Hardy Broome: Managing the “Accountability Deficit” in Public Services

The Supreme Court is scheduled to hear relatively few appeals this November, although one of the most closely watched is certain to be Hardy Broome et. al. v. Government of PEI and PEI Protestant Children’s Trust, 2009 PECA 01. The case considers the controversial possibility that governments may owe a duty of care to orphans who rely on their protection in the absence of parental or other guardian-like protection.  Broome may also engage observers for the exceptionally distressing facts giving rise to its appeal: fifty-seven persons who were residents in the Prince Edward Island Protestant Orphanage at various times between 1928 and 1976 allege physical and sexual abuse against their caregivers. They claim the provincial government is liable for damages based on a number of statutory and common law duties, the most relevant of which for our purposes is the private law duty of care.

An Agreed Statement of Facts establishes that the Orphanage was incorporated and operated under a Private Act passed through the PEI legislature, which delegated day to day management tasks to a Board of Trustees. The Province was not directly involved in the hiring of staff, coordination of volunteers, daily care of residents, or admission of residents at the Orphanage.  Most residents were brought to the institution by third parties, with the exception of ten of the resident plaintiffs who were proposed for admission by an employee of the Province; fourteen of the plaintiffs, including these ten, were also officially placed under the guardianship of the Province by court order. The Orphanage was primarily funded through charitable donations, although the Province made occasional grants to the Board of Trustees to assist with capital and other needs. The grants were given without restrictions relating to how the funds were allocated.

Given this complicated support structure, the plaintiffs and defendants diverge in their characterization of the Province’s role in the administration of the Orphanage. The Supreme Court’s eventual reasoning should help delineate the scope of governmental liability for damages accrued by devolved authorities, and may –hopefully, in my view– inspire criticism of government reforms which seek to decentralize and debureaucratize public management without appropriate substitute accountability regimes.

The PEI Court of Appeal’s Decision

The plaintiffs submit that the Province owed a common law duty of care for the alleged abuses at the Orphanage, not because the government owed a duty to all children, but rather because it owed a particular duty specifically to those who relied on its protection in the absence of another guardian. They argue that because the courts currently recognize the relationship between teacher and student as giving rise to a duty, and considering that students only attend school for a portion of the day and have one or both parents to look after them outside of school hours, the courts must also owe a duty to orphans under the state’s care (however indirectly) because they permanently reside in government-funded residences and lack outside protection.

The PEI Court of Appeal disagreed, finding the Province did not owe most of the resident plaintiffs a prima facie duty of care as they did not enjoy a sufficiently proximal relationship of “neighbourhood” giving rise to a duty.  Though some statutory obligations have been found to give rise to a government duty to protect children from harm, as where a child is a “ward of the state”, the Court of Appeal found no precedent where a duty has been recognized toward children who are resident in a care facility that is operated by a third party not under the direct supervision or control of a government. Despite the Orphanage operating by virtue of statute, the Court of Appeal found that the Province enjoyed minimal control over its actual operations. The government had no statutory responsibility or authority to intervene in its administration, and did not directly fund its administration except by charitable grants which did not oblige the government to carry out any oversight over the use of the funds.

The Court of Appeal then examined whether the situation in Broome ought to give rise to a novel duty of care.  Applying the Anns test, the Court of Appeal first evaluated the foreseeability that the government’s failure to monitor activities within the Orphanage might result in harm to its residents. The basic principle is that one must take care to avoid acts or omissions which one may reasonably foresee may injure one’s neighbour.  The court found nothing in the Agreed Facts to suggest the Province appreciated or should have appreciated risks of abuse at the Orphanage, as “knowledge of institutional abuse has been a relatively new phenomena to Canadian society largely arising out of the various residential school cases that have been brought during the past twenty years.”

The case was further distinguished from K.L.B. v. British Columbia, [2003] 2 S.C.R. 403, which held that a provincial government owed a private law duty over children designated as “wards of the state” who were victims of abuse by foster parents. In that case, legislation expressly imposed a duty to supervise the residency arrangements of children under state wardship; Broome‘s Private Act did not. Thus, the Province did not enjoy sufficient proximity of relationship giving rise to a duty with residents who were placed in the Orphanage by parents, family members, guardians, charities, or other third parties.

Those fourteen plaintiffs placed under the guardianship of the Province through court order, however, were found to have effectively been wards of the government during their residency and thus were owed a prima facie duty of care. The Court of Appeal did not provide any proximal or residual policy reasons to negate this duty.

Calling for Accountability to Assure Public Service Values

Very respectfully, and despite my admittedly partial assessment of the plaintiffs’ submissions in light of their compelling situation, I am persuaded in the circumstances of this case the Province likely did not enjoy sufficient “neighbourhood” with the plaintiffs to support their claim for damages.

Notwithstanding the correctness of the result, however, one of the Court of Appeal’s operative assumptions in making its decision may have been that increased state discretion and a general removal of centralized controls —i.e. the “contracting out” of the delivery of public services such as the delegation of an Orphanage’s management to a Board– will usually lead to improved performance and increased efficiency. While this may often be the case, it is my respectful view that attention must be paid to the place of accountability in these new structures. No government authority may be designated blindly. Appropriate accountability regimes are integral to the promotion and security of the public service values motivating any debureaucratization of state power, especially when it concerns the care and supervision of our most vulnerable.

We are left, then, with an uneasy resolution in Broome. It is apparent that an official state structure (the Province of PEI) and/or its devolved structure (the Board of Trustees) may have failed to protect residents of the Orphanage from serious physical and sexual harm. Whatever the merit of the plaintiffs’ claims, there was evidently an accountability deficit in the Province’s public administration: for example, there was no evidence presented that its government ever carried out internal or external audits, inspections, or other review processes into the Board’s management or Orphanage’s operations. While these may not have been standard practices in the child care context in 1921, it is startling that such a significant responsibility as child protection was delegated without real oversight for so long.

What I hope Broome may inspire is critical reflection of devolved state structures still in place and lacking accountability regimes, thereby enabling abuses of power and possibly leading to tragedies as devestating as that which is alleged to have occurred at the Prince Edward Island Protestant Orphanage. While I appreciate that our Supreme Court may not be mandated to conduct such an in-depth inquiry into such broader structural concerns on the limited facts before it, I reserve hope that it considers such criticism in its eventual judgment.