In the last year, there have been two Ontario trial decisions dealing with sexual abuse of students by teachers. While we are still awaiting the full decision in the second case, it appears these cases may have yielded diametrically opposed outcomes. Whether these different outcomes are attributable simply to different sets of facts, or whether there are bigger lessons to be learned, remains to be seen. Highly anticipated is the judge’s ruling in the second case, which is expected any day now and should help clarify when school boards will be held legally responsible for harms caused to students by their employees’ sexual misconduct.
Hayward v. Cloutier, 2012 ONSC 3738
In this case from Windsor, Ontario, the plaintiff claimed he was sexually touched in the mid-1960s by his grade 4 teacher at his local Catholic public elementary school. He alleged his teacher briefly touched his genitals at the back of the classroom while other students were present but looking in another direction, and this happened on a few occasions. He also alleged an occasion of sexual touching in the nurse’s office, and said he witnessed the teacher on school grounds pull down another student’s pants and expose that student’s genitals. The plaintiff did not disclose the abuse until 36 years later.
According to the trial judge, the plaintiff’s memory of what happened was fragmented and “murky”. His descriptions of events apparently changed and contained inconsistencies. As a result, the judge concluded it was “difficult to determine what the allegations of abuse actually are” and the plaintiff’s “description of the events … are highly implausible … [and] do not have a ring of truth”. At the same time, the judge found that the teacher answered questions “in an honest and straightforward manner”.
In the end, the trial judge concluded that the plaintiff had not discharged his onus of proof and, as such, the teacher was not liable for sexual assault. Further, had the plaintiff proven the sexual abuse, the judge said he would only have awarded $25,000 in damages.
The trial judge did not stop there, but went on to consider whether the school board would be vicariously liable for its teacher employee’s misconduct if the teacher had sexually assaulted the plaintiff as alleged. The judge cited the governing legal test for determining if an employer is vicariously liable for employee sexual misconduct, and concluded that because the alleged abuse was said to have occurred while the teacher was simply carrying out his ordinary duties as a teacher, without taking advantage of any specialized opportunities afforded to him by virtue of his employment, no vicarious liability would attach to the school board even if the alleged sexual misconduct had been proven.
This is a rather unsettling conclusion that leaves one uncertain about how the law of vicarious liability for sexual misconduct is being applied to school boards. Courts have been quite prepared to hold religious institutions, such as Roman Catholic dioceses, vicariously liable for the sexual misconduct of their clergy, in the context of these clergy fulfilling their ordinary duties as priests, ministers or clerics. On many occasions, courts have also found the federal government and churches, which jointly ran the residential schools in which First Nation children were historically placed, vicariously liable for sexual abuse committed by their staff in the course of their work with students. Should public school boards that operate non-residential day schools and that employ teachers and other staff be treated differently?
Because the judge in Hayward v. Cloutier found there was no sexual abuse, his decision with respect to vicarious liability is not a legally binding one. Nonetheless, it adds uncertainty to an important social sphere – the education of children - where we know there are youth who are vulnerable to abuse of authority by adults with job-conferred powers, and thus, where the potential for harm and injury from sexual abuse is high.
Langstaff v. Hastings and Prince Edward Board of Education (unreported)
Adding to the uncertainty is another teacher abuse case that was recently tried in Belleville, Ontario. Unlike Hayward v. Cloutier, this was a trial before both a judge and jury. We already know the jury’s verdict, which is that the teacher is liable for sexual assault. What we do not yet know is whether the school board will be held vicariously liable for its teacher’s misconduct. This is because the judge, not the jury, is the one deciding the question of vicarious liability and the judge has yet to release his decision on this part of the case.
Newspaper reports from January 2013 indicate that the jury awarded the plaintiff $3.2 million for the damages he suffered as a result of extensive sexual abuse by his elementary school teacher, which occurred in the latter 1970s when the plaintiff was just 12 years old. According to newspaper reports, there was apparently evidence at trial that the school board gave the teacher a key which afforded him unlimited access to a mini-zoo he housed in his science classroom and that it was there that he assaulted the plaintiff during recess, lunch breaks, after school and on weekends, under the pretence of students helping care for the animals.
In this case, where the teacher was apparently also criminally convicted for his sexual misconduct, there was no question that the sexual abuse had in fact occurred. The jury found the teacher liable and, apparently, also found his school board employer directly liable in negligence.
Keenly watched for now is the trial judge’s anticipated decision on whether the school board will also be held vicariously liable for its teacher’s sexual misconduct. Vicarious liability is where responsibility for an employee’s wrongdoing is attributed to the employer. It is effectively a no-fault, indirect form of liability that would, in this case, make the school board, independent of any negligence on its part, responsible with the teacher for paying the very significant damages awarded to the plaintiff by the jury.
If the judge finds vicarious liability, this will be one of the first reported Canadian decisions in which a day school (as opposed to a residential school, where there is much precedent for vicarious liability) is held indirectly responsible for the harms flowing from the sexual misconduct of its staff against a student. Regardless of the judge’s decision, this is also a case that we can expect to be appealed given the importance of the legal issues and the considerable award of damages at stake.
Elizabeth Grace is a partner at the Ontario law firm, Lerners LLP, and has specialized in sexual assault matters for almost two decades now. See her professional biography for more information about Elizabeth and her work in the area of civil liability for sexual abuse, or email her at