Canada’s three largest churches say the services they provide to the most vulnerable will suffer if the Supreme Court of Canada rules employers are vicariously liable for sexual assaults committed by their employees.
The Anglican, Roman Catholic and United churches of Canada also argued before the high court Oct. 6 that such a ruling would have a dramatic effect on church finances.
The churches were intervening in the appeals of two rulings by the British Columbia Court of Appeal last year dealing with vicarious liability. In one, the B.C. court found the Children’s Foundation of British Columbia vicariously liable for the sexual abuse of a child by a counsellor in a residential home for emotionally troubled children. In the other case, involving the sexual abuse of children by the program director of a drop-in centre in Vernon, B.C., the appeal court ruled the employer was not vicariously liable.
Vicarious liability, unlike direct or personal liability, doesn’t depend on finding the employer at fault. The traditional test for vicarious liability, known as the Salmond Test, is that an employer is liable for the wrongful acts of its employees only if they are committed in the course of their employment.
A Roman Catholic Church official cited the example of a chef whose failure to wash his hands properly results in food poisoning of customers. The employer could be held vicariously responsible. That would not be the case if the chef deliberately poisons the food.
William Sammon, lawyer for the Canadian Conference of Catholic Bishops, argued before the court that sexual assaults cannot be considered within the scope of employment because there is no connection between the authorized work and deviant, criminal conduct. Such conduct is completely contrary to the mission of the church, he noted.
Mr. Sammon also said there is no compelling policy reason “to saddle a charitable institution with vicarious liability in a sexual assault case.” The charities, like the churches, provide services to the most disadvantaged in society, he said.
The Anglican Church has more than 100 outstanding claims against it and its dioceses, and, like the Roman Catholic and United Churches, faces an untold number of potential claims relating to sexual abuse at church-operated Native residential schools. The majority of the claims raise the issue of vicarious responsibility, the churches say.
The Anglican Church is also waiting for a ruling in the St. George’s School case in Lytton, B.C. Closing arguments wrapped up at the end of September but the judgment is not expected for several months. In that case, Floyd Mowatt is suing the government, the church and former child-care worker Derek Clarke who sexually assaulted him 30 years ago.
Mr. Cadman told the court it’s clear “the authorities relating to vicarious liability are not entirely consistent.” The Anglican Church is intervening in the case, he said, because “our concern is with the width of the test which has been set out by Madam Justice (Carol) Huddart.”
In Justice Huddart’ s written decision, the B.C. appeal court broadened the scope of vicarious liability to include four tests, including the traditional Salmond Test favored by the churches.
Madam Justice Mary Newbury, also of the B.C. Court of Appeal, added, “Whilst I sympathize with such organizations for whom the cost of insuring against liability of this kind may be prohibitive, it lies with the legislature and not the court to legislate a special rule that would differentiate these organizations from others.”
Christopher Hinkson, counsel for the United Church of Canada, disagreed. “Surely it is for the legislature and not the Court of Appeal for British Columbia to legislate a variation of the traditional concepts of vicarious liability if there is to be an exception for children who suffer from sexual abuse in an institutional facility,” he said.
Gerald Kelly, co-ordinator of the national Catholic working group on residential schools, said in an interview if the churches are found vicariously liable, the consequences would be “devastating” in terms of the work church organizations would be able to undertake in the future. “It would introduce a level of prudence that would be virtually paralyzing for institutions because, in reality, churches work with the vulnerable and there is a risk.”
The Supreme Court is expected to rule on the two appeals early in the new year.