The country’s top court made its decision but the jury’s still out on what impact the ruling on employer’s liability will have on a range of church activities, including camps, ministry to the underprivileged and Sunday schools.
The Supreme Court of Canada handed down two rulings on what is known as vicarious liability. That is the principle by which an employer, although it hasn’t been negligent or done anything wrong itself, can be held liable for wrongful acts of its employees.
The rulings affect churches in a variety of ways, including the residential schools lawsuits.
They also affect dioceses and parishes running residential summer camps or day camp programs for children, Sunday schools, and recruitment of clergy and lay leaders.
Just how the judgments affect these areas will have to be dealt with on a case by case basis, say church lawyers.
“We haven’t yet fully assessed those implications,” said George Cadman, chancellor (chief legal officer) of the Diocese of New Westminster and of the Ecclesiastical Province of British Columbia and Yukon. Mr. Cadman also served as solicitor for the General Synod of the Anglican Church of Canada, which intervened in one of the cases (Bazley) on the employer’s side.
“If anything,” he said, “the judgement has served to clarify the law in this area, but we’re going to have to see on a day to day basis how we are going to move ahead with the application to various projects.
“I think that’ll be a question of individual risk assessment in each instance.”
Certainly, the potential for difficulties is present in the church.
In a summation of the rulings for the Diocese of Toronto where he is vice-chancellor, labour lawyer Chris Riggs notes “children and adolescents are an integral part of our parishes: Christian education programs, choirs, youth groups and camps provide a variety of environments in which children and adolescents deal on an ongoing basis with clergy, paid employees and volunteers.”
But, he concludes, “It may well be that most – if not all – of those circumstances would not lead to the imposition of vicarious liability as set out by the court.”
The rulings stemmed from cases in British Columbia and were released June 17. The court found the employer liable in one case, Bazley v. Curry, but dismissed liability in the other, Jacobi v. Griffiths.
The Supreme Court judges ruled that employers can be held liable if the work situation creates or enhances the risk leading to the abuse, and if holding the employer liable serves two social policy goals: providing the victim financial relief, and deterring similar events.
But the judges also ruled that providing the “mere opportunity” to commit an offence does not automatically hold the employer vicariously liable. That’s the upside of the rulings.
“The issue always is whether, if the incident occurred, you are automatically liable,” said Mr. Cadman. “The court in Jacobi said ‘No.’ You must do an inquiry as to the circumstances.”
In the unanimous decision in Bazley, Justice Beverley McLachlin wrote: “There must be a strong connection between what the employer was asking the employee to do (the risk created by the employer’s enterprise) and the wrongful act. ? Incidental connections to the employment enterprise, like time and place (without more), will not suffice.”
As Mr. Riggs wrote: “It is important to note the Supreme Court went to some lengths to make clear that the normal interplay between teachers and students in a classtroom will not normally give rise to vicarious liability of educational institutions at the primary and secondary level for sexual assaults of students by teachers.”
Mr. Cadman also said that the facts of both cases dated back many years and policies at most camps and recreational facilities, including Anglican ones, have changed since then.
“Much of what was a concern in Bazley would not now be a concern today because of changes in place for a number of years. The simple process of criminal records checks (of prospective employees), use of policy manuals, implementation of sexual harassment and abuse policies – all of these things have occurred,” said Mr. Cadman.
“It’s not enough to have the policy; you must utilize, educate and implement,” he added. “But if you’re doing all that, it will be much harder to find against an employer.”
While acknowledging that non-profit organizations, including churches, provide a needed service to the public and don’t have deep pockets to fund liability claims, Justice McLachlin nevertheless said it was preferable for them, rather than the victim, to bear the cost of an employee’s wrongdoing.
In the meantime, Mr. Cadman is preparing a paper for the national church on the implications of the rulings, due in September.
Archdeacon Jim Boyles, general secretary of the church, said the national church will work with dioceses and parishes to assess programs and risks in the light of the decisions so “we can make informed decisions about their continuance, their expansion or their discontinuance.”
Among steps contemplated or being taken already by dioceses are criminal records checks for all employees and volunteers who might have contact with children, psychiatric testing for prospective clergy to determine if they pose a risk to others and establishing protocols regarding adult supervision of children at camps. Most insurance companies also require regular seminars outlining sexual misconduct. Marianne Meed Ward is a freelance writer, editor and broadcaster in Toronto.