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Vicarious liability for assaults upon residential school victims.

In Blackwater v. Plint, the Supreme Court of Canada dealt with the issues of liability concerning sexual assaults committed by a dormitory supervisor upon aboriginal children taken from their families and sent to residential schools operated by the Canadian Government and United Church.

Beyond holding the dormitory supervisor liable, the trial Court also found the Government and Church jointly and vicariously liable–the Government 75% at fault and the Church 25% at fault. In so doing, the Court held “vicarious liability may be imposed where there is a significant connection between the conduct authorized by the employer or controlling agent and the wrong. Having created or enhanced the risk of the wrongful conduct, it is appropriate that the employer or operator of the enterprise be held responsible, even though the wrongful act may be contrary to its desires . . . . The fact that wrongful acts may occur is a cost of business. The imposition of vicarious liability in such circumstances serves the policy ends of providing an adequate remedy to people harmed by an employee and of promoting deterrence. When determining whether vicarious liability should be imposed, the court bases its decision on several factors, which include: (a) the opportunity afforded by the employer's enterprise for the employee to abuse his power; (b) the extent to which the wrongful act furthered the employer's interests; (c) the extent to which the employment situation created intimacy or other conditions conducive to the wrongful act; (d) the extent of power conferred on the employee in relation to the victim; and (e) the vulnerability of potential victims . . . .” The Court went on to rule that the Church was not exempt from liability on the ground of charitable immunity.


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