Can A Children's Aid Society Be Liable For Abuse By Foster Parents?

Sexual abuse by foster parents can have a devastating effect and cause significant damages. However, a civil action against the individual perpetrator(s) may not be possible (if they are deceased) or worthwhile (if they are impecunious). The survivor's only recourse may be against the Children's Aid Society. There are three possible ways a CAS may be liable for sexual abuse committed by foster parents; vicarious liability, breach of non-delegable duty and negligence. If the CAS is liable for the abuse it will have the means to satisfy the judgment. In many cases, the CAS will also have insurance coverage for such claims.

Vicarious Liability

In order to determine whether vicariously liability can be imposed on a CAS one must start with first principles of institutional vicarious liability for abuse. In Bazley v. Curry1and Jacobi v. Griffiths2, the Supreme Court of Canada set out the principles to be applied in determining the vicarious liability of an employer for sexual assault perpetrated by an employee. The Court referred to the test expounded in Salmond (from Salmond and Heuston's treatise on torts)3 which maintains that employers are vicariously liable for both acts authorized by the employer and unauthorized acts that are deemed to be sufficiently connected with authorized acts that they may be viewed as modes (albeit improper modes) of doing authorized acts. The imposition of vicarious liability is generally appropriate where there is a significant connection between the creation or enhancement of a risk and the wrongful conduct that arises from that risk, regardless of the intentions or wishes of the employer.

The Court considered the opportunity afforded by the employer's enterprise for the employee to abuse power; the extent to which the wrongful act furthered the employer's interests; the extent to which the employment situation created confrontation, intimacy or other conditions conducive to the wrongful act; the extent of power conferred on the employee in relation to the victim4; and the vulnerability of potential victims when determining an employer's liability.5

In Bazley, a non-profit organization operating residential care facilities for children was held to be vicariously liable for a sexual assault perpetrated by a child care counselor. The Court unanimously rejected the argument that non-profit bodies should be protected from tort liability, a position that was affirmed in Blackwater v. Plint.6 The non-profit was found to be liable for the assault because the assaults took place in circumstances that flowed from the organization's child-care mandate, and because the employee was found to have abused authority given to him by the organization.

In contrast, in Jacobi, the majority of the Court found that a non-profit Boys' and Girls' Club was not vicariously liable for sexual assaults committed by its employee, the program director. Some of the assaults took place in the employee's home, and some of them in the course of excursions relating to the children's sports activities. In applying the test set out in Bazley, the majority found that the required strong connection between the risks inherent in the recreational activities and the employee's job did not give him the degree of control or intimacy with respect to the children that would attract liability.7 The fact that the position gave the perpetrator the opportunity to meet the plaintiff was insufficient for a finding of vicarious liability.

It appears clear from Bazley and Jacobi that, in the context of a traditional employment relationship, the courts must carefully scrutinize the nature of the relationship between the offending employee and the survivor in order to determine whether the employment cloaked the offending employee with sufficient power, authority or trust, which facilitated the offending employee's coercion of sexual compliance or submission to the harmful...