July 2020 | Article

School Board Liability for Sexual Assaults by Teacher

Torkin Manes LegalPoint

In C.O. v. Williamson and Trillium Lakelands District School Board [1] an Ontario judge has found a school board vicariously liable for historical sexual abuse of a student by her teacher. This is an important decision as it imposes liability for the abuse on the school board in the absence of any evidence of wrongdoing on the part of the school board. In a ruling on June 30, 2020 Justice David Salmers of the Ontario Superior Court of Justice found both the teacher Royce Galon Williamson and the Trillium Lakelands District School Board in Lindsay liable for the teacher’s sexual assaults on the student and ordered them to pay more than $500,000 in damages.

Williamson had not been criminally convicted of the assaults and did not appear at the civil trial. The court accepted the plaintiff’s evidence of the repeated and brutal sexual assaults. In fact, school administrators believed the student’s report of the assaults when she first made them in 1984 and although the teacher was asked to resign, he was allowed to continue teaching and leading the school band for three months until the school year ended. Aside from a few sessions with an inexperienced guidance counselor, the school board did not give the student any psychological counselling or support. The court found the school board’s actions were directed at protecting the school board and were negligent.

The court’s finding on the issue of vicarious liability is an important precedent. The Supreme Court of Canada has imposed vicarious liability in other contexts (residential group homes and churches - see Bazley v. Curry (“Bazley”),[2] but the issue of vicarious liability of a school board has not been finally resolved. Previous school board decisions have had mixed results. Some courts have suggested that vicarious liability for the sexual assault of a student by a teacher may rest with the governing school board or district as the teacher’s employer.[3] For example, in Doe v. Avalon East School Board,[4]the Newfoundland Supreme Court Trial Division held a local school board vicariously liable for the sexual assault by a literature teacher against a twelfth-grade student. The teacher had placed his hands on the student’s clothes and fondled his chest and genitals. In imposing vicariously liability on the school board, the Court found that the power and authority given to the teacher in furtherance of the school board’s enterprise contributed to the risk of harm:

It was the employer’s mandate as a school board which placed in the hands of its teachers significant power and authority over the students:  quite properly to carry out their teaching roles, but also enhancing the risk of something going wrong if that power was abused.  It was the school board which gave [the teacher] as a trusted professional employee, the authority to set up circumstances wherein the offense was committed…The wrongful act itself did not further the employer’s aims, but the placing of John in a room alone with the employee was directly connected with carrying out [the teacher’s] responsibilities to educate young people. This was for the purpose of carrying out the Board’s mandate as part of the education system.  The wrongful act was directly connected with his role as a teacher.  He was in a position of power vis-à-vis John; as a student required to submit to the direction of a teacher, John was vulnerable to a wrongful exercise of that power and authority…

The Court’s decision in Doe v. Avalon, establishes that vicarious liability should be imposed on a school board where the school board places in the hands of its teachers significant power and authority over the students and where the wrongful act is connected with the perpetrator’s role as a teacher in a position of power vis-à-vis the student, a school board ought to be vicariously liable for the wrongful exercise of that power and authority.

However, in 2000, in K.G. v. B.W.,[5] the Ontario Superior Court would not have found the school board vicariously liable for the sexual assaults by a teacher in 1969 who allegedly assaulted the then nine-year old plaintiff at the teacher’s home. This case is likely distinguishable because the perpetrator was a friend of the student’s family. The plaintiff had parental permission to stay over at the perpetrator teacher’s home on a number of occasions. The Court found that the perpetrator’s acts had no connection whatsoever to the duties assigned to her by the school board. The perpetrator’s involvement with the family was outside her duties and responsibilities as a teacher;[6]

In 2012, in K.H. v. Cloutier and Windsor-Essex CDSB[7] the Court found the plaintiff had failed to prove he had been abused by the teacher and went on to say there would be no vicarious liability. Without much analysis, the court simply said the School Board “did not cause or increase the risk of a sexual assault”. The Court found that Mr. Cloutier’s specific duty was to be a grade four teacher at St. Vincent de Paul in 1964. K.H. was one of his many students and ruled: “It appears as though Mr. Cloutier carried out his duties as a teacher in that classroom according to the guiding policies in place at that time. There was nothing unusual in terms of Mr. Cloutier’s duties as a teacher for the school board and those duties did not give rise to special opportunities for wrongdoing. Therefore, I find that there is no vicarious liability on the school board.”

Conversely, in 2013, in S.L. v. R.T.M. and Hastings Prince Edward DSB[8] the Court rendered a much more thoughtful and reasoned decision on the issue of vicarious liability. After reviewing the Bazley test, the Court considered whether the teacher’s acts were “so connected with his authorized acts of teaching that they may be regarded as modes of doing an unauthorized act. The Court said in dealing with the emotional and physical welfare of our children, particularly in regard to the loco parentis position that we place teachers, imposing vicarious liability helps to ensure that School Boards remain ever vigilant to the possibility of abuse. The Court specifically considered:

  • The School Board has a legal duty to provide for the safety of its students;
  • The law compels parents to send their children to school;
  • The School Board stands in loco parentis to the child and exercises the legal authority to guide, direct and discipline the child;
  • The child is required to respect and follow the directions of the teachers;
  • The teachers are expected to be role models of attitudes, behaviour and morality to the child;
  • The science curriculum designed by Marson was approved by the School Board;
  • Marson’s teaching practices and the creation of his mini zoo were designed to make possible the exploitation of students.

This case was overturned on appeal (for a reasonable apprehension of judicial bias)[9]and sent back for a new trial which never happened.  Presumably the case was settled.

In the recent Trillium Lakelands District School Board case, the court referred to Bazley which sets out the framework for determining whether an employer is vicariously liable for the sexual misconduct of an employee. A two-step test is to be employed.

The court said “The first step of the Bazley test is to see whether there are precedents. For cases similar to the present case, there are different precedents in different provinces; some find vicarious liability, others do not. There are no binding precedents. Accordingly, the second step of the Bazley test is engaged.”  The second step of the Bazley test is to determine whether vicarious liability should be imposed in light of the policy rationales underlying vicarious liability. Those policy rationales are: 1) fair compensation for victims; and 2) deterrence of future harm.

Generally, the two policy rationales are assessed together, in context. As stated in Bazley:

The fundamental question is whether the wrongful act is sufficiently related to conduct authorized by the employer to justify the imposition of vicarious liability. Vicarious liability is generally appropriate where there is a significant connection between the creation or enhancement of a risk and the wrong that accrues therefrom, even if unrelated to the employer’s desires. Where this is so, vicarious liability will serve the policy considerations of provision of an adequate and just remedy and deterrence. Incidental connections to the employment enterprise, like time and place (without more), will not suffice.

In Bazley, the court set out a non-exhaustive list of factors that may assist in making the vicarious liability determination:

In determining the sufficiency of the connection between the employer’s creation or enhancement of the risk and the wrong complained of, subsidiary factors may be considered. These may vary with the nature of the case. When related to intentional torts, the relevant factors may include, but are not limited to, the following:

  1. the opportunity that the enterprise afforded the employee to abuse his or her power;
  2. the extent to which the wrongful act may have furthered the employer’s aims (and hence be more likely to have been committed by the employee);
  3. the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s enterprise;
  4. the extent of power conferred on the employee in relation to the victim; and
  5. the vulnerability of potential victims to wrongful exercise of the employee’s power.

Applying the Bazley criteria, Justice Salmers said it is trite that teachers have power over students. He found that Mr. Williamson’s power as the plaintiff’s teacher was augmented by the fact that he was also leader of the school band. He said that students want to please teachers who lead extra-curricular activities because they can determine which students play on sporting teams or participate in such activities. He also said that teachers who lead extra-curricular activities often develop a closer relationship with students who participate because both the teacher and student are participating in an activity they enjoy and the teacher and student often spend more time together than would otherwise be the case.

In this case, the teacher’s role as mentor/confidant/counsellor role also led to the student liking him and developing trust in him and a sense of security when she was with him. The court found that like many students, the plaintiff was vulnerable. Although teacher/student sexual activity was obviously prohibited, it was an accepted practice for teachers to drive students home after school or to and from school-related activities. Additionally, although in-office individual testing made sense in the circumstances, it also created opportunity for teacher/student abuse.

Justice Salmers concluded that Mr. Williamson’s wrongdoing was strongly connected with his employment with the School Board and that his employment materially and significantly increased the risk of harm to the plaintiff.  He said: “In all of the circumstances…the fair allocation of the consequences and deterrence require that the School Board be vicariously liable for damages as a result of Mr. Williamson’s wrongdoing”.

In my view, this case is correctly decided and vicarious liability for sexual assaults by teachers should be imposed on school boards. Education is perhaps the most important function of state and local governments.[10] Education is a service that is delivered directly to children who are vulnerable by virtue of their age.  It is an activity that carries with it the risk of harm should the authority delegated to an employee be abused.[11]

School authorities have immense influence over their students.  The Supreme Court has recognized at common law that school authorities are required to provide protection and supervision for students to the standard of a “prudent parent”.[12]  School boards, like religious dioceses, owe duties to students or others who interact with teachers, priests or others under their supervision.[13]

In providing the community with a service, School Boards have authority over students in their schools. The process of educating children requires that a School Board have a form of “custodial authority” to enable it to educate them. In carrying out its mandate, it is necessary that the Board would require professional teachers to have, by virtue of their employment, a significant measure of power and authority over students.[14]

Teachers have significant power and authority over children.  At present, attendance at school for children between the ages of 6 and 17 is generally mandatory in Ontario.[15]  Under the Schools Administration Act, 1960,[16] children between the ages of six (6) and sixteen (16) were required to attend an elementary or secondary school in Ontario, with certain exceptions.  The parents or guardians of a child had a statutory duty to “cause the child to attend school”.  Parents who neglected or refused to compel their child to attend school could be found guilty of an offence under the Act and be convicted.

Success or failure at school can significantly affect a child’s life and future. Teachers also have the power to discipline and can significantly influence a child’s view of himself or herself. In fact, for some children, a teacher may have more power and authority than a parent.  At school, teachers have the power to determine when a student is permitted to go to the bathroom and whether a student can be detained during recess or after school hours as punishment.  Students are expected to respect their teachers and follow their orders.  A teacher has the ability to “dominate and influence” a student.[17] At times,  teachers were authorized to discipline students by using corporal punishment, including the “strap".[18]

The Supreme Court of Canada has recognized on numerous occasions that teachers are in a position of trust and authority towards their students. They have “parental” authority:

In my view, no evidence is required to prove that teachers play a key role in our society that places them in a direct position of trust and authority towards their students.  Parents delegate their parental authority to teachers and entrust them with the responsibility of instilling in their children a large part of the store of learning they will acquire during their development.

…I am of the view that in the vast majority of cases teachers will indeed be in a position of trust and authority towards their students…in the absence of evidence raising a reasonable doubt in the mind of the trier of fact, it cannot be concluded that a teacher is not in a position of trust and authority towards his or her students without going against common sense.[19]

The power and influence teachers can have over their students and the educational system has been expressed by the Supreme Court of Canada as follows:

Teachers are inextricably linked to the integrity of the school system.  Teachers occupy positions of trust and confidence, and exert considerable influence over their students as a result of their positions…

By their conduct, teachers as “medium” must be perceived to uphold the values, beliefs and knowledge sought to be transmitted by the school system…
…The integrity of the education system also depends to a great extent upon the perceived integrity of teachers…

It is on the basis of the position of trust and influence that we hold the teacher to high standards…it is an erosion of these standards that may lead to a loss in the community of confidence in the public school system.[20] 

While intimacy is a factor, it is not a necessary ingredient in the determination of vicarious liability where the focus lies on whether there is a significant connection between the creation or enhancement of a risk and the wrongful conduct that arises from that risk. In any event, teachers may well have psychological, if not physical intimacy with children, especially where the teacher takes on a formal or informal counselling or mentoring role.

In cases of child abuse, courts should give special attention to the existence of a power or dependency relationship, which on its own often creates a considerable risk of wrongdoing.[21]  A school board’s activities create risk of abuse of students. The basis for vicarious liability is that the board, like any agency that introduces into the community an enterprise which may present a risk of harm, must be liable for that risk. Where anybody exercises the kind of authority that gives him/her a degree of control over a vulnerable population, there is a risk that harm may result if he/she abuses that authority.[22]

Of course, imposing vicarious lability will make it much easier for survivors of sexual abuse by teachers to sue school boards.  It will also ensure that school boards take every possible step to ensure that teachers do not sexually abuse students.

[1] [2020] ONSC 3874

[2] [1999] 2 S.C.R. 534 (QL)

[3] Aksidan v. Canada (AG), [2008] B.C.J. No. 178 (C.A.) (QL), per MacKenzie J.A. at paras. 2, 3, 5, 10 & 18. 

[4] [2004] N.J. No. 426 (Nfld. S.C.T.D.) (QL), per Faour J.

[5]  [2000] O.J. No. 2155 (Sup. Ct.) (QL), per Chadwick J.

[6] Note that in K.G. v. B.W., John failed to satisfy the court that the defendant assaulted her. The court’s analysis regarding vicarious liability was in response to a motion for non-suit brought by the school board.  For the purposes of that motion, the Court accepted the evidence of John as being true.

[7] [2012] O.J. No. 6415

[8] [2013] O.J. No. 2913, reversed on appeal on other grounds.

[9] (2014), 21 O.R. (3d) 369

[10] Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) (U.S. Supreme Court) (QL) at 493.

[11] Doe v. Avalon East School Board, supra at para. 53.

[12] Myers (Next Friend of) v. Peel County Board of Education, [1981] S.C.J. No. 61 (QL), per McIntyre J. at 7.

[13] J.L.P. v. C.R.P., [2008] O.J. No. 225 (Sup. Ct.) (QL), per Master Glustein at para. 61. 

[14] Doe v. Avalon East School Board, supra at para. 53.

[15] Education Act, R.S.O. 1990, c.E-2 at s.21.

[16] The Schools Administration Act, R.S.O. 1960, c.361 at s.6(1).

[17] Norberg v. Wynrib, [1992] 2 S.C.R. 226 (QL), per LaForest J. at paras. 38-39.

[18] In Canadian Foundation for Children, Youth and the Law v. Canada (AG), [2004] S.C.J. No. 6, per McLachlin C.J. at para. 38, the Supreme Court stated that “Substantial societal consensus, supported by expert evidence and Canada's treaty obligations, indicates that corporal punishment by teachers is unreasonable.”

[19] R. v. Audet, [1996] 2 S.C.R. 171 (QL), per LaForest J. at paras. 41 & 43.

[20] Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825 (QL), per LaForest J. at paras. 43-45.

[21] Bazley, supra at para. 46.

[21] Doe v. Avalon East School Board, supra at paras. 51 & 54.

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