confrontation, thereby helping to create the conditions that led to the sexual assault of B. The discipline was strict and harsh, and children were ordered to obey all staff members. Fourth, the trial judge concluded that B viewed S as a person of power and authority. He found that S had responsibility for helping the religious staff with all school‑related tasks, including child care and supervision, and a role that included supervising children on a daily basis and assigning chores to them. The breadth and amorphous nature of the employment duties given to him, and the way in which those duties were allocated by the school’s administration, gave him both actual and perceived power over the students. The Oblates’ failure to strictly delineate S’s official duties served to increase his authority. Fifth, the children at the residential school were profoundly vulnerable. They were separated from their parents for long periods of time. Although the trial judge recognized that B had a number of adult relatives living at the school, including grandparents, he was prevented from maintaining close relationships with them. In addition, the residential school was remote and access was limited. This geographic and personal isolation, combined with a harsh disciplinary regime consisting of routine corporal punishment, threats of punishment, and repeated orders to obey all staff members resulted in an extremely vulnerable group of potential victims. [78-91]
Where, as here, the legal test for vicarious liability is properly articulated and applied, a trial judge’s conclusions are entitled to deference. There is no basis in this case for disturbing the trial judge’s unchallenged findings of fact or the legal conclusion he drew from them that vicarious liability should be imposed. The Court of Appeal substituted its own and sometimes contrary findings of fact without explaining why those of the trial judge should be disregarded. The trial judge made no error of law in applying the Bazley test; his reasons fit squarely into established vicarious liability jurisprudence. Even if the standard of correctness is applied, there is no basis for interfering with the trial judge’s legal conclusion. [60] [98] [107-111]
Cases Cited
By Binnie J.
Applied: Bazley v. Curry, [1999] 2 S.C.R. 534; Jacobi v. Griffiths, [1999] 2 S.C.R. 570; referred to: K.L.B. v. British Columbia, [2003] 2 S.C.R. 403, 2003 SCC 51; John Doe v. Bennett, [2004] 1 S.C.R. 436, 2004 SCC 17, aff’g (2002), 218 D.L.R. (4th) 276, 2002 NFCA 47; H.L. v. Canada (Attorney General), [2005] 1 S.C.R. 401, 2005 SCC 25, rev’g in part (2002), 227 Sask. R. 165, 2002 SKCA 131; G. (E.D.) v. Hammer (1998), 53 B.C.L.R. (3d) 89, aff’d (2001), 197 D.L.R. (4th) 454, 2001 BCCA 226, aff’d [2003] 2 S.C.R. 459, 2003 SCC 52; Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33; Canadian Pacific Railway Co. v. Lockhart, [1942] A.C. 591; Lister v. Hesley Hall Ltd., [2002] 1 A.C. 215, [2001] UKHL 22; McDonald v. Mombourquette (1996), 152 N.S.R. (2d) 109; K. (W.) v. Pornbacher (1997), 32 B.C.L.R. (3d) 360; H. (S.G.) v. Gorsline, [2005] 2 W.W.R. 716, 2004 ABCA 186; M. (F.S.) v. Clarke, [1999] 11 W.W.R. 301; H. (T.E.G.) v. K. (P.), [2001] 6 W.W.R. 546, 2001 ABQB 43; A. (C.) v. Critchley (1998), 166 D.L.R. (4th) 475; B. (J.‑P.) v. Jacob (1998), 166 D.L.R. (4th) 125; C.S. v. Miller (2002), 306 A.R. 289, 2002 ABQB 152.
By Abella J. (dissenting)
Bazley v. Curry, [1999] 2 S.C.R. 534; Jacobi v. Griffiths, [1999] 2 S.C.R. 570; K.L.B. v. British Columbia, [2003] 2 S.C.R. 403, 2003 SCC 51; John Doe v. Bennett, [2004] 1 S.C.R. 436, 2004 SCC 17; M. (F.S.) v. Clarke, [1999] 11 W.W.R. 301; B. (W.R.) v. Plint (1998), 52 B.C.L.R. (3d) 18; D.W. v. Canada (Attorney General) (1999), 187 Sask. R. 21, 1999 SKQB 187; V.P. v. Canada (Attorney General) (1999), 186 Sask. R. 161, 1999 SKQB 180; G. (E.D.) v. Hammer (1998), 53 B.C.L.R. (3d) 89; Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33.
Authors Cited
Canada. Law Commission of Canada. Restoring Dignity: Responding to Child Abuse in Canadian Institutions. Ottawa: The Commission, 2000.
Canada. Royal Commission on Aboriginal Peoples. Report of the Royal Commission on Aboriginal Peoples, vol. 1, Looking Forward, Looking Back. Ottawa: The Commission, 1996.
Claes, Rhonda, and Deborah Clifton. Needs and Expectations for Redress of Victims of Abuse at Residential Schools. Ottawa: Law Commission of Canada, 1998.
APPEAL from a judgment of the British Columbia Court of Appeal (Esson, Hall, Saunders, Low and Smith JJ.A.) (2003), 14 B.C.L.R. (4th) 99, 182 B.C.A.C. 288, 300 W.A.C. 288, 227 D.L.R. (4th) 298, [2003] 7 W.W.R. 421, 16 C.C.L.T. (3d) 149, [2003] B.C.J. No. 1123 (QL), 2003 BCCA 289, setting aside a decision of Cohen J., [2001] B.C.J. No. 2700 (QL), 2001 BCSC 1783. Appeal dismissed, Abella J. dissenting.
John R. Shewfelt and Darrell W. Roberts, Q.C., for the appellant.
Azool Jaffer‑Jeraj and Mobina Jaffer, Q.C., for the respondent.
Mitchell R. Taylor, for the intervener the Attorney General of Canada.
Karen A. Horsman, for the intervener the Attorney General of British Columbia.
The judgment of McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish and Charron JJ. was delivered by
1 Binnie J. _ The appellant attended a residential school for First Nations children run by the respondent Order of the Oblates of Mary Immaculate in the Province of British Columbia (“Oblates”) on Meares Island, British Columbia. In the years 1957 to 1962, he suffered sexual abuse at the hands of a lay employee, Martin Saxey, also of First Nations origin, who worked in the school bakery and operated the school motorboat. Saxey is now dead. His estate may be liable for damages but it has no money to pay. The appellant therefore seeks damages from the Oblates on two legal grounds, firstly because of its direct fault in permitting the sexual abuse to occur (an issue on which the trial judge has not yet expressed an opinion); secondly, on the basis of vicarious liability, irrespective of any direct fault on the part of the respondent, for the misconduct of its employee, Saxey.
2 Children who have suffered sexual abuse in residential schools are extremely vulnerable people, and where fault is established on the school’s part, substantial compensation will be awarded. At this point in the litigation, however, no fault has been established on the part of anybody except Saxey. To impose vicarious (as opposed to direct) liability on the school, the law requires “a strong connection between what the employer was asking the employee to do (the risk created by the employer’s enterprise) and the wrongful act. It must be possible to say that the employer significantly increased the risk of the harm by putting the employee in his or her position and requiring him to perform the assigned tasks”: Bazley v. Curry, [1999] 2 S.C.R. 534, at para. 42 (emphasis deleted). The critical inquiry concerns the powers, duties and responsibilities conferred on Saxey by the respondent Oblates in relation to students like the appellant, keeping in mind of course the general environment of the school to the extent it can be said to have contributed to Saxey’s predatory activities.
3 The trial judge found vicarious liability because in his view, the “operational characteristics” of the residential school created a risk of sexual abuse, and the risk materialized in harm to the appellant ([2001] B.C.J. No. 2700 (QL), 2001 BCSC 1783). The Court of Appeal overturned that result ((2003), 14 B.C.L.R. (4th) 99, 2003 BCCA 289). In its view, the trial judge had paid insufficient attention to the absence of any strong connection between the sexual abuse and Saxey’s job on the fringes of school life as a baker, part-time motorboat operator and odd-job man. As a matter of law, the conclusion of the Court of Appeal is correct. The argument that vicarious liability should be strictly imposed without regard to the connection between the misconduct at issue and the job held by the particular wrongdoing employee was decisively rejected in Bazley and Jacobi v. Griffiths, [1999] 2 S.C.R. 570. The trial judge’s approach effectively put all the respondent’s employees on the same footing without giving due weight to the fact that it was Saxey who harmed the appellant by intentional wrongs that for present purposes must be taken to have been unknown, unauthorized, unforeseen and unforeseeable by the respondent. Saxey’s work in the bakery did not involve any degree of intimacy. Nor did driving the motorboat or doing odd maintenance jobs confer any such authority or intimacy. In the absence of a strong connection between the job Saxey was employed to do and the circumstances in which the abuse took place, the most that can be said is that working in a residential school offered Saxey an opportunity for contact with young boys like the appellant and a deference to authority on their part that otherwise might not exist. However, in a series of cases dealing with employer’s vicarious liability for sexual abuse, the Court has repeatedly stated that “‘mere opportunity’ . . . does not suffice”. See Bazley, at para. 40; Jacobi, at para. 45; K.L.B. v. British Columbia, [2003] 2 S.C.R. 403, 2003 SCC 51, at para. 94. See also John Doe v. Bennett, [2004] 1 S.C.R. 436, 2004 SCC 17, and H.L. v. Canada (Attorney General), [2005] 1 S.C.R. 401, 2005 SCC 25. Such general liability, if it is to be created, is a matter for the legislature.
4 The trial judge stressed the “operational characteristics” of the school and the potential risk it created in general terms for its students. However if, as the appellant contends, the school as organized and operated created a significant risk to every student by every employee regardless of the particulars of his or her job, this would argue for direct liability rather than vicarious liability for Saxey’s misconduct. In terms of the latter, the trial judge did not take his analysis far enough. He did not put adequate weight on the school-created features of the relationship between this claimant and this wrongdoing employee, and the contribution of the respondent’s enterprise to enabling the wrongdoer Saxey to do what he did in this case. Taking the trial judge’s approach to its logical conclusion, the respondent would be liable for all tortious acts of all of its employees, no matter how remote the wrongdoing from the job-created power or status or how distanced Saxey was from any position of authority over, or intimacy with, the students. When the full analysis is undertaken, as will be seen, the imposition of vicarious liability in this case does not conform with our jurisprudence. I would therefore dismiss the appeal.
I. Facts
5 Christie Residential School (“Christie”) was located on Meares Island, about four miles by water from Tofino, a town that is at the end of the highway that crosses Vancouver Island. The school was accessible only in good weather by boat from Tofino or floatplane. It ceased operating in 1971, but prior to that it taught First Nations children from the west coast of Vancouver Island. At all relevant times, the school was owned, operated and staffed by the Oblates, a Roman Catholic missionary order comprised of priests and lay brothers, and is incorporated by a special Act of the Legislature of British Columbia. During the years in question, the school was staffed by 16 to 20 adult employees and populated by 145 to 158 children.
6 The appellant began attending the school at the age of six, on September 18, 1956. He was a student there until June of 1965. His siblings also attended the school.
7 Martin Saxey began his employment at the school on September 14, 1955. Some years prior to that time, he had been convicted of manslaughter and imprisoned. There is no finding, at least at this stage, that the Oblates were negligent either in hiring Saxey or in supervising his conduct.
8 At the relevant period, the educational and social functions of the school were under the direction of the respondent Oblates (including priests and lay brothers), assisted by different orders of nuns from time to time. The federal government contributed a per capita grant to assist in sustaining the fiscal operations of the school. (Statutory provisions contained in successive versions of the Indian Act provided that Canada could enter into agreements with parties to operate school facilities and that school attendance was compulsory.) While the direct care of the children and the educational functions were performed by religious personnel, the maintenance services and physical operation of the school were in the hands of First Nations staff, mostly recruited from adult relatives of the students. (For instance, male and female relatives of the appellant worked at maintenance jobs during the time the appellant was at the school.) Several of these employees and their families resided on the school property. Saxey had several children and grandchildren who attended the school at the same time as the appellant. One of Saxey’s sons was a classmate of the appellant’s.
9 Students were not allowed to be in or about the staff quarters. Nor were they supposed to be in the bakery because hot appliances and dough-making machinery could present a hazard. Despite the rules, the records showed, and the appellant testified, that on occasion children did work in the kitchen and bakery (in part as “practical training”) during the time of Saxey’s tenure as baker. The appellant testified that he never went in the bakery.
10 Saxey resided upstairs in a building located on the school grounds. Some downstairs residential rooms were occupied by relatives of the appellant. The appellant testified that around 1957, when he was in his second year at the school, Saxey began luring him to his room by promising to give him candy. He said that when he went up to the room he was sexually assaulted by Saxey. He testified that for the next four or five years Saxey continued to lure him to his room with the promise of candy and performed numerous sexual assaults upon him. The appellant testified that he went with Saxey because he felt threatened. He did not at the time bring Saxey’s misconduct to the attention of anyone at the school.
11 The appellant graduated from Christie in 1965. Thereafter, he attended a secondary school on the mainland of British Columbia for a few months and afterwards began to work in the logging industry. Employment was interrupted by an injury and he was off work for some time. Generally over the years, he was engaged in work related to forestry. He had recurring difficulties with alcohol abuse, and by 1970 he was in trouble with the law and on occasion was jailed. The appellant testified that he had mentioned something about his prior sexual abuse to a lawyer acting for him around the end of the 1970s, but he did not report the behaviour of Saxey in any detailed way prior to 1995, when he was approached by members of the RCMP who were then investigating cases of possible abuse at residential schools across the country. Saxey had died around 1986. Subsequently, the appellant described the assaults to various health professionals, some of whom testified at trial.
II. Judicial History
A. Supreme Court of British Columbia
12 Cohen J. found that the appellant was sexually assaulted by Saxey beginning when he was seven years old; that the assaults continued on a regular and frequent basis until he was 11 or 12 years old; that all of the assaults took place in Saxey’s living quarters at the school; and that the sexual assaults consisted of fondling, masturbation and simulated intercourse, which included partial anal penetration. The facts of the sexual abuse were therefore extremely serious and outrageous.
13 The trial judge accepted the appellant’s explanation that he did not tell anyone about the assaults prior to the time that he left Christie because he did not know of any other children being sexually abused while he was there. He said that he used to think he was the only one and he was “too scared and ashamed” to seek help.
14 Turning to the issue of vicarious liability, the trial judge referred to the principles discussed by this Court in Bazley and Jacobi. He noted correctly that a school-created parent-like relationship between the abuser and the victim was not a prerequisite to imposing vicarious liability. He also distinguished the case of G. (E.D.) v. Hammer (1998), 53 B.C.L.R. (3d) 89 (S.C.), because it involved a janitor at a day school rather than a residential school.
15 The trial judge reviewed testimony about the discipline at the school finding that fear played a large role in keeping order. Children were told to show respect to all of the adult staff members and to do what they were told. There was evidence put forward by one witness that the lay staff could assign chores, occasionally on the spot. The trial judge heard testimony that a child at the school would reasonably perceive all staff members as having blanket authority and that due to understaffing, the delineation of duties for the employees was not rigid. Although there was some debate about whether children were ever seen in the bakery, some of the children had spent time in the adjacent kitchen. According to the plaintiff’s expert Dr. Paul Janke, the fact that the appellant never helped Saxey in the bakery did not mean that he was shielded from Saxey’s power or authority, as children would perceive Saxey as having authority regardless of where they encountered him. Dr. Janke testified:
Q: But if the alleged abuser was, as in Mr. Saxey’s case – and I’ll put these assumptions to you, Doctor, that he was a baker at the school, he had no positional authority over the children, Mr. Saxey had children and grandchildren at the school, [E.B.] had numerous family members at the school, and there were no children working in the bakery with Mr. Saxey, what – how would this change?
A: The fact that there were no children working in the bakery would [not] eliminate even a perceived position of authority, it would remain my opinion that children in that setting would perceive adults as having authority. The presence of family members of [E.B.] there clearly reduces the isolation and gives him the opportunity to disclose to someone. It doesn’t mean the abuse wouldn’t happen, but it certainly reduces it. The fact that Mr. Saxey had other relatives there would play a role only in – well, it would play two possible roles, one, reducing his opportunity to be unsupervised with a child from the school and, two, he would have access to other potential victims in a much more intimate setting where he would have more power and control.
16 Applying the two-stage analysis set out in Bazley, the trial judge first found that the cases did not unambiguously determine on which side of the vicarious liability line the case should fall.
17 Having regard, then, to the policy considerations at the second stage of the Bazley analysis, the trial judge held that the key was whether the operational characteristics at Christie created and materially enhanced the risk of the assaults. These characteristics included the separation of the children from their families, the fact that the school was overcrowded and understaffed, the fact that employees lived in close proximity to the children and had unrestricted access to them, and the fact that the children were under a regime where they were to respect and obey all staff. A list of the operational characteristics had been presented to the appellant’s expert witness, Dr. Janke, who found that they were conducive to sexual assault. The trial judge found this evidence convincing, and held that the principles set out in Bazley regarding the imposition of vicarious liability had been satisfied:
I conclude that the evidence regarding the operational characteristics of Christie, as well as Dr. Janke’s opinion based upon that evidence, satisfies the principles to be followed in finding vicarious liability as set out by McLachlin J. in Children’s Foundation . . . . [para. 131]
Having found the respondent Oblates vicariously liable, the judge declined to make a finding on whether or not the Oblates were also directly liable in negligence.
18 In the result, the trial judge concluded that the sexual abuse had caused or contributed to the appellant’s interpersonal difficulties, anxiety, symptoms of post-traumatic stress disorder, depression and alcohol abuse. He assessed $150,000 in general damages (including $25,000 in aggravated damages), $80,000 for loss of past earning capacity and $3,400 for future care costs.
B. Court of Appeal of British Columbia
19 After reviewing the facts and the law of vicarious liability, Hall J.A. for a five-judge panel of the court observed that “the more closely an employment situation mimics a parental type relationship, the more likely it is that liability will be imposed on a vicarious basis” (para. 51). The court was of the opinion that the appeal could be resolved at the first stage of the Bazley analysis because case law unambiguously indicated that no vicarious liability should lie against the respondent. After a wide-ranging analysis of the cases, Hall J.A. held that the trial judge had erred in overemphasizing opportunity and in failing to have sufficient regard to the specific employment duties and responsibilities of Saxey:
Saxey, in this case, was not part of the school administration and he was assigned no supervisory or child-care duties respecting pupils at the school. Those responsibilities were looked after by the religious personnel. None of his employment duties had the remotest connection to dealing with the pupils at the school in any supervisory or parental fashion. There was no job-related requirement for him to establish any particular rapport with students as existed, for instance, in Jacobi. His employment was not designed to provide opportunities for intimacy, the type of situation found to exist in Bazley. I perceive no nexus in this case between the general employment duties of Saxey and the assaults that were found to have been committed on [E.B.]. Saxey, in my opinion, occupied a position quite comparable to that of the school janitor, Hammer, in the [G. (E.D.)] case. Although the present case involves a residential school setting that perhaps would tend to enhance some risk of improper contact between students and staff because everyone was there for 24 hours every day, what occurred with respect to [E.B.] had absolutely no connection to any duty that Saxey was required or authorized to perform on behalf of his employer, the [Oblates]. No authority had been conferred on Saxey to direct, care for or discipline the pupils. [Emphasis added; para. 54.]
20 In the result, the Court of Appeal set aside the trial judgment and remitted the case for further proceedings in the trial court on the issue of direct liability (negligent conduct) alleged against the respondent.
III. Analysis
21 The British Columbia courts in this case differed in their approaches as well as the result in determining where to draw the line on vicarious liability. The differing approaches reflect a different philosophy about how far the law should go. The trial judge concluded that the sexual abuse suffered by the appellant was part and parcel of the disciplined residential school model operated by the respondent Oblates. Having created a risky situation, the respondent should bear the cost when the risk ripened into harm to one of the innocent children entrusted to its care. He accepted the appellant’s argument that liability in this case flowed directly from the “operational characteristics” of the school rather than the specific work situation of Saxey. In effect, the trial judge moved directly from the “operational characteristics” of the school to the conclusion that vicarious liability should be imposed without passing through the necessary intermediate stage of analysis of the contribution to Saxey’s intentional tort made by the respondent’s job-created “power and authority”.
22 The British Columbia Court of Appeal, on the other hand, took the view that this broad-brush treatment overgeneralized the respondent employer’s vicarious liability. Hall J.A. examined Saxey’s job-conferred power and authority. On his analysis, Saxey was a member of the bakery and maintenance staff who, in his entrapment of the appellant, was operating without reference to anything related to the school or his job. The residential school model operated by the Oblates undoubtedly demanded a degree of deference from students to all adults. Nevertheless vicarious liability is concerned not with the direct fault of the employer but with making the employer liable for the fault of Saxey. A primary focus, therefore, is on the employment relationship between the respondent employer and its wrongdoing employee. This requires an examination of Saxey’s actual powers, duties and responsibilities to determine whether or not there was “a strong connection between what the employer was asking the employee to do (the risk created by the employer’s enterprise) and the wrongful act” (Bazley, at para. 42 (emphasis added), per McLachlin J.).
A. Is Appellate Review Foreclosed by the Trial Judge’s Findings?
23 A finding of vicarious liability is a mixed question of fact and law. The appellant says that the Court of Appeal substituted its own version of the facts for the facts found by the trial judge but I do not think this is the case. Undoubtedly the Court of Appeal sketched in broad strokes what the trial judge had taken several hundred paragraphs to set out. The appellant argues that the Court of Appeal ignored certain factual findings and did not pay sufficient deference to the trial judge’s review of the evidence. However, it is clear from the trial judge’s reasons that his decision to impose vicarious liability rested almost entirely on the “operational characteristics” of Christie. At paragraph 131 of his reasons, he says:
I conclude that the evidence regarding the operational characteristics of Christie, as well as [the plaintiff’s expert] Dr. Janke’s opinion based upon that evidence, satisfies the principles to be followed in finding vicarious liability as set out by McLachlin J. in [Bazley], supra. In my opinion, the evidence establishes “a significant connection between the creation or enhancement of a risk and the wrong that accrues therefrom”.
The reasoning thus jumped directly from the enterprise to liability, whereas in Bazley the Court had equally emphasized that “[s]ervants may commit acts, even on working premises and during working hours, which are so unconnected with the employment that it would seem unreasonable to fix an employer with responsibility for them” (para. 35). The trial judge continued:
This being so, I find the Oblates vicariously liable to the plaintiff for the injuries he sustained as a result of the sexual assaults upon him by Saxey. [para. 131]
Thus, the essential difference between the trial judge and the Court of Appeal was the proper application of the Bazley test. This is a legal issue that can be readily “extricated” from the factual context. The Court in Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33, at para. 36, held that where the trial judge’s error
can be attributed to the application of an incorrect standard, a failure to consider a required element of a legal test, or similar error in principle, such an error can be characterized as an error of law, subject to a standard of correctness.
The Court of Appeal did not owe the trial judge any deference on the proper application of the law of vicarious liability to the facts.
B. The Need to Pay Attention to the Wrongful Employee’s Powers, Duties and Responsibilities
24 A convenient starting point for the debate about how far vicarious liability should extend is Canadian Pacific Railway Co. v. Lockhart, [1942] A.C. 591. In that case at p. 599, the Privy Council stated that an employer is only vicariously liable if the employee’s unauthorized acts are “so connected with acts [that the employer] has authorized that they may rightly be regarded as modes — although improper modes — of doing [what has been authorized]” (known as the Salmond test). The focus was clearly placed on the employee, and the legal test required a comparison between what the employee was authorized to do and what he or she actually did that was wrong. If the employee was adjudged to be “off on a frolic of his own”, vicarious liability would not attach to his or her employer.
25 A weakness of the Salmond test, as analyzed by McLachlin J. in Bazley, is that it glosses over rather than addresses the policy considerations that argue for and against a finding of vicarious liability and substitutes a debate about semantics in which the outcome is frequently unpredictable. Was Saxey’s assault an “unauthorized mode” of doing what he was hired to do, or was he engaged in conduct entirely unrelated to his duties? The Court in Bazley did not dispute the emphasis placed by the Salmond test on looking at what the employee was authorized to do, but insisted that it be placed in the larger context of the employer’s enterprise and the risk that the enterprise has introduced into the community. Thus McLachlin J. wrote that “[f]irst and foremost is the concern to provide a just and practical remedy” (para. 30), but to be “just” is to require that “[a] wrong that is only coincidentally linked to the activity of the employer and duties of the employee cannot justify the imposition of vicarious liability on the employer” (para. 36 (emphasis added)). Further, “‘mere opportunity’ to commit [the] tort, in the common ‘but-for’ understanding of that phrase, does not suffice” (para. 40).
26 Bazley also shows why vicarious liability can be imposed on an employer for an intentional tort carried out by an employee in defiance of an employer’s specific prohibition (as in Lockhart itself). Bypassing the debate about “modes”, Bazley goes directly to the strength of the connection between the tortfeasor’s employment and the tort. Improper or not, the “abuse of his position and the abnegation of his duty does not sever the connection with his employment”: Lister v. Hesley Hall Ltd., [2002] 1 A.C. 215, [2001] UKHL 22, at para. 50, per Lord Clyde, after reviewing Bazley and Jacobi. This again, “requires trial judges to investigate the employee’s specific duties and determine whether they gave rise to special opportunities for wrongdoing” (Bazley, at para. 46 (emphasis added)).
27 One of the insights offered by Bazley was its recognition that the Salmond test did not adequately take into account the potential contribution to the wrongdoing made by the general environment created by the employer, and which provided the setting within which the employee exercised his or her job-conferred power. The employer may be accountable vicariously as well as directly for the fact that it puts in the community an enterprise which carries with it certain risks (Bazley, at para. 31). However, the “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” (K.L.B., at para. 19 (emphasis added)). A similar statement can be found in this Court’s recent unanimous decision in John Doe.
28 Therefore, the appellant is right to say that the connection has to be made between the tort and the risk created by the enterprise, but this is not the end of the matter. The nature of the “risk created by the enterprise” must be considered in relation to the wrong done by Saxey to the appellant. It therefore calls for an examination of the job-created power and duties given to Saxey, recognizing of course that those powers and duties are discharged in a particular residential school environment.
29 The trial judge suggested that the “operational characteristics” of the school swept virtually all employees into the same “enterprise risk” for which the respondent employer should be held vicariously liable, but this pushes vicarious liability too far. While vicarious liability does not require a claimant to establish that the wrongful employee was placed in a “parent-like” position of authority, it does require consideration of the job-created power and the nature of an employee’s duties as a fundamental component of determining if a particular enterprise increased the risk of the employee’s wrongdoing in relation to the claimant. As the Court held in Bazley, at para. 42:
What is required is a material increase in the risk as a consequence of the employer’s enterprise and the duties he entrusted to the employee, mindful of the policies behind vicarious liability. [Emphasis added.]
30 The appellant’s global inclusion of all employees, including odd-job men, in the “enterprise risk” paints with too broad a brush. It goes against the policy goal of ensuring that compensation is both effective and fair. The Court in Bazley was quite insistent that this is not the law:
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. [Emphasis added; para. 46.]
31 To the same effect are both the majority and minority judgments in Jacobi, which applied the Bazley analysis to the case of sexual abuse inflicted by the recreational director of an after-school non-residential club on one of his campers. Members of the Court divided on the significance of the wrongdoer’s job-created power and authority, which caused the Court to divide in the result, but all members agreed on the need to determine (as McLachlin J. wrote for the minority) whether the respondent’s torts were “sufficiently linked to his employment duties to justify the imposition of vicarious liability” (Jacobi, at para. 12 (emphasis added)).
32 Reference may also usefully be made to the decision of the House of Lords in Lister v. Hesley Hall Ltd., where a residential school in England was held vicariously liable for the sexual predation of the warden it had placed in charge of the boarders. Lord Clyde commented, at para. 50:
It appears that the care and safekeeping of the boys had been entrusted to the respondents and they in turn had entrusted their care and safekeeping, so far as the running of the boarding house was concerned, to the warden. That gave him access to the premises, but the opportunity to be at the premises would not in itself constitute a sufficient connection between his wrongful actings and his employment. In addition to the opportunity which access gave him, his position as warden and the close contact with the boys which that work involved created a sufficient connection between the acts of abuse which he committed and the work which he had been employed to do. It appears that the respondents gave the warden a quite general authority in the supervision and running of the house as well as some particular responsibilities. His general duty was to look after and to care for, among others, the appellants. That function was one which the respondents had delegated to him. That he performed that function in a way which was an abuse of his position and an abnegation of his duty does not sever the connection with his employment. [Emphasis added.]
33 The B.C. Court of Appeal was therefore quite correct to refocus the debate on Saxey’s role at the school and on the particular circumstances that brought the appellant into Saxey’s entrapment.
C. The Appellant’s Evidence Regarding the Job-Related Powers of Saxey
34 Clearly at Christie, there was a broad range of responsibilities, from the principal to the religious teachers and dormitory supervisors, all of whom were intimately involved with the students, to lay employees such as Saxey who performed various roles supporting the operations of the school but who were permitted no intimate contact with the students (other than their own children) and had no responsibility for their day-to-day lives. Within these various levels of staff authority and responsibilities, there were important differences. In this area of the law, questions of degree are important (Bazley, at para. 38; Jacobi, at para. 82).
35 The job-created role (or lack of it) of Saxey in relation to the appellant may usefully be compared to that of the caregiver at issue in Bazley, whose job included bathing and tucking the children into bed at night. The appellant himself testified as follows:
Q: And you did not help Mr. Saxey in the bakery?
A: No.
Q: In fact, you never went into the bakery; is that correct?
A: No.
Q: Now, at the school, when you were at the school, when you were sleeping in the dormitories you never saw Mr. Saxey in the dormitories, did you?
A: No.
Q: And Mr. Saxey never had any jobs to do in the dormitories, did he?
A: No.
Q: And he did not come into the dormitories?
A: No.
Q: And when you were at the school did you see Mr. Saxey in the classrooms?
A: No.
Q: And he had no jobs in the classrooms; is that correct?
A: No, no.
Q: And while you were doing chores in the kitchen you did not see Mr. Saxey working in the kitchen itself, did you?
A: No.
Q: And while you were in the gym you did not see Mr. Saxey in the gym; is that correct?
A: Might have been the odd time.
Q: But he wasn’t playing with the children in the gym?
A: No.
Q: And while you were with the other children, Mr. Saxey would not be playing with the other children; is that correct?
A: He would be, yeah. Like his –
Q: His children?
A: His daughter and – yeah.
Q: I’m sorry, I didn’t clarify that, I apologize. I don’t mean his four children and his grandchildren, but he wasn’t seen playing with the other children?
A: Like when he ran that – that tractor, it – you know, he used to give rides and that.
Q: Now, the rides that he would give is when the children arrived at the dock; is that correct?
A: No, like he was on garbage detail too, eh, and he would run the garbage down the beach, and after dumping the garbage he would give them a ride around the beach.
Q: So he would give the children a ride on the tractor?
A: Yes.
Q: But he wouldn’t be playing with the children?
A: No, not playing with them.
36 The trial judge acknowledged that the respondent had taken precautions to prevent improper contact between the students and the lay employees. Although Saxey’s living quarters were on a part of the grounds to which the children had access, the staff quarters were segregated from the school dormitories. Further, the appellant himself testified that the students were not allowed to enter the staff living quarters. The respondent thus imposed a degree of geographic separation. With respect to Saxey’s motorboat responsibilities, school policy required a religious brother (or equivalent) to travel on the boat when boys were present. If the school can be shown to have been negligent in supervising adherence to these and similar instructions, thereby creating a risk which led directly to the commission of the sexual assaults on the appellant, that would nourish the claim in relation to direct liability. At present, however, we are dealing only with vicarious liability.
37 As it stands, the evidence is that Saxey did not have authority to insinuate himself into the intimate life of the appellant or any of the other students except his own children and grandchildren.
D. Applying the Bazley Test to the Facts
38 This Court in Bazley stated that assessing whether vicarious liability should be imposed in a given case requires that in the first instance, the court look to whether “there are precedents which unambiguously determine on which side of the line between vicarious liability and no liability the case falls” (para. 15). 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 this form of indirect liability (Bazley, at para. 15).
39 In undertaking a consideration of both precedent and policy, the Court in Bazley, at para. 41, listed a number of factors, which could usefully be considered in assessing whether an employer created or materially enhanced the risk of the employee committing an intentional tort and thereby should incur vicarious liability. These were:
(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.
40 This test for determining the sufficiency of the connection 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” (Bazley, at para. 46; John Doe, at para. 21).
1. Stage One: Is the Outcome of This Case Dictated by Precedent?
41 In reaching his conclusion that the outcome of this case was not determined by existing precedent, the trial judge perhaps insisted on too high a degree of correlation on the facts. It is true that this case is not on all fours with decided precedents, but the courts have now dealt with a sufficient number of cases of sexual abuse in different residential settings to provide adequate guidance with respect to vicarious liability in this context. There was no need here to return to the first principles of a policy-oriented analysis. Overly frequent resort to general principles opens the door to subjective judicial evaluations that may promote uncertainty and litigation at the expense of predictability and settlement.
42 Of course one of the challenges in applying the case law is that in different fact situations the evaluation of the several factors may tug in different directions. This is evident in the cluster of cases decided in this Court since Bazley. For example, the employer’s enterprise in this case (a residential school run along authoritarian lines) creates greater risk of sexual misconduct than did the after-school non-residential recreational club in Jacobi; yet the extent of the power and responsibility conferred by the respondent Oblates on Saxey was much less than the authority conferred on Jacobi’s director of recreation, let alone on Bazley’s caregiver who, as stated, was charged with “intimate duties like bathing and tucking in at bedtime” (para. 2). While the Oblates themselves had spiritual and temporal power comparable to that of the employer bishop in John Doe, the respondent delegated no significant power over the children to the odd-job men, bakers and motorboat operators at Christie. This stands in stark contrast to John Doe itself where not only the environment created by the church compelled obedience but the power conferred on the parish priest materially increased the risk of abuse. The parishes in which the priest worked were geographically isolated, the communities in which he was placed were devoutly religious, the main form of community leadership came from the church, and the only schools were denominational. The priest had broad authority in his parish. It is difficult to imagine greater “job-conferred power” than that vouchsafed to a priest who not only has power in this world but claims stewardship of the child’s immortal soul. Saxey’s employment responsibilities, by contrast, were mundane and remote from actually looking after the children under the respondent’s care.
43 Reference should also be made to Hammer (aff’d (2001), 197 D.L.R. (4th) 454, 2001 BCCA 226, aff’d on other grounds, [2003] 2 S.C.R. 459, 2003 SCC 52). In that case, sexual abuse was committed by a janitor who had no direct duties relating to students. Occasionally he helped them find something or someone. The trial judge in that case found that “[a]ll that can be said to support a finding of vicarious liability is that Mr. Hammer was employed as a janitor at the school and his duties provided him with the opportunity to commit the wrongful acts” ((1998), 53 B.C.L.R. (3d) 89, at para. 52)). In Hammer, the enterprise, being a day school, was less risky, but the janitor’s job-conferred power was comparable to Saxey’s. Vicarious liability was denied. A still different mix was provided in K.L.B., where the defendant government was found to have exercised little control over foster parents, who were classified as independent contractors rather than employees. At the same time, the power and responsibility of foster parents in relation to the foster children were, by definition, parent-like. It was held that there was no vicarious liability.
44 The interveners put forward a number of additional cases. McDonald v. Mombourquette (1996), 152 N.S.R. (2d) 109 (C.A.), involved sexual assault perpetrated by a religious official. A limitation period, however, rendered the issue of liability moot, and the liability analysis was in any event vigorously contested in K. (W.) v. Pornbacher (1997), 32 B.C.L.R. (3d) 360 (S.C.), and effectively overruled in John Doe. In H. (S.G.) v. Gorsline, [2005] 2 W.W.R. 716, 2004 ABCA 186, the Alberta Court of Appeal declined to interfere with the trial judge’s finding that a school board was not vicariously liable for the sexual assaults committed by a physical education teacher. The Court of Appeal agreed with the trial judge that the duties of the teacher did not require anything approaching intimate contact. In M. (F.S.) v. Clarke, [1999] 11 W.W.R. 301 (B.C.S.C.), vicarious liability for abuse in the context of a residential school was imposed. However in that case the wrongdoing employee was a dormitory supervisor, and thus had a much greater role in dealing with the children than Saxey in the present appeal. In H. (T.E.G.) v. K. (P.), [2001] 6 W.W.R. 546, 2001 ABQB 43, the Alberta Court of Queen’s Bench declined to find an employer vicariously liable for the sexual assaults of the manager of a recreation centre.
45 The Saskatchewan Court of Appeal considered the sexual assaults committed by an administrator of a school residence against a pupil in H.L. v. Canada (Attorney General) (2002), 227 Sask. R. 165, 2002 SKCA 131 (appealed on other issues to this Court). In that case the plaintiff was not a resident at the school but participated in an after-school boxing program which the employee ran as part of his job. The Court found that there was a sufficient connection between Starr’s job-imposed duties and extensions of those duties authorized by the Department of Indian and Northern Affairs to ground a finding of vicarious liability against Canada.
46 The British Columbia Court of Appeal upheld a trial judge’s finding of vicarious liability against the provincial Crown in A. (C.) v. Critchley (1998), 166 D.L.R. (4th) 475. McEachern C.J.B.C. held unanimously for the court that the Crown was liable for sexual and physical assaults committed by a man called Critchley, who operated a wilderness camp for troubled youth. The plaintiffs in this case had been committed to the care of the Crown but could not be accommodated in the usual facilities or foster homes. The court held that “the wrongs were committed by a surrogate parent in the course of discharging on behalf of the Crown the very responsibilities imposed by law upon the Crown” (para. 116). In B. (J.-P.) v. Jacob (1998), 166 D.L.R. (4th) 125, the New Brunswick Court of Appeal upheld a trial judge’s decision that a hospital was not vicariously liable for sexual assault committed by its employee nurse. The nurse had entered the patient’s room and, while the patient was sleeping, touched his penis with his hands or mouth. The nurse had not been assigned to work with that patient and the court found that his employment provided him with mere opportunity, and no more. As such, vicarious liability was not imposed. In C.S. v. Miller (2002), 306 A.R. 289, 2002 ABQB 152, the Boy Scouts of Canada were found vicariously liable for the failure of one of their employees, a camp chief, to remove a child from a situation of sexual assault. Acton J. of the Alberta Court of Queen’s Bench found that the employee’s duties were directly related to her negligence. This sad list of cases (and many other cases could be added) is not before us for decision, and we are not called upon to express an opinion on their particular circumstances, but they do demonstrate, I think, a strong judicial focus on the employment relationship between the particular wrongdoer and the employer sought to be held vicariously liable, a focus that was overwhelmed in the present case by the trial judge’s preoccupation with the “operational characteristics” of the school as a whole.
47 While the residential setting in which the abuse took place here would favour a finding of vicarious liability, the limited duties and role of Saxey militate against such a finding. None of the cases reviewed above contain the precise configuration of facts that exist in this case. Reference was made to the dictum of Cameron J.A. of the Newfoundland and Labrador Court of Appeal in her partly concurring judgment in John Doe v. Bennett (2002), 218 D.L.R. (4th) 276, 2002 NFCA 47 (affirmed by this Court):
Precedent is beneficial in this context only if the facts are very similar and it unambiguously determines the issue of whether vicarious liability applies. [Italics in original; underlining added; para. 171.]
The view that “[p]recedent is beneficial in this context only if the facts are very similar”, in my view, overstates the requirement. While Bazley spoke of “precedents which unambiguously determine on which side of the line between vicarious liability and no liability the case falls” (para. 15), it must be remembered that Bazley was a pioneering judgment that developed an approach to vicarious liability across a broad swath of social and economic relationships. In considering the particular context of sexual abuse by employees in school or equivalent settings, the cases since Bazley provide sufficient guidance for the disposition of this appeal. While a parent-like relationship is not required, the facts must connect the tort sufficiently “to the tortfeasor’s assigned tasks that the tort can be regarded as a materialization of the risks created by the enterprise” (K.L.B., at para. 19 (emphasis added)).
48 I therefore turn to the “five factors” listed in Bazley to consider in light of the precedents whether the strength of the “connection between what the employer was asking the employee to do . . . and the wrongful act” (Bazley, at para. 42), was sufficient to impose vicarious liability:
(1) The respondent provided Saxey with the opportunity to come into contact with the children. Opportunity will often be a question of degree. “As the opportunity for abuse becomes greater, so the risk of harm increases” (Bazley, at para. 43). The review of previously decided cases shows that opportunity in this case lies at the low end of significance. As put in Bazley, “[i]f an employee is permitted or required to be with children for brief periods of time, there may be a small risk of such harm — perhaps not much greater than if the employee were a stranger” (para. 43). Here, Saxey was not “permitted or required” to be with the children at all, apart from trips in the motorboat which were supervised by one of the religious brothers or equivalent and occasionally in the bakery.
(2) The wrongful acts had nothing to do with furthering the respondent’s aims. No one disputes that Saxey’s conduct was abhorrent and in direct opposition to the Oblates’ aims.
(3) While a degree of intimacy with staff is inherent in any residential school, such intimacy did not involve Saxey, who was expected to devote himself to baking, maintenance and driving the motorboat. Saxey’s duties required no significant contact with the students, and his quarters where the sexual abuse took place was located in an area off limits to students.
(4) The respondent did not confer any power on Saxey in relation to the appellant. Despite the loose structure of the school, as discussed by the trial judge, Saxey’s position was not one involving regular or meaningful contact with the students. Of course, as the trial judge pointed out, the very fact that Saxey was an adult in a children’s school conferred a certain status, but to find that Saxey’s status as an “adult” in the school was sufficient to attract vicarious liability would in practice cross the line into making the employer an “involuntary insurer” (Bazley, at para. 36).
(5) The students in any residential school are vulnerable and require protection, but it is the nature of a residential institution rather than the power conferred by the respondent on Saxey that fed the vulnerability. In Bazley, at para. 42, the Court said that “[i]t must be possible to say that the employer significantly increased the risk of harm by putting the employee in his or her position and requiring him to perform the assigned tasks” (emphasis added; emphasis in original deleted). Such a statement cannot fairly be said of the respondent employer in this case.
In summary, the appellant did not establish “a strong connection between what the employer was asking the employee to do . . . and the wrongful act” (Bazley, at para. 42 (emphasis added)).
49 I have read with interest the reasons of my colleague Abella J. who assesses these factors differently than I do. The difference in interpretation is due in part to the way in which the trial judge formulated his reasons, often reiterating the evidence of the plaintiff or the submissions of his counsel, but at critical junctures declining to make clear findings of fact. For example, in considering the role of the lay staff, rather than making findings of fact, the trial judge re-stated evidence heard during the course of the trial:
[E.B.] testified that he and other children at Christie had to do what they were told to do by adult staff members. L.B. testified that he recalled children being told at the beginning of the year, and just about every month, that the children had to listen to the lay staff if they requested children to do something. [Emphasis added; para. 87.]
50 Similarly, with respect to the specific duties of lay staff, the trial judge reviewed evidence but made no clear finding, stating: “Counsel also said that due to understaffing at Christie, there could be no rigid delineation of employment duties for any staff member” (para. 94 (emphasis added)). With respect to Saxey’s authority over children at the school, the trial judge stated:
Counsel argued that as the staff member responsible for bread baking, Saxey would certainly have had implicit, and probably had explicit authority over the children performing kitchen and bakery-related chores, such as clean-up, bread slicing and dough preparation. [Emphasis added; para. 103.]
51 I would need clearer words from the trial judge before assuming that he intended his narrative of submissions to be taken as findings of fact. Be that as it may, my view, having read and re-read the reasons, is that while the residential school setting and the nature of the discipline at the school clearly contributed to the vulnerability of the children to abuse, there was no finding of a “strong connection” between the particulars of Saxey’s employment and the outrages he committed by luring the appellant to his private quarters as is required by our jurisprudence. The fact that Saxey was permitted on occasion to ask children to do chores, and that children were inevitably in occasional contact with him, is not enough. The employment of Saxey as a baker, boat driver and odd-job man did not put him in a position of power, trust or intimacy with respect to the children. His job did not include regular or private contact with the children. He was not encouraged or required to develop any sort of personal relationship with the children. His role did not include supervising any intimate activities. I conclude that the Court of Appeal was correct that while the employment relationship in this case provided Saxey with the opportunity to commit the wrongful acts, his assigned role in relation to the students fell short of what is required to attract vicarious liability. An analysis of general “operational characteristics” is more properly undertaken in relation to the claim of direct liability.
52 In my view, therefore, the Court of Appeal was correct in finding that the earlier cases preclude a finding of vicarious liability in the circumstances of this case. The precedents hold that to make an employer vicariously liable for the intentional wrongdoing of its employee, there must be established, to repeat, a “strong connection between what the employer was asking the employee to do . . . and the wrongful act” (Bazley, at para. 42). The “operational characteristics” of the enterprise which preoccupied the trial judge are not enough to attract vicarious liability. The “strong connection” was not established.
53 Given this conclusion, it is not strictly necessary to move on to the second stage of Bazley. However, the policy considerations underlying vicarious liability confirm the correctness of the result.
2. Stage Two: Consideration of Policy
54 The second stage under the Bazley analysis requires the Court to consider whether the imposition of vicarious liability on the facts of the case would further the broader policy rationales used to justify it, namely to provide effective compensation and to deter such misconduct in future. These policy concerns, however, are part of a broader balancing of interests. Bazley held that the twin policy concerns “are served only where the wrong is so connected with the employment that it can be said that [by the employment] the employer has introduced the risk of the wrong (and is thereby fairly and usefully charged with its management and minimization)” (Bazley, at para. 37 (emphasis added)). Further, as noted by the majority in Jacobi:
These policy considerations have to be balanced with a measure of fairness to the employer and adherence to legal principle because standing on their own these particular policies will generally favour vicarious liability, i.e., a solvent employer will almost always be in a better position to provide effective compensation to an assault victim than the assailant, and the higher the likelihood of financial liability on the employer, generally speaking, the more potent the deterrent. These pro-liability policies have therefore been restrained historically by a recognition that competing social objectives also have to be weighed in the balance. [para. 67]
55 With respect to deterrence, for example, both Bazley and Jacobi were careful to point out that unless deterrence is confined to situations where it can be effective, there is a danger that the general community will be overdeterred from activities which are socially useful and ought to be promoted rather than penalized.
56 In the present case, the respondent Oblates contend that consideration should be given to their good intentions towards the students in their care, the fact that the misconduct by Saxey contradicts every value and principle the Oblates stand for, and the fact that the Oblates attempted on a not-for-profit basis to meet a need for education of First Nations’ children that otherwise would perhaps have gone unmet. The fact is however that the trial judge found that the appellant suffered serious injury from Saxey’s abuse and it is clear from our decision in John Doe that a church organization, while non-profit in nature, will generally have sufficient capacity for loss spreading and taking measures to deter future misconduct to merit the imposition of vicarious liability where the “strong connection” test is met.
57 There is no doubt that the imposition of no-fault liability here would benefit the victim and deter similar conduct in the future. Also, the notion of fairness to the not-for-profit organization remains compatible with vicarious liability, provided that a strong connection is established between the job-conferred authority and the sexual assault. As the analysis above demonstrates, however, the strong connection test cannot be met in this case, given Saxey’s limited role at Christie. Thus, legal principle as well as precedent supports the conclusion that vicarious liability should not be imposed in this case. Whether or not the respondent can be shown to be directly at fault in a way that contributed to Saxey’s sexual assault on the appellant is a matter that will have to be determined by the trial judge.
IV. Conclusion
58 In the result, the matter should be remitted to the trial court for a determination as to whether the respondent is liable for negligence on the whole of the evidence. The present appeal, based as it is purely on the attribution of vicarious liability, should be dismissed without costs, but in circumstances where the issue of direct liability remains open.
The following are the reasons delivered by
59 Abella J. — This appeal turns on the proper application of the “enterprise risk creation” test set out in Bazley v. Curry, [1999] 2 S.C.R. 534, and its progeny. As those cases stipulate, in order to find an employer vicariously liable for the intentional torts of an employee, a strong connection must be found between the enterprise, the authority conferred on the employee by the employer and the tort.
60 The Bazley test is complex, context-sensitive and flexible. It requires that attention be paid to the enterprise as a whole. An enterprise can, as the trial judge concluded this one did, operate in a way that authorizes conduct beyond the duties set out in a job description. If the legal test for vicarious liability has been properly articulated and applied, a trial judge’s conclusions are entitled to deference. In my view, Cohen J. correctly stated and applied the test ([2001] B.C.J. No. 2700 (QL), 2001 BSCS 1783). His conclusions therefore ought not to have been disturbed by the Court of Appeal ((2003), 14 B.C.L.R. (4th) 99, 2003 BCCA 289).
I. Background
61 The legal test this Court has developed for assessing vicarious liability in cases of intentional torts like sexual assault was first described in Bazley. It has been characterized as the enterprise risk creation test. McLachlin J. summarized the appropriate inquiry as follows:
The question in each case is whether there is a connection or nexus between the employment enterprise and that wrong that justifies imposition of vicarious liability on the employer for the wrong . . . .
Where the risk [created or materially enhanced by the enterprise] is closely associated with the wrong that occurred, it seems just that the entity that engages in the enterprise . . . should internalize the full cost of operation, including potential torts. . . . On the other hand, when the wrongful act lacks meaningful connection to the enterprise, liability ceases to flow. [Emphasis added; paras. 37-38.]
62 McLachlin J. stressed two important features of this test. The first is that the inquiry must focus on the strength of the causal link between the opportunity and the wrongful act. Mere opportunity to commit a tort is insufficient (Bazley, at para. 40; Jacobi v. Griffiths, [1999] 2 S.C.R. 570, at para. 51). Secondly, the employee’s specific duties must be examined to determine whether they generated special opportunities for wrongdoing (Bazley, at para. 46; K.L.B. v. British Columbia, [2003] 2 S.C.R. 403, 2003 SCC 51, at para. 19; and John Doe v. Bennett, [2004] 1 S.C.R. 436, 2004 SCC 17, at para. 20).
63 McLachlin J. provided a non‑exhaustive list of five factors in Bazley (at para. 41) which she held were relevant to an evaluation of the strength of the causal link between the enterprise and the wrongdoing in the context of intentional torts:
(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 . . .;
(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 the power conferred on the employee in relation to the victim;
(e) the vulnerability of potential victims to wrongful exercise of the employee’s power.
64 In discussing how this analysis unfolds when the tort is sexual abuse, McLachlin J. explained:
[T]he 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. [para. 46]
65 In other words, in assessing whether an employer should be held vicariously liable for the sexual assault of an employee, we look at the enterprise as a whole to determine whether the specific features of the enterprise and of the employment relationship created — or materially enhanced — the risk that the tort would occur.
66 No one in this appeal impugns Cohen J.’s explication of the test for vicarious liability. Nor does anyone suggest that his findings of fact were not supported by the evidence, that he misapprehended the evidence or that he committed a palpable and overriding error. What is disputed is his application of the legal test to the facts.
67 Hall J.A., writing for a unanimous five-judge panel of the Court of Appeal (Esson, Saunders, Low and Smith JJ.A.), found that the trial judge, in focusing too heavily on opportunity and on what Cohen J. termed the “operational characteristics” of the Christie Residential School, had paid insufficient attention to the connection between Mr. Saxey’s employment duties and the tort. His approach, the court felt, inappropriately broadened the test for vicarious liability, and did not
pa[y] sufficient heed to the circumstance that, aside from opportunity, there was little else on which to base a finding of vicarious liability in this case. [para. 26]
68 In the court’s view, the more closely an employment situation mimics a parent-type relationship, the more appropriate is the imposition of vicarious liability. The Court of Appeal concluded that Mr. Saxey’s job duties were insufficiently supervisory or parental in nature to support a finding of vicarious liability. With respect, I disagree with the Court of Appeal’s approach and conclusions.
69 I acknowledge that the trial judge did not always make his findings of fact explicitly. He frequently set out witnesses’ testimony and counsels’ arguments without directly stating that he was adopting the testimony or argument he was describing. It is my view, however, that a careful reading of his reasons as a whole makes it clear that he often implicitly adopted the interpretation of the testimony urged by plaintiff’s counsel. Unless he stated the contrary, the trial judge appears to have discussed mainly the testimony and arguments he agreed with. They, along with his explicit ones, seem to me to represent his findings.
70 Cohen J. made findings available on the record which supported his conclusion that Christie, both as an enterprise and in the authority it provided to Mr. Saxey, materially enhanced the risk that eventually materialized, namely the sexual assault of E.B. by Mr. Saxey.
II. Analysis
71 As was pointed out in the reasons of Binnie J., the abuse of E.B. was systematic and horrifying. The trial judge found that the victim was sexually assaulted multiple times weekly for four to five years from 1957 to 1962 while he was a resident student at Christie. The assaults consisted of partial anal penetration, fondling and masturbation. They were committed by Martin Saxey, a violent offender convicted of manslaughter who was hired by the Order of the Oblates of Mary Immaculate (“Oblates”) shortly after his release from prison.
72 These events occurred in the context of a residential school, where children were forcibly removed and segregated from their families to facilitate the obliteration of their Aboriginal identity. Few environments could be more conducive to enhancing the vulnerability of children. See, e.g., Report of the Royal Commission on Aboriginal Peoples, vol. 1, Looking Forward, Looking Back (1996), ch. 10; R. Claes and D. Clifton, Needs and Expectations for Redress of Victims of Abuse at Residential Schools (1998); Law Commission of Canada, Restoring Dignity: Responding to Child Abuse in Canadian Institutions (2000).
73 These are the pertinent realities which introduce the analysis in this case.
74 The Bazley vicarious liability test is focused on the creation and enhancement of enterprise risk. The term used by Cohen J., “operational characteristics”, is simply another way of saying “enterprise”. It seems to me that a proper application of this Court’s vicarious liability jurisprudence, far from precluding an examination of an enterprise’s operational characteristics, invites exactly this kind of scrutiny. The relevance of the five factors in Bazley lies in the realities of the operational workings of the enterprise under review.
A. The Bazley Factors
75 The first factor in Bazley is “the opportunity that the enterprise afforded the employee to abuse his or her power”. Cohen J. thoroughly discussed the question of opportunity and made a number of key factual findings. His first was about the high level of access Mr. Saxey was given to the children, observing:
Saxey lived in the upper floor of a building situated on that portion of the grounds of Christie to which the junior and senior boys were given free access. Directly outside his window were the swings where children played. He had unrestricted access to everywhere where children might be found playing. [para. 108]
Cohen J. also noted that, in the words of one student, Mr. Saxey “lived in amongst us” (para. 109).
76 He also found that the school authorities permitted the students to form casual relationships with the lay staff. Not only did the children and the lay staff refer to each other by their first names, lay staff members were permitted to play with the children, including activities that involved physical contact.
77 Finally, Cohen J. found that the children were not always carefully supervised and were allowed to roam around school property, both outdoors and indoors, until bedtime. During much of this free time, no child care workers were present.
78 Although mere opportunity is insufficient to support a finding of vicarious liability, the link between the opportunity and the tort committed in this case is particularly strong. Mr. Saxey was given quarters in the middle of the school’s property, was permitted to form relationships with vulnerable children, and could not have been unaware of the lax supervision prevalent at Christie.
79 The second Bazley factor is “the extent to which the wrongful act . . . further[s] the employer’s aims”. As McLachlin J. explained in Jacobi, sexual molestation will never be any organization’s aim:
A second factor, whether these acts could be said to further the employer’s aims, militates against finding liability. Clearly the Club was not in the business of molesting children. But this observation is almost tautological. This suggests that whether the wrongful act furthers the employer’s aims is more relevant when it points the other way, i.e., because we assume that intentional torts do not further employers’ ends, it is only remarkable when the intentional torts do, in fact, further those ends, making imposition of vicarious liability in those instances almost always appropriate. In the instant appeal, however, this factor is of little significance. [Emphasis in original; para. 15.]
The absence of evidence supporting this factor, therefore, has no bearing on this case.
80 The third Bazley factor is “the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s enterprise”. In Bazley, McLachlin J. expressly recognized that in sexual assault cases,
[t]he more the employer encourages the employee to stand in a position of respect and suggests that the child should emulate and obey the employee, the more the risk may be enhanced. [para. 44]
81 I agree with the trial judge that the power structure inherent in the employer’s enterprise greatly increased the level of friction and confrontation, helping to create the conditions that led to the sexual assault of E.B. He found that the discipline at Christie was strict and harsh, and that order was maintained largely through fear and the threat of punishment. The students’ daily life included physical and emotional violence, deprivation, belittling, and intimidation. Quoting a student, the trial judge observed:
[F]ear played a large role in maintaining order and discipline within Christie during the time of the plaintiff’s attendance. [para. 81]
82 He found further that the students were repeatedly told that they had to obey all staff members, including lay staff like Mr. Saxey. One student testified that the children were “slapped around” if they didn’t listen to the staff, and E.B. testified that the religious staff would “threaten to shove a bar of soap in your mouth and wash out your mouth” if a child dared to speak out against a lay staff member. The trial judge found it particularly noteworthy that it was not only the children, but also two of the religious staff members, Brother Thomas Richard Cavanaugh and Sister Concepcion Anita Tavera, who confirmed that children were ordered to obey all staff members.
83 Finally, although it is unclear whether the lay staff had the same power to administer corporal punishment to the children as the religious staff, the trial judge accepted the expert testimony of Dr. Paul Janke in this regard. Dr. Janke was of the view that this was “[o]nly slightly” relevant because he “would expect a child in that setting to generalize that fear to all the adults that were dealing with him”. The trial judge was entitled to accept this evidence of what a child in these circumstances would perceive. As McLachlin J. explained in Jacobi:
[I]t is certainly appropriate to consider what a reasonable child would think of the employee’s position in assessing whether the employer should be held vicariously liable for the employee’s tort. [para. 18]
84 The fourth Bazley factor is “the extent of power conferred on the employee”. It is under the rubric of this factor that the actual job duties and responsibilities of the employee are best assessed. Job duties are undoubtedly also connected to other Bazley factors, such as the “opportunity that the enterprise afforded the employee to abuse his or her power”. However, in my view, Mr. Saxey’s job duties and responsibilities, and the way in which those duties and responsibilities were allocated, are most relevant to the question of how much power the Oblates gave him.
85 The trial judge found that Mr. Saxey’s employment duties, powers and responsibilities were not clearly delineated. He was variably described as a baker, a boat operator, a maintenance person, a freight worker, a garbage person, or some combination of these. The ambiguity surrounding Mr. Saxey’s job duties was exacerbated by the fact that work assignments were entirely verbal.
86 Moreover, it was the evidence of the religious staff members that Christie was the kind of place where everyone was expected to contribute to all tasks. As a number of them said, Christie was not the kind of place where staff members refused to help out because a particular task was not in their job description. Consequently, all employees were expected to help out with the supervision of the children.
87 Significant too is the trial judge’s finding that Mr. Saxey’s job as baker required him to directly supervise children during their kitchen and bakery-related chores. Within this domain, Mr. Saxey was completely in charge and had powers second only to the principal. Not only did this include supervising children, it also included assigning them “on the spot” chores while supervising their assigned chores at the bakery. The trial judge was well aware that E.B. never worked directly with Mr. Saxey in the bakery, but because he made a factual finding that E.B. knew about Mr. Saxey’s supervisory role there, he concluded that E.B. viewed Mr. Saxey as a person of power and authority.
88 The Court of Appeal concluded that there was an insufficient nexus between the employment duties of Mr. Saxey and the tort of sexual assault, and designated Mr. Saxey as a “modest labour[er]” (para. 56). This is in stark contradiction to the trial judge’s factual findings that strongly support the existence of a strong connection and his findings that Mr. Saxey had responsibility for helping the religious staff with all school-related tasks, including child care and supervision, and a role that included supervising children on a daily basis and assigning chores to them. A July 1960 letter written by Principal Allan Noonan describes Mr. Saxey as the “main cog around here right now”. The failure to strictly delineate his official duties served to increase his authority. The breadth and amorphous nature of the employment duties given to him, and the way in which those duties were allocated by the school’s administration, gave him both actual and perceived power over the students.
89 The final Bazley factor is “the vulnerability of potential victims to wrongful exercise of the employee’s power”. Cohen J. found, in discussing Christie’s “operational characteristics”, that, consistent with all of the official inquiries into and research on Indian residential schools, the children at Christie were profoundly vulnerable.
90 He focused on their isolation. The children at Christie were separated from their parents for long periods of time, year after year; sisters and brothers were separated; and older siblings were separated from younger ones. The trial judge recognized that although E.B. had a number of adult relatives living at Christie, including grandparents, he was prevented from maintaining a close relationship with them. There was, as a result, no meaningful mitigation of his sense of isolation. This familial isolation was aggravated by geography. Christie, accessible only by boat and only in good weather, had no docking facilities.
91 The vulnerability created by this geographic and personal isolation was compounded by the harsh disciplinary regime consisting of routine corporal punishment, threats of such punishment and repeated orders to obey all staff members. The result, as found by the trial judge, was children who were young, afraid, isolated, intimidated and conditioned to obey adults, especially school staff members. It is difficult to imagine a more vulnerable group of potential victims.
B. The Court of Appeal’s Assessment
92 It is against this background that I return to the Court of Appeal’s analysis. The Court of Appeal made a number of factual assertions which are, with respect, unsupported by the record and in unexplained contradiction to the findings made by the trial judge. There was no suggestion that the trial judge misapprehended the evidence or committed any palpable or overriding error. Nor did it purport to overturn his findings. Rather, the Court of Appeal took a different view of the evidence, appropriating the trial judge’s function by substituting its own findings of fact. It was of course open to the Court of Appeal to find, on reviewing the record, that the trial judge’s findings were unsupported by the evidence. By ignoring instead many of his key factual findings and substituting its own version of the evidence, the Court of Appeal was replacing, rather than reviewing, his reasons.
93 The Court of Appeal’s independent finding, for example, that the inspections at the school revealed an enthusiastic body of students and staff, is reflective of its reinterpretation of the evidence heard at trial:
It appears from the evidence that, although the buildings were getting on in age and the growing enrolment strained the school facilities, it was perceived by those conducting inspections at the school that there was enthusiasm on the part of the teaching staff and the students. [para. 7]
The trial judge, in his extensive reasons of 335 paragraphs after 15 days of trial, never discussed the inspection reports in his judgment and made no findings about their reliability. What he clearly did find, however, was that E.B.’s testimony about his abuse was “reliable” (para. 31), and that the testimony of religious staff members at Christie was “self‑serving” and “not [to] be accorded substantial weight” (para. 41). His findings are consistent with the Royal Commission on Aboriginal Peoples’ conclusion that inspection reports are rarely reliable, often resulting from duplicity on the part of school officials. The trial judge’s conclusions are, at the very least, implicit rejections of the suggestions in the inspection reports that the environment at Christie was a halcyon one.
94 The Court of Appeal also observed that a school principal at Christie testified that children were not permitted to work in areas like the kitchen or bakery. The trial judge, however, extensively discussed the contradictions in the oral and documentary evidence on this issue and concluded that it supported the position that children did in fact work in the kitchen and/or bakery and that Mr. Saxey supervised them there. The Court of Appeal simply disregarded this factual finding and substituted its own.
95 The Court of Appeal also found that another adult staff member, Barney Williams, sometimes shared Mr. Saxey’s upstairs quarters. At trial, this was relevant to the question of whether the sexual assaults had been proven. The Court of Appeal’s finding contradicts that of the trial judge that there was insufficient evidence to support Mr. Williams’ residence there. As the trial judge explained:
[T]he defendant Williams’ testimony about Mr. Barney Williams sharing Saxey’s living quarters was by way of an affirmative answer to a leading question in cross‑examination, and . . . there was no other evidence on this point from any source, nor an indication of where the factual or evidentiary foundation for the leading question came from. [para. 46]
He explained further that he drew an adverse inference from defence counsel’s failure to question any other witnesses about whether Mr. Williams actually lived upstairs with Mr. Saxey.
96 The Court of Appeal’s conclusions, moreover, that Mr. Saxey “was assigned no supervisory or child-care duties respecting pupils at the school”, that “[n]one of his employment duties had the remotest connection to dealing with the pupils at the school in any supervisory or parental fashion”, and that “[n]o authority had been conferred on Saxey to direct, care for or discipline the pupils” (para. 54) are in direct contradiction to Cohen J.’s findings that children who worked in the kitchen were instructed by the kitchen staff, that lay staff supervised the children’s chores, that Mr. Saxey gave rides to the children on the tractor and that children were involved in the daily task of bread baking, supervised by Mr. Saxey. The trial judge also found that
as the staff member responsible for bread baking, Saxey would certainly have had implicit, and probably had explicit authority over the children performing kitchen and bakery‑related chores . . . . [para. 103]
97 Arguably the most problematic of the Court of Appeal’s new factual finding was its statement that
[t]hose witnesses who could recall E.B. testified that he was perceived as a happy and satisfactory student with no particular problems. [para. 13]
98 There is no reference in the Court of Appeal’s reasons to the trial judge’s explicitly contrary credibility findings in connection with this issue. E.B.’s evidence, which the trial judge accepted, was that he was very unhappy at Christie. Four religious staff members had testified that E.B. was happy and well-adjusted. Not only did the trial judge find these witnesses to be unreliable and not credible, but only one of them was even at Christie during the period when the sexual assaults occurred. The exception, Sister Mary Laura, arrived at Christie in 1960, four years after E.B. arrived there.
99 In addition to substituting its own and sometimes contrary findings of fact without explaining why those of the trial judge should be disregarded, the Court of Appeal appears to have mischaracterized the trial judge’s reasons in at least one significant way, namely its observation that vicarious liability was imposed by the trial judge because adults at the school were to be treated with respect:
The trial judge in the case at bar appeared to take the view that because the children at the residential school were advised to treat adults at the school with respect, that this somehow conferred an ability on Saxey to exert authority over [E.B.] and increased the risk that [he] would be sexually assaulted by Saxey. [para. 52]
This unfairly oversimplifies the trial judge’s reasons. The trial judge made many factual findings supportive of his conclusion that vicarious liability should be imposed, of which only one was his finding that children were required to treat adults with respect. By condensing the trial judge’s lengthy and thorough analysis into a single sentence, the Court of Appeal was insufficiently attentive to the complexity of his analysis.
100 The articulation and application of the legal test is also somewhat problematic. In Jacobi, both the majority (at para. 64) and the dissent (at para. 26) held that the creation of a parent‑like relationship is not a precondition to imposing vicarious liability. In contradiction to this conclusion, as Binnie J. points out, the Court of Appeal appears to have overemphasized the existence or lack thereof of a parent-type relationship. The Court of Appeal stated:
[I]t appears to me that the more closely an employment situation mimics a parental type relationship, the more likely it is that liability will be imposed on a vicarious basis. . . . There is often in such cases a measurable risk created by the position and employment duties assigned by the defendant employer to the tortfeasor employee. [para. 51]
101 I also have difficulty with the Court of Appeal’s proposition that its conclusion is driven in part by established precedent:
[T]he earlier precedents of the decided cases should be found to unambiguously point in the direction of not supporting a finding of vicarious liability against the [Oblates] for the wrongful conduct of Saxey. [para. 55]
102 I agree with Binnie J. that there is no clear governing precedent. Only four previous cases have addressed the issue of vicarious liability for sexual assaults committed in the residential school context. Two involved dorm supervisors: M. (F.S.) v. Clarke, [1999] 11 W.W.R. 301 (B.C.S.C.), and B. (W.R.) v. Plint (1998), 52 B.C.L.R. (3d) 18 (S.C.). Two others involved the same school administrator who had parent‑like authority and the power to discipline children: D.W. v. Canada (Attorney General) (1999), 187 Sask. R. 21, 1999 SKQB 187; and V.P. v. Canada (Attorney General) (1999), 186 Sask. R. 161, 1999 SKQB 180. The courts in all four cases imposed vicarious liability.
103 These cases are distinguishable because they all involve employees whose job responsibilities, unlike Mr. Saxey’s, explicitly centred on supervising, disciplining and caring for the students. In other cases relied on by the Court of Appeal, like G. (E.D.) v. Hammer (1998), 53 B.C.L.R. (3d) 89 (S.C.), the sexual assaults did not take place in the residential facility context. This is relevant because of the unique and extreme vulnerability residential schools created. G. (E.D.) involved a sexual assault perpetrated by a janitor at a public school. A public school is not the functional equivalent of a residential school like Christie.
104 I have the most difficulty with the Court of Appeal’s conclusion essentially ignoring the trial judge’s textured legal and factual Bazley analysis and suggesting that his conclusion was based merely on opportunity:
If Saxey, in his modest labouring position at Christie school, could be held to be an individual whose assaultive conduct should result in the imposition of vicarious liability on the [Oblates] for such actions, then it is difficult to envisage any residential school situation involving intentional wrongdoing by an employee where such liability would not be imposed. [para. 56]
105 There is no doubt that if the trial judge had imposed vicarious liability on the basis of “mere opportunity”, without due regard for employment duties, vicarious liability would be improperly transformed into strict liability. The Court of Appeal was rightly alive to this concern. However, the trial judge did not rely on “mere opportunity”. His decision was based on his assessment of this particular employee’s duties in this particular setting. Christie was found to operate in a way that increased the risk of sexual assault, and Mr. Saxey was found to have been given job duties and responsibilities that, because of their substance and the way they were allocated, exploited this risk.
106 Because the trial judge’s decision was anchored in the specifics of Mr. Saxey’s situation, the torts of other employees at Christie will not necessarily lead to vicarious liability on the part of the Oblates. As for this case’s application to other residential schools, if those schools are found to have different operational characteristics, or if an employee’s duties are found to be less integral to the facility or to the management of children, vicarious liability will not be imposed.
C. The Standard of Review
107 As Binnie J. points out, the standard of review for questions of mixed fact and law, defined as those that involve the application of a legal standard to a set of facts, is usually the deferential palpable and overriding error standard: Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33, at paras. 26-28. However, the Housen majority also noted that an error about a question of mixed fact and law can, when the legal principle is easily extricable, be subject to the less deferential standard of correctness. The Court explained that, generally, however,
where the issue on appeal involves the trial judge’s interpretation of the evidence as a whole, it should not be overturned absent palpable and overriding error. [para. 36]
108 Binnie J. concludes that Cohen J. failed to properly apply the Bazley test and thus committed an extricable error of principle that amounts to an error of law. With respect, I see no such error. As this Court made clear in Bazley, the test for vicarious liability is not a mechanical one, and the list of factors enumerated is not exhaustive. The trial judge’s reasons fit squarely into the blueprint created by this Court’s established vicarious liability jurisprudence. He not only correctly stated the legal test, but made the necessary factual findings to support his decision to impose liability.
109 In any event, I have difficulty seeing how any such error, even if it does exist, can so easily be extricated from the factual conclusions the trial judge reached. The application of this test is necessarily a complex undertaking. It involves weighing multiple interrelated, and sometimes contradictory, factors. The trial judge’s consideration of the relevant factors was necessarily a highly integrated one and, consequently, not easily amenable to extricating law from fact.
110 To gain a thorough understanding of the dynamics at work at Christie and to determine whether the Oblates materially enhanced the risk of sexual assault, the nature and operation of the enterprise had to be assessed. The trial judge did not ignore Mr. Saxey’s employment duties; he reviewed them in the context of the work environment created by the Oblates. This review led him to conclude that there was a strong connection between the job duties and job-related powers given to Mr. Saxey and the tort committed.
111 I see no basis for disturbing his unchallenged findings of fact or the legal conclusion he drew from them that vicarious liability should be imposed. However, even applying the higher threshold, I see no basis for interfering with the trial judge’s legal conclusion.
112 In light of the foregoing, I would allow the appeal with costs throughout.
Appeal dismissed, Abella J. dissenting.
Solicitors for the appellant: Miller Thomson, Vancouver.
Solicitors for the respondent: Dohm, Jaffer & Jeraj, Vancouver.
Solicitor for the intervener the Attorney General of Canada: Attorney General of Canada, Vancouver.
Solicitor for the intervener the Attorney General of British Columbia: Attorney General of British Columbia, Vancouver.