Vicarious Liability Of School Boards For Sexual Assault By Teachers

"Vicarious liability" is a legal concept which can cause employers to be held accountable for the negligent and, in some cases, intentional misconduct of their employees. The possibility of a finding of vicarious liability is intended to act as a deterrent to ensure employers put systems in place to prevent wrongdoing by their employees.

In relation to sexual abuse specifically, employers have, in certain circumstances, been found vicariously liable for the actions of their employees.

A recent Ontario decision, C.O. v. Williamson and Trillium Lakelands District School Board,¹ is an example. In that case, Justice Salmers found an Ontario school board to be vicariously liable for the sexual abuse of a student at the hands of her teacher, Royce Galon Williamson. The decision is precedent setting.

In his analysis, Justice Salmers referred to the 1999 Supreme Court of Canada decision in Bazley v. Curry ("Bazley")². Bazley set out a two-step framework for determining whether an employer is vicariously liable for the sexual misconduct of an employee.

1. The first step of the Bazley test instructs the Court to consider the availability of any precedents. In this situation, differing findings of vicarious liability had been found and there were no binding precedents. Accordingly, it was necessary to move onto the second step.
2. The second step of the Bazley test is to determine whether policy rationales underlying vicarious liability indicate that it should be imposed. These policy rationales include fair compensation for victims of sexual abuse/assault and deterrence of any future harm.

In Bazley, the Court provided a non-exhaustive list of factors to consider in finding vicarious liability, as follows:

• The opportunity the organization provided the employee to abuse his or her power;
• The extent to which the wrongful act was related to friction, confrontation, or intimacy inherent in the employer's enterprise;
• The extent to which the wrongful act may have furthered the employer's aims;
• The extent of power conferred on the employee in relation to the victim; and,
• The vulnerability of potential victims to wrongful exercise of the employee's power.

In reaching a finding of vicarious liability, Justice Salmers found that Mr. Williamson's wrongdoing was strongly connected to his employment with the Board in that it "materially and significantly" increased the risk of harm to the Plaintiff. Specifically, Justice Salmers considered the factors outlined in Bazley and identified the following:

• That Mr. Williamson's "mentor/confidant/counsellor role [...] caused the plaintiff to like, trust, and feel secure".
• That the Plaintiff, like many students, was vulnerable.
• That although there was no doubt that sexual activity between teachers and students was prohibited, it was an accepted practice for teachers to drive students home or to and from school-related activities.
• That the one on one interaction between Mr. Williamson and the Plaintiff created the opportunity for abuse.

The decision in C.O. v. Williamson and Trillium Lakelands District School Board provides a precedent for a finding of vicarious liability of a school board arising out of the conduct of a teacher. In other words, it will make justice more accessible to sexual abuse survivors at the hands of teachers. It will also hopefully motivate school boards to take additional steps to prevent the sexual abuse of a child from occurring while at school.

Footnotes

1.  C.O. v. Williamson, 2020 ONSC 3874 (CanLII).

2.  1999 CanLII 692 (SCC), [1999] 2 S.C.R. 534.