¹ Unless otherwise clear from the text, the term residential school is used herein to refer to residential schools specifically for Aboriginal persons, sometimes referred to elsewhere as “Indian” or “Native” residential schools. Occasionally reference will be made to judicial decisions dealing with abuse at non-Aboriginal residential schools, which is not to say there were no Aboriginal victims in those institutions.

² The reference in the article title is to the Court's failure to impose vicarious liability for sexual abuse perpetrated by a baker employed at a residential school in E.B. v. Order of the Oblates of Mary Immaculate (British Columbia), 2005 SCC 60Google Scholar, [2005] 3 S.C.R. 45, 258 D.L.R. (4th) 385 [E.B. cited to S.C.R.]. The case is discussed, infra note 82 and the accompanying text.

³ For a full bibliography see Claes, Rhonda & Clifton, Deborah, Needs and Expectations for Redress of Victims of Abuse at Native Residential Schools (Ottawa: Law Commission of Canada, 1998), online: Library and Archives Canada <http://epe.lac-bac.gc.ca/100/206/301/law_commission_of_canada-ef/2006-12-06/www.lcc.gc.ca/research_project/98_child_abuse-en.asp>Google Scholar; and Law Commission of Canada, Restoring Dignity: Responding to Child Abuse in Canadian Institutions (Ottawa: Minister of Public Works and Government Services, 2000)Google Scholar [Restoring Dignity].

⁴ For an outstanding treatment of this issue see Zoë Oxaal, “Removing that Which Was Indian from the Plaintiff: Tort Recovery for Loss of Culture and Language in Residential Schools Litigation” (2005) 68 Sask. L. Rev. 367.

⁵ Milloy, John, A National Crime: The Canadian Government and the Residential School System, 1879 to 1986 (Winnipeg: University of Manitoba Press, 1999) at 155Google Scholar.

⁶ Chrisjohn, R. & Belleau, C. et al. , “Faith Misplaced: Lasting Effects of Abuse in a First Nations Community” (1991) 18:2Canadian Journal of Native Education 161 at 173Google Scholar; Miller, J.R., Shingwauk's Vision: A History of Native Residential Schools (Toronto: U. of Toronto Press, 1996) at 333Google Scholar.

⁷ Milloy, supra note 5 at 298; Claes & Clifton, supra note 3 at n. 67.

⁸ See e.g. Milloy, supra note 5 at xiv, 132, 282, 297-298; Miller, supra note 6 at c. 11. But see Aksidan v. Henley, 2006 BCSC 1008: concluding sexual assaults in a particular residential school were unforeseeable to the government in 1983.

⁹ Chrisjohn, R., Young, S. & Maraun, M., The Circle Game: Shadows and Substance in the Indian Residential School Experience in Canada (Penticton, BC: Theytus Books Ltd., 1997) at 255Google Scholar.

¹⁰ In practice, the civil justice system cannot possibly cope with this number of potential claims, even with class actions playing a large role. This is one of the factors that induced the settlement discussed infra note 13.

¹¹ Almost all of the cases discussed herein involve sexual abuse and many involve physical abuse also. The term “abuse” in the article refers to one or the other or both. The proper name of the civil cause of action is battery, not assault, but the criminal law term “assault” dominates. To be clear, the sexual assaults discussed in the cases under discussion here are based on sexual touohing, often violent acts of rape or oral sex.

¹² See online: Indian Residential Schools Resolution Canada <http://www.irsr-rqpi.gc.ca/english/index.html> [Residential Schools Resolution].

¹³ Ibid.; see Bailey, Sue, “Cabinet approves residential schools deal” Canadian Press (May 10, 2006), online: The Globe and Mail <http://www.theglobeandmail.com>Google Scholar, where she writes: “[t]he optional deal offers about 78,000 eligible applicants $10,000, plus $3,000 for each year spent in the once-mandatory network of schools. …Those who accept the lump-sum compensation must release the government and the churches that ran the schools from further liability, except in the worst cases of physical and sexual abuse. In those cases, an improved out-of-court settlement process to be overseen by independent adjudicators is proposed. Those who were age 65 or older as of May 30, 2005, are immediately eligible for the $8,000 advance cheques. The deal offers compensation, healing programs, and a truth and reconciliation forum for survivors to tell their stories. It would also derail more than 21 class-action lawsuits alleging billions of dollars in damages. Many of those cases were expected to clog the courts for at least 10 years. The settlement deal would pay off dozens of lawyers who have worked for years on related files. Twenty firms across the country are expected to receive a total of $80 million if the agreement is upheld. Those lawyers point out that the Justice Department spent an estimated total of more than $100 million fighting related litigation for the federal government.” The settlement has since been approved by all involved Canadian Courts. See Cohen, Tobi, “Residential school settlement all but ends dispute” Canadian Press (December 16, 2006) online: The Globe and Mail <http://web.theglobeandmail.com/servlet/story/LAC.20061216.RESIDENTIAL16/TPStory/Education>Google Scholar. The text of the final agreement was not available at the time of publication, but the agreement in principle and additional information may be found online: Assembly of First Nations <http://www.afn.ca/residentialschools/>. See also, supra note 12. For an impressive discussion of both the residential school experience and the agreement, see Adjin-Tettey, E., “Righting Past Wrongs Through Contextualization: Assessing Claims of Aboriginal Survivors of Historical and Institutional Abuse” (2007) 27 Windsor Y.B. Access Just. 95Google Scholar [Adjin-Tettey, “Aboriginal Survivors”].

¹⁴ See especially B.G. v. British Columbia, 2004 BCCA 345, 242 D.L.R. (4th) 665. At the end of the trial where the judge found that the plaintiffs lacked credibility, the judge, on his own initiative and without entertaining proper submissions, made an unprecedented order stating that the reasons for judgment would not be edited to protect the identities of the plaintiffs, witnesses, or other former inmates of the school. He gave no reasons. Fortunately, he agreed to stay his order pending appeal where the anonymity protection was restored. As shocking as the trial judge's order was the Crown's vigorous argument in support at the Court of Appeal.

¹⁵ See e.g. D.A. v. Canada (A.G.) (1998), 173 Sask. R. 712 (Q.B.) [D.A.], explaining why the plaintiffs were, with agreement of counsel, spared from having to attend mandatory mediation.

¹⁶ Restoring Dignity, supra note 3, Executive Summary, at 20.

¹⁷ See e.g. S.M. v. Canada (A.G.), 2005 SKQB 395, 270 Sask. R. 89, 18 C.P.C. (6th) 32; and Adjin-Tettey, “Aboriginal Survivors”, supra note 13.

¹⁸ See especially C. Backhouse, “Child Witnesses: By Psychological Definition…A Disservice to the True End of Justice, Soulière, 1951-52”, [forthcoming manuscript on file with author]. The idea that women and children were inherently untrustworthy when they testified about sexual matters had deep roots in Anglo-Canadian legal traditions. Most authorities credited eighteenth-century English jurist Sir Matthew Hale as the source, citing his famous adage that rape “was an accusation easily to be made, and hard to be proved, and harder to be defended by the party accused, though never so innocent.” The inaccuracy of Hale's comment appears to have provoked no critique until after 1975. See Geiss, G., “Lord Hale, Witches and Rape” (1978) 5 British Journal of Law and Society 26CrossRefGoogle Scholar; Scutt, J., “Law Reform and Child Sexual Abuse in Australia” in Hetherington, P., ed., Incest and the Community: Australian Perspectives (Nedlands: Centre for Western Australian History at the University of Western Australia, 1991) 117 at 125, 126, 134Google Scholar. Another famous source of these stereotypes was Wigmore. One of his most frequently quoted passages is in Evidence in Trials at Common Law, 3d ed., v.1 (Boston: Little Brown, 1940) at 9Google Scholar: “[m]odern psychiatrists have amply studied the behaviour of errant young girls coming before the courts in all sorts of cases. Their psychic complexes are multifarious, distorted partly by inherent defects, partly by diseased derangements or abnormal instincts, partly by bad social environment, partly by temporary physiological or emotional conditions. One form taken by these complexes is that of contriving false charges of sexual offenses by men.” Herman, Judith Lewis, Father-Daughter Incest (Cambridge: Harvard University Press, 1981)Google ScholarPubMed noted at 11 that in his original Treatise on Evidence (1934), Wigmore unfairly purported to draw upon the “pronouncements of eminent psychiatric authorities” adding: “[w]here their published case reports suggested the possibility of real sexual abuse, Wigmore, like Freud, falsified or omitted the evidence.” See also Backhouse, C. “The Doctrine of Corroboration in Sexual Assault Trials in Early Twentieth Century Canada and Australia” (2001) 26 Queen's L. J. 306–307Google Scholar; Larson, J.E., “Women Understand So Little, They Call My Good Nature ‘Deceit’: A Feminist rethinking of Seduction” (1993) 93:2Columbia L. Rev. 374, at 455–463CrossRefGoogle Scholar; and Harvey, A. B., Tremeear's Criminal Code of Canada, 5th ed. (Toronto: Carswell, 1944) at 1264Google Scholar. See generally, Mack, Kathy, “Continuing Barriers to Women's Credibility: A Feminist Perspective on the Proof Process” (1993) 4 Criminal Law Forum 327CrossRefGoogle Scholar; Hunter, Rosemary, “Gender in Evidence: Masculine Norms v. Feminist Reforms” (1996) 19 Harv. Women's L.J. 127Google Scholar; Larcombe, Wendy, “Cautionary Tales and Telling Anxieties: The Story of the False Complainant” (2002) 16 Australian Feminist Law Journal 95CrossRefGoogle Scholar; Lievore, Denise, Victim Credibility in Adult Sexual Assault Cases (Australian Institute of Criminology, Trends and Issues in Crime and Criminal Justice no. 288, 2004)Google Scholar; and Boniface, Dorne, “The Common Sense of Jurors vs. the Wisdom of the Law: Judicial Directions and Warnings in Sexual Assault Trials” (2005) 28 U.N.S.W.L.J. 261Google Scholar.

¹⁹ See also the discussion of the “special” standard of proof required in civil sexual abuse actions, discussed below.

²⁰ See e.g., Olchowy, J. R., “Battling for the Judge's or Jury's Imagination: Evidence, Storytelling, and Effective Trial Advocacy” (2003) 16 W.R.L.S.I. 1Google Scholar; Klinck, D. R., “Evidence as Rhetoric: A Semiotic” (1994) 26 Ottawa L. Rev. 125Google Scholar; Chalifoux, T., “A Need for Change: Cross-Cultural Sensitization of Lawyers” (1994) 32 Alta. L. Rev. 762Google Scholar; Ross, Rupert, Dancing With a Ghost: Exploring Indian Reality (Toronto: Octopus Publishing, 1992) at 4Google Scholar; McLeod, C., “The Oral Histories of Canada's Northern People, Anglo-Canadian Evidence Law, and Canada's Fiduciary Duty to First Nations: Breaking Down the Barriers of the Past” (1992) 30 Alta. L. Rev. 1276Google Scholar; Devlin, R., “We Can't Go On Together With Suspicious Minds: Judicial Bias and Racialized Perspective in R. v. R.D.S.” (1995) 18 Dal. L. J. 408Google Scholar; and Devlin, R., “Judging Diversity: Justice or Just Us?” (1996) 20:3Prov. Judges J. 4Google Scholar.

²¹ See Razack, S. H., Looking White People in the Eye: Gender, Race and Culture in Courtrooms and Classrooms (Toronto: University of Toronto Press, 1998) at 29Google Scholar.

²² See E.L.C. v. Canada (A.G.), 2003 SKQB 558 [E.L.C.] for an example of a claim based on incidents more than 70 years ago.

²³ Canadian tort law generally might benefit from a rule that shifted the burden of proof to the party who had breached its responsibility to maintain adequate records. This has been rejected in Canada. See e.g. Snell v. Farrell, [1990] 2 S.C.R. 311, 72 D.L.R. (4th) 289 (S.C.C.); Joseph Brandt Memorial Hospital et al. v. Koziol et al., [1978] 1 S.C.R. 491Google Scholar, 77 D.L.R. (3d) 161 (S.C.C.).

²⁴ See e.g. D.B. v. Canada (A.G.), 2000 SKQB 574, 201 Sask. R. 29, [2001] 5 W.W.R. 128 at paras 16-17; [D.B.]; R.A.R.B. v. British Columbia, 2001 BCSC 667 at paras 40-71; V.(J.L.) v. H.(P.) (1997), 31 B.C.L.R. (3d) 155 at paras 117-120Google Scholar; [V. (J.L.)]; varied in part on other grounds (1998), 109 B.C.A.C. 165 at para 8; P.P. v. Saskatchewan, 2001 SKQB 349 at para 28; H.F. v. Canada, 2002 BCSC 325 [H.F.] at para 154; C.S. v. Canada (A.G.), 2003 SKQB 540, 242 Sask. R. 200, [2004] 4 W.W.R. 268 at paras 66-70; B.G. v. British Columbia, 2003 BCSC 1890 at paras 118-119; Gorman v. Tyhurst, 2003 BCCA 224, 226 D.L.R. (4th) 447, 13 B.C.L.R. (4th) 81 at paras 6, 60; C.M. v. Canada (A.G.), 2004 SKQB 174 [C.M. #1] at para 27; C.M. v. Canada (A.G.), 2004 SKQB 175 at paras 13-15; Otter v. MacDougall, 2006 BCSC 1536, [2007] B.C.W.L.D. 2188 at paras 14-17; Nash v. MacDougall, 2007 BCSC 563 at paras 15-23.

²⁵ V.(J.L.), ibid. quoted in the residential school case V.A. v. Canada (A.G.), 2003 SKQB 441 at para. 11 [emphasis added]. As to the origins of the rule in Canada see especially Smith v. Smith, [1952] 2 S.C.R. 312, [1952] 3 D.L.R. 449. See also R.C. v. McDougall, 2007 BCCA 212 for a discussion of additional difficulties faced by the plaintiff trying to make the case by his or her testimony alone.

²⁶ The courts should also guard against assuming that co-workers who testify on behalf of the perpetrator are “neutral” or “independent.” Even those who were not themselves perpetrators, but who may have witnessed abuse and remained silent, have a stake in the proceedings. They too may have an incentive to lie. See e.g. S.T. v. Canada (A.G.), 2001 SKQB 353 [S.T.], reversed on other grounds S.T. v. Canada (A.G.), 2001 SKQA 110, 213 Sask. R. 304.

²⁷ D.B., supra note 24.

²⁸ Ibid. at 41-42

²⁹ D A, supra note 15

³⁰ Of course, the reported decisions tell us nothing about claims that were withdrawn or settled after discovery

³¹ V P v Canada (A G), 1999 SKQB 180, 186 Sask. R 161, 47 C C L T (2d) 249 [V P cited to C C L.T], C M v Canada (A G), 2004 SKQB 174, 248 Sask R. 1 [C M #2]

³² M A v Canada (A G), 2003 SKCA 2, 224 D L R (4th) 688, leave to appeal refused [2005] 279 Sask R. 73 [M A cited to D L R]

³³ T W N A v Clarke, 2003 BCCA 670, 235 D L R (4th) 13 [T W N A cited to D L R]

³⁴ Little should be made of the plaintiff's inability to produce other supporting student testimony in other actions There are obvious reasons why it might be difficult to locate such witnesses Moreover, the implications for the witness of testifying that he or she had been a student at a school where students were being openly sexually assaulted should be considered. This is not a secret everyone wants to disclose But see S T, supra note 26

³⁵ C M #1, supra note 24, D B, supra note 24 at 64. “I do not find the plaintiff's evidence to be assisted in any way by Starr's failure to recall, nor by his willingness to say anything is possible” See especially R C v McDougall, 2007 BCCA 212, for a discussion of the court's reluctance to accept uncorroborated testimony of sexual assault plaintiffs

³⁶ E L C, supra note 22

³⁷ The 45 pages estimate is approximate, as downloaded from LexisNexis in MS Word, using Times New Roman 12. Five paragraphs taking about one page introduce the case, and about three more pages conclude it with the judge's reasons. The 40 or so pages between consist of about 30 pages of quotations from the plaintiff's evidence and discoveries, a few pages quoting the plaintiff's wife and expert, and about 5 pages of connecting sentences provided by the judge.

³⁸ E.L.C., supra note 22 at para. 3.

³⁹ Ibid. at paras. 34-37.

⁴⁰ I do not purport to say Kraus J. was wrong. But I do see it differently and I will try to explain why. Given the judge thought the transcripts spoke for themselves, it does not seem unfair for a reader to interpret the evidence differently. This speculation has no consequences for the parties, but it might give pause for thought in other cases.

⁴¹ I wish to thank anonymous reviewer 753.1 for pointing out that ageism might be considered along with sexism and racism as important factors in these cases.

⁴² E.L.C., supra note 22 at para. 5 [emphasis added].

⁴³ Ibid. at para. 6 [emphasis added].

⁴⁴ Ibid. [emphasis added].

⁴⁵ Ibid. at para. 15 [emphasis added].

⁴⁶ Having too precise a memory proved to be the undoing of one plaintiff in R.C. v. McDougall, 2005 BCSC 1518, [2006] B.C.W.L.D. 375 at paras. 91-93. The defendant, former Brother McDougall, was, however, found liable for sexually assaulting a second plaintiff in the same case. He was not found liable in another action, H.F., supra note 24.

⁴⁷ Reading these cases makes one wonder about the efficacy of cross-examination and discovery as avenues for finding the truth. See Schuh, Cornelia “Justice on the Northern Frontier: Early Murder Trials of Native Accused” (1979–1980) 22 Crim. L.Q. 74 at 102, note 92Google Scholar: “[a]n Indian Affairs file dated 1888, about the investigation of Indian grievances in the McLeod District (Alberta) contains an objection to cross-examination. The Indian spokesman complained that if the speaker “were cross-questioned by the whites she would get mixed up and not tell the truth,” (Public Archives, RG 10, vol. 3797, file 47, 591.) In R. v. Sinnisiak, Crown counsel waived his right to cross-examine. For more information on the Sinnisiak case see Edwin R. Keedy, “A Remarkable Murder Trial: Rex v. Sinnisiak” (1951)100 U. Pa. L. Rev. 48. See also, Llewellyn, , “Litigation, ADR, and Restorative Justice” (2002) 52 U.T.L.J. 253CrossRefGoogle Scholar.

⁴⁸ E.L.C., supra note 22 at para. 6.

⁴⁹ See E.L.C., supra note 22, quoted supra at note 39; see also the discussion of trial decision in T.W.N.A. cited to D.L.R., supra note 33.

⁵⁰ See Feldthusen, Bruce, “Discriminatory Damage Quantification in Civil Actions for Sexual Battery” (1994) 44 U.T.L.J. 133CrossRefGoogle Scholar.

⁵¹ T.W.N.A. cited to D.L.R., supra note 33; Blackwater v. Plint, 2005 SCC 58, [2005] 3 S.C.R. 3, 258 D.L.R. (4th) 385 at paras. 93-96 [Blackwater cited to S.C.R.]. But see M.A. v. Canada (A.G.), 2001 SKQB 504, 212 Sask. R. 241, [2002] 5 W.W.R. 686 where the court awarded each female plaintiff $30,000 non-pecuniary general damages, $15,000 aggravated damages (and $15,000 punitive damages against the perpetrator). Nothing was awarded for lost earnings or earning capacity. On appeal by the government, the aggravated damages were struck and the non-pecuniary award reduced to $20,000: M.A. cited to D.L.R., supra note 32, leave to appeal refused [2005] 279 Sask. R. 73.

⁵² See H.L. v. Canada (A.G.), 2005 SCC 25, [2005] 1 S.C.R. 401, 251 D.L.R. (4th) 604 [H.L. cited to S.C.R.] for an illustration of the importance of expert evidence; cf. X. v. R.D.M., 2006 BCCA 221, 269 D.L.R. (4th) 510, leave to appeal allowed (2007), [2006] S.C.C.A. No. 284.

⁵³ See e.g. V.P. cited to C.C.L.T., supra note 31; S. T., supra note 26.

⁵⁴ E.L.C., supra note 22. See also V.P. cited to C.C.L.T., supra note 31.

⁵⁵ There has been a trend towards using gender-neutral or male tables to assess damages for female plaintiffs, but this cannot be regarded as settled or necessarily applicable to the Aboriginal plaintiff. The gender cases are reviewed in Walker v. Ritchie (2005), 31 C.C.L.T. (3d) 205 at paras. 41-48 (Ont. C.A.) where the use of gender-neutral statistics was approved; reversed on other grounds 2006 SCC 45, 273 D.L.R. (4th) 240.

⁵⁶ See e.g. V.P. cited to C.C.L.T., supra note 31.

⁵⁷ This is a vicious cycle. Children at residential schools were taken from their communities and families, sexually assaulted, and then returned to raise their own children without support or proper role models. Some did to others what they had learned so well at residential school. The incidence of previous abuse may have been even greater after World War II when the residential schools began to serve a welfare function. The government used the schools to house children who were (not coincidentally) having the greatest difficulties in their own homes. See Milloy, supra note 5, Chapter 10. See also see Adjin-Tettey, “Aboriginal Survivors”, supra note 13, for a detailed and effective critique of damage assessment generally in residential school cases.

⁵⁸ The plaintiff must prove the connection between the alcohol abuse and the prior sexual abuse—it is not presumed. See H.L. cited to S.C.R., supra note 52; Greenall v. MacDougall, 2007 BCSC 339. at paras 32-59.

⁵⁹ The leading authority on point is Athey v. Leonati, [1996] 3 S.C.R. 458 [Athey].

⁶⁰ See for example Abel, Richard, “A Critique of Torts” (1990), 37 UCLA L Rev. 785Google Scholar, especially at 791-792

⁶¹ Supra note 33

⁶² Note that if the plaintiffs could convince the courts that residential schooling itself was tortious, perhaps on the basis of deliberate eradication of language and culture, one of the consequences might be (depending on proof of a causal link) that this rule will no longer operate to their detriment because they will be entitled to damages that reflect the totality of the harm caused by the residential school system and experienced by the plaintiff before, during and after the time spent in residential school We also know that there is a strong correlation between being abused at residential school and being abused afterwards, even if it is very difficult for a plaintiff to establish this connection at trial See e.g H L cited to S C R, supra note 52

⁶³ T W N A cited to D.L R, supra note 33 at paras. 27-28

⁶⁴ Or, the court might conclude that there was a 50% chance that the prior abuse would have caused 50% of the damage (e.g. to earning capacity) and hold the tortfeasor liable for only 75% of the total. As the example demonstrates, this is not a scientific calculation.

⁶⁵ T.W.N.A cited to D.L.R., supra note 33 at para. 48.

⁶⁶ See per McLachlin C. J. C. in K.L.B. v. British Columbia, 2003 SCC 51, [2003] 2 S.C.R. 403, 230 D.L.R. (4th) 513 at para. 61 [K.L.B. cited to S.C.R.] (not a residential school, but a foster care case); but see per McLachlin C.J.C. in Blackwater cited to S.C.R., supra note 51 at paras. 74-96.

⁶⁷ Blackwater cited to S.C.R., supra note 51 at para. 74: “[i]n reality, all these sources of trauma fused with subsequent experiences to create the problems that have beset Mr. Barney all his life. Untangling the different sources of damage and loss may be nigh impossible.” Compare B.M.G. v. Nova Scotia, 2007 NSSC 27 at paras 156-163, not a residential school case, for a more sympathetic resolution of this issue.

⁶⁸ We seem to have forgotten that although the decision in Athey, supra note 59, established the framework for the original position analysis, what the court actually decided in that case was that the herniated disk was an indivisible harm for which the tortfeasor was fully liable. Although the basic Athey principle is accepted by all the authors there seem to be few decisions directly on point. See Spracklin v. O'Flaherty's Estate (1977), 15 Nfld. & P.E.I.R. 488 (Nfld. S.C.).

⁶⁹ T.W.N.A. cited to D.L.R., supra note 33 at para. 76.

⁷⁰ Blackwater cited to S.C.R., supra note 51 at paras. 83-86.

⁷¹ Fairchild v. Glenhaven Funeral Services Ltd., [2002] UKHL 22, [2003] 1 A.C. 32, [2002] 3 W.L.R. 89 at para. 9.

⁷² Walker Estate v. York Finch General Hospital, 2001 SCC 23, [2001] 1 S.C.R. 647, at paras. 87-88; K.L.B. cited to S.C.R., supra note 66 at para. 13. See also McLachlin, J. (as she then was), “Negligence Law—Proving the Connection” in Mullany, N. & Linden, A., eds., Torts Tomorrow, A Tribute to John Fleming (Sydney N.S.W.: LBC Information Services, 1998) at 16Google Scholar. There is an excellent treatment of the complexity of the law in this area and the options available in Cooper-Stephenson, Ken, Personal Injury Damages in Canada, 2d ed. (Toronto: Carswell, 1996) c. 13Google Scholar, especially at 787-90.

⁷³ Recall this entire discussion is premised on a finding that the defendant's tort was a material cause of the damage of which the plaintiff complains.

⁷⁴ Residential Schools Resolution, supra note 12. In a memo titled “Plausible Link” dated May 10, 2004, senior counsel for the federal government concede that the claimant need only establish a plausible link between the harm and the wrongs inflicted in residential school. The memo states explicitly that the plausible link test is different from the Athey test supra note 59.

⁷⁵ See supra note 8.

⁷⁶ Neyers, J.W., “A Theory of Vicarious Liability” (2005) 43 Alta. L. Rev. 287Google Scholar at para. 22 [Neyers]. If the employee commits a tort in the course of employment, his or her victim has a right of action against the assets of the employee. If the tort was committed in the course of employment (i.e. meets the terms of the indemnity), one asset which the employee holds is her right of indemnity against the employer. The employee can then compensate the tort victim by transferring to them this valuable right. Given that in most situations the employer will be the one who actually pays, the law eliminates a duplicity of actions by allowing the tort victim to sue the employer directly without necessarily joining the employee. Thus, the employer becomes vicariously liable because the tort victim is subrogated to the employee's right of indemnity, (footnotes omitted)

⁷⁷ Fleming, J.G., The Law of Torts, 9th ed. (Sydney: LBC Information Services, 1998) at 410Google Scholar.

⁷⁸ Morris v. C.W. Martin & Sons Ltd., [1966] 1 Q.B. 716 (C.A.), [1965] 3 W.L.R. 276.

⁷⁹ Bazley v. Curry, [1999] 2 S.C.R. 534, 174 D.L.R. (4th) 45 (sub nom. P.A.B. v. Children's Foundation) 124 B.C.A.C. 119 [Bazley cited to S.C.R.]. See also B.M.G. v. Nova Scotia, supra note 67; Lister v. Hesley Hall, [2001] UKHL 22, [2002] 1 A.C. 215; but see New South Wales v. Lepore, [2003] HCA 4, 195 A.L.R. 412.

⁸⁰ Blackwater cited to S.C.R., supra note 51.

⁸¹ Bazley cited to S.C.R., supra note 79 at para. 21.

⁸² Ibid. at para. 22.

⁸³ Ibid. at para. 41.

⁸⁴ See text accompanying notes 95-98.

⁸⁵ G.T. v. Griffiths, [1999] 2 S.C.R. 570, 174 D.L.R. (4th) 71 (sub nom. Jacobi v. Griffiths) 241 N.R. 201 [Jacobi cited to S.C.R.].

⁸⁶ Charitable immunity had been rejected in Bazley v. Curry, but Jacobi v. Griffiths led the church to seek charitable immunity again in Blackwater cited to S.C.R., supra note 51. The argument was rejected and the Church was held vicariously liable jointly with the government.

⁸⁷ K.L.B. cited to S.C.R., supra note 66; M.B. v. British Columbia, 2003 SCC 53, [2003] 2 S.C.R. 477, 230 D.L.R. (4th) 567. For a powerful critique see Adjin-Tettey, “Aboriginal Survivors”, supra note 13 and E. Adjin-Tettey, “Accountability of Public Authorities through Contextualized Determinations of Vicarious Liability and Non-Delegable Duties” (2007) U.N.B.L.J. (Special Issue on Public Authority Liability), forthcoming. [Adjin-Tettey, “Forthcoming”].

⁸⁸ In an editorial “A Foster care and abuse,” Editorial, The Globe & Mail (October 6, 2003) A 18Google Scholar, the writer said: “[i]n ruling that governments are not automatically liable when foster parents abuse the children entrusted to their care, the court was surprisingly stodgy. What's more, it misconceived the relationship between foster families and the state… Far more important is the vulnerability of these children, and the trust that they (and the rest of us) put in the government when it acts in loco parentis. When children come into care, the state is responsible for protecting them. If the state is allowed to evade this responsibility, the risk of harm increases. For many foster children, the state or children's aid society is the only real constant in their lives. How diminishing it must feel to know that, in the end, no one may be there for them.”

⁸⁹ E.B. cited to S.C.R., supra note 2.

⁹⁰ Ibid. at para. 2 [emphasis added].

⁹¹ Ibid. at para. 51.

⁹² Miller, supra note 6, c. 11, speaks of sexual misconduct by doctors, music teachers, priests from outside the school and others.

⁹³ See Claes & Clifton, supra note 3, referred to Breaking the Silence: An Interpretive Study of Residential School Impact and Healing as Illustrated by the Stories of First Nation Individuals (Ottawa: Assembly of First Nations, 1994) at 3-4 as: “[r]esidential schools, in a way not unlike other total institutions such as penitentiaries, were places where two distinct groups of people lived and worked—children and adult staff—and where one group (the staff), had the power to determine on a daily basis, the conduct of behaviour for the second group, the First Nations children.” For similar reasons I would argue that the school board ought to have been held liable for sexual abuse perpetrated by the janitor in E.D.G. v. Hammer (1998), 53 B.C.L.R. (3d) 89, aff'd 2001 BCCA 226, 197 D.L.R. (4th) 454, aff'd 2003 SCC 52, [2003] 2 S.C.R. 459.

⁹⁴ E.B. cited to S.C.R., supra note 2 at para. 48.

⁹⁵ Ibid. at para. 30, Binnie J. is quite clear that he would consider vicarious liability here to be unfair.

⁹⁶ Ibid. at para. 66, Binnie J. says: “[u]nless we seek to overrule rather than explain the existing law, I conclude as a result of the first step of the Children's Foundation analysis that the existing case law does not support the imposition of vicarious no-fault liability on the respondent in this appeal.” But McLachlin C.J. had explicitly developed the first step to guide lower courts – why would the Supreme Court not overrule if desirable to do so?

⁹⁷ See Neyers, supra note 76, citing P.S. Atiyah, Vicarious Liability in the Law of Torts (London: Butterworths, 1967). If the control were insufficient for vicarious liability, similar arguments could be made for a non-delegable duty in the case of wrongs done by an independent contractor. See E Adjin-Tettey, “Forthcoming”, supra note 87.

⁹⁸ See Feldthusen, B. “Vicarious Liability for Sexual Torts” in Mullany, Nicholas J. & Linden, Allen M., eds., Torts Tomorrow: A Tribute to John Fleming (Sydney, Australia: LBC Information Services, 1998) 221 at 242Google Scholar (the proper question is whether the employment materially increased the risk, not why) [Feldthusen]. See also Weber, R.R., “‘Scope of Employment’ Re-Defined: Holding Employers Vicariously Liable for Sexual Assaults Committed by Their Employees” (1992) 76 Minn. L. Rev. 1513 at 1539Google Scholar (job-created access as a supplement to job-created power approach).

⁹⁹ For the most extensive critique see Neyers, supra note 76. I have problems with the formalistic belief that there exists a single thread of principle that explains all the vicarious liability decisions and that this abstraction is more important than addressing the issue of sexual assault in residential schools. See also Klar, L.N., “Judicial Activism in Private Law” (2001) 80 Can. Bar Rev. 215Google Scholar. In contrast, see the equally thorough, instrumentalist and contextualized approach to vicarious liability in Adjin-Tettey, “Forthcoming”, supra note 87.

¹⁰⁰ To be fair, Neyers suggests, and quotes others in support, that the Court might have been “correct” to impose liability on the basis of non-delegable duty. See Neyers, supra note 76 at paras. 52-55. Nor would Neyers be alone in suspecting that this case and many others were in reality cases of direct employer fault—if only it could be proven.

¹⁰¹ At note 182, Neyers, supra note 76, cites G.H.L. Fridman, “The Course of Employment: Policy or Principle?” (2002) 6 Newcastle L. Rev. 61 at 66 (the approach of the Supreme Court represents “the triumph of policy over principle” and may be “undesirable as well as being incorrect and unnecessary”).

¹⁰² Bazley cited to S.C.R., supra note 79 at para. 58.

¹⁰³ Ibid. at para. 31. The employer puts in the community an enterprise which carries with it certain risks. When those risks materialize and cause injury to a member of the public despite the employer's reasonable efforts, it is fair that the person or organization that creates the enterprise and hence the risk should bear the loss. This accords with the notion that it is right and just that the person who creates a risk bear the loss when the risk ripens into harm. While the fairness of this proposition is capable of standing alone, it is buttressed by the fact that the employer is often in the best position to spread the losses through mechanisms like insurance and higher prices, thus minimizing the dislocative effect of the tort within society.

¹⁰⁴ See e.g. Neyers, supra note 76 at paras. 14-16. They are mostly along the lines of “[i]f enterprise liability justifies this, why not that?” He asks why the same rationale does not support vicarious liability for independent contractors. Indeed, the same arguments are raised in support of strict liability for independent contractors under the heading of nondelegable duties. See Adjin-Tettey, “Forthcoming”, supra note 87.

¹⁰⁵ See e.g. J. Neyers, supra note 76, citing and disagreeing with J. Stapleton, Product Liability (London: Butterworths, 1994) at 1186 and G. C. Keating, “The Idea of Fairness in the Law of Enterprise Liability” (1997) 95 Mich. L. Rev. 1266 at 1360. See also Peter Cane, “Vicarious Liability for Sexual Assault” (2000) 116 L.Q.R. 21 supporting a “close connection” test; A. O. Sykes, “The Boundaries of Vicarious Liability: An Economic Analysis of the Scope of Employment Rule and Related Legal Doctrines” (1988) 101 Harv. L. Rev. 563; Feldthusen, supra note 98.

¹⁰⁶ See Wingfield, D, “Perish Vicarious Liability?” in Neyers, J et al. , eds., Emerging Issues in Tort law (Oxford: Hart, 2007)Google Scholar.

¹⁰⁷ For example, I believe that an employing hospital should be held strictly liable when a patient is sexually assaulted in her hospital room by a male nurse during working hours. The court declined to impose vicarious liability for this in J.-P.B. v. Jacob (1998), 166 D.L.R. (4th) 125 (N.B.C.A.) which was cited with apparent approval in Jacobi cited to S.C.R., supra note 85 at para. 49.

¹⁰⁸ McLachlin J. (as she then was), “Negligence Law—Proving the Connection” supra note 81.