Holding the Police Board Vicariously Liable for the Conduct of Its Officers
“It is tragic but true that people working with the vulnerable sometimes abuse their positions and commit wrongs against the very people they are engaged to help.”
In the decision, released 12 November 2008, Chapnik J. found that the Toronto Police Services Board (“the Board”) could be held vicariously liable for the misconduct of its officers. The plaintiff, whose identity was protected under a publication ban, asked that her name be made public (see Toronto Star article). She was therefore identified as Ms. Marian Evans.
In the early morning hours of January 7, 1979, 24-year-old Marian Evans was sexually assaulted by Police Constable John David Sproule. The attack, which lasted approximately 1-1/2 to 2 hours, took place in an unmarked police cruiser while he was on duty and in full police uniform. Ms. Evans reported the incident and criminal charges were laid against Sproule, who subsequently resigned from the police force. He pleaded guilty to indecent assault and was fined $1000.
The assault had a traumatic effect on Ms. Evans, who was raised in a “typically religious Irish Roman Catholic family.” She became estranged from her family and, a few months later, she fled her home in the middle of the night. According to one witness, Ms. Evans’ father had believed that Sproule was dealt with “too harshly,” which suggested that her family (or at least her parents) had perceived the fault to lie with Ms. Evans.
For over two decades, Ms. Evans suffered from depression, anxiety, nightmares of faceless authority figures, failed relationships and social isolation. It was not until 2001 when she was diagnosed with Post Traumatic Stress Disorder and began psychotherapy that she became aware “in any meaningful or consistent way” that her problems and conditions were connected to the sexual assault.
Sproule failed to attend the trial, and thus, his pleadings were struck and judgment awarded against him. The case advanced between Ms. Evans and the Police Board.
Chapnik J. found that Ms. Evans fell short of proving that Sproule stood in a fiduciary relationship with her and that he breached his trust obligations by assault against her. The claim for fiduciary duty, the judge explained, was not properly pleaded in this case.
Ms. Evans’ claim in negligence also failed. Less than a month prior to the assault against Ms. Evans, Sproule was on patrol duty with another officer when they stopped a vehicle driven by a young woman. The officer witnessed an inappropriate, sexually-charged exchange between her and Sproule. However, the officer did not disclose the incident to his supervisor until after the assault against Ms. Evans. Had the officer reported the incident promptly and the Board failed to take proper action, the claim for negligence may have succeeded. However, as he had not, it could not be held that the Board acted negligently.
Chapnik J., however, did find that the Board was vicariously liable for the wrongful conduct of Sproule. His conduct was committed in the course of his employment with the Board, the opportunity to do what he did was directly attributable to his employment and the power and authority conferred on him as a police constable.
The judge awarded Ms. Evans $215 000 in damages, $25 000 in punitive damages against Sproule only, plus costs on a substantial indemnity basis.
The Supreme Court of Canada established the test for finding vicarious liability in Bazley: where the employee’s wrongful conduct is sufficiently related to conduct authorized by the employer, the employer may justly be held vicariously liable despite an absence of any fault on the part of the employer. In determining whether this “sufficient connection” exists, a number of factors may be considered including:
(a) the opportunity that the enterprise afforded the employee to abuse his or her power;
(b) 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);
(c) the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s enterprise;
(d) the extent of power conferred on the employee in relation to the victim; and
(e) the vulnerability of potential victims to wrongful exercise of the employee’s power (Bazley, para 41)
The Court in that case held the employer – a non-profit organization that operated a residential care facility for emotionally troubled children – vicariously liable for the abuse of the resident children by one of their employees. It also held that charitable organizations were not exempt, despite their role in providing important public services and despite the fact that most of their “employees” were in fact volunteers. However, McLachlin J. also recognized that the principle of vicarious liability was “difficult to apply,” and that where previously decided cases on similar facts do not help, policy considerations play an important role in findings of vicarious liability.
The difficulty of finding vicarious liability was demonstrated in Jacobi v Griffiths,  2 SCR 570, the companion case to Bazley, where the Court in a 4-3 split decision found that the Boys’ and Girls’ Club of Vernon was not liable for the sexual abuse of two children by its employee, Griffiths. In that case, it appears that the decision of the majority was influenced by the fact that all but one of the assaults occurred at Griffiths’ home, and not in the course of his duties at the Club.
This decision comes ten years after MacFarland J. found in Doe v Metropolitan Toronto (Municipality) Commissioners of Police, 1998 CanLII 14826 (ONSC) [Doe], that the police breached their duty of care by failing to warn the women who were at particular risk and that they failed in their duty to protect the women in Ms. Jane Doe’s neighbourhood. MacFarland J. concluded that the police investigation of the “balcony rapist” was “irresponsible and grossly negligent,” and awarded $220,000 in damages to Ms. Doe.
Although the two cases may appear at first glance to be similar in that they both impose greater burden on the police, they are in fact quite different. Ms. Doe brought her suit against the police soon after the assault, and her complaint was in regards to how the police conducted its investigations. The decision in Doe was not appealed; indeed, following the decision, both the Toronto City Council and the Toronto Police Services Board issued a formal apology to Ms. Doe for the way in which the investigation had been handled.
In contrast, Ms. Evans did not commence her lawsuit until 22 years after the assault and it dealt with conduct that was unauthorized by the Board; the offending officer was convicted, fined and is no longer with the force. It is highly unlikely that an apology will be forthcoming in this case and it seems probable that the police board will appeal the finding that it can be held vicariously liable for the misconduct of its officers. However, for Ms. Evans’ sake, one hopes that there will be no appeal especially since Chapnik J.’s decision appears to be consistent with past Supreme Court of Canada jurisprudence and an appeal would not likely succeed. As stated earlier, the assault occurred in a police vehicle while Sproule was on duty and in full police uniform, including his gun visible in its holster, and Ms. Evans was a particularly vulnerable victim to Sproule’s wrongful exercise of the power and authority with which his employment position bestowed him.