B.C. landlord not liable for sex assault

Merely giving the worker the time and place to commit the assault doesn’t put the employer on the hook for damages, says B.C. Court of Appeal

In refusing to hold a landlord liable for a sexual assault by one of his employees on a tenant, the British Columbia Court of Appeal said it was treading carefully.

That’s because if it had ruled the employer was liable for the worker’s actions in this case, “we would be dangerously close to imposing absolute liability on employers” for the actions of their employees, it said.

The case stemmed from a sexual assault that took place in 2001. Ron Miki, the landlord’s cousin, was hired to do some maintenance work on the victim’s apartment in the month of September. He repeatedly grabbed at and attempted to kiss her. He made sexually suggestive comments to her and members of her family.

Then, on Sept. 27, he physically attacked her. Miki was charged with sexual assault, pled guilty and was given a conditional discharge.

The victim then filed this lawsuit against the landlord, attempting to hold him liable as an employer for Miki’s actions.

The landlord said he was not aware that Miki had a propensity to commit sexual assault. He was unaware of any previous incident of a similar nature and said there was no way he could have known Miki would assault the victim in her apartment while doing the repairs.

The victim said she told the landlord about the attempted kiss before the assault, but he replied simply by saying, “Ron really likes you.”

A lower court ruled that Miki was an employee of the landlord, and not an independent contractor. The B.C. Court of Appeal said there was no basis to overturn that fact so, for its purposes, Miki was an employee.

“The question then narrows to this: whether a landlord who sends his employee, of whom he knows nothing to his detriment, to repair leased premises is vicariously liable for sexual assault by the employee on the tenant,” the B.C. Court of Appeal said. “I put the question in such stark terms because not only did the (landlord) know nothing to Ron Miki’s discredit, but, also, nothing in the evidence warrants a conclusion that anything to his discredit was available to be found out.”

The Bazley case

The B.C. Court of Appeal turned to the Supreme Court of Canada’s 1999 decision in Bazley v. Curry, a landmark case dealing with the concept of vicarious liability. Applying the ruling in that case to this one, it said the employer was not liable for the actions of Miki.

The Bazley case is worth reviewing. In that case the Supreme Court of Canada laid out a number of guiding principles to help determine whether or not an employer should be held liable for an employee’s unauthorized, intentional wrongdoing.

It said courts should openly confront the question of whether liability should lie against the employer, rather than obscuring the decision beneath semantic discussions of “scope of employment.”

It said the fundamental question is whether the wrongful act is sufficiently related to conduct authorized by the employer to justify the imposition of vicarious liability.

“Vicarious liability is generally appropriate where there is a significant connection between the creation of enhancement of a risk and the wrong that accrues therefrom, even if unrelated to the employer’s desires,” the Supreme Court said.

It said that just because the employer gave the worker the time and place to commit the wrongdoing doesn’t automatically mean it’s liable for his actions. To do so would essentially turn the employer into an involuntary insurer, it said.

The liability test

The relevant factors in determining whether or not the employer is liable include, but are not limited to, the following:

•the opportunity that the enterprise afforded the employee to abuse his power;

•the extent to which the wrongful act may have furthered the employer’s aims (and hence be more likely to have been committed by the employee);

•the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s enterprise;

•the extent of power conferred on the employee in relation to the victim; and

•the vulnerability of potential victims to wrongful exercise of the employee’s power.

Must be a ‘strong connection’

Applying these factors to sexual abuse by employees, the court said there must be a strong connection between what the employer was asking the employee to do and the wrongful act.

“It must be possible to say that the employer significantly increased the risk of the harm by putting the employee in his or her position and requiring him to perform the assigned tasks,” the court said.

Just because the employer gave the worker the time and place to commit the assault doesn’t mean it’s responsible.

“An incidental or random attack by an employee that merely happens to take place on the employer’s premises during working hours will scarcely justify holding the employer liable,” the court said. “Such an attack is unlikely to be related to the business the employer is conducting or what the employee was asked to do and, hence, to any risk that was created.”

The deterrent effect

Imposing liability in such circumstances wouldn’t have much of a deterrent effect, the court said.

“Short of closing the premises or discharging all employees, little can be done to avoid random wrong,” it said.

Using the example of a worker who is in close contact with children, the court laid out a scenario where an employer could very well be held liable.

It said it was obvious that the risk of an employee sexually abusing a child may be materially enhanced by giving the worker an opportunity to commit the abuse.

“If an employee is permitted or required to be with children for brief periods of time, there may be a small risk of such harm — perhaps not much greater than if the employee was a stranger,” the court said.

“If an employee is permitted or required to be alone with a child for extended periods of time, the opportunity for abuse may be greater. If in addition to being permitted to be alone with a child for extended periods of time, the employee is expected to supervise the child in intimate activities like bathing or toiletting, the opportunity for abuse becomes greater still.”

Other factors may be important, depending on the nature of the case.

“To require or permit an employee to touch the client in intimate body zones may enhance the risk of sexual touching, just as permitting an employee to handle large sums of money may enhance the risk for embezzlement,” the court said.

But the bottom line is that any test for vicarious liability for an employee’s sexual abuse should focus on whether the employer’s enterprise and empowerment of the employee materially increased the risk of the sexual assault and hence the harm.

For more information see:

Schultz v. Miki, 2006 CarswellBC 543 (B.C. C.A.)

Bazley v. Curry, 1999 CarswellBC 1264, 43 C.C.E.L. (2d) 1, 62 B.C.L.R. (3d) 173 (S.C.C.)

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