In the first part of this article published in the March 2004 issue of CU, I discussed the recent judicial history of vicarious liability as applied to claims against churches and not-for-profit organizations. Vicarious liability is based on the rationale that the person who puts a risky enterprise into the community may fairly be held responsible when those risks emerge and cause loss or injury to members of the public. This is distinguishable from direct liability, where a person can be held liable for their own negligence in failing to supervise an employee that commits a harmful act.
Effective compensation and deterrence are the two main considerations behind the concept that an employer should be held liable for acts that they neither knew about or approved. The hope is that holding the employer liable for the acts of an employee or volunteer will encourage them to take steps to reduce the risk of harm in the future.
While most people approve the doctrine of vicarious liability when it is applied to the government or major institutions, they would be horrified to think that they could be held responsible for the acts of an employee who sexually abuses children at home or away from work. The strict application of vicarious liability has resulted in an explosion of claims against religious and not-for-profit corporations, but in particular the Catholic Church. The Roman Catholic Church has been judicially described as "a religious organization operating in many countries of the world, including Canada. It possesses a hierarchical structure with the Pope at its apex, and works through diverse orders, groups and individuals".
The courts have not always applied the tests for vicarious liability in a consistent manner. As an example, in McDonald vs. Mombourquette, the Nova Scotia Court of Appeal reversed the trial judge's finding that the Diocese of Antigonish was vicariously liable for sexual assaults committed by a priest on children in the parish. A key factor was that the priest had acted "totally contrary to the religious tenets which he has sworn to uphold". In K. (W.) vs. Pornbacher, the Supreme Court in British Columbia declined to follow Mombourquette and held the bishop to be both directly and vicariously liable for sexual assaults committed by a priest.
In late March of 2004, the reasons of the Supreme Court of Canada in John Doe vs. Bennett were released, providing a dramatic clarification of the law as it applies to the claims against the Church. Kevin Bennett was a Catholic priest in the Diocese of St. George's, Newfoundland between 1961 and 1989. By his own admission, over three decades, he committed sexual assaults on more than 36 young boys. Many of his victims subsequently commenced civil actions against him. While the severity of the abuse was disputed, the fact that the abuse happened was admitted.
All but two of the victims resided as young boys in the tiny communities of St. Bernard's and Terrenceville, located about 30 kilometers apart. These villages, each with populations of approximately 700-800, were "off the beaten track". They existed largely without municipal government, civic organizations, regular business activities, police, courts or government officials. Employment opportunities in the area were also limited and the majority of men worked elsewhere for several months each year. The residents of these communities were almost entirely Roman Catholic and deeply religious. The church, and the priest's activities were the major focuses of daily life.
As such, in the absence of community leadership, the role of resident authority fell to the parish priest. There were a handful of school teachers in each community, but they were not permanent residents. Working for the Catholic school board, they were to some extent under the influence of the church as well. Father Bennett was described by witnesses as dominating both the parish and its communities.
While critical of the role of the Church in the community, the Supreme Court of Canada is silent on the fact that the federal and provincial social safety net seems to have been completely absent in these villages. "Canon 528" of the code of canon law directs a parish priest to "have a special care for the catholic education of children and young people", and involvement with children was clearly an expected role for a parish priest. As priest, Bennett directed altar boys, led a parish band, involved boys in renovation and construction projects, was active in the Boy Scout troop, and engaged boys in various fundraising and parochial activities. All of these opportunities were attributable to his appointment and placement as parish priest by the bishop.
The children from the parish of St. Bernard's also traveled with him to other towns and villages throughout the parish. They assisted the priest both as altar boys and in fund raising activities such as bingo. Local boys were constantly in the rectory doing simple chores and just hanging around. This often resulted in overnight stays at the rectory. On numerous occasions, Bennett took advantage of them while they were in various stages of intoxication after plying them with "parish liquor".
In 1979, one of the victims (who was now an adult university student) made an appointment to see Archbishop Penney of the St. John's Diocese. This individual warned Penney that Father Bennett "was sexually molesting boys" and that he himself had been abused. The archbishop then arranged for the victim to speak with the bishop of St. George's. During the interview the young man gave the bishop the names of two other victims. Unfortunately, the archbishop took no further action, and Father Bennett continued to work as the parish priest at St. Bernard's. He was subsequently transferred to another parish in St. George's Diocese. The evidence seems to suggest that the allegations were regarded as an internal disciplinary matter.
The trial judge found St. George's Diocese vicariously liable for the assaults committed by Father Bennett. The Newfoundland Court of Appeal reversed this finding, emphasizing that Bennett's actions violated the norms of the church and the charitable, non-profit nature of the Diocese's activities. The dissenting judge, Justice Cameron, felt that vicarious liability had been established. At the same time, the Court of Appeal recognized that the failure to act on the warning was sufficient to establish direct negligence.
But, on appeal to the Supreme Court of Canada, counsel for St. George's Diocese conceded the negligence of the bishops for failing to take steps to remove Bennett. It argued, however that the Diocese was not liable for the bishops' negligence, because the corporation's activities and powers were confined to holding property and did not extend to the placement, direction and discipline of priests. The question then became whether or not the corporation's activities and liability could be confined to matters pertaining to its property.
The Supreme Court of Canada observed that the purpose for which ecclesiastical corporations are created is to serve as a "point of legal interface" between the Roman Catholic Church and the community. The church is at one and the same time a spiritual presence in the community and a secular actor in the community. On a secular level, the church interacts with members of the diocesan community in a host of ways. It carries on a variety of religious, educational and social activities. It makes contracts with employees. It transports parishioners. It sponsors charitable events. It purchases and sells goods and property. To do these things, it requires a legal personality.
The Supreme Court of Canada held that this personality is the "corporation sole". To restrict the purpose of the corporation sole to the acquisition, holding and administration of property is to capture only a portion of the purpose it is intended to serve and to artificially truncate its functions. The Court went on to consider the application of the doctrine of vicarious liability as it was set out in its previous decisions in the cases of Bazley vs. Curry, Jacobi vs. Griffiths and K.L.B. vs. British Columbia. The Supreme Court ruled that plaintiffs must show that the rationale behind the imposition of vicarious liability will be met in two ways:
First, the relationship between the "tort feasor" and the person against whom liability is sought must be sufficiently close; and
Secondly, the wrongful act must be sufficiently connected to the conduct authorized by the employer.
The Court found that the relationship between the bishop and a priest in a diocese is not only spiritual, but also temporal. The priest takes a vow of obedience to the bishop. The bishop exercises extensive control over the priest, including the power of assignment, the power to remove the priest from his post and the power to discipline him. It is akin to an employment relationship.
Applying the relevant test to the facts, it was clear that the necessary connection between the employer-created or enhanced risk and the wrong complained of was established. The Court notes that the bishop provided Bennett with the opportunity to abuse his power. The trial judge observed that "the vast majority of all the activities which [Bennett] organized and in which he was always accompanied by boys, were activities which he organized and controlled in his capacity as parish priest".
The Court also observed that Bennett's wrongful acts were strongly related to the "psychological intimacy" inherent in his role as priest. The Court notes that the church encourages this intimacy between a priest and the members of the parish. A priest may not have to bath children [as in Bazley] but, like a parent, he teaches them right from wrong and is considered by his parishioners to represent God, and children are expected to accept his instructions in spiritual matters. This intimacy encourages a parishioner's possibility of submission to abuse and increases the opportunity to abuse, partly by satisfying parents that their children are in good hands while in the care and control of their priest.
The Court went on to observe that the Bishop conferred an enormous degree of power on Bennett relative to his victims. The power imbalance was intensified in St. George's Diocese due to a number of factors. The parishes in which Bennett worked were geographically isolated, impacting on the opportunities for, and extent and frequency of, the sexual assaults and contributing to their remaining unchecked for many years.
While Bennett had a particularly forceful personality, the root of his power over his victims lay in his role as a priest, conferred by the bishop. The Court recognized that the awe in which Father Bennett was held by the community at large "contributed to his ability to control his victims and thus to satisfy his prodigious appetite for constant sexual gratification".
The Supreme Court also acknowledged that it was impossible to answer the questions as to the possible remedies for recovery against the Roman Catholic Church as a whole. There was not enough evidence to determine whether the church, as a global institution, could be found liable for the wrongs committed by Father Bennett in the diocese of St. George's.
While the Supreme Court of Canada has taken a strict view of vicarious liability in cases involving churches, it is hard not to see a slight tinge of "anti-clerical" bias in the reasoning. The Honorary Chief Justice of Canada, Madam Justice Beverly McLachlin, has strongly expressed the opinion that the not-for-profit or charitable status of a defendant should not be a factor in deciding whether or not vicariousliability is established.
In fact, in the Bennett case, McLachlin's reasons suggest a tacit disapproval of the Court of Appeal's sympathetic comments towards the representatives of the church who have to deal with the horrific legacy of abuse. Unfortunately, the decision in Bennett will have the long-term effect of discouraging the vital day-to-day operations of churches and charitable organizations. In an era of fiscal restraint and government cutbacks, the effect that this will have on communities across Canada is difficult to estimate.