Course:Law3020/2014WT1/Group X

E.B v Order of the Oblates of Mary Immaculate in the Province of British Columbia [2005] 3 S.C.R. 45; 2005 SCC 60



Facts
From 1957 to 1962, the appellant E.B. was a student at a residential school in British Columbia which was run by the respondents, the Order of the Oblates of Mary Immaculate in the Province of British Columbia. During this period, the appellant suffered routine sexual abuse at the hands of Martin Saxey, a lay employee at the school. The appellant seeks damages from the respondents because of direct liability in allowing such abuse to occur, and also vicarious liability for the unlawful actions of Saxey in his position as an employee.

Decision
Binnie J., writing for the majority, did not find the respondent vicariously liable for the harm suffered by the appellant. Using the test from Bazley v Curry [1999]2 SCR 534 to examine the extent to which an employer can be responsible for the conduct of an employee. From this test, the majority held that the normal activities of Martin Saxey were not sufficiently proximate to the young students under the care of the respondent to create the potential for harm. Moreover, the court noted that what is required for a finding of vicarious liability is a situation created or encouraged by the employer put the victim in a risky position which was vulnerable to harm at the hands of the employee. Since the appellant's abuse did not come about through the respondent's actions of putting him in a closer position to Martin Saxey, there was no finding of vicarious liability.

The Court noted that if the issue of direct liability was pressed further by the appellant, it may have been possible to find the respondent liable in that action.

Abella J., writing a sole dissent, applied the Bazley test in a different way, and found the respondent vicariously liable. By employing Martin Saxey, the respondent enhanced the risk of harm coming to the students of the school, including the appellant. Saxey had a wide range of duties in the scope of his position as a lay employee, and was put into positions of close proximity to students as a result. By employing him in such a way, the respondent contributed to the risk the appellant was exposed to, and therefore should be found vicariously liable.

The Bazley v Curry Test
1. Was the employee's actions authorized by the employer?

2. Was the act not authorized by the employer, but was so connected to an authorized act that it may be considered a "mode" of an action authorized by the employer?

3. Are there any policy reasons for not finding vicarious liability?

4. Is the harm sufficiently related to the employment itself to justify a finding of vicarious liability?