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B LAW402 (43)

Jacobi v. Griffiths posting.doc

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Business Law
B LAW402
Elaine Geddes

Jacobi v. Griffiths 1999 Supreme Court of Canada The respondent Boys' and Girls' Club, a non-profit organization incorporated under the Societies Act, employed the respondent G as Program Director. The Club required G to supervise volunteer staff and organize recreational activities and the occasional outing. G was also encouraged to form friendships and a positive rapport with the children at the Club. Both of the appellants testified that all of their friends and activities centred on the Club. There was essentially a single incident of sexual assault by G involving the male appellant and one incident of sexual intercourse involving the female appellant at G's home outside working hours following several lesser incidents, including one incident of sexual touching in the Club van. The disclosure of these events was first made in 1992, some ten years after they occurred. After having his employment terminated following a police investigation, G pled guilty to 14 counts of sexual assault involving the appellants and other children. The appellants sought civil damages against the Club on the legal theory that it should be held vicariously liable for the intentional sexual abuse by its employee, as well as directly liable to the appellants for negligence and breach of fiduciary duty. The trial judge addressed only the issue of vicarious liability and held the Club vicariously liable for the assaults committed by G. The Court of Appeal allowed the Club's appeal. B INNIE J. It is clear that by reason of their age and unsettled home life these children were vulnerable to a sexual predator like Griffiths. If the Club was negligent in hiring Griffiths, or supervising him, or in using Griffiths to discharge its own duty of care to the children, direct liability would result. In this appeal, however, we are asked to proceed on the basis that there is no direct liability. We are concerned only with the possibility of the Club's vicarious "no-fault" liability for Griffiths' crimes. Griffiths took the opportunity to develop friendly relationships with the victims through Club activities. Griffiths was not placed in a special position of trust with respect to the children's "care, protection and nurturing". Mr. Griffiths was the Program Director of the respondent Club, one of two full-time employees. His job was to encourage children to participate in its activities and to supervise those activities, and in so doing to further the Club's objectives, among which is "to promote behaviour guidance and to promote the health, social, educational, vocational and character development of boys and girls." In that capacity he was encouraged to form friendships with the boys and girls. That was the most the Club could ask him to do. It had no power or authority over the children. It was not their parent. Nor did it stand in loco parentis. The boys and girls went home to their parents after every activity. An employer who encourages an employee to create no more than a positive rapport with children is not at the same end of the spectrum of risk as the employer in Children's Foundation. The Club offered recreation in a public setting (as opposed to the privacy of Griffiths' home) in group activities with other persons including children and volunteers whose continuing presence would have been fatal to Griffiths' personal agenda. Griffiths had no job-created authority to insinuate himself into the intimate lives of these children. In truth, however, as some judges have recognised and accepted, the reason why vicarious liability has been incorporated into the law of torts, when, generally speaking, it has not been accepted in the criminal law, is because the purpose of the law of tort, in contrast with that of the criminal law, is compensation, not punishment; therefore, it is desirable that the plaintiff should be able to make liable someone who is financially capable of satisfying a money judgment awarded the plaintiff in respect of his injuries or loss. The "strong connection" test limits the ability of a court to reach into an employer's deep pocket simply because it is there. It is difficult if not impossible for an enterprise to structure inducements and precautions to deter sexually inappropriate conduct toward children. While a business enterprise and its employees might foresee a physical altercation or a safety violation on the shop floor and negotiate means to deal with it, including inspections, procedures, risk sharing, and personnel
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