Holding institutions accountable in civil sexual abuse cases

This article was produced in partnership with Neinstein LLP.

With the test set out by the Supreme Court of Canada in Bazley v. Currie guiding courts since the late 1990s, institutional sexual abuse isn't a new legal frontier. But it is an important one, states Sonia Leith, partner at Neinstein LLP.

What's changed over the years is accessibility and social norms: the removal in 2016 of the limitation period on sexual abuse claims in Ontario, coupled with decreasing stigma due in large part to movements such as Me Too, means more victims are coming forward. From historical cases against residential schools and churches to current headlines calling out Hockey Canada and other sport organizations, this is a front-and-centre issue — and an area where personal injury lawyers can effect change both for clients and at a systemic level.

Claims against institutions: Vicarious liability

Civil sexual abuse claims often involve listing institutions as defendants. Leith says it's because in some of the situations in which abuse arose, it’s clear that the perpetrator’s abuse was the result of, or happened contemporaneously with, an institution involved.

“This happens in various contexts; it's not necessarily a lone perpetrator that finds their victim alone in public,” Leith says. “What we see typically in a lot of those types of cases is an employee or a representative of an institution — sports teams, faith-based groups like churches, or healthcare settings — who is commonly in a position of trust with a vulnerable individual such as a child.”

When representing a victim of abuse within an institutional setting, there are two distinguishable claims that can often be advanced together. One is vicarious liability, where the institution can be held responsible for the acts of the individual, and the second is systemic negligence.

Whether an employer is vicariously liable for an employee’s unauthorised and intentional wrong is determined via a two-step process established in Bazley. The first question is whether existing precedents unambiguously resolve the issue. The second is whether vicarious liability should be imposed, considering broader policy rationales, such as fair and effective compensation for victims and deterrence of future harm.

“The test looks at several factors,” Leith notes. “Is there a significant connection between the creation or enhancement of risk and the wrong that occurs?  Did the job give the employee the opportunity to abuse their power? Is that part of the employer’s aim, or is the goal of that job to have those relationships? Was the wrongful act related to intimacy, friction, or confrontation inherent in the enterprise? And critically, was there a power imbalance and vulnerability in the relationship?”

That information is particularly significant because it’s not just about opportunity; it’s about whether the nature of the job itself facilitates the wrongful act. The classic example is institutional abuse by clergy. The Catholic church has been held responsible for many acts of its priests over the years because a spiritual leader is in a position of power and influence in a religious community. People may be seen alone, take part in after-hours activities, or discuss intimate details within a confessional dynamic — all of which can contribute to the conditions for abuse.

Leith adds that the same framework applies across other sectors. A principal's sexual abuse of a kindergarten student in Jane Doe (#4) v. Newfoundland and Labrador English School District led to the school board being found vicariously liable. The school provided a private office and the authority to be alone with a vulnerable child, who was too young to employ the agency of an older student who may have been able to call their parents or leave, and the abuse occurred at school during school hours.

Leith underscores that every case turns on its own specific facts. While a coach abusing a player in the locker room before a game would fall into the same category as the above examples, if the coach is also a friend of the family and the abuse occurred at a BBQ at their home, it may be more difficult to link the abuse to the structure of the sports organization.

Claims against institutions: Institutional negligence

The other avenue is institutional negligence, which is an independent claim against the institution itself. From hiring and screening processes to reporting and investigative procedures, to ensuring safeguards are in place to prevent unsupervised access to vulnerable individuals, there are many areas where an organization’s actions, or lack thereof, can be found negligent.

For example, in a medical context, some practices might require a second person to be present during certain types of imaging or procedures. In sports organizations, policies might prohibit coaches from being alone with athletes in change rooms. In faith-based settings, protocols might restrict private one-on-one interactions with minors outside structured settings.

Ultimately, when an institution fails to implement protections, or fails to follow the ones it has, it’s a systemic failure — and there may be grounds to claim institutional negligence.

“It’s an emerging area where institutions must take a really sharp look at their practices in order to ensure they’re protected,” Leith adds.

Both institutional and vicarious liability claims can be advanced together, but whichever way a lawyer chooses to approach the case, again, it comes down to the details. All cases the lawyers at Neinstein take on start with a deep dive, assessing: where the abuse took place, when it occurred, and the position of the parties relative to each other. This includes examining the relationship between them, the vulnerability of the individual, and the power imbalance at play.

“There’s no straightforward rule of thumb here; it’s very fact specific,” Leith says. “That’s the driving force behind these cases. There may be many of them out there, but no two are the same.”

The necessity of trauma-informed practice

There are many reasons why a victim of abuse may hesitate to start a case. Some have been groomed for months if not years — starting with small interactions such as a light touch on the back or an inappropriate joke and escalating from there — and it's embarrassing to come forward and admit what’s happened. Despite some collective movement towards more understanding, complainants can still face stigma and outright victim-blaming.

“It's very hard, especially after time has passed, to ask themselves, why didn't I say stop the first time? Why did I laugh it off?” Leith explains, adding that’s where the dynamics of power and the trust factor in: perhaps they were intimidated or didn’t feel able to object because it was an authority figure.

Though there’s an understandable fear of litigation making things public and inviting criticism, “the tide has turned a bit,” Leith says.

“The courts have worked hard to go against the presumption of why someone didn’t complain to the police or why this is the first time they’re speaking out if it’s so bad. There's more training about being trauma-informed and understanding the nature of the abuse and how it comes forward.”

The lawyers at Neinstein take their role in these sensitive cases seriously, ensuring everyone at the firm is trauma-informed. What does that look like? Patience. Flexibility. Empathy. Diligence. Lawyers who practice in this area want to work with clients to hold institutions responsible. It can be a long road, but the expertise behind the Neinstein team ensures it’s a smooth journey.

Neinstein regularly runs sessions internally, including lunch and learns, to train the lawyers and staff in helpful strategies for dealing with clients who have been victims of abuse. Importantly, it educates the lawyers so they have greater insight and appreciation for these clients. They aren’t corporate clients who expect litigation, Leith explains, and it requires a softer approach.

“There are defense counsel who are trauma-informed and know how to handle these clients, but there are also those who do not — and you can’t choose who’s on the other side,” Leith says. “There must be a particular sensitivity, especially if you’re dealing with children and their parents.”

Do legal professionals play a role in driving systemic change to better protect vulnerable individuals? Leith hopes so, noting that the cases Neinstein and others take on can result in better protection going forward because they raise awareness.

“Institutions examine the policies they have in place — such as employees ever being in a room alone with young or vulnerable individuals — or what they’re lacking to lessen the risk,” she says. “Tort law is to make a victim whole via compensation, though we recognize there’s no compensation that will make their experience go away. But hopefully by pursuing a case against an institution, we can prevent the same thing from happening to someone else.”