Extending the Reach of Responsibility: Vicarious Liability in Institutional Abuse Cases

Introduction

The doctrine of vicarious liability can be used to hold one party responsible in law for the wrongful acts of another. Vicarious liability, while not a distinct tort, is a legal theory that can be used in civil sexual assault and battery litigation. Proof of wrongdoing by the party accused of being vicariously liable is not required; rather, vicarious liability arises in situations where “the risks in [a party’s] enterprise materialize and cause harm, provided that liability is fair and useful”: KLB v. British Columbia, 2003 SCC 51 at para 18. It does not require tortious conduct and. It can open the door for a survivor to seek redress from institutions and organizations that placed them in the care of or under the authority of their abuser or created or maintained cultures that perpetuated abuse. In extending the reach of responsibility, vicarious liability may open the door to insurance coverage in situations where a survivor may otherwise be unable to recover damages.

Vicarious liability is commonly applied in employment relationships where an employer, often an institution or organization is vicariously liable for the wrongful acts of their employee.  Relationship dynamics are evolving, and, in tandem, so is the application of vicarious liability. There is room for growth in the law’s acknowledgment of influence wielded through power, control, and authority, and the impact of abuse.

Case Law on Vicarious Liability in British Columbia

The leading Canadian case authorities that set out the test for vicarious liability are Jacobi v. Griffiths, [1999] 2 S.C.R. 570, E.B. v. Order of the Oblates of Mary Immaculate in the Province of British Columbia, 2005 SCC 60, and Bazley v. Curry, [1999] 2 SCR 534.

In Bazley, a non-profit organization operating a residential care facility for children was found to be vicariously liable for sexual abuse committed by an employee. The policy rationale for permitting vicarious liability included providing a just and practical remedy and deterring future harm (para 29). On the other hand, the Court cautioned that litigants should not rely on this decision simply to reach into deeper pockets where an employer may not be at fault.

The Court in Bazley affirmed the two-part testfrom Salmond and Heuston on the Law of Torts (19^th ed. 1987), at pp. 521-22 (the “Salmond test”), in which employers can be vicariously liable for the acts of their employees when:

1. The acts are authorized by the employer; or
2. The acts are not authorized by the employer, but they are so connected to the authorized work that they can be considered improper modes of carrying out that work.

The Court articulated a two-step approach to the second branch of the Salmondtest at paragraph 15:

1. Are there previous cases that unambiguously establish a basis for vicarious liability in these circumstances? If yes, then vicarious liability will be imposed. If no, then proceed to step 2.
2. Are there policy rationales for imposing strict liability? For example, survivors are more likely to secure compensation from institutions with resources and insurance (fairness and effectiveness), and deterrence incentivizes organizations to adopt safeguards against abuse (deterrence).

The location of the abuse alone is not enough; the central question is whether there is 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 (the “strong connection test” at paragraph 42). There, the employer introduced the risk of harm because they left the abuser alone unsupervised with the children, required him to bathe them, and put him in a position of power over the children. The employer had the greatest opportunity to place controls on that risk and failed to do so.

Vicarious liability for abuse is not limited to employer-employee relationships and can also be found in contexts like schools, sports organizations, religious institutions, and youth-serving agencies.  

In KLB, the province was found not to be vicariously liable for sexual abuse perpetrated by foster parents. In KLB, the court expanded on the Salmond test and articulated an analysis that can be applied in more more general contexts outside of an employment relationship. At paragraph 19, the Court found that a plaintiff must prove at least two things to establish vicarious liability:

1. Was the relationship between the tortfeasor and the person against whom liability is sought sufficiently close as to make a claim for vicarious liability appropriate; and
2. Was the tort sufficiently connected to the tortfeasor’s assigned tasks that the tort can be regarded as the materialization of the risks created by the enterprise.

In practice, key considerations include the nature of the relationship between the perpetrator and the institution, the perpetrator’s scope of duties, whether the role conferred power, intimacy, or access, can the institution reasonably manage the risk and the vulnerability of potential victims to the wrongful exercise of power.

Defences often hinge on distinguishing independent contractors from employees or arguing the acts were unrelated to the assigned duties.

In Jacobi, a brother and sister alleged vicarious liability against the Boys’ and Girls’ Club of Vernon for sexual abuse perpetrated by the program director. The Court was divided in its decision in finding that the club was not vicariously liable because, although the director gained the children’s trust through his position of employment, most of the abuse occurred off-site and after working hours. The Court expressed concern about imposing vicarious liability on a non-profit organization for what it determined was an unforeseeable action by an employee, citing the serious consequences such an imposition could have for other community-based organizations. The dissenting opinion focused on the power conferred by the club on the director to build trust and their encouragement of intimacy and mentorship which together increased the risk of abuse.

In E.B., the Oblates were not vicariously liable for sexual abuse committed by a lay employee who worked as a baker and handyman at a residential school. The Court concluded that there was not a strong enough connection between the employee’s job and the wrongful acts to impose liability, despite the abuse occurring in the employee’s living quarters on school grounds. The employee did not have authority over the students and the mere opportunity to commit a tort due to being on the premises was insufficient for establishing vicarious liability. The court clarified that issues like lax supervision and a harmful environment related to direct negligence, but not to vicarious liability. The dissenting opinion from Justice Abella highlighted the school’s remote location, harsh disciplinary policies, and the children’s vulnerability. She noted that the employee’s duties were not clearly defined and that children may have understood him to be an authority figure. Justice Abella concluded that these factors increased the risk of abuse.  

In C.O. v. Williamson, 2020 ONSC 3874, a student was sexually abused by her high school music teacher and band leader, primarily when he drove her to and from band related events in his personal vehicle. The school board was found to be vicariously liable for their employee’s misconduct as it was strongly connected with his employment with the school board, which employment materially and significantly increased the risk of harm to the plaintiff. All of the abuse, whether on or off school property, was connected with his job as a teacher and band leader.

In contrast to C.O., the British Columbia Court of Appeal in H.N. v. School District No. 61 (Greater Victoria), 2025 BCCA 144 upheld a lower court ruling that a school district was not vicariously liable for the sexual abuse perpetrated by a former teacher, who was a private tutor recommended by an employee of the district. The court applied the strong connection test from the three above-noted SCC casesand found that the tutor’s abusive conduct occurred during private tutoring sessions arranged outside school hours, which were not under the school’s authority. Consequently, the school district was not vicariously liable. C.O. was distinguished in this case because there was no power conferred on the tutor or oversight of him by the school board.

H.N. should be understood in the context of its distinctive and narrow facts. C.O. has not received any negative treatment and continues to be persuasive authority for cases involving vicarious liability in the context of sexual abuse.

The case law on vicarious liability in British Columbia demonstrates that outcomes turn on the specific facts of each case, particularly the nature of the relationship between the wrongdoer and the organization, the degree of power or authority conferred, and how strongly the wrongful act is connected to the risks created by that relationship. Courts consistently apply the strong connection test in new or ambiguous factual contexts. Across contexts – from employment to foster care, schools, and community organizations – the analysis balances fairness and effectiveness for  survivors, deterrence of future harm, and the need to avoid imposing liability where the connection is too remote.

Room for Growth

Since Jacobi and Bazley, the contexts for applying vicarious liability have been expanded on, our understanding of the abuse has evolved, and our appreciation of the complexity of power dynamics has progressed. There is room for analysis and acknowledgment of these changes in future vicarious liability cases.

We wish thank our colleague, Justin Giovannetti, for his assistance with this paper.

This article was originally published on Law360^TM Canada (www.law360.ca), part of LexisNexis Canada Inc.