The perpetrator of sexual abuse may not be the only party liable for the harms caused to a victim of abuse. In other blogs, we have considered the issue of vicarious liability as it relates to other entities including school boards and clergy. Today, we will look at the issue of “bystander” liability for sexual abuse.
A “bystander” is an individual whom it is alleged knew or ought to have known about sexual abuse at the time it occurred, but failed to intervene to stop the abuse or otherwise to protect the victim. Alleged bystanders are frequently parents or other close relatives.In other words, bystanders are grownups who were supposed to protect children (or other vulnerable individuals) in their care but failed to do so.
Claims against bystanders are usually framed in terms of negligence or breach of fiduciary duty. These are causes of action that require there to be an existing relationship in which the bystander is obligated to consider, and in some cases protect, the interests of the victim.
In Antrobus v. Antrobus, 2015 BCCA 288, the British Columbia Court of Appeal considered the case of a woman named Linda. Linda sued her parents, and her aunt and uncle, claiming each of these adults failed to protect her from sexual abuse at the hands of her grandfather.
The abuse at issue in this case is alleged to have taken place in 1960. Linda's grandfather, the perpetrator of the abuse, died in 1976. The trial took place in 2014, nearly 40 years after his death and 64 years after the abuse occurred.
The case turned on whether or not Linda's parents, aunt, and uncle knew the grandfather was a pedophile and failed to take reasonable care to protect Linda from danger. The trial judge dismissed the claim against the aunt and uncle, but held that the parents knew the grandfather was a pedophile and found them liable in negligence and for a breach of fiduciary duty.
The parents appealed, arguing the trial judge applied the wrong standard of care for bystander parents who had not committed the actual abuse. The parents also argued the judge erred in holding them liable for a breach of fiduciary duty in the absence of a finding that they put their own interests ahead of those of their daughter. Finally, the parents appealed the factual finding that they knew the grandfather was a pedophile.
The trial judge found the abuse suffered by Linda was far more serious than what her parents testified she described to them, and this finding was not challenged on appeal. However, while the content of Linda's disclosure was disputed, it was agreed by all parties that as a result of Linda's disclosure of abuse, her parents did not permit the grandfather to see Linda again.
The British Columbia Court of Appeal held there were a number of palpable and overriding errors in the trial judge's findings of fact, and concluded the parents did not know the grandfather was a pedophile.
A negligence claim turns on the foreseeability of harm. In determining the foreseeability of harm, the court observed the proper question to ask is whether a reasonable person, having the background and capacity for understanding the particular defendant, would have appreciated the risk. In this case, given the parents were not aware the grandfather was a pedophile, it was not foreseeable that he would abuse Linda. If a bystander parent does not have actual knowledge of wrongdoing, he or she may only be held liable in negligence if the parent is willfully blind as to the existence of wrongdoing. There was no evidence of willful blindness in this case.
The Court of Appeal also observed that in considering whether harm is foreseeable, a defendant must be judged by the standards of the time in which the events took place. In this case, it concluded that even if a different answer might be arrived at based on today's standards, it was reasonable in the year 1960 for parents to allow a child to spend unsupervised time with a long-lost grandparent. The court concluded that given the state of the parents' knowledge, it could not be said they were negligent in allowing their daughter to visit with her grandfather.
The Court of Appeal also dismissed the breach of fiduciary duty claim, on the basis that the parents did not put their own interests ahead of those of their daughter. The primary basis for parental breach of fiduciary duty is a breach of trust, and a violation of the duty to be loyal to the child. In K.L.B. v. British Columbia, 2003 SCC 51, the Supreme Court of Canada gave the example of a parent who, “wanting to avoid trouble for herself and her household, turns a blind eye to the abuse of a child by her spouse.” In this case, there was no evidence the parents put their own interests ahead of those of their daughter. To the contrary, the fact that the parents immediately stopped all contact with the grandfather after Linda disclosed abuse was considered evidence of their obvious concern for Linda's wellbeing.
This case highlights the many difficulties inherent in litigation for historical sexual abuse. However, it also highlights positive developments in this area of law, including the fact that standards for parents and guardians have evolved over time as society has developed a better understanding of the impact of sexual abuse and the risks relating to when abuse may occur. It is likely that these developments will assist victims of more recent sexual abuse in recovering compensation from bystanders who, in the face of actual knowledge of a problem or potential problem, or turning a blind eye to such a problem, fail to discharge their obligations to protect young and vulnerable individuals to whom they owed duties from harm.
Elizabeth Grace and Anna Matas are civil sexual abuse lawyers in Toronto. Elizabeth Grace has specialized in sexual assault matters for nearly two decades.