LAWYER INSIGHTS
Our sexual assault and abuse lawyers share their insights to help you move forward.
BC Court Determines School Board Not Vicariously Liable For Off-School Sexual Abuse
In Ontario, vicarious liability has been found to attach to a school board for the wrongful conduct of its staff, even where it occurred off of school premises.
In Ontario, vicarious liability has been found to attach to a school board for the wrongful conduct of its staff, even where it occurred off of school premises. The leading case C.O. v. Williamson 2020 ONSC 3874, involved a plaintiff (represented by Elizabeth Grace of Lerners LLP) who was sexually abused by her high school music teacher and band leader, Royce Williamson, primarily while driving her to and from band related events in his personal vehicle. In this seminal case, Justice Salmers held that the school board was vicariously liable for Mr. Williamson’s misconduct as it was strongly connected with his employment with the school board, which employment materially and significantly increased the risk of harm to the plaintiff.
The outcome in the recent Supreme Court of British Columbia decision, HN v School District No. 61, 2024 BCSC 128, clarified that institutions may not be vicariously liable for misconduct occurring off its premises, depending on the particular circumstances. In this case, the plaintiff brought an action against his private tutor, Gary Redgate, who sexually abused him when he was 11 years old, as well as against the school district which had recommended Mr. Redgate to the plaintiff’s parents and allowed him to meet with the plaintiff on its school premises. Initially the tutoring sessions were held in an empty classroom, but eventually Mr. Redgate began inviting the plaintiff to his home for tutoring, and unrelated activities such as watching movies, playing cards and working on home projects. The visits to his home were agreed to and arranged by the plaintiff’s parents. There were no allegations of any significant inappropriate behaviour occurring at the school, but the plaintiff described Mr. Redgate’s sexualized advances as intensifying incrementally during his visits to Mr. Redgate’s home, which continued until the plaintiff was 15 or 16.
Mr. Redgate died during the legal proceeding, and the Court ultimately determined that his Estate was liable for the sexual abuse he committed against the plaintiff. However, the Court determined that the school district should not be held liable for the misconduct of Mr. Redgate that occurred off its premises.
In assessing the vicarious liability of the school district, the Court in HN v School District No. 61 applied the “strong connection test” set out in the Supreme Court of Canada’s decisions in Bazley v. Curry, [1999] 3 S.C.R. 6 and Jacobi v. Griffiths, [1992] 2 S.C.R. 570. The Court emphasized there needed to be a strong connection between the actual duties imposed by the school district and the abusive conduct of Mr. Redgate, and it failed to find that a sufficiently strong connection existed between what the school was asking Mr. Redgate to do and Mr. Redgate’s wrongful acts. Further, the Court pointed out that the plaintiff’s parents did not rely on the school district when making arrangements for their son to meet with Mr. Redgate, and never had any concerns about their son’s visits to Mr. Redgate’s home.
The Court specifically referred to C.O. v. Williamson, stating that it is distinguishable because in that case, the teacher Mr. Williamson was found to have power over the plaintiff which was conferred on him by the school board due to the school’s approval of his role and associated activities (including leading band trips and transporting students home from school and school-related activities). In imposing vicarious liability on Mr. Williamson’s school board employer, the trial judge in C.O. v. Williamson did not differentiate between the abuse Mr. Williamson committed on and off of school premises, nor suggest that drives home after a school field trip or after a band rehearsal (when he assaulted the plaintiff) were unrelated to his job as a teacher. In short, relying on the Supreme Court of Canada’s requirement for a strong connection between the misconduct and the tasks assigned to the wrongdoer, the judge found all of the abuse Mr. Williamson perpetrated against the plaintiff was connected with his job as a teacher and band leader.
The B.C. decision in HN v School District No. 61 should be understood on its unique and narrow facts — sexual assault of a student by a private tutor (not an employee of the school district) which occurred only off school premises and in a context that was not connected to any approved school activities. This is distinct from C.O. v. Williamson, where a strong connection was established.
To date, C.O. v. Williamson has not received any negative treatment by an Ontario or other court in Canada and, therefore, continues to be a persuasive authority for vicarious liability cases involving school boards or districts that confer on teachers and other school personnel responsibility for, and power over, our children.
More encouraging for sexual abuse survivors in HN v School District No. 61 was the award to the plaintiff of $225,000 for non-pecuniary general damages. In making this award, the B.C. court acknowledged the trend towards increasing damages in sexual abuse cases and declined to rely on dated damages assessments (decided more than 10 years ago). This is because these old awards do not reflect the evolution of society’s and, in turn, our courts’ understanding of the extent of the harms caused by the sexual abuse of children. Over the last decade, our courts have increasingly recognized that the damages awarded to survivors of childhood sexual abuse should be commensurate with the gravity and harmfulness of the conduct, the effects of which often manifest in survivors’ lives over time. This understanding, we hope, will continue to evolve and be reflected in the reasoning of our courts in abuse cases.
If you are a survivor of sexual abuse, reach out for a free consultation. You are not alone.
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Family And Intimate Partner Violence – ONCA Renders Landmark Decision In Ahluwalia v. Ahluwalia
We consider the lessons learned from this much discussed and debated case, Ahluwalia v. Ahluwalia, 2023 ONCA 476, after summarizing both the trial and appellate decisions.
Authored by: Erika Tower, Zahra Vaid, and Elizabeth Grace
Last week, the Court of Appeal for Ontario (ONCA) released its highly anticipated decision in Ahluwalia v. Ahluwalia, 2023 ONCA 476. In this blog, we consider the lessons learned from this much discussed and debated case, after summarizing both the trial and appellate decisions.
In short, the decision was an appeal from the judgment of Justice Renu J. Mandhane of the Ontario Superior Court of Justice (ONSC), in a family law proceeding in which she created and applied the novel tort of family violence, and awarded the wife $150,000 for compensatory, aggravated and punitive damages. In our previous blog, we discussed the new tort and Justice Mandhane’s decision at length.
Writing for a unanimous 3-member panel of the ONCA, Justice Mary Lou Benotto determined that the creation of the novel tort of family violence was unnecessary in light of existing torts which adequately address the harms suffered. Although the new tort was not recognized, the decision provided an important opportunity for the ONCA to comment on the complexity of the various forms of violence and abuse that occur in intimate relationships and how they can be addressed by courts in the context of family law proceedings. The decision clearly states that such violence and abuse should be recognized, denounced and deterred, and confirms the jurisdiction of family court judges to render judgments on tortious misconduct in the course of their proceedings.
Background and Lower Court Decision
In this case, the appellant husband and respondent wife were married in 1999 in India. Shortly after their marriage, the couple immigrated to Canada for better opportunities. They arrived in 2002 with their first child and, like many newly immigrated families, had little social and financial support.
The marriage involved significant and serious emotional, financial and physical abuse of the mother at the hands of the appellant father, which led to the couple’s separation in 2016.
The respondent mother subsequently brought an action for statutory relief including divorce, child support, spousal support, and property equalization. She also claimed damages for the husband’s abusive, coercive and controlling conduct during their marriage.[1]
In assessing damages, Justice Mandhane explained that the “no fault” nature of family law must give way where there are serious allegations of family violence that create “independent, and actionable harms that cannot be compensated through an award of spousal support”.[2] She therefore went on to recognize a new tort of family violence. In her view, this was necessary to stay “abreast of social change” and was also consistent with the compensatory goal of tort law.[3]
In characterizing the tort, Justice Mandhane held that a plaintiff could establish, through specific and particularized conduct, a defendant’s liability for the tort in the following ways:
intentional conduct that was violent or threatening;
behaviour calculated to be coercive and controlling to the plaintiff; or
conduct the defendant would have known with substantial certainty would cause the plaintiff to subjectively fear for their own safety or that of another person.[4]
To establish liability, Justice Mandhane stressed there needed to be a “pattern of conduct that included more than one incident of physical abuse, forcible confinement, sexual abuse, threats, harassment, stalking, failure to provide the necessities of life, psychological abuse, financial abuse, or killing or harming an animal of property”.[5]
In her view, the tort was necessary as existing torts, like assault and battery, did not “fully capture the cumulative harm associated with the pattern of coercion and control that lays at the heart of family violence”.[6]
After finding liability under the tort of family violence, Justice Mandhane assessed damages at $150,000: $50,000 each for compensatory, aggravated and punitive damages. She then considered the statutory claims and determined that the appellant mother was entitled to the entire proceedings of sale from the matrimonial home.[7]
Ontario Court of Appeal
The appellant husband appealed and asked that the ONCA reject the creation of a new tort. While he conceded some liability, his concession was related to liability for existing torts that Justice Mandhane found in the alternative (i.e., torts of assault, battery, and intentional infliction of emotional distress). He argued that the tort of family violence was “poorly constructed, too easy to prove, and would apply to a vast number of cases and create a floodgate of litigation that would fundamentally change family law”.[8]
The appellant wife argued in response that a novel tort was necessary as existing torts “did not address the cumulative pattern of harm caused by family violence”.[9] However, she proposed a narrower tort of “coercive control”, which would be made out where a person, in the context of an intimate relationship inflicted a pattern of coercive and controlling behaviour that cumulatively was reasonably calculated to induce compliance, create conditions of fear and helplessness, or otherwise cause harm.[10]
The ONCA without question recognized the significance of intimate partner violence, citing the statistic that nearly half of women and one third of men in Canada have experienced intimate partner violence, and it acknowledged the widespread and intergenerational effects of this kind of abuse. However, the issue before it was whether a new tort of family violence was required to address the problem, or existing alternative remedies were sufficient. The short answer was: “existing torts are flexible enough to address the fact that abuse has many forms” and, therefore, the creation of a new tort of family violence is not necessary.
The creation of a new tort of coercive control was also rejected, and the ONCA took particular issue with the submission that the tort as proposed would not require proof of actual harm, but rather must only involve conduct calculated to cause harm.
According to the ONCA, the torts of battery, assault, and intentional infliction of emotional distress are able to recognize the patterns of behaviour that constitute intimate partner violence, for the purposes of both liability and damages. It also noted with approval that a “pattern” of abuse has previously been used to justify higher damages awards through these existing torts. The ONCA provided a lengthy and helpful discussion of how each of these torts sufficiently addresses such patterns of abuse.
Importantly, the ONCA concluded that it was not a mistake that the trial judge included a tort claim in a family law proceeding, and the compensatory damages awarded were appropriate. However, the ONCA allowed the appeal of the punitive damages award of $50,000, as the trial judge failed to make any finding that an award of general and aggravated damages was insufficient to achieve the goals of denunciation and deterrence. The wife’s damages were therefore decreased on appeal to $100,000, from $150,000.
Comment and Discussion
A Message to the Family Law Bar
Although the ONCA rejected the creation of a new tort of family violence, one of the key takeaways from its decision is its explicit confirmation that tort claims can properly be included in family law proceedings, and significant damages can be awarded.[11]
This acknowledgment is crucial, as many survivors of intimate partner violence only consider civil remedies after the conclusion of their family law claim. This can be inefficient and costly, and judgments more difficult to satisfy after assets have been divided and distributed. Having family law and civil law issues dealt with together avoids duplication of effort and resources, and streamlines the process and outcome.
There are other advantages to addressing tort claims within the family courts. For example, there is a more detailed and fulsome disclosure of assets and income in family law proceedings that is not generally available in a civil proceeding. Given the increasingly resolution-based nature of the family law system, litigants are often focused on reaching a final resolution, to achieve certainty and finality, and allow them to move forward with their respective lives.
The acknowledgment and discussion provided by the ONCA of the pervasiveness and seriousness of the various forms of violence and abuse that occur in intimate relationships is also extremely valuable and can be cited and relied upon in future proceedings involving intimate partner abuse. For example, it is recognized that recurring and ongoing abuse, intimidation, domination and financial abuse can become patterned into daily life, and trial judges need to be alive to these dynamics. It is also clearly stated that where any form of abuse leads to psychological injury, compensation is warranted.
A New Benchmark for Damages
In upholding the compensatory and aggravated damages of $100,000 awarded by the trial judge, the ONCA created a new benchmark for damages in cases involving intimate partner violence. It specifically recognized that the trial judge’s damages assessment was based on the depression and anxiety experienced by the respondent wife as a result of the abuse, the “overall pattern of coercion and control and clear breach of trust”, as well as the ways the appellant husband preyed upon the wife’s vulnerability as a new, racialized immigrant to Canada, which made it difficult for her to meet their children’s daily needs.[12] The ONCA justified the high award in light of society’s “emerging understanding of the evils of intimate partner violence and its harms”.[13]
While it remains to be seen whether leave to appeal to the Supreme Court of Canada will be sought, and if so, granted (we think it unlikely), Ahluwalia has generated significant and valuable discussion among the family and civil bars and the judiciary about the intersection of civil and family law proceedings in the context of allegations of intimate partner violence.
A clear message has emerged: intimate partner violence is serious, and it will no longer be rare or exceptional for claims for damages arising out of such allegations to be included in family court proceedings.
[1] Ahluwalia v. Ahluwalia, 2023 ONCA 476 at para. 16
[2] Ibid at para. 17.
[3] Ibid at para. 19-20.
[4] Ibid at para. 23.
[5] Ibid at para. 24.
[6] Ibid at para. 23.
[7] Ibid at paras. 26-28.
[8] Ibid, at para. 29.
[9] Ibid, at para 33.
[10] Ibid, at para 34.
[11] Ibid, at para. 46.
[12] Ibid, at para 127.
[13] Ibid, at para. 128.
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Erika Tower Speaks To CBC News About Civil Case Against CDSBEO And Ted Oliver
This is the third teacher from St. John Catholic High School since April 2021 that has been implicated in sexual abuse allegations against minors.
“It’s impacted her relationships, the way she views the world, [and] the way she views relationships between children and authority figures with suspicion.”
In a follow-up to our recent statement, Erika Tower, who is acting for a client in a civil case against both the Catholic District School Board of Eastern Ontario and Ted Oliver (a former teacher at St. John Catholic High School), seeking damages for sexual abuse, spoke to CBC News about the case.
This is the third teacher from St. John Catholic High School since April 2021 that has been implicated in sexual abuse allegations against minors.
Contact ERIKA Today
Lerners understands you need someone to believe in you. Our consultations are free. Call today and let us help you and your family.