Bazley v. Curry
Encyclopedia
Bazley v Curry [1999] 2 SCR 534 is a Supreme Court of Canada
decision on the topic of vicarious liability
where the Court held that a non-profit organization
may be held vicariously liable in tort law for sexual misconduct by one of its employees. The decision has widely influenced jurisprudence on vicarious liability outside of Canada.
The main issue in this appeal was whether or not the Children's Foundation should be held vicariously liable for the actions of its employee. There were two questions before the court: May employers be held vicariously liable for sexual assaults on clients or persons within their care?; If so, should non-profit organizations be exempted from liability as a matter of policy?
(as she then was) points out that vicarious liability is a form of strict liability
, or no-fault liability. The court was very openly concerned with policy in this decision as vicarious liability can be used by litigants to "sue into deeper pockets" even though they may be suing an employer who is not at fault. McLachlin surveyed a number of possible policy reasons for the imposition of vicarious liability, and adopted two of J. G. Fleming's policy rationales: (1) providing a just and practical remedy, and (2) deterring future harm.
Test for vicarious liability
In determining if an employer can be found vicariously liable, the courts will often use the Salmond test, which will find an employer liable for the actions of an employee which are (1) acts authorized by the employer or (2) acts which are not authorized by the employer, but are so connected to authorized acts that they may be considered "modes" of acts authorized by the employer.
The Supreme Court here seems to express frustration at this test. It is possible to view Curry's actions either completely independently, or as a mode of performing an authorized act. The Salmond test does not give clear criterion for how differentiate these two. As such, the court clarified the test, saying that the court should consider (1) policy reasons in determining that vicarious liability should or should not apply (2) whether the wrongful act is sufficiently related to the employment to justify imposing vicarious liability. The court went on to explain that vicarious liability is generally appropriate where there is a significant connection between the creation or enhancement of risk and the wrong that flows from the risk. It will not be enough that the wrong took place on company property or through incidental connections.
In this case, because Curry was left alone for long periods of time unsupervised with his victims, was expected to bathe them and was placed by the foundation in a position of power over them, it can be said that there was a strong connection between what the employer was asking the employee to do and the wrongful act committed. The foundation significantly increased the risk of harm, and as such, should be found vicariously liable for Mr.Curry's actions.
Exception for non-profits?
The Foundation made three arguments that as a non-profit it should not be found vicariously liable. They argued that this will have a chilling effect
, that this decision will put many non-profit organizations out of business such that they will not be able to carry on their good work. McLachlin dismisses this argument as "crass and unsubstantiated utilitarianism" and points out that in this case the Children's Foundation is provincially funded, and that it given the choice for who is to bear the loss; the victim or the foundation which allowed the risk to materialize, even though the foundation is faultless they still are in a better place to bear the loss.
The appeal was dismissed and the matter was sent back to trial to determine costs.
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
decision on the topic of vicarious liability
Vicarious liability
Vicarious liability is a form of strict, secondary liability that arises under the common law doctrine of agency – respondeat superior – the responsibility of the superior for the acts of their subordinate, or, in a broader sense, the responsibility of any third party that had the "right, ability...
where the Court held that a non-profit organization
Non-profit organization
Nonprofit organization is neither a legal nor technical definition but generally refers to an organization that uses surplus revenues to achieve its goals, rather than distributing them as profit or dividends...
may be held vicariously liable in tort law for sexual misconduct by one of its employees. The decision has widely influenced jurisprudence on vicarious liability outside of Canada.
Facts
The Children's Foundation is a provincially funded, non-profit organization which operated two residential care facilities for children aged six to twelve. In April 1966, the foundation employed Leslie Charles Curry to work in its Vancouver home, where he was hired as a childcare councilor practicing "total intervention" in the lives of the children he was caring for. He worked there until March 1980, when the Foundation received a complaint. They investigated and discovered that Curry was in fact a pedophile and had been abusing the children under his care. In 1990 he was charged with 18 counts of gross indecency and two counts of buggery, and was convicted on all but one count, two of those convictions were in relation to the respondent in this case, Patrick Allen Bazley. Curry died not long thereafter. In this case, Bazley sought damages from The Children's Foundation, alleging that they are vicariously liable for the misconduct of its employee.The main issue in this appeal was whether or not the Children's Foundation should be held vicariously liable for the actions of its employee. There were two questions before the court: May employers be held vicariously liable for sexual assaults on clients or persons within their care?; If so, should non-profit organizations be exempted from liability as a matter of policy?
Judgment
The Supreme Court was cautious to allow vicarious liability to be attached to a non-profit organization. Justice McLachlinBeverley McLachlin
Beverley McLachlin, PC is the Chief Justice of Canada, the first woman to hold this position. She also serves as a Deputy of the Governor General of Canada.-Early life:...
(as she then was) points out that vicarious liability is a form of strict liability
Strict liability
In law, strict liability is a standard for liability which may exist in either a criminal or civil context. A rule specifying strict liability makes a person legally responsible for the damage and loss caused by his or her acts and omissions regardless of culpability...
, or no-fault liability. The court was very openly concerned with policy in this decision as vicarious liability can be used by litigants to "sue into deeper pockets" even though they may be suing an employer who is not at fault. McLachlin surveyed a number of possible policy reasons for the imposition of vicarious liability, and adopted two of J. G. Fleming's policy rationales: (1) providing a just and practical remedy, and (2) deterring future harm.
Test for vicarious liability
In determining if an employer can be found vicariously liable, the courts will often use the Salmond test, which will find an employer liable for the actions of an employee which are (1) acts authorized by the employer or (2) acts which are not authorized by the employer, but are so connected to authorized acts that they may be considered "modes" of acts authorized by the employer.
The Supreme Court here seems to express frustration at this test. It is possible to view Curry's actions either completely independently, or as a mode of performing an authorized act. The Salmond test does not give clear criterion for how differentiate these two. As such, the court clarified the test, saying that the court should consider (1) policy reasons in determining that vicarious liability should or should not apply (2) whether the wrongful act is sufficiently related to the employment to justify imposing vicarious liability. The court went on to explain that vicarious liability is generally appropriate where there is a significant connection between the creation or enhancement of risk and the wrong that flows from the risk. It will not be enough that the wrong took place on company property or through incidental connections.
In this case, because Curry was left alone for long periods of time unsupervised with his victims, was expected to bathe them and was placed by the foundation in a position of power over them, it can be said that there was a strong connection between what the employer was asking the employee to do and the wrongful act committed. The foundation significantly increased the risk of harm, and as such, should be found vicariously liable for Mr.Curry's actions.
Exception for non-profits?
The Foundation made three arguments that as a non-profit it should not be found vicariously liable. They argued that this will have a chilling effect
Chilling effect
In a legal context, a chilling effect is the term used to describe the inhibition or discouragement of the legitimate exercise of a constitutional right by the threat of legal sanction. The right that is most often described as being supressed by a chilling effect is the right to free speech...
, that this decision will put many non-profit organizations out of business such that they will not be able to carry on their good work. McLachlin dismisses this argument as "crass and unsubstantiated utilitarianism" and points out that in this case the Children's Foundation is provincially funded, and that it given the choice for who is to bear the loss; the victim or the foundation which allowed the risk to materialize, even though the foundation is faultless they still are in a better place to bear the loss.
The appeal was dismissed and the matter was sent back to trial to determine costs.
See also
- List of Supreme Court of Canada cases (Lamer Court)
- Armory v Delamirie (1722) 1 Strange 505
- Jacobi v. Griffiths (1999) 2 SCR 570
- Lister v Hesley Hall Ltd [2001] UKHL 22
External links
- Full text of BC Court of AppealBritish Columbia Court of AppealThe British Columbia Court of Appeal is the highest appellate court in the province of British Columbia, Canada. The BCCA hears appeals from the Supreme Court of British Columbia and a number of boards and tribunals. The BCCA also hears criminal appeals from the Provincial Court of British...
decision at CanLII. - List of Supreme Court of Canada cases (Lamer Court)