Historic Case of Sexual Abuse: Addressing Vicarious and Independent Liability of School Board

  • March 22, 2021
  • Renata Antoniuk, DWF Toronto, and Mario Delgado, DWF Toronto

A school board was recently found vicariously liable for historical sexual abuse that the plaintiff was subjected to by her high school teacher (CO v Williamson, 2020 ONSC 3874). The teacher was also a named defendant but did not attend the trial. He had not been criminally convicted for any related offences.

The school board did not contest the plaintiff’s allegations against the teacher. The plaintiff alleged that the teacher sexually abused her when she was 16 years old on ten occasions in 1983. The abuse occurred on and off school property. The teacher took on a mentor/confidant role with the plaintiff as she confided in him about personal and family problems. He abused his position of power and trust and groomed the plaintiff to engage in sexual acts. Assault, battery, sexual assault and sexual battery were made out civilly.

The plaintiff disclosed the abuse to a co-op student counsellor who in turn reported the abuse to the principal. The principal met with the teacher and the teacher ultimately resigned.

Other than speaking with the co-op student, no further support was provided to the plaintiff. The Court found that the school board fell below the standard of care by not seeking available counselling for the plaintiff and by not even suggesting such an option to the plaintiff. The school board breached its duty owed to the plaintiff to protect her from an unreasonable risk of harm.

The school board was also negligent for failing to immediately remove the teacher. Despite the abuse being reported in April, the teacher was permitted to continue working until the end of the school year without any restrictions. The teacher should not have been permitted to return to work after the allegations, which were believed, were disclosed.

By virtue of his position as the plaintiff’s teacher, the teacher had power over the plaintiff, which also augmented by the teacher’s role as leader of the school band, which the plaintiff was a member of. In these positions, it was accepted practice for the teacher to drive students places, perform individual instrument testing with students and attend overnight school trips. The school board’s policies and procedures at the time permitted the foregoing activities. The Court found that in this time period there was a growing awareness of teacher/student sexual abuse and inferred that the school board could have had policies in place to prevent this situation from arising. However, in 1983, the school board did not have any policy dealing with teacher/student transport. Such a policy only came into existence in 2017.

The teacher’s wrongdoing was strongly connected with his employment with the school board, which the Court held materially and significantly increased the risk of harm to the plaintiff. The Court thus held that the school board was vicariously liable for damages resulting from the teacher’s wrongdoing.

The school board was jointly and severally liable for the plaintiff’s damages, which amounted to $300,000 in general and aggravated damages, as well as $200,000 for loss of income. Punitive damages of $100,000 were awarded against only the teacher.

Take away

School boards will not necessarily be vicariously liable in situations arising from employees wrongdoings. However, school boards should ensure that they have adequate policies and procedures to protect their students from abuse at school, and that the policies and procedures are followed.

Where abuse of any kind is alleged or discovered, school boards must deal with it and the individuals involved in a timely and serious manner. The school board must protect students and act in their best interest. Abusers must not be permitted to remain in their employment and should be reported to the authorities.

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