In the past year in Ontario, there have been two reported trial decisions dealing with sexual abuse of students by teachers. The results were diametrically opposed – in one, no liability against the teacher and his school board employer was found; in the other, both the teacher and his school board employer were held liable and significant damages were awarded. These different outcomes are partly attributable to a different set of facts. They also highlight the seeming reluctance of courts to conclude that school boards should be responsible for harms caused to students by the intentional sexual misconduct of their staff.
Hayward v. Cloutier, 2012 ONSC 3738
In the first case from Windsor, Ontario, the plaintiff claimed he was sexually touched in the mid-1960s by his grade 4 teacher at his local elementary school. He alleged his teacher briefly touched his genitals at the back of the classroom while other students were present but looking in another direction, and this happened on a few occasions. He also alleged an occasion of sexual touching in the nurse's office, and said he witnessed the teacher on school grounds pull down another student's pants and expose that student's genitals. The plaintiff did not disclose the abuse until 36 years later.
According to the trial judge, the plaintiff's memory of what happened was fragmented and “murky”. His descriptions of events apparently changed and contained inconsistencies. As a result, the judge concluded it was “difficult to determine what the allegations of abuse actually are” and the plaintiff's “description of the events … are highly implausible … [and] do not have a ring of truth”. At the same time, the judge found that the teacher answered questions “in an honest and straightforward manner”.
In the end, the trial judge concluded that the plaintiff had not discharged his onus of proof and, as such, found the teacher had not committed sexual assault. Further, had the plaintiff proven the abuse, the judge said he would only have awarded $25,000 in damages.
The trial judge did not stop there, but went on to consider whether the school board “would be” vicariously liable for its employee's misconduct, assuming the teacher had been found to have sexually assaulted the plaintiff. The judge referred to the governing legal test for determining if an employer is vicariously liable for employee sexual misconduct, and concluded that because the alleged abuse was said to have occurred while the teacher was simply carrying out his ordinary duties as a teacher, without taking advantage of any specialized opportunities afforded to him by virtue of his employment, no vicarious liability would have attached to the school board even if the alleged sexual misconduct had been proven.
This is a rather unsettling conclusion that leaves one uncertain about how the law of vicarious liability for sexual misconduct is being applied to school boards. Courts have been quite prepared to hold religious institutions, such as Roman Catholic dioceses and other denominations' governing bodies, vicariously liable for the sexual misconduct of their clergy, in the context of these clergy fulfilling their ordinary duties as priests, ministers or clerics. On many occasions, courts have also found the federal government and churches, which jointly ran the residential schools where First Nation children were historically placed, vicariously liable for sexual abuse committed by their staff in the course of their work with students. Should public school boards that operate non-residential day schools and that employ teachers and other staff be treated differently?
Because the judge in Hayward v. Cloutier found there was no sexual abuse, his decision with respect to vicarious liability is not a legally binding one. Nonetheless, it adds uncertainty to an important social sphere – the education of children – where we know there are youth who are vulnerable to abuse of authority by adults with job-conferred powers, and thus, where the potential for harm and injury from sexual abuse is high.
Langstaff v. Hastings and Prince Edward Board of Education, 2013 ONSC 1448
Adding to the uncertainty surrounding school board' liability is another teacher abuse case that was recently tried in Belleville, Ontario. Unlike Hayward v. Cloutier, this was a trial before both a judge and jury.
Whereas the jury decided the questions of the teacher's liability for sexual assault and his school board employer's negligence and what damages were owing, the judge decided the issue of whether the school board should be held vicariously liable for the teacher's sexual misconduct.
The plaintiff alleged extensive sexual abuse by his elementary school teacher, which occurred in the latter 1970s when the plaintiff was just 12 years old. The evidence at trial was that the school board gave the teacher a key which afforded him unlimited access to a mini-zoo he housed in his science classroom, and that it was there that the teacher assaulted the plaintiff during recess, lunch breaks, after school and on weekends. The plaintiff was there under the pretence of helping the teacher care for the animals.
In this case, where the teacher had apparently been criminally convicted for his sexual misconduct, the plaintiff was able to prove that the sexual abuse had occurred. Thus, the jury's verdict was that the teacher was liable for sexual assault. The jury also found the school board directly liable in negligence for not preventing the teacher's assaults against the plaintiff. The jury awarded the plaintiff $3.2 million for the damages he suffered as a result of the sexual abuse.
In the judge's ruling, released after the jury's verdict, the school board was also found to be indirectly or vicariously liable for its teacher's sexual misconduct against the plaintiff.
The judge in his written ruling noted that the precedents where teachers were alleged to have sexually assaulted students were factually distinguishable from the case before him and, therefore, of little assistance to him in deciding the issue of the school board's vicarious liability. Like the judge in the first case, this judge applied the test for vicarious liability developed by the Supreme Court of Canada. This test involves determining whether the connection between the employer's business or “enterprise” and the wrong committed by its employee is sufficiently strong to justify holding the employer vicariously responsible for the wrong and its harms. Known as the “enterprise risk principle”, this test also requires courts to consider whether societal goals of a fair and just remedy and deterrence of future harm will be advanced by imposing vicarious liability on an employer in a specific case.
By giving the teacher a key without conditions or notification to the school principal, when normally only principals and janitors were allowed to have keys to schools, and allowing the teacher to operate a mini-zoo in his classroom without restriction, the judge found that the school board had increased the risk of harm to students, and that the law of vicarious liability should be used in the case before him to promote deterrence and encourage vigilance on the part of school boards.
As a legal doctrine that attributes responsibility for an employee's wrongdoing to the employer, vicarious liability is effectively a no-fault, indirect form of liability that makes employers, independent of any direct fault or liability on their parts (such as negligence in the Langstaff case), jointly responsible with their employee for paying the damages flowing from their employee's wrongdoing.
Langstaff is one of only a very few reported Canadian decisions in which a day school (as opposed to a residential school at which students sleep over, where there is much precedent for vicarious liability) has been held indirectly or vicariously responsible for the harms flowing from the sexual misconduct of a staff member against a student. It is also a decision that we can expect to be appealed given the importance of the legal issues at stake and the size of the damages award made by the jury which, by Canadian standards, marks a high for compensation in an historical childhood sexual abuse case.
Elizabeth Grace is a partner at the Ontario law firm, Lerners LLP, and has specialized in sexual assault matters for almost two decades now.