Last Updated: Friday - 09/24/2010
Week of November 7, 2005
Oblates not liable for abuse claim
Supreme Court defines responsibility
By DEBORAH GYAPONG
Canadian Catholic News
A Supreme Court decision on a British Columbia residential school has more clearly defined when a Church, religious order or charitable organization can be found vicariously liable for an employee's actions when no fault or negligence on the part of the employer is involved.
On Oct. 28, the Supreme Court of Canada (SCOC) ruled the Oblates of Mary Immaculate are not vicariously liable for sexual assaults an employee carried out at the Christie Residential School during the 1950s and 60s.
The SCOC court ruled 8-1 the religious order was not vicariously liable because the employee in question was not hired to supervise children.
This case could have an impact on other residential school cases involving sexual abuse cases that involve employees such as farmhands or lay employees who were not directly involved in the care of children.
According to SCOC documents, Martin Saxey, an employee at the Christie Residential School on Meares Island, lured a student referred to as E.B. to Saxey's private residence with a promise of candy. E.B. was seven years old when the abuse began in 1957, and 11 or 12 when it stopped.
The court ruled Saxey, who worked as the school's baker, motorboat operator and general odd jobs man, did not have direct supervision of children, nor did his work "involve any degree of intimacy."
"In the absence of a strong connection between the job Saxey was employed to do and the circumstances in which the abuse took place, the most that can be said is that working in a residential school offered Saxey an opportunity for contact with young boys like the appellant and a deference to authority on their part that otherwise might not exist," the SCOC decision states.
The trial judge had awarded $233,400 in damages to the victim on the basis of vicarious liability, but did not make a determination on alleged negligence on the part of the religious order.
The B.C. Court of Appeal overturned that decision. The respondent appealed, and on Oct. 28 the SCOC dismissed that appeal. The religious order could still be on the hook for direct damages, because the appeal court sent the case back to trial to examine whether there was negligent conduct on the part of the Oblates.
The one dissenting SCOC Justice, Rosalie Abella, pointed out Saxey was hired by the Oblates shortly after he was released from prison after serving time for a manslaughter conviction.
Abella described the abuse as "systematic and horrifying."
"These events occurred in the context of a residential school, where children were forcibly removed and segregated from their families to facilitate the obliteration of their aboriginal identity," she wrote. "Few environments could be more conducive to enhancing the vulnerability of children."
Abella said Saxey had more than "mere opportunity" to commit the abuse. He was "given quarters in the middle of school property, was permitted to form relationships with vulnerable children, and could not have been unaware of the lax supervision prevalent at Christie."
Saxey died around 1986 and was not able to respond to the charges, but the trial judge found E.B.'s claims credible.