Canada: School Board Liability For Sexual Abuse Of Students By Staff – Recent Case Law Developments

Last Updated: April 22 2013
Article by Elizabeth K.P. Grace

In the past year in Ontario, there have been two reported trial decisions dealing with sexual abuse of students by teachers. The results were diametrically opposed – in one, no liability against the teacher and his school board employer was found; in the other, both the teacher and his school board employer were held liable and significant damages were awarded. These different outcomes are partly attributable to a different set of facts. They also highlight the seeming reluctance of courts to conclude that school boards should be responsible for harms caused to students by the intentional sexual misconduct of their staff.

Hayward v. Cloutier, 2012 ONSC 3738

In the first case from Windsor, Ontario, the plaintiff claimed he was sexually touched in the mid-1960s by his grade 4 teacher at his local elementary school. He alleged his teacher briefly touched his genitals at the back of the classroom while other students were present but looking in another direction, and this happened on a few occasions. He also alleged an occasion of sexual touching in the nurse's office, and said he witnessed the teacher on school grounds pull down another student's pants and expose that student's genitals. The plaintiff did not disclose the abuse until 36 years later.

According to the trial judge, the plaintiff's memory of what happened was fragmented and "murky". His descriptions of events apparently changed and contained inconsistencies. As a result, the judge concluded it was "difficult to determine what the allegations of abuse actually are" and the plaintiff's "description of the events ... are highly implausible ... [and] do not have a ring of truth". At the same time, the judge found that the teacher answered questions "in an honest and straightforward manner".

In the end, the trial judge concluded that the plaintiff had not discharged his onus of proof and, as such, found the teacher had not committed sexual assault. Further, had the plaintiff proven the abuse, the judge said he would only have awarded $25,000 in damages.

The trial judge did not stop there, but went on to consider whether the school board "would be" vicariously liable for its employee's misconduct, assuming the teacher had been found to have sexually assaulted the plaintiff. The judge referred to the governing legal test for determining if an employer is vicariously liable for employee sexual misconduct, and concluded that because the alleged abuse was said to have occurred while the teacher was simply carrying out his ordinary duties as a teacher, without taking advantage of any specialized opportunities afforded to him by virtue of his employment, no vicarious liability would have attached to the school board even if the alleged sexual misconduct had been proven.

This is a rather unsettling conclusion that leaves one uncertain about how the law of vicarious liability for sexual misconduct is being applied to school boards. Courts have been quite prepared to hold religious institutions, such as Roman Catholic dioceses and other denominations' governing bodies, vicariously liable for the sexual misconduct of their clergy, in the context of these clergy fulfilling their ordinary duties as priests, ministers or clerics. On many occasions, courts have also found the federal government and churches, which jointly ran the residential schools where First Nation children were historically placed, vicariously liable for sexual abuse committed by their staff in the course of their work with students. Should public school boards that operate non-residential day schools and that employ teachers and other staff be treated differently?

Because the judge in Hayward v. Cloutier found there was no sexual abuse, his decision with respect to vicarious liability is not a legally binding one. Nonetheless, it adds uncertainty to an important social sphere – the education of children – where we know there are youth who are vulnerable to abuse of authority by adults with job-conferred powers, and thus, where the potential for harm and injury from sexual abuse is high.

Langstaff v. Hastings and Prince Edward Board of Education, 2013 ONSC 1448

Adding to the uncertainty surrounding school board' liability is another teacher abuse case that was recently tried in Belleville, Ontario. Unlike Hayward v. Cloutier, this was a trial before both a judge and jury.

Whereas the jury decided the questions of the teacher's liability for sexual assault and his school board employer's negligence and what damages were owing, the judge decided the issue of whether the school board should be held vicariously liable for the teacher's sexual misconduct.

The plaintiff alleged extensive sexual abuse by his elementary school teacher, which occurred in the latter 1970s when the plaintiff was just 12 years old. The evidence at trial was that the school board gave the teacher a key which afforded him unlimited access to a mini-zoo he housed in his science classroom, and that it was there that the teacher assaulted the plaintiff during recess, lunch breaks, after school and on weekends. The plaintiff was there under the pretence of helping the teacher care for the animals.

In this case, where the teacher had apparently been criminally convicted for his sexual misconduct, the plaintiff was able to prove that the sexual abuse had occurred. Thus, the jury's verdict was that the teacher was liable for sexual assault. The jury also found the school board directly liable in negligence for not preventing the teacher's assaults against the plaintiff. The jury awarded the plaintiff $3.2 million for the damages he suffered as a result of the sexual abuse.

In the judge's ruling, released after the jury's verdict, the school board was also found to be indirectly or vicariously liable for its teacher's sexual misconduct against the plaintiff.

The judge in his written ruling noted that the precedents where teachers were alleged to have sexually assaulted students were factually distinguishable from the case before him and, therefore, of little assistance to him in deciding the issue of the school board's vicarious liability. Like the judge in the first case, this judge applied the test for vicarious liability developed by the Supreme Court of Canada. This test involves determining whether the connection between the employer's business or "enterprise" and the wrong committed by its employee is sufficiently strong to justify holding the employer vicariously responsible for the wrong and its harms. Known as the "enterprise risk principle", this test also requires courts to consider whether societal goals of a fair and just remedy and deterrence of future harm will be advanced by imposing vicarious liability on an employer in a specific case.

By giving the teacher a key without conditions or notification to the school principal, when normally only principals and janitors were allowed to have keys to schools, and allowing the teacher to operate a mini-zoo in his classroom without restriction, the judge found that the school board had increased the risk of harm to students, and that the law of vicarious liability should be used in the case before him to promote deterrence and encourage vigilance on the part of school boards.

As a legal doctrine that attributes responsibility for an employee's wrongdoing to the employer, vicarious liability is effectively a no-fault, indirect form of liability that makes employers, independent of any direct fault or liability on their parts (such as negligence in the Langstaff case), jointly responsible with their employee for paying the damages flowing from their employee's wrongdoing.

Langstaff is one of only a very few reported Canadian decisions in which a day school (as opposed to a residential school at which students sleep over, where there is much precedent for vicarious liability) has been held indirectly or vicariously responsible for the harms flowing from the sexual misconduct of a staff member against a student. It is also a decision that we can expect to be appealed given the importance of the legal issues at stake and the size of the damages award made by the jury which, by Canadian standards, marks a high for compensation in an historical childhood sexual abuse case.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Elizabeth K.P. Grace
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions