This 2024 decision of the Supreme Court of British Columbia involved a claim for damages by the plaintiff for injuries arising from historical sexual abuse perpetrated by Gary Redgate, a volunteer tutor at the plaintiff’s elementary school.
In addition to claiming against the estate of the deceased tortfeasor, the plaintiff claimed against the relevant School District for vicarious liability and breach of fiduciary duty. [para 4]
Justice Coval accepted the plaintiff’s evidence with respect to the abuse that he suffered and the negative impacts that the abuse had upon him. However, Justice Coval, dismissed the plaintiff’s claims of vicarious liability as “the abuse was insufficiently connected to any risk created by the school or its representatives.” [para 6]
Justice Coval applied the 1999 case of Jacobi v. Griffiths to find that vicarious liability against the school district was not established “because there was an insufficient connection between any risk created by the school’s tutorials and Mr. Redgate’s abuse of H.N.” [para 104]
Specifically, Justice Coval draws on the “enterprise risk” theory established by Jacobi, stating:
[67] The “enterprise risk” rationale holds the employer vicariously responsible because, however innocently, it introduced the seeds of the potential problem into the community, or aggravated the risks that were already there, but only if its enterprise materially increased the risk of the harm that happened. Once materiality is established under the “strong connection” test, the imposition of no-fault liability is justified under the second phase of the analysis, as set out in [Bazley](para. 41) by policy considerations, including in particular:
(a) Compensation; and
(b) Deterrence.
Mr. Redgate was a volunteer tutor, but “an organization’s responsibility and control over its operations do not diminish when it employs volunteers” [para 132]. Rather, the test for vicarious liability hinges on whether the relationship between the tortfeasor and the organization is sufficiently close to justify the imposition of liability on the entity.
Justice Coval found that the School Board is vicariously liable for Mr. Redgate’s conduct during tutorials at school but not his conduct outside of school. Because Mr. Redgate met with the plaintiff in his own home, Justice Coval concluded that he was not doing so in connection with the school in any material sense:
The school’s authorities, i.e., Messrs. Campbell and Haisell, did not authorize, organize, facilitate, control or benefit from these meetings at Mr. Redgate’s house. They were tutorials and visits organized by Mr. Redgate, H.N., and his family for their own purposes and without school involvement. [para 134]
The H.N. decision emphasizes the importance of proximity between the tortfeasor and the organization connected to the tortfeasor and represents a complicating case for claims of vicarious liability where the tortious conduct occurred off the organization’s property.
