April 12, 2021

Janelle O’Connor

The Supreme Court of Canada has recognized that teachers play a key role in society that places them in a direct position of trust and authority towards their students.  Teachers have significant power, authority, and control over their students. They have control over almost all aspects of a student’s day, including where a student sits, what they eat, when they speak, and when they go to the bathroom. Teachers are one of the most influential figures in a student’s life.

In light of this unique relationship, it has always been my opinion that school boards should be held vicariously liable (i.e. legally responsible) for sexual assault of students by teachers, even absent wrongdoing by the school board itself. A recent precedent setting case in Ontario, C.O. v. Williamson and Trillium Lakelands District School Board, held just that.

In C.O. v. Williamson and Trillium Lakelands District School Board, Justice Salmers referred to the Supreme Court of Canada decision in Bazley v. Curry (“Bazley”) which sets out a two-step test for determining whether an employer is vicariously liable for the sexual misconduct of an employee.

The first step of the Bazley test is to consider the availability of any binding precedents. In C.O. v. Williamson and Trillium Lakelands District School Board, there were none. Practically speaking, deciding whether or not vicarious liability applies in teacher abuse cases has been a highly fact specific exercise, and it is difficult to explain the schism in the case law.

The second step of the Bazley test is to determine whether policy rationales underlying vicarious liability indicate that it should be imposed. These policy rationales include providing fair compensation for victims of sexual abuse and deterring future harm.

As stated in Bazley,

The fundamental question is whether the wrongful act is sufficiently related to conduct authorized by the employer to justify the imposition of vicarious liability. Vicarious liability is generally appropriate where there is a significant connection between the creation or enhancement of a risk and the wrong that accrues therefrom, even if unrelated to the employer’s desires. Where this is so, vicarious liability will serve the policy considerations of provision of an adequate and just remedy and deterrence. Incidental connections to the employment enterprise, like time and place (without more), will not suffice.

In Bazley, the Court provided the following non-exhaustive list of factors to consider in determining whether vicarious liability applies:

  • The opportunity the organization provided the employee to abuse his or her power;
  • The extent to which the wrongful act was related to friction, confrontation, or intimacy inherent in the employer’s enterprise;
  • The extent to which the wrongful act may have furthered the employer’s aims;
  • The extent of power conferred on the employee in relation to the victim; and,
  • The vulnerability of potential victims to wrongful exercise of the employee’s power.

In reaching a finding of vicarious liability in C.O. v. Williamson and Trillium Lakelands District School Board, Justice Salmers found that the teacher’s wrongdoing was strongly connected to his employment with the School Board in that it “materially and significantly” increased the risk of harm to the student, noting: “In all of the circumstances…the fair allocation of the consequences and deterrence require that the School Board be vicariously liable for damages as a result of Mr. Williamson’s wrongdoing”.

The Court considered the factors outlined in Bazley and identified the following:

  • that the teacher has a mentor/confident/counsellor role with the student;
  • the student was vulnerable, as many students are;
  • it was an accepted practice for teachers to drive students home or to and from their school-related activities; and, that
  • the one on one interaction between the students and the teacher created the opportunity for abuse.

The decision in C.O. v. Williamson and Trillium Lakelands District School Board is an important decision because it provides a precedent for a finding of vicarious liability of a school board – even without any evidence of wrongdoing on behalf of the school board – and is a positive step towards making justice more accessible for survivors.

Janelle O’Connor is a lawyer at Murphy Battista LLP. She practices in the areas of civil sexual assault and class proceedings. She is currently pursing claims against school boards for sexual assault of students by their teachers. You can read more about Janelle and her practice here.


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