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EXTRA-CONTRACTUAL OBLIGATIONS/TORTS 2002-2003 Prof. LARA KHOURY - page 21 / 64

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McGill Faculty of Law: Extra-Contractual Obligations/Torts: Prof. Lara Khoury, 2002-03/Summary by Derek McKee

clients or persons within their care?

2. If so, should non-profit employers be exempted from liability?” (law)

Holding

1. Yes, 2. No. The Children’s Foundation was held liable.

Ratio

1. The court began by applying the Salmond test, which states that employers should be liable for employees’ acts if they were “authorized” or “so connected with authorized acts that they may be regarded as modes (albeit improper modes) of doing an authorized act.” The problem is that the second part of the test is ambiguous. McLachlin suggests that it can be resolved by looking at:

Stage I of test:

1. Are there precedents establishing unambiguously that the act took place in the course of employment?

and

2. If not, should vicarious liability be imposed in light of broader policy rationales? The major policy concerns are (a) compensation and (b) deterrence.

Stage II of test:

McLachlin concludes that courts should consider whether the employer created or enhanced the risk of the harm. In determining the latter, five subsidiary factors may be considered:

opportunity for abuse of power

employer’s benefit

friction/confrontation/intimacy

unequal power

vulnerability of victims

2. [reasoning not included in except]

Comments

This reasoning has so far only been used for sexual abuse cases.

22/10/02

Jacobi v. Griffiths, [1999] 2 S.C.R. 570. (CB1p355)

Jurisdiction

British Columbia

Facts

Harry Griffiths, program director of the Vernon Boys’ and Girls’ Club, sexually abused numerous children under his care, including Randal Craig Jacobi and Jody Marlane Saur. While the abuse occurred within the context of Griffiths’ professional relationship with the children, the incidents took place after hours or off Club premises. Jacobi and Saur sued both Griffiths and the Club.

Issues

Applying the test set out by McLachlin J. in Bazley v. Curry, can the Club be held vicariously liable? (fact)

Holding

No. Binnie J., for the majority, found that the facts in this case did not meet the criteria in Bazley v. Curry.

Ratio

In the first stage of the test (precedents and policy), Binnie J. emphasized the fact that the “deterrence” policy consideration would not work for non-profit organizations. Binnie J. added “fairness to the employer” as a policy consideration. In the second stage (whether the employer created or enhanced the risk), he found that this case did not meet the subsidiary factors mentioned in the test.

It is important to note that McLachlin J. dissented; she felt that Griffiths’ position of “trust, power and intimacy” was related to his job (the third “subsidiary factor” in Bazley v. Curry). As for policy, she refused to exempt non-profit organizations from liability, not on the basis of “deep pockets,” but on the basis of deterrence and the fact that employers had created the risk that led to the harm.

Comments

Although Binnie J. and McLachlin J. both used the Bazley v. Curry test, neither reasoned by explicit analogy with Bazley v. Curry.

These two cases have had no impact on civil law.

Liability for the Deeds of Others: Children

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