Ruling Could Affect Camps, Sunday School
Ward, Marianne Meed, Anglican Journal
The country's top court made its decision but the jury's still out on what impact the ruling on employer's liability will have on a range of church activities, including camps, ministry to the underprivileged and Sunday schools.
The Supreme Court of Canada handed down two rulings on what is known as vicarious liability. That is the principle by which an employer, although it hasn't been negligent or done anything wrong itself, can be held liable for wrongful acts of its employees.
The rulings affect churches in a variety of ways, including the residential schools lawsuits.
They also affect dioceses and parishes running residential summer camps or day camp programs for children, Sunday schools, and recruitment of clergy and lay leaders.
Just how the judgments affect these areas will have to be dealt with on a case by case basis, say church lawyers.
"We haven't yet fully assessed those implications," said George Cadman, chancellor (chief legal officer) of the Diocese of New Westminster and of the Ecclesiastical Province of British Columbia and Yukon. Mr. Cadman also served as solicitor for the General Synod of the Anglican Church of Canada, which intervened in one of the cases (Bazley) on the employer's side.
"If anything," he said, "the judgement has served to clarify the law in this area, but we're going to have to see on a day to day basis how we are going to move ahead with the application to various projects."
"I think that'll be a question of individual risk assessment in each instance."
Certainly, the potential for difficulties is present in the church.
In a summation of the rulings for the Diocese of Toronto where he is vice-chancellor, labour lawyer Chris Riggs notes "children and adolescents are an integral part of our parishes: Christian education programs, choirs, youth groups and camps provide a variety of environments in which children and adolescents deal on an ongoing basis with clergy, paid employees and volunteers."
But, he concludes, "It may well be that most -- if not all -- of those circumstances would not lead to the imposition of vicarious liability as set out by the court."
The rulings stemmed from cases in British Columbia and were released June 17. The court found the employer liable in one case, Bazley v. Curry, but dismissed liability in the other, Jacobi v. Griffiths.
The Supreme Court judges ruled that employers can be held liable if the work situation creates or enhances the risk leading to the abuse, and if holding the employer liable serves two social policy goals: providing the victim financial relief, and deterring similar events.
But the judges also ruled that providing the "mere opportunity" to commit an offence does not automatically hold the employer vicariously liable. …