School Board Liability For Sexual Assaults By Teacher

• Published date: 15 July 2020
• Subject Matter: Employment and HR, Consumer Protection, Discrimination, Disability & Sexual Harassment, Education
• Law Firm: Torkin Manes LLP
• Author: Ms Loretta Merritt

In C.O. v. Williamson and Trillium Lakes District School Board an Ontario judge has found a school board vicariously liable for historical sexual abuse of a student by her teacher This is an important decision as it imposes liability for the abuse on the school board in the absence of any evidence of wrongdoing on the part of the school board. In a ruling on June 30, 2020 Justice David Salmers of the Ontario Superior Court of Justice found both the teacher Royce Galon Williamson and the Trillium Lakes District School Board in Lindsay liable for the teacher's sexual assaults on the student and ordered them to pay more than $500,000 in damages.

Williamson had not been criminally convicted of the assaults and did not appear at the civil trial. The court accepted the plaintiff's evidence of the repeated and brutal sexual assaults. In fact, school administrators believed the student's report of the assaults when she first made them in 1984 and although the teacher was asked to resign, he was allowed to continue teaching and leading the school band for three months until the school year ended. Aside from a few sessions with an inexperienced guidance counselor, the school board did not give the student any psychological counselling or support. The court found the school board's actions were directed at protecting the school board and were negligent.

The court's finding on the issue of vicarious liability is an important precedent. The Supreme Court of Canada has imposed vicarious liability in other contexts (residential group homes and churches - see Bazley v. Curry ('Bazley'),¹ but the issue of vicarious liability of a school board has not been finally resolved. Previous school board decisions have had mixed results Some courts have suggested that vicarious liability for the sexual assault of a student by a teacher may rest with the governing school board or district as the teacher's employer.²For example, in Doe v. Avalon East School Board,³ the Newfoundland Supreme Court Trial Division held a local school board vicariously liable for the sexual assault by a literature teacher against a twelfth-grade student. The teacher had placed his hands on the student's clothes and fondled his chest and genitals. In imposing vicariously liability on the school board, the Court found that the power and authority given to the teacher in furtherance of the school board's enterprise contributed to the risk of harm:

It was the employer's mandate as a school board which placed in the hands of its teachers significant power and authority over the students: quite properly to carry out their teaching roles, but also enhancing the risk of something going wrong if that power was abused. It was the school board which gave [the teacher] as a trusted professional employee, the authority to set up circumstances wherein the offense was committed'The wrongful act itself did not further the employer's aims, but the placing of John in a room alone with the employee was directly connected with carrying out [the teacher's] responsibilities to educate young people. This was for the purpose of carrying out the Board's mandate as part of the education system. The wrongful act was directly connected with his role as a teacher. He was in a position of power vis-à-vis John; as a student required to submit to the direction of a teacher, John was vulnerable to a wrongful exercise of that power and authority'

The Court's decision in Doe v. Avalon establishes that vicarious liability should be imposed on a school board where the school board places in the hands of its teachers significant power and authority over the students and where the wrongful act is connected with the perpetrator's role as a teacher in a position of power vis-à-vis the student, a school board ought to be vicariously liable for the wrongful exercise of that power and authority.

However, in 2000, in K.G. v. B.W.,⁴ the Ontario Superior Court would not have found the school board vicariously liable for the sexual assaults by a teacher in 1969 who allegedly assaulted the then nine-year old...