In a recent decision, an appeal court dismissed a claim for vicarious liability against a school board (the “Board”) regarding the sexual abuse of a student by a retired teacher during tutoring sessions.
What Happened?
A Board teacher had arranged for one of his students to have tutoring sessions with a retired teacher who was formerly employed by the Board (the “Tutor”). The sessions were initially held at the school; however, the student began to meet with the Tutor outside of school hours at the Tutor's home. The student visited the Tutor's home 10 to 15 times per year over the course of approximately five years, and the student was sexually abused by the Tutor during those tutoring sessions at his home. The student subsequently claimed that the Board was vicariously liable for the abuse committed by the Tutor.
What Did The Court Decide?
The British Columbia Court of Appeal dismissed the claim against the Board, due to the insufficient connection between the Tutor's misconduct and the responsibilities assigned to him by the Board.
The Court acknowledged that the Board had created an opportunity for the Tutor to groom the student, by creating the arrangement for the Tutor to tutor the student, without which the ultimate abuse would not have occurred. However, the mere opportunity for sexual abuse was not sufficient on its own to establish the strong connection required for vicarious liability. The abuse took place outside of the classroom at the Tutor's home, and the Board had not authorized the Tutor to conduct home visits or schedule tutoring sessions outside of the school or outside school hours.
The Court considered evidence that the Tutor and the student were secluded when the tutoring sessions were held at the school. The Board permitted them to be alone in a classroom, which significantly increased the risk of abuse. However, nothing prevented the two of them from being observed and they could have been subject to observation at any time. They were not hidden away. In fact, the student's teacher would check in on them from time to time and the school's secretary knew where they were.
The Court recognized that the “but for” causation approach is a necessary condition to establishing the strong connection required for vicarious liability. However, the “but for” approach is not sufficient on its own. The Court also explained that opportunity and a potential victim's deference to authority, as independent factors, are insufficient to establish vicarious liability. Rather, the primary focus should be on the power and/or intimacy created by the duties of the employee in their relationship to the victim and how the employer played a role in enabling that relationship.
Takeaways
This decision from the Court clarifies the threshold for establishing vicarious liability. Organizations in the education industry should continue taking steps to protect the health and safety of their students. Organizations should also review their policies and practices to ensure they minimize the connection between their organization and activities outside of classroom instruction.
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