In H.N. v. School District No. 61 (Greater Victoria), 2025 BCCA 144, the BC Court of Appeal unanimously dismissed the appeal by the Plaintiff, H.N., arising from the trial judge’s finding that the School District No. 61 (Greater Victoria) (the “District”) was not vicariously liable for the sexual abuse perpetrated by the Plaintiff’s English tutor, Gary Redgate (now deceased).
This decision provides two key takeaways. First, it provides guidance with respect to the Court’s use of precedent in analyzing whether vicarious liability is established. Secondly, it emphasizes the importance of analyzing whether there is a sufficient connection between the duties and responsibilities of an employee, and the wrongful act, in finding an employer vicariously liable. A mere opportunity for abuse is insufficient to impose vicarious liability.
Factual Background
H.N. was an academically strong Grade 6 student at a school within the District (the “School”). His English teacher arranged for Redgate, a volunteer tutor, to help H.N. draft a novel, which was a personal and not a school-directed project. From late 1999 to early 2000, H.N. and Redgate met once a week for approximately 40 minutes in an empty classroom at the School during H.N.’s English class. During these tutoring sessions at the School, Redgate initiated physical advances by sitting closer to H.N. during successive sessions until he sat close enough to H.N. for their arms to touch.
H.N. and his parents subsequently arranged for the tutoring sessions to occur exclusively at Redgate’s home, which occurred between March 2000 and March 2005. During these tutoring sessions, Redgate’s physical advances continued and he became increasingly affectionate over time, intensifying his emotional manipulation of H.N. Eventually, Redgate sexually abused H.N. in his home (the “Abuse”).
H.N. commenced an action against the District, Redgate, and Haisell (H.N.’s Grade 6 teacher); during trial, H.N. withdrew the claims against Haisell. The trial judge, Justice Coval, found that Redgate groomed H.N. by manipulating his relationship with H.N. and H.N.’s family, and by inserting himself into their lives in order to exploit H.N. Justice Coval found Redgate’s estate liable for the Abuse.
However, Justice Coval dismissed H.N.’s claim against the District for vicarious liability and direct negligence. Notably, Justice Coval found that, the tutoring arrangement only provided an opportunity for Redgate to groom H.N. When Redgate met with H.N. at his own home, Redgate was not doing so for the District and these tutoring sessions were not for the District’s benefit or authorized, organized, facilitated, or controlled by the District. In doing so, Justice Coval relied on Jacobi v. Griffiths, [1999] 2 S.C.R. 570 (“Jacobi”) as a precedent.
H.N. argued that Justice Coval erred by treating Jacobi as a controlling and dispositive precedent, and that he failed to apply his own findings of fact to the test for vicarious liability. Alternatively, H.N. argued that the court should depart from Jacobi as a precedent in light of subsequent legal and societal developments.
The Court of Appeal held that Justice Coval properly applied Jacobi as a precedent, and as such, the Court would not interfere with Justice Coval’s conclusions.
The Test for Vicarious Liability
The Court of Appeal reviewed the test for imposing vicarious liability in cases involving the sexual abuse of children, which the Supreme Court of Canada established in three leading cases: Jacobi, Bazley v. Curry, [1999] 2 S.C.R. 534, and E.B. v. Order of the Oblates of Mary Immaculate in the Province of British Columbia, 2005 SCC 60.
The test relies on the “enterprise risk” approach, which recognizes that an employer puts an enterprise that carries certain risks into the community. When those risks materialize and cause injury to a member of the public, despite the employer’s reasonable efforts, it is fair that the employer that created the enterprise, and thus the risk, should bear the responsibility for the loss.
In the context of abuse of a minor, it is of critical importance to identify whether there is a strong connection between the powers, duties, and responsibilities of the employee, and the subsequent abuse. This is done by paying attention to the power and/or intimacy created by the duties of the employee and their relationship to the victim, and the extent to which this is enabled by the arrangements created by the employer. Without a strong connection materially enhancing the risk of abuse, the most that can be said is that working with a young child, a task that is inherent in all adult/child relationships in institutional settings, offers a potential opportunity to commit abuse. A mere opportunity alone does not provide the “strong link” required to impose vicarious liability.
In applying the test for vicarious liability, the Supreme Court of Canada instructed judges to first look to previous cases for guidance. Where there is no case to suggest a solution, the next step is to determine whether liability should be imposed in light of the broader policy implications.
The Court of Appeal emphasized that the exercise of looking to and relying on precedents did not require an exact correlation between the facts of the precedent and the case at bar. The proper use of precedent should not be a “mechanical” exercise, and should involve evaluating the material factors that previous cases have determined are important to assessing vicarious liability.
Justice Coval Properly Applied the Test for Vicarious Liability
In the trial decision, Justice Coval applied the enterprise liability test by considering whether the Abuse was sufficiently related to the responsibilities that the District empowered and authorized Redgate to do, and whether and the extent to which the tutorial arrangements conferred power on Redgate that would significantly enhance the risk of abuse. He found that the opportunity created by the District for Redgate to abuse H.N. was slight. The District provided Redgate with the opportunity to work with H.N. during school hours, in a place and during a time when staff knew where to find them, and for work unrelated to H.N.’s English curriculum. Like in Jacobi, the relationship envisaged by the District had no element of intimacy and did not include putting Redgate in a position of trust over H.N.’s care, protection, nurturing, or discipline. As such, the power Redgate used to facilitate the Abuse was not conferred by the District or characteristic of the type of enterprise the District put into the community. Additionally, H.N.’s vulnerability was limited because his parents were involved in arranging H.N.’s interactions with Redgate.
H.N. argued that Justice Coval erred by treating Jacobi as a controlling precedent and failed to apply his own findings of fact to the test.
One of H.N.’s arguments that Jacobi was not a controlling and decisive precedent was the fact that, at trial, he presented expert evidence on “grooming”, making his case substantially different from Jacobi. The Court of Appeal opined that, despite not using the language of “grooming”, the decisions of Jacobi and Bazley were understood by the Supreme Court of Canada to involve the grooming of victims. As such, the expert evidence adduced at trial did not add something to the record that was missing in Jacobi, such that it was a fundamentally different case. The Court of Appeal further opined that the decision in Jacobi would likely have been the same even if it had an expert opinion on grooming because, while the expert evidence helped deepen the understanding of how abusers exploit opportunities to abuse, it does not displace the need to examine whether there is a strong connection between what the abuser is tasked to do and the abuse. The Court of Appeal found no palpable or overriding errors with Justice Coval’s conclusion that the District was not vicariously liable for the Abuse even though the early steps in grooming began at the School.
H.N. further argued that certain factual differences, such as the location of the Abuse, and the public/private nature of the Abuse, made Jacobi materially different from H.N.’s case. On these issues, the Court of Appeal clarified that the proper use of precedent does not require searching for a case that is “on all fours”, where the facts are identical. Rather, the task is to evaluate the material factors considered to be important or critical to a finding of vicarious liability. The Court of Appeal found that the trial judge properly considered the facts of Jacobi and the case, and he was alive to the nuanced differences between the two cases. As such, the Court of Appeal held that, while Jacobi was not on all fours with H.N.’s case, Justice Coval properly relied on Jacobi as a precedent because the material issues were sufficiently similar to those in H.N.’s case – that is, whether the abuser exploited an opportunity created by the employer versus whether there was the necessary strong connection between the abuser’s job created power and the intimacy that increased the risk of harm.
In the end, the Court of Appeal found that Justice Coval was alive to key differences in the facts of Jacobi and H.N. case, and that there was no palpable and overriding error with respect to his analysis. Justice Coval properly considered whether the tutoring arrangements put in place by the District significantly enhanced the risk of abuse, and as well as the nature of Redgate’s duties, responsibilities, and powers. The Court of Appeal held that it was open to Justice Coval to conclude that the necessary strong connection required to impose vicarious liability between these duties, responsibilities, and powers, and what was expected of him by the District did not exist.
Key Takeaways
1) It is appropriate to rely on precedent to guide one’s analysis on whether the elements of vicarious liability are met. In relying on precedent, it is not necessary that the precedent be factually identical. The key is to evaluate the circumstances and issues material to the finding on vicarious liability, and to determine whether they are sufficiently similar to the case at bar.
2) Mere opportunity to commit abuse is not sufficient to impose vicarious liability. Factors like the opportunity to begin grooming, mentorship or role-model based relationships, and the vulnerability of children alone are not determinative in finding vicarious liability. The overriding consideration is whether there is a strong connection between what the abuser is tasked to do, the intimacy created by the tasks, and the abuse.
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