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Oxford University Commonwealth Law Journal Volume 4, 2004 - Issue 2
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Original Articles

Vicarious Liability and Charitable Immunity in Canadian Sexual Torts Law

Mh Ogilvie Chancellor's Professor and Professor of Law, Carleton University; Bar of Ontario.
Pages 167-196 | Published online: 27 Apr 2015

  • [1999] 2 SCR 534, (1999) 174 DLR (4th) 45.
  • [1999] 2 SCR 570, (1999) 174 DLR (4th) 71.
  • (2000) 184 DLR (4th) 445 (OCA); leave to appeal refused 16 November 2000 (2000) 191 DLR (4th) vi (SCC).
  • 2001 BCCA 527; (2001) 205 DLR (4th) 193; leave to appeal refused 23 May 2002 (2002) 211 DLR (4th) vi (SCC).
  • See eg T Carter commenting on the CBIC litigation in T Carter ‘Case Comment: Christian Brothers Decision Exposes Charitable Trust Assets to Tort Creditors' (2000) 16(1) The Philanthropist 28.
  • Of the many books about these schools, the most scholarly are JR Miller Shinwauk's Vision: A History of Native Residential Schools (University of Toronto Press Toronto 1996) and JS Milloy A National Crime: The Canadian Government and the Residential School System, 1879 to 1986 (University of Manitoba Press Winnipeg 1999). See also Royal Commission on Aboriginal Peoples Report on Aboriginal Peoples (1997) vols 1–5 <http://www.ainc-inac.gc.ca/ch/rcap/rpt/index_e.html> (20 November 2004); and for a brief survey of the issues, see J Llewellyn ‘Dealing with the Legacy of Native Residential School Abuse in Canada: Litigation, ADR, and Restorative Justice’ (2002) 52 U of Toronto LJ 253.
  • To date only one church organization has sought bankruptcy protection, the Anglican Diocese of the Caribou, whose assets are being held in a trust by the federal government although life in the diocese is proceeding as usual.
  • The Anglican Church of Canada and the Presbyterian Church in Canada.
  • The situation is still unclear in relation to the Roman Catholic Church and the United Church of Canada, both of which are in separate but intermittent negotiations with the federal government.
  • [2001] UKHL 22, [2002] 1 AC 215.
  • (1995) 9 British Columbia L Rep (3d) 217 (BCSC).
  • (1997) 146 DLR (4th) 72 (BCCA).
  • The Court of Appeal's judgments were nuanced and complex, and the basis for the decision of McLachlin J in the Supreme Court of Canada. See analyses prior to the Supreme Court's decisions by Bruce Feldthusen: B Feldthusen ‘The Canadian Experiment with the Civil Action for Sexual Battery’ in NJ Mullany (ed) Torts in the Nineties (LBC Information Services Sydney 1997) ch 10 and B Feldthusen ‘Vicarious Liability for Sexual Torts’ in NJ Mullany and AM Linden (eds) Torts Tomorrow: A Tribute to John Fleming (LBC Information Services Sydney 1998) ch 12.
  • See also the brief note by Peter Cane in P Cane ‘Vicarious Liability for Sexual Abuse’ (2000) 116 LQR 21.
  • eg Salmond on Torts (1st edn Sweet and Maxwell London 1907) 83; Salmond and Heuston on Torts (21st edn Sweet and Maxwell London 1996) 443.
  • Bazley (n 1) 543–46; f–54.
  • ibid 546; 54.
  • Apparently shadowing JG Fleming The Law of Torts (9th edn LBC Information Services Sydney 1998) 426–29, for this organization of the precedents.
  • Bazley (n 1) 546–47; 54–56.
  • ibid 548; 56.
  • For no apparent reason, the Court does not refer to any Canadian case prior to Bazley dealing with vicarious liability for the sexual abuse of children in a residential setting, including A(C) v C(JW) (1997) 35 British Columbia L Rep (3d) 234 (BCSC), reversed in part (1998) 166 DLR (4th) 475 (BCCA); K(W) v Pornbacher (1997) 32 British Columbia L Rep (3d) 360 (BCSC); B(WR) v Plint (1998) 161 DLR (4th) 538 (BCSC). cf McDonald v Mombourquette (1996) 152 Nova Scotia Rep (2d) 109 (NSCA), leave to appeal refused [1996] Supreme Court of Canada Appeal Cases 504. One possible reason may be not to draw attention to the Court's refusal of leave to appeal in Mombourquette in which a Roman Catholic diocesan bishop was found not to be vicariously liable to the victim of a pedophile priest whose activities were suspected.
  • [1998] EWCA Civ 1208, [1999] Local Government Rep 584.
  • Bazley (n 1) 549–52; 57–58.
  • ibid 550–52; 58.
  • Fleming (n 18) 409–10; Feldthusen (1998) (n 13) also follows Fleming.
  • Bazley (n 1) 554–57; 60–62.
  • ibid 556–57; 62.
  • ibid 558–60; 63–64.
  • ibid 560–61; 65.
  • ibid 560–64; 65–67.
  • ibid 564–68; 67–70.
  • ibid 567–68; 70.
  • T(G) v Griffiths [1995] British Columbia J No 2370, [1995] British Columbia Weekly L Digest 3081 (BCSC).
  • T(G) v Griffiths (1997) 31 British Columbia L Rep (3d) 1 (BCCA).
  • Jacobi (n 2) 581–88; 80–84.
  • ibid 588–91; 85–86.
  • ibid 596–97; 91.
  • ibid 597–602; 92–95 for the cases therein discussed.
  • ibid 601–6; 95–98 for the cases therein discussed. It seems most unlikely that cases involving Roman Catholic priests would be so decided today in light of the pedophile scandals involving that church in the US, Canada, Australia and Ireland. McDonald (n 21) would surely have been decided differently today. The trial decision in John Doe v O'Dell (2003) 230 DLR (4th) 383 (OSCJ) may be indicative of future trends. See also John Doe v Bennett 2004 SCC 17, [2004] SCR 436, (2004) 236 DLR (4th) 577 for the vicarious liability of a Roman Catholic diocese for an abusive priest.
  • Jacobi (n 2) 605–10; 98–101 for the cases therein discussed.
  • ibid 611–15; 102–4.
  • Criminal Code RSC 1985 c 46 s 271.
  • Jacobi (n 2) 613–17; 104–6.
  • ibid 616–24; 106–11.
  • Lister (n 10) [15]; 224 (with which Lord Hutton agreed).
  • Lloyd v Grace, Smith & Co [1912] AC 716 (HL); Williams v A & W Hemphill Ltd 1966 SC (HL) 31; Morris v CW Martin & Sons Ltd [1966] 1 QB 716 (CA); Port Swettenham Authority v TW Wu & Co (M) Sdn Bld [1979] AC 580 (PC); Rose v Plenty [1976] 1 WLR 141 (CA).
  • Lister (n 10) [20]; 226.
  • ibid.
  • ibid [20]; 227.
  • ibid [20]; 226–27.
  • Photo Production Ltd v Securicor Transport Ltd [1980] AC 827 (HL).
  • Lister (n 10) [22]–[24]; 228–29.
  • ibid [25]; 229–30.
  • ibid [27], [28]; 230.
  • ibid [35]; 232.
  • ibid [41]–[45]; 234–35.
  • ibid [48]; 237.
  • ibid [49]; 237.
  • PS Atiyah Vicarious Liability in the Law of Torts (Butterworths London 1967) 24, 171; P Cane Atiyah's Accidents, Compensation and the Law (6th edn Butterworths London 1999) 85; Fleming (n 18) 410; G Williams ‘Vicarious Liability and the Master's Indemnity’ (1957) 20 MLR 220, 231.
  • Lister (n 10) [64]–[70]; 243–45.
  • See n 47 discussed in Lister (n 10) [71]–[81]; 245–49.
  • Lister (n 10) [79]; 248.
  • ibid [82]; 250.
  • ibid [84]; 250.
  • ibid [56]–[58]; 239–41.
  • ibid [59]; 241.
  • ibid (citation omitted).
  • ibid [62]; 242–43.
  • JF Clerk and WHB Lindsell Clerk and Lindsell on Torts (18th edn Sweet and Maxwell London 2000) ch 5; Fleming (n 18) ch 19; GHL Fridman The Law of Torts in Canada (Carswell Toronto 1990). The oldest Canadian tort text devotes two pages to vicarious liability: AM Linden Canadian Tort Law (7th edn Butterworths Toronto 2001) 515–16. This brief coverage is curious given Linden's published views in favour of deep-pocket policy decisions in tort litigation.
  • G Williams ‘Vicarious Liability: Tort of the Master or of the Servant?’ (1956) 72 LQR 522.
  • HJ Laski ‘The Basis of Vicarious Liability’ (1916) 26 Yale LJ 105. See also AO Sykes ‘The Boundaries of Vicarious Liability: An Economic Analysis of the Scope of Employment Rule and Related Legal Doctrines' (1988) 101 Harvard L Rev 563. For an application of enterprise liability to not-for-profit organizations, see KE Davis ‘Vicarious Liability, Judgment Proofing, and NonProfits' (2000) 50 U of Toronto LJ 407.
  • Atiyah (n 60).
  • Fleming (n 18). See also Feldthusen (n 13) who follows Fleming.
  • See EKP Grace and SM Vella Civil Liability for Sexual Abuse and Violence in Canada (Butterworths Toronto 2000) 160–64 for cases prior to Bazley, which were mixed in result. For subsequent cases involving sexual torts in the Indian residential schools see MH Ogilvie Religious Institutions and the Law in Canada (2nd edn Irwin Law Toronto 2003) 316–22.
  • A corollary issue for religious institutions is whether ordained persons are ‘employees’ for whom the sponsoring organization may be vicariously liable. While in England the legal situation is ambiguous, in Canada the courts treat ordained persons as if they were employees so the matter is largely resolved. See MH Ogilvie ‘Christian Clergy and the Law of Employment: Office-Holders, Employees or Outlaws’ (1999) 3 J of the Church L Association of Canada 2 and Ogilvie (n 75) ch 9.
  • Laski (n 72); Fleming (n 18); Sykes (n 72); Davis (n 72); Feldthusen (n 13).
  • Bazley (n 1) 549–53; 67–70.
  • Re Christian Brothers of Ireland in Canada (1998) 37 Ontario Rep (3d) 367 (OCJ) (Re CBIC—Trial). The courts repeatedly speak of ‘special’ purpose trusts, rather than the usual usage ‘specific’ purpose trust; I have followed this usage. Rumours have occasionally surfaced of abuse in the British Columbia schools but these have not resulted in either civil or criminal claims. See ‘Sex Abuse Allegations Surface at BC School’ The Globe and Mail (Toronto Canada 3 June 2002) A4.
  • Re Christian Brothers of Ireland (n 3) 685–93; Mersey Docks and Harbour Board of Trustees v Gibbs (1866) LR 1 HL 93; Donaldson v Commissioners of the General Public Hospital in Saint John (1890) 30 New Brunswick Rep 279 (NBSC); Lavere v Smith's Falls Public Hospital (1915) 26 DLR 346 (OCA); Nyberg v Provost Municipal Hospital Board [1927] SCR 226, [1927] 1 DLR 969.
  • Kimniak v Anderson [1929] 2 DLR 904 (OCA).
  • Re Christian Brothers of Ireland(n 3) 693–94.
  • eg Liverpool and District Hospital for Diseases of the Heart v AG [1981] Ch 193 (Ch D).
  • Re Christian Brothers of Ireland (n 3) 705–9; Doherty JA (concurring) 711–12.
  • Rowland v Vancouver College Ltd 2000 BCSC 1221, [2000] 8 Western Weekly Rep 85 (Rowland—Trial Court).
  • Rowland (n 4) [46]–[60]; 214–20.
  • ibid [62]; 220–21.
  • An Act to incorporate the Christian Brothers of Ireland in Canada SC 1962–63 c 22 ss 5, 9. It should be noted that no section is retrospective in effect, as the majority seems to think, so that a transfer is still required.
  • Rowland (n 4) [63]–[64]; 221–22.
  • ibid [66]–[70]; 222–23.
  • See Re Christian Brothers of Ireland (n 3) and Rowland (n 4).
  • Conflict of Laws Rules for Trusts Acts RSBC 1996 c 65.
  • Nyberg (n 80).
  • Mersey Docks (n 80).
  • Rowland (n 4) [179]–[185]; 251–52.
  • Warbuton and Morris (n 85) 159. For the decision of the trial judge, Levine J, see also Rowland—Trial Court (n 89) 104–5, 109 and the cases cited therein.
  • Re CBIC—Trial(n 79) 400.
  • (1839) 6 C1 and Fin 894, 7 ER 934 (HL).
  • (1846) 12 C1 and Fin 507, 8 ER 1508 (HL).
  • (1861) 11 CB (NS) 192, 142 ER 769 (HL).
  • —'The Quality of Mercy: “Charitable Torts” and their Continuing Immunity' (1987) 100 Harvard L Rev 1382, 1383.
  • eg Volunteer Protection Act 42 USC 14501 (1997). Mass General Laws 1971 c 231 s 85K.
  • In the BCSC, Levine J thought the usual informal requirement for intention was enough, Rowland—Trial Court (n 89) 103–4. See also DWM Waters Law of Trusts in Canada (Carswell Toronto 1984) 107, 503.
  • In the end, only about $15.5 million was available to compensate the claims totalling about $67 million: ‘15.5M raised for victims of Mount Cashel' National Post (Toronto Canada 12 April 2003) A11. The Archdiocese was able to arrange a settlement with the liquidator with the assistance of the British Columbia government and to get the schools as part of that settlement. The precise way this happened is not publicly known.

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