Course:Law3020/2014WT1/Group X/Natural Law

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E.B. v. Order of the Oblates of Mary Immaculate considers the vicarious liability of an employee of a residential school towards a child who was sexually assaulted by this employee as a student. When vicarious liability is used, the superior can be found liable for the acts of a subordinate yet primary actor. To examine the doctrine of vicarious liability under the lens of Natural law, we consider the four elements of a valid law as identified by Thomas Aquinas.

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A law must be directed to serving the common good of the people. The doctrine of vicarious liability is directed at the common good of the people in the sense that it is holding the party that can personally compensate for a harm, liable. This prevents the victim from failing to be compensated as a result of the personal bankruptcy of the main actor and loss is properly redistributed. However, this raises the question of why it is not only the person directly responsible for the harm that is held liable. The person who did the harm is ultimately responsible.

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Natural law must follow practical reason, by taking steps to achieve the common good. In this way, an employee should be held responsible for the conduct of employees.

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Another requirement of a valid law under natural law is that it must be from a valid lawmaker. Aquinas wouldn’t necessary see common law doctrines as properly valid. However, today, common law is widely accepted as valid.

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The promulgation of a proper law requires that it cannot be a secret from the people it applies to. Common law isn’t static and unchanging. But it is visible for people to read and be aware of, with the help of lawyers to interpret.

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The Bazley test sets out the requirements for a finding of vicarious liability. To examine the validity of this law under the scope of human law, we start with the capacity for this doctrine to serve the common good. The goal of this test is to provide a just and practical remedy for victims, and to deter future harm.

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The practical reason of the Bazley test involves the court’s considerations of how vicarious liability can be found or limited. The court looks to policies to serve society effectively, but still prevent potential floodgates from opening.

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The valid lawmaker in the Bazley test is the Supreme Court of Canada, which is the highest common law authority we may consider.

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This test is promulgated through the dissemination of common law judgments.

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To consider the validity of the majority judgment in E.B. v. Order of the Oblates, we examine the relation to the common good. The court placed a limit on the Bazley test. It was held that vicarious liability can only be found if Saxey’s regular responsibilities in his employment involved close contact with children. Since this wasn’t the case, vicarious liability cannot be found.

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In considering the practical reasoning in the majority, Aquinas would likely say that such a wrongful act needs to be punished, and the victim given retribution. Aquinas would likely support direct liability for the reason that they were not the main party responsible, not necessarily vicarious liability, which is similar to what the courts decided.

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The majority is a valid lawmaker in this case because of their authority as appointed judges by a wise few, which would have been approved by Aquinas. This majority decision is validly promulgated because it is written and publicized as a Supreme Court judgment.

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The common good in the dissent is served by holding an employer accountable for employees. Harmful acts need to be punished, even if this is accomplished through vicarious liability.

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The practical reasoning in the dissent is in furthering the common good through the punishment of the responsible party.

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The valid lawmaker in this situation is the collection of appointed judges. Their position is also promulgated in the published case itself.