Jane Doe (#4) FIRST PLAINTIFF And: JOHN DOE (#9) SECOND PLaintiff (DISCONTINUED) AND: Newfoundland v. Labrador English School District, 2022 NLSC 114

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Jane Doe (#4) v. Newfoundland and Labrador English School District , 2022 NLSC 114 Date : July 12, 2022 Docket : 201601G6608 Between: Jane Doe (#4) FIRST PLAINTIFF And: JOHN DOE (#9) SECOND PLaintiff (DISCONTINUED) AND: Newfoundland and Labrador English School District DEFENDANT Restriction on Publication: This matter is subject to a publication ban and sealing order made by Justice Orsborn on November 2, 2016. Details of the order may be obtained from the Registry of the Court at 309 Duckworth Street, St.

John’s, Newfoundland and Labrador. Before: Justice Katherine O'Brien Place of Hearing: St. John’s, Newfoundland and Labrador

Date of Hearing: April 8, 2022

Summary: On a

summary trial application, the Court decided that the School District is vicariously liable for the Applicant’s damages caused by ahistorical sexual tort. The sexual tort was committed by a school principal employed by the School District when the Applicant was four,five and six years old. Appearances: Lynn M. Moore and James R. A. Locke Appearing on behalf of the First Plaintiff Joseph J. Thorne Appearing on behalf of the Defendant Authorities Cited: CASES CONSIDERED: Hryniak v. Mauldin, 2014 SCC 7; Marco Ltd. v. Newfoundland Processing Ltd. (1995), (NL SC), 130 Nfld. & P.E.I.R. 317, 405 A.P.R. 317 (Nfld. S.C.(T.D.)); Brook Construction

(2007) Inc. v. North Atlantic, 2020 NLCA42; Bazley v. Curry, (SCC), [1999] 2 S.C.R. 534; Jacobi v. Griffiths, (SCC), [1999] 2 S.C.R. 570;John Doe v. Avalon East School Board, 2004 NLTD 239; S.G.H. v. Gorsline, 2004 ABCA 186; A.B. v. C.D., 2011 BCSC 775 STATUTES CONSIDERED: Schools Act, R.S.N.L. 1990, c. S-12 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D REASONS FOR JUDGMENT O'Brien, J: OVERVIEW [1] This is a

summary trial application to determine if Newfoundland and Labrador English School District (“NLESD”) isvicariously liable for damages to the Applicant for sexual assault. In 1991, the Applicant was a kindergarten student at a school operatedby NLESD when the school principal began sexually abusing her. The abuse took place in the principal’s office. It continued until 1993,when the principal died by suicide. The facts of the abuse are not in dispute. [2] The facts of the abuse establish that the principal committed an intentional tort against the Applicant. The principal isestablished as a tortfeasor.

However, because he is deceased the Applicant is unable to recover damages from him. Vicarious liability isa legal doctrine under which the Applicant can seek to hold the principal’s employer, NLESD, liable for her damages. [3] The issues are: i. Is the question of NLESD’s vicarious liability appropriate to determine on a

summary trial application?

ii. If yes, is NLESD vicariously liable to the Applicant for damages caused by sexual assault perpetrated by the principal? [4] For the reasons that follow, I am satisfied that this matter is appropriate for

summary trial. I am also satisfied that NLESD isvicariously liable for damages caused by the principal. ISSUE 1: IS THIS MATTER APPROPRIATE FOR

SUMMARY TRIAL? Law of

summary trial [5]

Summary trials proceed primarily on affidavit evidence and may address all or part of the claim made in the statement ofclaim (Rule 17A.01(1) of the Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D). [6] Rule 17A.03 states, in part:

(1) Where the Court is satisfied that there is no genuine issue for trial with respect to a claim or defence, the Court shall grant

summaryjudgment accordingly.

(2) Where the Court decides that there is a genuine issue with respect to a claim or defence, a judge may nevertheless grant judgment infavour of any party, either upon an issue or generally, unless (

a) the judge is unable on the whole of the evidence before the Court on the application to find the facts necessary to decide thequestions of fact or law; or (

b) it would be unjust to decide the issues on the application. [7] Courts should resolve legal disputes by methods other than a full trial, where possible. Such an approach is consistent withprinciples of proportionality, timeliness, and accessibility.

Summary trial and judgment rules should be interpreted broadly (Hryniak v.Mauldin, 2014 SCC 7). [8] The guiding principles for

summary trial applications pursuant to Rule 17A were set out in Marco Ltd. v. NewfoundlandProcessing Ltd. (1995), (NL SC), 130 Nfld. & P.E.I.R. 317, 405 A.P.R. 317 (Nfld. S.C.(T.D.)). “Genuine issue fortrial” was explained at paragraph 76 of Marco: There will be a "genuine issue for trial" if the issue in question is not spurious and the issue relates to a material fact or point of law thatis necessary to be decided to resolve the ultimate controversy between the parties. Obviously, there will not be a genuine issue for trial ifthe responding party can put forward no evidence that could constitute either a defence or a claim in law. [9] In Brook Construction

(2007) Inc. v. North Atlantic, 2020 NLCA 42, the Newfoundland and Labrador Court of Appealprovided a helpful framework for Rule 17A

summary trial applications, which included a decision tree for trial judges to follow. Theframework has two stages: a threshold stage and an application stage. [10] At the threshold stage, the judge must ask two questions: i. Has the applicant complied with the formal requirements of Rule 17A and put forward an evidentiary basis for his or herposition, which, if unanswered, will potentially establish all or part of the claim? If yes: ii. Is there any apparent reason (other than considerations that can be properly dealt with under Rule 17A.03(2)) evident at thisstage making it inappropriate to deal with some or all of the issues by

summary trial? [11] If the answer to the second question is no, you proceed to the application stage. The judge must consider three questions at theapplication stage: i. Is there a genuine issue with respect to a claim or defence meriting a conventional trial? If yes: ii. Is the court able to find the facts necessary on the existing record to decide the question of fact or law? If yes: iii. Is it nevertheless unjust to decide the question of fact or law on the application? [12] If the answer to the third question is no, then the matter is appropriate for

summary trial and the judge can proceed to considerthe question of fact or law and make a decision. Analysis of the threshold stage [13] I addressed the threshold stage during the oral hearing. NLESD conceded that the Applicant had met the thresholdrequirements. I agreed and gave my reasons orally. Analysis of the application stage Genuine issue for trial

[14] The Applicant conceded at the oral hearing that the issue of vicarious liability is a genuine issue for trial. I agree. The issuewas pleaded in the statement of claim. It is not spurious and it relates to a question of mixed law and fact that must be decided to resolvethe ultimate controversy between the parties. Can I find the necessary facts from the existing record? [15] To determine the question of vicarious lability, I require facts in relation to two areas. The first is the underlying tort, which isthe sexual abuse the Applicant alleges.

The second is the circumstances of the tortfeasor’s employment and the conduct that NLESDauthorized. [16] In relation to the tort, I have the Applicant’s affidavit evidence and excerpts from her examination for discovery, which wasgiven under oath. The tortfeasor is deceased and there were no other witnesses to the abuse. Counsel for NLESD confirmed that hisclient does not challenge the Applicant’s credibility with respect to the materials filed and it has no further evidence that it could producein relation to the tort.

As such, I am satisfied that I have a sufficient evidentiary basis in relation to the first area. [17] In relation to the circumstances of the tortfeasor’s employment, in addition to the Applicant’s evidence I have the discoveryevidence of a teacher who worked in the school during the period in question. I also have the Schools Act, R.S.N.L. 1990, c. S-12, whichwas the legislation in effect at the relevant time. The Schools Act sets out duties of principals and teachers.

Counsel for NLESDconfirmed that having made efforts to find relevant information, NLESD is satisfied there is no further evidence that it could produce inrelation to the circumstances of the principal’s employment. Having reviewed the material, I am satisfied that I have a sufficientevidentiary basis in relation to the second area also. Is it unjust to decide the question on a

summary trial application? [18] Although NLESD did not consent to a

summary trial procedure, its counsel raised no arguments against it. NLESD did notsubmit that it would be unjust to decide the issue of vicarious liability on a

summary trial application. [19] I am satisfied that there is no injustice in conducting a

summary trial. I have a sufficient evidentiary basis to make an informedand reasoned adjudication of the merits of the issue. There appears to be no further relevant evidence available and there are no issues ofcredibility to be resolved. It is unlikely that a full trial would give me any more information than I already have. I am satisfied that asummary trial procedure will save the parties time and cost without compromising their right to a full and fair adjudication on the merits. Issue 2: Is NLESD vicariously liable for damages caused by the principal?

Law of vicarious liability [20] In 1999, the Supreme Court of Canada decided two cases involving the vicarious liability of institutions for sexual abusecommitted by tortfeasors working on their behalf: Bazley v. Curry, (SCC), [1999] 2 S.C.R. 534, and Jacobi v. Griffiths, (SCC), [1999] 2 S.C.R. 570. In these cases, particularly Bazley, the Supreme Court outlined a helpful framework forlower courts. [21] First, the Supreme Court confirmed that employers may be vicariously liable for: i. Employee acts authorized by the employer; or ii.

Employee acts unauthorized, but so connected with authorized acts that they may be regarded as modes (albeit impropermodes) of doing an authorized act (Bazley, at para. 10). [22] The Supreme Court suggested a two-step approach to determine whether unauthorized acts have sufficient connection to beincluded in the second category of liability. First, a court should determine whether there are precedents that unambiguously determine ifvicarious liability exits.

If prior cases do not clearly suggest the answer, then the court should decide whether vicarious liability shouldbe imposed in light of the broader policy rationales behind strict liability (Bazley, at para. 15). [23] Those policy rationales are fair and effective compensation for victims and deterrence of future harm. The two are related. Thepolicy consideration of deterrence is linked to the policy consideration of fair compensation based on the employer’s introduction orenhancement of a risk.

The employer’s introducing the enterprise into the community with its attendant risk, in turn, implies thepossibility of managing the risk to minimize the costs of the harm that may flow from it (Bazley, at para. 34). [24] The Supreme Court went on to provide guiding principles for courts to apply in cases where precedent is inconclusive (at para.41):

(1) They should openly confront the question of whether liability should lie against the employer, rather than obscuring the decisionbeneath semantic discussions of “scope of employment” and “mode of conduct”.

(2) The fundamental question is whether the wrongful act is sufficiently related to conduct authorized by the employer to justify theimposition of vicarious liability. Vicarious liability is generally appropriate where there is a significant connection between the creationor enhancement of a risk and the wrong that accrues therefrom, even if unrelated to the employer’s desires. Where this is so, vicariousliability will serve the policy considerations of provision of an adequate and just remedy and deterrence. Incidental connections to theemployment enterprise, like time and place (without more), will not suffice.

Once engaged in a particular business, it is fair that anemployer be made to pay the generally foreseeable costs of that business. In contrast, to impose liability for costs unrelated to the risk

would effectively make the employer an involuntary insurer.

(3) In determining the sufficiency of the connection between the employer’s creation or enhancement of the risk and the wrong complained of, subsidiary factors may be considered. These may vary with the nature of the case. When related to intentional torts, the relevant factors may include, but are not limited to, the following: (

a) the opportunity that the enterprise afforded the employee to abuse his or her power; (

b) the extent to which the wrongful act may have furthered the employer’s aims (and hence be more likely to have been committed by the employee); (

c) the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s enterprise; (

d) the extent of power conferred on the employee in relation to the victim; (

e) the vulnerability of potential victims to wrongful exercise of the employee’s power. [ 25 ] Specifically with respect to sexual abuse by employees, the Supreme Court held that there m ust be a strong connection between what the employer was asking the employee to do and the wrongful act. It must be possible to say that the employer significantly increased the risk of the harm by putting the employee in his or her position and requiring him to perform the assigned tasks.

The policy considerations that justify imposition of vicarious liability for an employee’s sexual misconduct are unlikely to be satisfied by incidental considerations of time and place ( Bazley , at para. 42 ). [ 26 ] While not giving an exhaustive list, at paragraphs 42 to 45 of Bazley , the Supreme Court reviewed factors relevant to whether an employer’s enterprise has introduced or significantly exacerbated a risk of sexual abuse by an employee : i. Did the employer give the employee an opportunity to commit the abuse?

For example, by permitting or requiring the employee to be alone with a child for extended periods of time, or by expecting the employee to supervise the child in intimate activities like bathing or toileting. ii. Did the employment put the employee in a position of intimacy and power over the child (i.e . , a parent-like, role-model relationship)? The more the employer encourages the employee to stand in a position of respect and suggests that the child should emulate and obey the employee, the more the risk may be enhanced. iii.

Was the employee required or permitted to touch the child in intimate body zones? iv. Did the abuse happen on the job site? v. Did the abuse happen during work hours? Facts relevant to vicarious liability The Schools Act [ 27 ] NLESD filed portions of the Schools Act , which it relied upon as evidence of the principal’s duties of employment. I understood from its submission that it contractually required the principal to comply with the legislation, such that the duties set out in the Schools Act were terms of his employment. [ 28 ]

Part V of the Schools Act is entitled “Engagement and Duties of Teachers”. The duties are addressed in sections 74 and 75. Subsection 74(1) states: 74.

(1) For the purposes of this

section and

section 75, (a) "principal" includes the principal of a school, the vice-principal of a school where he or she is carrying out the duties of a principal and a teacher in a sole-charge school; and (b) "teacher" includes a teacher in a school and the principal or vice-principal of a school where he or she is acting as a teacher. [ 29 ] The duties of principals are set out in subsection 74(2). Relevant portions include:

74(2) A principal in a school shall […] (

k) suspend from school a pupil in accordance with the regulations, rules and by-laws of his or her school board and report immediately in writing the facts of the suspension to his or her school board; […] (

o) subject to paragraph 18(i) [not relevant], exercise responsible supervision over teaching, timetables, examinations and promotions, methods and general discipline pursued in all the classes and over the conduct of all pupils in his or her school; […] (

q) arrange for the regular supervision of pupils on the premises of his or her school; and (

r) subject to

section 79 [which prescribes limits on corporal punishment], maintain proper order and discipline in carrying out his or her duties, avoiding corporal punishment except when all other methods of enforcing discipline have failed, and then keep a record of all offences and the punishment administered, which records shall be open to inspection by the appropriate superintendent. [ 30 ] The duties of teachers are set out in

section 75. Relevant portions include: 75. A teacher in a school shall (

a) hold school regularly in each school day in accordance with this Act; (

b) teach diligently and faithfully all subjects he or she is required to teach; […] (

d) maintain proper order and discipline in carrying out his or her duties, avoiding corporal punishment except where all other methods of enforcing discipline have failed, and then keep a record of all offences and the punishment administered, which records shall be open to inspection by his or her principal and the appropriate superintendent; The Applicant’s evidence [ 31 ] The Applicant said that all of the sexual assaults happened in the principal’s office, when she was in grades kindergarten and one.

The principal did not teach the Applicant but he would sometimes visit her classroom to play guitar to the students. [ 32 ] The Applicant described having a disease that caused her to be physically different from other children. She also had asthma and was prone to asthma attacks. Other children bullied and mocked her regularly. [ 33 ] The Applicant described being in the principal’s office primarily for two reasons. The first was if she had an asthma attack and the second was if she was crying and upset because of bullying.

Sometimes her teacher brought her to the office and sometimes the principal came to her classroom and got her. [ 34 ] The Applicant said that on some of these occasions the school secretary would try to contact her parents. While she waited, the Applicant was brought into the principal’s office to wait. Other times, she was brought into the principal’s office so that she could recover or calm down. Sometimes the Applicant asked to call her father but the principal would not allow her, saying she was “a big girlie now”.

She described the principal coaching her to catch her breath, giving her toys and playing a game with her. She described some of this activity as “counselling”. [ 35 ] The principal’s office had a door, which was closed when she was inside and alone with him. [ 36 ] The Applicant described a pattern of abuse that escalated over time. The principal started by playing “pony” with her. This game involved having her straddle his lap while he bounced her with his leg. The abuse started with him pressing her against his erect penis while they were both clothed.

As things developed, the Applicant recalled knowing that she would be playing “pony” if she was

going to the principal’s office. [ 37 ] Eventually, the principal began removing her tights, saying that she was overheated. On some occasions, he removed her underwear. He began touching her vagina, which progressed to him digitally penetrating her. As time passed, and he became emboldened, the principal would expose his penis through the fly of his pants and get the Applicant to rub it. On two occasions he penetrated, or partially penetrated, her vagina with his penis. On the second of these occasions, the Applicant recalled the principal putting his penis deeper inside her causing her to scream.

The Applicant remembered that the principal’s secretary started knocking on the door, interrupting the assault. [ 38 ] As the abuse continued, the Applicant would sometimes get so scared when she saw the principal that she would wet her pants. She recalled the principal taking her to his office, saying he had a change of clothes for her, but he did not. [ 39 ] When asked on discovery if she ever discussed the abuse with anybody at school other than the principal, such as a teacher or guidance counsellor, the Applicant stated that the principal was also the school guidance counsellor, it being a small-town school.

She stated that no one else had witnessed the assaults. The teacher’s evidence [ 40 ] The teacher was a physical education teacher at the school during the relevant period. There were fewer than 200 students at the school. [ 41 ] She said the principal was a teaching principal, and she believed that he taught grades 5 and 6. [ 42 ] Other than his teaching responsibilities, the teacher described the principal being responsible for report cards, scheduling, running the school and ensuring that the curriculum was delivered.

He was also responsible for discipline of the students, although she said a good teacher would take care of discipline themselves and only reach out to the principal if they needed help. [ 43 ] The teacher confirmed that if a teacher could not handle a child, the child would be sent to the principal’s office and the principal would deal with the child. She was not aware of the principal ever using corporal punishment. [ 44 ] The teacher said the school had a part-time guidance counsellor who attended the school one morning or one day a week.

She did not know if the principal had any training in guidance counselling. She did not know if children were regularly alone with him in his office. The Applicant’s submissions [ 45 ] Although counsel for the Applicant conceded in oral argument that it is not a precedent that unambiguously determines if vicarious liability exits in this case, she nonetheless cited John Doe v. Avalon East School Board , 2004 NLTD 239 , as providing helpful guidance. In John Doe , Faour J found the school board vicariously liable for sexual abuse perpetrated by a teacher against a 17-year-old student.

In applying the framework of Bazley and Jacobi , Faour J considered that the assault took place on school property, during school hours, while the student was being taught by the tortfeasor. [ 46 ] Although the tortfeasor in John Doe was a teacher, not a principal, the Applicant submits that the same reasoning should apply.

She submits that an analysis of this case pursuant to the Bazley framework favours a finding of vicarious liability. [ 47 ] The Applicant argues that the opportunity afforded principals to abuse their power over students is greater than that afforded teachers, given a principal’s authority and responsibility to maintain discipline and manage the school.

She submits that principals have greater access to privacy as the school board provides them with private offices, with doors, and permits them to take children there for discipline and other reasons related to school management. [ 48 ] The Applicant states that a principal’s power over students is extensive and includes the power to require them to leave class and to attend at the principal’s office. The principal also has the power to discipline, suspend and expel a student.

Students are legally required to attend school and submit to the principal’s authority. [ 49 ] In her specific case, the Applicant notes that she was particularly vulnerable due to her young age, health problems, and the fact that classmates bullied her. NLESD’s submissions [ 50 ] NLESD distinguishes John Doe from the present case submitting that the principal stood in a different and more remote relationship with the Applicant than did the teacher with the student in John Doe . NLESD submits that the principal did not have the same control over or trust relationship with the Applicant.

NLESD submits that the principal was not authorized to provide counselling services and was not engaged in discipline when the assaults occurred. [ 51 ] NLESD submits that this case is more akin to two cases in which school boards were not found vicarious liability for sexual abuse perpetrated by teachers: S.G.H. v. Gorsline , 2004 ABCA 186 and A.B. v. C.D. , 2011 BCSC 775 . [ 52 ] In Gorsline , a physical education teacher taught and coached the plaintiff in track and field when she was 12 years old. He coached her after school, on weekends and on holidays.

The abuse took place at the school, in the teacher’s car, in his home and at a park. The trial judge concluded that there was no significant connection between the teacher’s employment duties and his wrongful acts. The trial decision was upheld on appeal. [ 53 ] In A.B. , an English teacher sexually touched a grade 12 student on numerous occasions on school premises. They developed what was described as a relationship. The judge considered Gorsline as an unambiguous appellate decision finding that a school board

should not be held vicariously liable for sexual battery by a high school teacher who does not have intimate contact with the student in the course of the teacher’s employment. However, as Gorsline was not binding on the court in A.B. , the judge applied a Bazley analysis. She concluded that the school board should not be held vicariously liable. [ 54 ] Even if I do not find Gorsline and A.B. to be controlling precedents, NLESD submits that an application of the Bazley framework leads to the same result.

NLESD distinguishes the principal’s role from that of a teacher, whom it submits had more direct interpersonal responsibilities and powers in relation to students. NLESD submits that there is “little to nothing” in the evidence or the law to establish that the principal’s duties required that he be in intimate or close personal contact with the Applicant. [ 55 ] While acknowledging that the Applicant was vulnerable, NLESD submits that she has not demonstrated a sufficient connection between the principal’s administrative duties and the circumstances of the sexual assaults to justify imposing vicarious liability.

Analysis of vicarious liability [ 56 ] NLESD did not authorize the principal’s sexual abuse. As such, in accordance with Bazley , NLESD can only be held vicariously liable for his actions if they were sufficiently related to his duties as a principal to justify such a finding. [ 57 ] None of the precedents submitted by the parties unambiguously determines the issue. John Doe , Gorsline and A.B. all involved teachers, not principals. Although there is some overlap, teachers and principals have different duties and different levels of authority within a school.

These cases also involved students who ranged from 12 years old to 18 years old. The Applicant was four to six years old at the time of the abuse. The duties of school staff toward children, the power dynamics of their relationships, and the degree of the students’ vulnerability may vary with a child’s age.

An analysis applicable to a junior high or high school setting will not necessarily be appropriate for a primary school setting. [ 58 ] Without a determining precedent, I must decide if I should impose vicarious lability in light of the broader policy rationales discussed in Bazley : fair and effective compensation for victims and deterrence of future harm. [ 59 ] There is little doubt that finding NLESD vicariously liable would result in the Applicant having better access to compensation for the damage she has suffered. From her perspective, that would be the fair result.

However, I must also assess whether it would be fair to NLESD to hold it liable for the principal’s wrongs. This requires me to consider whether NLESD created or enhanced a risk sufficiently connected to the principal’s actions. [ 60 ] In undertaking this analysis, I will review a number of the factors identified in Bazley . Did NLESD give the principal an opportunity to commit the abuse? [ 61 ] NLESD gave the principal a private office with a door. His authority in the school was such that he could take a child into his office and close the door.

This is clear from the evidence, as the Applicant was regularly alone with the principal in his office with the door closed. There is no evidence that this was beyond his authority or inconsistent with his role as principal. I note that even when she heard a child screaming in the office, the principal’s secretary did not open the door, she knocked. [ 62 ] The principal’s statutory duties empowered him to arrange for the supervision of students and maintain “proper order” at the school.

His actions of supervising the Applicant while she was having an asthma attack, while his secretary tried to contact her parents, or when she was upset enough to have been causing disruption in her classroom, are all consistent with an exercise of this statutory authority. [ 63 ] I do not put as much emphasis on the Applicant’s use of the word “counselling” as does NLESD. The evidence is ambiguous as to whether the principal did have “counselling” as part of his duties. The Schools Act anticipates a principal having teaching duties as well as principal duties.

However, “guidance counsellor” is not a position specifically identified in that legislation. The Applicant’s evidence was that the principal acted as the school’s guidance counsellor. The teacher was unsure if he had training as a guidance counsellor, but as I read her evidence, she suggested that if he had the training he might have done guidance counselling. Her evidence was that the assigned guidance counsellor was only at the school for one morning or, at most, one day a week. [ 64 ] I focus less on the word “counselling”, and more on the principal’s activities that were not clearly outside his authority.

He helped the Applicant get her breathing under control when she was having an asthma attack. He gave her toys to play with and tried to calm her down when she was too upset to be in class. He brought her to his office when she wet her clothes. He supervised her while she waited for her parents. There is nothing before me to suggest that these activities were outside the principal’s authority.

On the contrary, these activities are consistent with his duties as described in the Schools Act and the other evidence before me. [ 65 ] I conclude that NLESD gave the principal an opportunity to be alone with the Applicant, in the privacy of his office, for periods. The periods were not prolonged or extensive, such as they might in a residential care home or similar. However, they were long enough for the principal to commit the abuse while giving the appearance to others that he was acting within his proper authority.

Did the wrongful act further the employer’s aims to any extent? [ 66 ] This factor does not support a finding of vicarious liability. Sexual abuse did not further NLESD’s aims to any extent. Did NLESD put the principal in a position of power over the Applicant? [ 67 ] By virtue of his employment, the principal had significant power over the Applicant. He had the power to direct her actions while she was at school as part of his power to maintain school order. He had the power to discipline her.

That discipline could include corporal punishment, suspension and expulsion. [ 68 ] The principal was the senior authority at the school. His power and authority exceeded that of teachers, who themselves were

in positions of power over students. His position demanded respect. Students were required to obey his orders and to submit to his discipline. The Applicant described him as “the most powerful person” she had ever encountered at that time of her life. [ 69 ] Conferring such power and authority over children in a single individual enhances the risk of abuse of that power. It increases the likelihood that children will believe that they must comply with the principal’s demands.

The respect conferred on the position also increases the likelihood that children, particularly young children, will believe that there is nothing wrong with what is being asked of them. Principals are role models for children. [ 70 ] The Applicant was legally required to submit to the principal’s power. The Schools Act required her to be in school and stay there until she was dismissed at the end of each day. This distinguishes this case from cases such as Jacobi . In Jacobi , an institutional employer was found not to be vicariously liable for sexual abuse by a recreational director.

One of the factors the Supreme Court of Canada relied upon to support its decision was that the students were free to walk out of the club in which the recreational director worked at any time. [ 71 ] In cases such as A.B. and Gorsline , the courts considered it relevant that the teacher in question was only one of several who influenced the students. As noted by the court in Gorsline : [26] The appellant lived at home with her parents who retained control and authority over her. Though Gorsline coached the appellant at school, she also received private coaching at a track club.

The trial judge concluded that any influence which Gorsline may have had as her coach dissipated when she transferred to the private track club. Authority and control relating to her track club activity rested with her private coach and her parents who gave their permission for her participation. The trial judge rejected any suggestion that Gorsline had any unusual authority over the appellant, correctly noting that while one teacher’s influence may be great, Gorsline was only one of several teachers who taught the appellant.

In addition, the school had a principal, a vice principal, a female physical education teacher and a female counsellor, all of whom interacted with the students. These factors diluted any influence Gorsline may have had. [ 72 ] Students of junior high school and high school age are often taught by several teachers, each of whom may have independent influence over the student. This was not the case for the Applicant. She had a classroom teacher who regularly delivered her to the principal’s care. The principal came into her classroom to play guitar for her and her classmates.

From the Applicant’s perspective, the two worked in concert. There is no evidence that she saw, or even knew about, the part-time guidance counsellor. Although the Applicant may have had contact with other adults working at the school, there is no evidence before me to suggest that they would have had any diluting effect of the principal’s power and influence. [ 73 ] The Applicant lived with her parents who retained control and authority over her. This distinguishes the present case from Bazley .

In Bazley , the Supreme Court of Canada held the institutional defendant vicariously liable for sexual abuse by an employee. The defendant was a non-profit residential care facility for children between the ages of six and 12. In cases such as Jacobi , Gorsline , and A.B. in which no vicarious liability was found, it was considered relevant that the affected students lived with their parents. [ 74 ] Although this factor weighs against a finding of liability, I do not find that it is as strong a factor here as it was in those other cases.

The evidence before me is that at times the Applicant asked to call her father and the principal denied her request. He controlled the channel of communication. This illustrates one of the key differences between primary school-aged children and those in junior high and high school. Older children are generally not dependent on teachers or principals to make contact with their parents. Today these children usually have access to a cellphone. In years past, they used pay phones. Older children can usually leave school grounds and return home on their own initiative.

Younger children often cannot leave school without the assistance of an adult. Was the principal required or permitted to touch the Applicant in intimate body zones? [ 75 ] There is no evidence to suggest that the principal was required or permitted to touch the Applicant in intimate body zones.

This distinguishes this case from those such as Bazley , where supervising the children in bathing and toileting were part of the tortfeasor’s duties. [ 76 ] However, when considering the supervision and care of children as young as four to six, it is unrealistic to suggest that assistance with toileting and other intimate acts will never be required. It is not unusual for children of this age to have toileting accidents or need assistance with clothing, for example.

Young children do not have the same developed sense of privacy as do older children so they may seek help for activities that an older child would not. So although I agree with NLESD’s submission that the principal’s duties did not require him to have intimate body contact with the Applicant, I do not assess this factor to weigh as strongly against a finding of vicarious liability as I would in the case of a principal or teacher in a relationship with older children.

Where and when did the abuse happen? [ 77 ] The abuse happened at the school, in the principal’s office, during school hours when the Applicant was legally required to be there. This distinguishes the present case from cases where sexual abuse happened off school premises or after school hours. Generally, these factors weigh in favour of a finding of vicarious liability. How vulnerable was the Applicant to a wrongful exercise of the principal’s power? [ 78 ] NLESD concedes that the Applicant was vulnerable. All children are vulnerable, but young children are particularly so.

Their understanding of the world is developing. As children mature they may become more likely to recognize that an adult’s behavior is wrong or more likely to understand that they can complain to someone who might help them. [ 79 ] The Applicant had additional vulnerability because of her health problems, her physical disability, and the fact that her peers bullied her. Although these characteristics heightened her vulnerability, they did not increase her vulnerability above that which NLESD could have reasonably anticipated.

All schools have children who are particularly vulnerable because they are different from the majority.

Balancing the factors [ 80 ] None of the above factors governs the analysis. In Bazley , the Supreme Court of Canada emphasized that providing an employee an opportunity to commit abuse is not enough and that incidental connections to the employment, such as time and place, do not suffice.

I have to look at all of the factors and the full context of the employment relationship and decide whether there was a significant connection between NLESD’s creation of enhancement of a risk that the principal would abuse the Applicant and the abuse he committed. [ 81 ] Having considered all of the above factors, I am satisfied that the principal’s wrongful acts are sufficiently related to his authorized employment duties to justify imposing vicarious liability. I am satisfied that there is a significant connection between the risk NLESD created and the wrong done.

Finding liability in the case meets both the policy goal of fair and effective compensation for victims and that of deterring future harm. [ 82 ] In coming to this conclusion, I find the principal’s significant power over the Applicant to be an important factor. The Applicant was legally required to follow the principal’s direction. He had the authority to discipline her physically and with serious penalties such as suspension and expulsion.

The principal was not engaged in disciplining the Applicant when he abused her, but his extensive disciplinary powers informed the power dynamic between them and heightened his position as the ultimate authority in the school. [ 83 ] The principal’s power was enhanced, not diluted, by the classroom teacher’s influence on the Applicant. The classroom teacher sought the principal’s assistance when the Applicant was in physical or emotional distress and brought the Applicant to him.

The principal could, and did, control the Applicant’s access to her parents at times when she was most vulnerable, when she needed their help the most. [ 84 ] NLESD gave the principal a private office with a door and the authority to take a child into his office with him and close the door. His authority was such that even when she heard a child screaming behind the door, the principal’s secretary only knocked.

He was not engaged in authorized acts when he abused the Applicant, but the conditions of his employment were such that he could take her there, during school hours, without raising anyone’s concern. [ 85 ] The Applicant was only four years old when the abuse began. She was vulnerable because of her youth, her health problems and her social status. She was in the care of NLESD and NLESD gave the principal power and working conditions that significantly enhanced her risk of being sexually abused by him.

The risk came to fruition and it is now fair and just that NLESD be held vicariously liable for damages flowing from it. [ 86 ] It is important to note that this is a historical abuse case. Employment conditions of other principals may differ and this could affect a vicarious liability analysis. DECISION [ 87 ] The Applicant’s

summary trial application is allowed. NLESD is vicariously liable for damages caused by the tortfeasor principal. [ 88 ] The Applicant is awarded costs taxed on Column 3 of the Scale of Costs, Rule 55 of the Rules . ___________________________ Katherine O'Brien Justice