Institutional Liability for Sexual Abuse

Reference Re: Broome v. Prince Edward Island, [2010] S.C.C. 11

The Supreme Court of Canada recently commented on a variety of issues relating to whether an institution is liable for historical sexual abuse.

In this case, the plaintiffs alleged physical and sexual abuse as children while they resided in a privately owned and managed children’s home. The court considered 4 issues:

1. Did the province owe a duty of care by virtue of the common law, its statutory authority and responsibility, or the doctrine of parens patriae?
2. Did the province owe a non-delegable duty?
3. Was the province vicariously liable for the acts or omissions of the trustees, staff or volunteers working in the home?
4. Did the province owe a fiduciary duty to the residents in the home?

The court held that there was not sufficient proximity to impose a duty of care. Although the governing legislation set out that the director shall “inspect or direct and supervise the inspection of any institution established for the care and protection of children or place where a child is placed pursuant to the provisions of this act”, this was insufficient to impose a duty of care. In addition, the mere fact that the province provided some funding indirectly in the form of grants was not enough to create a sufficient relationship of proximity between the province and the children.

The court also held that the province did not owe a non-delegable duty of care to the residents of the home. The home was not a children’s aide society, the children were not foster children or wards of the province, and the legislation created no role for the province in the operation of the home or for the care of the residents.

In terms of vicarious liability, the court rejected the plaintiffs' submission that the province exercised sufficient control over the home through legislative authority and statutory duties to justify the imposition of vicarious liability. The court noted that legislative authority is not enough to impose vicarious liability as if it were, “a province would be vicariously liable for every act committed in a field within its legislative authority”.

Finally, the court held that there was no fiduciary duty owed by the province to the children as there was no evidentiary basis to support an inference that the province directed or had the authority to direct the operation of the home. There were no facts that would have given rise to a fiduciary relationship.

This decision, when read in conjunction with decisions such as KLB v. British Columbia, [2003] 2 S.C.R. 403, is important in the defence of institutions for cases involving sexual abuse. It appears from this decision that something more than just legislation, such as a direct role in supervising children, is required in order to impose liability.