Dunford v. Hamilton-Wentworth District School Board, 2025 ONCA 438

Written by Alexa Duggan / Summaries / August 01, 2025

Full Decision

Court of Appeal Confirms No Vicarious Liability on Hospital for Sexual Abuse at Alternative School

The recent Court of Appeal decision in Dunford v. Hamilton-Wentworth District School Board, 2025 ONCA 438 confirmed the trial judge’s finding that the Hamilton Health Sciences Corporation was not vicariously liable for sexual abuse perpetrated on the plaintiff when he attended an alternative school operated by a doctor at the Hamilton hospital.

Background

The plaintiff attended an alternative education program, called the Cool School, in 1982 and 1983, when he was 19 years old. The school was launched as a pilot project by Dr. James Anderson in 1971, to assist young people with completing their high school education if they had difficulty attending a regular school program. The Cool School was designated as a Chedoke Hospital program and it operated on hospital grounds from 1973 to 1983, later moving off hospital property. The hospital administered the Cool School’s funding, which was provided by the Ministry of Education and later by the Ministry of Community and Social Services. Staff working at the Cool School were employees of the hospital, but Dr. Anderson was employed by McMaster University, not the hospital, although he held privileges at the hospital (Dunford v. Hamilton-Wentworth District School Board, 2024 ONSC 2991 at 133). Dr. Anderson was not paid by the hospital for his work at the Cool School.

The sexual abuse involved two separate incidents at the plaintiff’s apartment, wherein Dr. Anderson engaged the plaintiff in sexual acts. The trial judge found these incidents constituted sexual battery. The tort of sexual battery was not at issue in the appeal. The subject of the appeal was the trial judge’s conclusion that the Hamilton hospital was not vicariously liable for the sexual battery because its relationship to Dr. Anderson was not sufficiently close to make imposing vicarious liability appropriate.  

Analysis

On appeal, the plaintiff alleged the trial judge applied the incorrect test for vicarious liability, failed to consider the underlying policy considerations for vicarious liability and failed to consider the totality of the evidence. The trial judge’s finding on vicarious liability constituted a question of mixed fact and law, and therefore the standard of review was one of palpable and overriding error, or extricable error in principle.

In order for a finding of vicarious liability there must be: 1) a sufficiently close relationship between the tortfeasor and the person against whom liability is sought; and 2) a sufficient connection between the tort and the tortfeasor’s assigned tasks such that the tort can be regarded as a materialization of the risks created by the enterprise. Because the claim involved a non-profit entity, the trial judge also had to decide whether Dr. Anderson was acting “on his own account” or on behalf of the hospital. The Court of Appeal noted that the trial judge made a “thorough analysis” and reviewed all of the relevant factors, including that:

  1. Dr. Anderson was not the hospital’s agent and had no authority to bind the hospital;
  2. The hospital had little control over Dr. Anderson’s activities;
  3. The hospital had no involvement in the curriculum and no role in approving any changes to it;
  4. The Cool School staff reported to Dr. Anderson and he made all decisions about student enrollment;
  5. The Cool School’s success depended largely on Dr. Anderson’s name and the weight given by the letters of equivalency he signed;
  6. Dr. Anderson recruited the tutors (staff) at the Cool School;
  7. Dr. Anderson took on financial risk at the beginning of the Cool School project; and
  8. Dr. Anderson was the sole and ultimate decision-maker with respect to all important aspects of the program.

Further, the court noted that the plaintiff’s complaint that the trial judge did not give appropriate weight to certain factors was actually a “request to have this court re-weigh the factors already analyzed” by the trial judge.

As for the underlying policy considerations, fair and effective compensation, and deterrence of future harm, the Court of Appeal noted that the trial judge concluded that “imposing vicarious liability in these circumstances would not further the two policy goals because the relationship between the hospital and Dr. Anderson was not sufficiently close,” and the trial judge was not required to consider the policy goals separately in her analysis.

Conclusion

The Court of Appeal found no reason to interfere with the trial judge’s findings that Dr. Anderson was “too independent” for the hospital to take any measures with respect to his conduct, and that the hospital’s relationship with Dr. Anderson was too remote to consider that he acted on behalf of the hospital. Instead of a siloed approach, the Court of Appeal found that the trial judge assessed the various factors individually, which then became the “building blocks in her ultimate conclusion” that the “total relationship” between Dr. Anderson and the hospital was not sufficiently close to ground a finding of vicarious liability.

In historic abuse cases, vicarious liability may allow plaintiffs to obtain compensation from an institutional defendant, but as this case demonstrates, the relationship between the tortfeasor and the institutional defendant must be sufficiently close, which depending on the facts, can be difficult to prove.

Written by

Alexa practices personal injury law at Cohen Highley LLP in London, with an emphasis on disability law and human rights. She is passionate about helping others, and is active in the local community to promote diversity and access to justice. She is currently a member of the Board of Directors of the Regional HIV/AIDS Connection, and volunteers as a committee member for the Brain Injury Association of London and Region.

Alexa completed her undergraduate studies at Western University in Political Science and was honoured to attend Osgoode Hall Law School to complete her Juris Doctor degree. During her time at Osgoode she had the opportunity to work with the Barbra Schlifer Commemorative Clinic, which provides legal services and advocacy for women who have experienced violence.

Alexa’s practice interests include sexualized violence and historic abuse, discrimination and other human rights abuses, and she is always interested in collaborating on matters that promote fairness and equality in the community.