C.O. v. Williamson, 2020 ONSC 3874

Full Decision

On June 30th in C.O. v. Williamson and Trillium Lakes District School Board, Justice Salmers found a school board vicariously liable for historical sexual abuse of a student by her teacher and ordered both defendants to pay more than $500,000 in damages. 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. 

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 for sexual assaults in other contexts (residential group homes and churches), but the issue of vicarious liability of a school board has not been finally resolved. Previous school board decisions have had mixed results.

In the Trillium Lakes case, the court referred to Bazley v. Curry 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:

  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”.

Written by

Loretta is one of the few lawyers in Ontario who has substantial experience in dealing with abuse and harassment in civil lawsuits and employment cases. She understands and cares about abuse survivors, recognizing that coming forward, being heard and acknowledged as well as gaining a sense of justice and closure, in addition to the amount of a settlement, are what matter to her clients.