The Supreme Court of Canada has delivered two rulings which may have a significant impact on the ability of charitable organizations to provide residential care facilities and a range of other social services.
In a case involving the Children’s Foundation of Vancouver, the court ruled that the Foundation was vicariously liable and will have to pay damages for sexual abuse committed by one of its employees. However in a similar case involving the Boys and Girls Club of Vernon, the court did not hold the club vicariously liable, based in part on a finding that the club provided a recreational rather than a residential facility.
Vicarious liability is a principle in civil law. It results in one person (or organization) being held legally responsible for the wrongful action committed by someone else. An employer may be found vicariously liable for the actions of an employee, and may be required to pay damages as a result, even when the employer did nothing wrong.
Archdeacon Jim Boyles, General Secretary of the Anglican Church, said “The church will have to reassess the degree of risk arising from participating in such activities as summer camps, nursery schools and shelters for the homeless.
“In some cases, the court’s ruling may make it impossible for charitable organizations to continue working with young people, or others who are vulnerable, in residential settings.”
The court appears to have moved toward a standard of absolute liability meaning that an organization could act reasonably and prudently, take all reasonable steps to ensure the safety of children in its care, select its staff or volunteers scrupulously, train them appropriately and supervise them diligently, and still be held liable if one of them commits a criminal act. The risk of liability in such circumstances may be too great, and may cause some organizations to withdraw from dealing with young people in residential settings.
Archdeacon Boyles called on governments to ensure that organizations dedicated to serving and protecting children can continue to do so, without fear of arbitrary or unreasonable liability for actions over which they have no control. “Anyone who works with children has a responsibility to ensure their safety, and we strongly support that. Our concern is that this ruling could boomerang and operate to the detriment of children, and we think the government needs to take a look at that.”
The rulings are complex and deal at some length with many different factors which must be taken into account in assessing vicarious liability, Archdeacon Boyles noted, making it impossible to speculate on how the rulings will be applied in individual cases.
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