No Recourse when Children's Aid harms children

October 3, 2003 permalink

The Supreme court of Canada yesterday ruled that governments and quaisi-government agencies, such as Children's Aid, are not responsible when they injure their wards. Here is a story from the Montreal Gazette on the subject:

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Top court rulings limit sex-abuse liability
Public authorities not automatically responsible

JOE PARASKEVAS
CanWest News Service

Friday, October 03, 2003

Public authorities such as governments, school boards or foster home agencies cannot be held automatically responsible for harm caused by people under their control who are in positions of power, if the authorities did nothing wrong in the hiring or supervising of those people, the Supreme Court of Canada said yesterday.

In separate rulings dealing with vicarious - or no-fault - liability, the nine-member court rejected claimants' arguments that public authorities were unconditionally liable in three British Columbia sexual-abuse cases dating from the 1960s and '70s.

Two involved children who were sexually abused in foster homes. The other involved the repeated sexual abuse of an aboriginal girl by a school janitor.

The cases were seen as potentially important to thousands of claimants building cases about abuse allegedly suffered in aboriginal residential schools, many run by various churches from the late 19th century to the 1970s.

In the main case involving foster home abuse, the court said the link between the government and foster parents is not close enough to allow a claim of vicarious liability.

"Foster families serve a public goal - the goal of giving children the experience of a family, so that they may develop into confident and responsible members of society," the court said. "However, (foster families) discharge this public goal in a highly independent manner, free from close government control."

The court confirmed there was negligence in supervision of the foster homes on the part of the superintendent of placements, but the two-year statute of limitations had expired by the time the claimants came forward.

The court also said the Protection of Children Act does not give the provincial superintendent of child welfare "a non-delegable duty to ensure that no harm comes to children through the abuse or negligence of foster parents."

Justice Louise Arbour wrote the dissenting argument, although she agreed the expiration of the statute of limitations impeded the claim.

"The wrongful act at issue here," Arbour wrote, "was sufficiently connected to the tortfeasor's assigned tasks for vicarious liability to be imposed."

In the case of the school janitor, the Supreme Court ruled the vicarious liability argument failed to apply against the school board because the janitor did not normally have daily, direct contact with children, such as a teacher might.

Canadian Alliance justice critic Vic Toews suggested the ruling might surprise parents who expect children to be safe at school regardless of whom they meet while there.