The author would like to acknowledge the contribution of 2020 Summer Student and 2021/2022 Articling Student Lindsay Armstrong.
In a recent decision of the Ontario Superior Court of Justice, the Trillium Lakelands District School Board was held negligent and vicariously liable for the historical sexual assault of a 16 year old student by her former music teacher and ordered to pay damages to the student.
In establishing that school boards may be held vicariously liable for teacher misconduct, the case sets an important precedent. While school boards have previously been found negligent in such cases, this is the first time a board has been held vicariously liable for an employee’s sexual misconduct.
Negligence and vicarious liability are distinct concepts at law. Negligence arises when a party breaches its duty of care to another party. In the TLDSB case, the court found that the board breached the duty it owed its student to provide a safe environment. Vicarious liability does not require a finding of intentional or negligent acts of wrongdoing, or even knowledge of such acts. The Board was held to be vicariously liable for sexual assaults that took place while the teacher was acting in their capacity as an employee of the board because it was the teacher’s employer at the time.
Historically, vicarious liability for sexual assault has been imposed on organizations like churches and residential group homes. In 1999, the Supreme Court of Canada stated in Bazley v. Curry that the fundamental question when determining whether to hold an employer vicariously liable for unauthorized conduct is whether the wrongful act is sufficiently related to conduct that is authorized by the employer. Vicarious liability depends on whether the employer’s empowerment of the employee materially increased the risk of sexual assault and harm. Another important consideration is whether there are policy reasons to apply vicarious liability, such as to provide fair compensation to the victim or deter future harms.
In the TLDSB case, the court found that the board placed significant power in the teacher’s hands, thereby creating the circumstances that allowed the assault to occur. Specifically, the board allowed teachers to meet with students behind closed doors and did not have a policy against teachers driving students home. The assaults occurred in the teacher’s office and his car, so there is a clear link between the setting created by the board and the harm suffered by the student. Thus, the harm was sufficiently connected to the employment to form a basis for vicarious liability. Moreover, the board failed to take remedial actions and provide support to the student when it learned of the teacher’s acts.
The court also stated that there were policy objectives served by applying vicarious liability, in that the victim has access to compensation and school boards are compelled to be more diligent in preventing future harms.
In addition to this precedent-setting court decision, there have also been statutory amendments that have broadened the scope of legal avenues available to victims of sexual assault.
As a result of recent amendments, Ontario’s Limitations Act 2002, SO 2002, c 24 now provides that there is no limitation period for a proceeding based on sexual assault or a proceeding based on any other misconduct of a sexual nature, if the person alleging the misconduct was a minor at the time and the person who committed the misconduct was in a position of authority. Ontario’s Superior Court has held that in such cases, claims of third party negligence, breach of duty and vicarious liability are also not subject to limitation periods. A claim against a school board for a teacher or former teacher’s acts of sexual misconduct could, therefore, be brought at any time.
Bill 48, Safe and Supportive Classrooms Act, 2019 amended the Early Childhood Educators Act, 2007 and the Ontario College of Teachers Act, 1996 to include prescribed sexual acts in the definition of professional misconduct and provide for the mandatory revocation of a member’s licence for such prescribed acts.
 CAC v Williamson and Trillium Lakelands District School Board, 2020 ONSC 3874.
 Bazley v Curry,  2 SCR 534.
 Ibid at para 41.
 Ibid at para 46.
 Ibid at para 41m.
 Limitations Act, SO 2002, c 24, s 16(1)(h) and (h.1).
 Jane Doe v. Weinstein, 2018 ONSC 1126 (CanLII),
 Bill 48, The Safe and Supportive Classrooms Act, 1st Sess, 42nd Leg, 2019, Ontario, 2019 (assented to 3 April, 2019).