Course:Law3020/2014WT1/Group E/K.L.B v. B.C.

K.L.B. v. B.C.

Supreme Court of Canada

This was a decision by the Supreme Court of Canada, concerning the potential duty of care that the BC Government owes to foster children that the Ministry of Children and Family Development places in homes. The appellants KLB, PB, HB, VERB are siblings whom were placed in the foster care system by their mother as a result of their father’s alcohol induced violent behavior. The siblings were placed by the ministry’s social workers initially in the Pleasance home, and then the Hart home, both of which they had determined to be suitable. In both homes, the children suffered abuse, and on one occasion sexual abuse. The appellants’ claim that the injuries suffered resulted from the government's failure to take the necessary steps to ensure suitable placements for them. Their claim was supported by evidence, which demonstrated that the social workers had disregarded important warnings on both household files, regarding whether placement in their homes was appropriate and safe.

The trial judge found in favour of the children, finding that the government had failed to exercise reasonable care in arranging suitable placements for the children and in monitoring and supervising these placements. The BC Court of Appeal found that the respondents were statute barred and therefore their claim could not succeed, with exception to K’s claim to sexual assault.

Supreme Court of Canada Decision

Issues on Appeal

1. Is there any legal basis on which the government could be held liable for the harm that the appellants suffered in foster care?
2. Are the appellants’ tort actions barred by the Limitations Act?
3. What is the proper basis for assessing damages for child abuse by a parent or foster parent and did the trial judge error in her assessment?

In the majority’s judgment written by McLachlin CJ, it was ruled that there was a duty of care owed, that was breached. Accordingly the government was found to be directly negligent. However the court found that there was no vicarious liability via the foster parents, no breach of non delegable duty, and no breach of fiduciary duty owed by the government to the children. Although the court ruled that the government was directly negligent, it was held that the claim could not succeed as a result of being statute barred by the Limitation Act.

In a concurring judgment lead by Arbour J, the court agreed with the majority that the government was liable for direct negligence. However they also found that the appellants made out the elements of a successful claim of vicarious liability against the government for the abuse inflicted by their foster parents. The court noted that relevant factors, properly weighed, indicate that foster parents do in fact act on behalf of the government when they care for foster children. Further the court found that the policy goals that justify vicarious liability, namely just compensation and deterrence of future harm, are served by finding vicarious liability in the present circumstances. While the court found additional ground for the appellants claim, they too held that their claim was statute barred for the same reasons as the majority.