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EB v Order of the Oblates of Mary Immaculate in the Province of British Columbia 2005 SCC 60, [2005] 3 SCR 45

Facts:

P was a student from the age of 6 at a residential school. He was assaulted by the baker there who lured him into his room with promises of candy and sexually assaulted him.

Issue(s):

Is there vicarious liability where organizational environment but not specific task has strong connection to risk?

Ratio:

No the connection must be with specific task not environment even where environment is extreme.

Analysis:

-It must be seen in the light of the total risk created, but also
--In order for the compensation to be just it cannot be only coincidentally connected with the employment and the duty assigned to the employees (Bazley)
---The school geographically separated the staff quarters from the children nand required supervision on boat trips
---There was not authority given to the assaulter to insinuate himself into the intimate life of the students

Five factors
-Opportunity: This was on the low end because he wasn’t obligated to be with the children for even brief times except when supervised on the boat
-Furthering employers aims: No one disputes that this was against their aims
-Intimacy; There was no intimacy expected between him and the students and his quarters were off limits
-Power: He had no official power over the kids. The fact that he was an adult in a children’s school gave him some power but to use this as grounds for vicarious liability would be to turn the employer into an insurer.
-Vulnerability: Although the residential school made the children vulnerable, putting the assaulter in the position they did did not increase that vulnerability

Taken together there is not a strong enough connection to the employee’s specific work although the residential school and the method of discipline contributed to the risk

Holding:

No liability imposed

Comments:

Dissent: The setting made the children as vulnerable as possible. The power structure reinforced the power of every adult over the children. There was plently of opportunity and both geographical and temporal access afforded by School for the assaulter to access the kids. The staff played with the kids so there was opportunity for touch. The job descriptions were not followed closely and all the staff were generally expected to help out with supervising children


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