“Who Do I Sue?” Vicarious Liability for Sexual Abuse Claims
There is an obvious answer, and a not-so-obvious answer to this question.
Your abuser can be sued
The obvious answer is that you should sue the person that sexually assaulted you.
However, an important consideration is whether the person that assaulted you actually has any assets that would enable him to pay a judgment. For example, if the court awards you $500,000.00 in compensation you will get a court order requiring the abuser to pay you. But a judgment is simply a piece of paper suitable for framing unless you are able to collect your compensation.
Does the abuser have assets?
In many cases we have been asked to review, the abuser is elderly, unemployed and has no assets to pay a judgment. The abuser is what lawyers refer to as “judgment proof”; meaning a judgment against the abuser simply couldn’t be collected.
In cases like that, we have reluctantly had to tell the victim there is no sense in pursuing a civil claim, because it is not likely that the survivor will ever receive compensation, even if they win their claim in court..
The not-so-obvious answer is that in some cases the abuser’s employer or the institution where they worked or volunteered can be sued for compensation.
Under the legal principle of vicarious liability an employer can be held liable (legally responsible) for negligent acts or omissions by an employee who is acting in the course of their employment. Traditionally employers were not liable for criminal acts, like sexual assault, by employees.
Sixteen years ago the Supreme Court of Canada changed the rules. In P.A.B. v. Curry and G.T. v. Griffiths, the Supreme Court ruled that an employer will be held vicariously liable for criminal sexual assaults by an employee in two circumstances:
(1) Where the employee’s actions were authorized by the employer; and
(2) Where the employee’s unauthorized acts are so connected with his or her authorized acts that they can be characterized as modes of conducting the employer’s business.
Every claim of sexual abuse involving abuse by an employee in the course of his duties will require a careful examination of all of the facts surrounding the abuse and the details of the employee’s terms of employment and whether the employee’s employment facilitated the abuse.
Every case will be judged on its own facts, but in some circumstances a sexual assault claim may be paid out because the abuser’s employer is found to be vicariously liable for the damages.
For example, we have represented survivors who have sought for compensation from:
- The Catholic Church for abuse by priests;
- The Province of Nova Scotia for abuse by a probation officer;
- Boy Scouts Canada for abuse by Scout Leaders;
- The Department of National Defence for abuse by a victim’s commanding officer;
- A school board for abuse by a teacher;
- The Federal government for abuse in Indian Residential Schools and so on.
You may have options
Just because the person that abused you is dead or has no assets doesn’t mean that you don’t have any options. Call us at (902) 423-2050 for more information.