National Post

Page URL: http://www.nationalpost.com/news.asp?f=990618/8417

Friday, June 18, 1999

Some children's agencies liable for workers'abuse: ruling
Fears Supreme Court decision may make children's groups uninsurable

Janice Tibbetts
Southam News

OTTAWA - Employers can be held legally responsible when workers sexually abuse children in their care, the Supreme Court ruled yesterday, forcing children's organizations to rethink the level of contact they allow their workers to have with those in their care.

In an effort to settle conflicting rulings from lower courts, the Supreme Court set ground rules for when employers should be held responsible for damages. The court refused to exempt charities and non-profit groups from potential claims.

Abuse victims supported the decision. Already, some organizations face potential financial trouble as a result of the ruling, including several churches that are being sued by thousands of students of former Indian residential schools.

Ken Pauli, the executive director of the B.C.-based Children's Foundation, which runs homes for emotionally troubled children, said: "I think it's going to have a fairly profound impact on all children's services being offered across the country. There is some possibility it could drive us into bankruptcy."

The court found the provincially funded foundation is legally liable for the sexual abuse that Patrick Bazley suffered 30 years ago at the hands of caregiver Leslie Charles Curry, who fondled his young charge as he pretended to tuck him in at night.

"The opportunity for intimate private control and the parental relationship and power required by the terms of the employment created the special environment that nurtured and brought to fruition the sexual abuse," Justice Beverley McLachlin wrote in the decision, which was supported unanimously by the Supreme Court justices.

The abuse inflicted on the child by a substitute parent clearly meets the test of a close connection set by the court to hold the employer responsible, the court said.

"Because of the peculiar exercises of power and trust that pervade cases such as child abuse, special attention should be paid to the existence of a power or dependency relationship, which on its own creates a considerable risk of wrongdoing," said the decision.

"The employer's enterprise created and fostered the risk that led to the ultimate harm."

Brent Adair, Mr. Bazley's lawyer, said there are lawsuits on hold across the country that will now be filed. "This will make it easier for many victims to obtain some sort of financial compensation and I expect a lot of plaintiffs to come forward and get some sort of redress from the courts."

Mr. Bazley, now 41, said that the decision won't put an end to the constant nightmares he's had for three decades.

"If this stops one case of sexual abuse, then it will be worth it," said Mr. Bazley, who works for a farm equipment maker in southern Alberta.

In a separate ruling, however, the court found that the Boys' and Girls' Club of Vernon, B.C., is not vicariously liable for Harry Griffiths, a former director who sexually abused children off-hours, in his bedroom, away from the club.

The case did not meet the close- connection test, because there was no evidence that Griffiths' role was to establish anything more than a "rapport" with the two complainants, Randy Jacobi and his sister Jody Saur.

"The club did not hold any meaningful power over the appellants," wrote Justice Ian Binni in the 4-3 ruling.

"They were free to walk out of the club at any time. They went home to their mother every night."

But the decision was cold comfort for Bob Moffat, spokesman for the Vernon Boys' and Girls' Club, who fears the decision will make it almost impossible for children's agencies to obtain insurance or find workers.

The decision, which was praised by the Assembly of First Nations, is expected to have an impact on some 6,000 claims against the federal government and several churches for sexual abuse at former Indian residential schools.

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