Sports and Scouts at Risk of Liability for Sexual Abuse

by John McKiggan

Vicarious Liability for Sexual Abuse Claims: What does the Future Hold for Sports Organizations, Scouts and Not-For-Profit Organizations?

Recently CBC’s Fifth Estate aired a report exposing Boy Scouts Canada’s system for recording the names of pedophiles within the organization, euphemistically referred to as the “ineligible volunteer list”.

Graham James recently pleaded guilty to repeated sexual assaults on former NHL star Theo Fleury and another unidentified junior hockey player.

Will this media attention result in litigation similar to that experienced by the Catholic Church? If so, what’s the basis for potential liability?

The Beginning

Vicarious liability for sexual abuse really started with the Supreme Court of Canada decisions in Bazley v. Curry 4 and Jacobi v. Griffiths.

The Court confirmed the traditional Salmond test for vicarious liability which holds an employer liable for the actions of an employee where the abusive acts were authorized by the employer or may be considered “modes” of acts authorized by the employer.

Where it is difficult to apply the Salmond test, the court endorsed a new enterprise liability test. In short, vicarious liability exists when there is a significant connection between the creation or enhancement of risk by the employer and the harm that flows from the risk.

These decsions were hailed as groundbreaking or criticised as dangerous, (depending mostly on whether counsel represented abuse survivors or institutions who employed accused abusers).

Employers Offered Relief

The Supreme Court of Canada denied vicarious liability for sexual abuse in three decisions from British Columbia, KLB v. British Columbia ; MB v. British Columbia and EDG v. Hammer .

In KLB and MB vicarious liability was denied for sexual abuse by foster parents. The court stated the close relationship between creation of risk and harms from wrongful acts normally wouldn’t exist in cases involving independent contractors.

In EDG a school janitor sexually abused a student for several years starting when she was in grade 3. Binnie J. stated opportunity without authority will “seldom” be sufficient to establish vicarious liability.

The trilogy decisions appeared to significantly limit the circumstances where victims of childhood abuse could receive compensation.

Focus on Psychological Intimacy

Doe v. Bennett was decided shortly after the trilogy. The Supreme Court confirmed vicarious liability of the Diocese of Saint George’s Newfoundland and Labrador for sexual abuse by Father Kevin Bennett stating:

First, the bishop provided Bennett with the opportunity to abuse his power. Second, Bennett’s wrongful acts were strongly related to the psychological intimacy inherent in his role as priest. Third, the bishop conferred an enormous degree of power on Bennett relative to his victims.

McLachlin, C. J. concluded that:

The enterprise substantially enhanced the risk which led to the wrongs the plaintiff – respondents suffered. It provided Bennett with great power in relation to vulnerable victims and with the opportunity to abuse that power.

Liability of Religious Organizations (Mostly) Clear

Bennett has, for the most part, established religious organizations are vicariously liable for acts of sexual abuse by religious employees. For example in Doe v. Fifield vicarious liability was imposed for sexual abuse committed by a volunteer minister with the Salvation Army. Dunn J. placed weight on the psychological intimacy the Salvation Army encouraged it’s ministers to develop with their congregations.

An exception is Wilson v. United Church of Canada . The court refused to impose vicarious liability for sexual abuse by a volunteer lay minister. The court held there was insufficient evidence of “job created intimacy” to establish vicarious liability.

Independence, Discretion and Intimacy
In BMG v. Nova Scotia the province was vicariously liable for sexual assaults by a probation officer. Our Court of Appeal stated:

In short, the province’s probation service gave Lalo independence and discretion in carrying out his duties and these enabled Lalo to assault BMG repeatedly.

The Court turned to one of the key elements in Bennett, finding Lalo’s assaults:

…were strongly related to the psychological intimacy inherent in his role as a probation officer and that this psychological intimacy encourages victim’s submission to abuse and increases the opportunity for abuse.

Liability of Sports Organizations and Scouts Canada

So when will vicarious liability be imposed and when will it be denied?

Where courts have imposed vicarious liability, they have focused on the power and authority given the abuser by the institution. Independence and discretion has been critical. Vulnerability of the victim is a given. Finally, physical or psychological intimacy has been important.

Where vicarious liability has been denied, courts have held the abusers employment was not connected to the risk or that the abusers actions were not connected to the employer’s enterprise.

Sports and Scouts

Where does this leave amateur sports, the Boy Scouts and other non-profit organizations?

It goes without saying that young children are vulnerable to psychological manipulation and intimidation. But one might argue a child athlete’s vulnerability increases as he or she advances to the higher levels of amateur sports and gets closer to the “holy grail” of a professional sports career (or university scholarships).

In his autobiography “Playing with Fire” Theo Fleury says:

The most influential adult in my life at the time was telling me that what I thought was wrong was right. I no longer had faith in myself of my own judgment.

Given the highly competitive nature of amateur sports today there is little doubt coaches ( who potentially control a child athlete’s future) wield tremendous influence, power and authority. I would suggest amateur sports organizations are at significant risk of being held vicariously liable in future sexual abuse litigation.

The scouting movement (like the Catholic Church) has a strict hierarchical structure. Scouts belong to small groups called dens or patrols. The small groups are combined into larger groups called packs or troops under an adult volunteer known as the scout master. Scout Masters have a great deal of independence in how they run their troops.

Those seeking to impose liability on the Boy Scouts would be wise to investigate the independence granted to the scout leader, the authority the leader exercised over the troop and the degree to of physical or psychological intimacy between the scout leader and the victim.

The Future

What does the future hold? As always these cases will depend on their own facts. Claimants’ counsel will focus on vulnerability and psychological intimacy while defence counsel will argue lack of connection between the risk and the enterprise.

A shorter version of this article originally appeared in the February 3, 21012 edition of Lawyers Weekly Magazine.

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