VICARIOUS LIABILITY FOR SEXUAL ABUSE

Published: July 24, 2026 | By: Roger Baker 9 min read

In Canada, an employer can be held financially responsible for sexual abuse committed by its employee even when the employer itself did nothing wrong. The principle is called vicarious liability, and the Supreme Court of Canada settled how it applies to sexual abuse in Bazley v Curry, 1999 CanLII 692 ("Bazley"). The test it adopted asks whether the organization's enterprise and its empowerment of the employee materially increased the risk of the harm (at para 46).

A judgment against an abuser personally is often worth little. The abuser may be dead, in prison, or without assets. As the Court observed, "judgment against the wrongdoer may prove a hollow remedy" (Bazley at para 1). Vicarious liability addresses that gap by asking whether the organization that employed the abuser must compensate the survivor. Liability is not automatic; mere opportunity does not suffice (at paras 40 and 42). This article explains the test Bazley adopted, why charities and non-profits receive no exemption from it, and what the decision means for a survivor weighing a civil claim against both the abuser and the organization behind them.

Liability Without Fault

Vicarious liability makes one party answer for another's wrong. It attaches because of the relationship between them; in the employment setting, it makes an employer liable for torts its employee commits in connection with the job, without any finding of carelessness against the employer. The Court in Bazley called it "strict" or "no-fault" liability "because it is imposed in the absence of fault of the employer" (at para 1).

Canadian courts have long answered these questions with the Salmond test, drawn from a leading torts treatise. An employer is liable for employee acts it authorized, and for unauthorized acts so connected with authorized acts that they can be regarded as improper modes of doing them (Bazley at para 10). Intentional wrongs strain that second branch. No employer authorizes sexual abuse, and whether an assault gets labelled an improper "mode" of an authorized task or an entirely independent act is, in many cases, a distinction the test itself gives courts no way to draw (at para 11).

The Facts of Bazley

The Children's Foundation was a non-profit organization. It operated residential care facilities in British Columbia for emotionally troubled children between the ages of six and twelve, acting as a substitute parent that practised "total intervention" in all aspects of the children's lives (Bazley at para 2). Its employees were "to do everything a parent would do, from general supervision to intimate duties like bathing and tucking in at bedtime" (at para 2).

The Foundation hired Curry, a pedophile, to work in its Vancouver home. It did not know he was a pedophile; it "checked and was told he was a suitable employee" (at para 3). Patrick Bazley, young and emotionally vulnerable, came into the home. Curry began a seduction. "Over the months, step by subtle step, bathing became sexual exploration; tucking in in a darkened room became sexual abuse" (at para 3).

After a complaint, the Foundation investigated, verified that Curry had abused a child in one of its homes, and immediately discharged him (at para 4). In 1992, Curry was convicted of 19 counts of sexual abuse, two of which related to Bazley (at para 4). Curry has since died (at para 4).

Bazley sued the Foundation. He sought compensation for the injury he suffered while in its care, and the Foundation's answer was that it had committed no fault in hiring or supervising Curry and therefore bore no legal responsibility for what he had done (at para 5). The parties asked the court to decide a single question by way of a stated case. Assuming no negligence, was the Foundation nonetheless vicariously liable for its employee's conduct? The chambers judge held that it was, the British Columbia Court of Appeal agreed, and the Foundation took a further appeal to the Supreme Court of Canada (at paras 5–7).

The Strong-Connection Test

A unanimous Supreme Court dismissed the appeal and replaced semantics with a principled inquiry. The test for an employee's sexual abuse asks "whether the employer's enterprise and empowerment of the employee materially increased the risk of the sexual assault and hence the harm" (Bazley at para 46). The rest of the judgment works out what that means in practice.

McLachlin J., writing for the Court, set out guiding principles for cases where precedent gives no clear answer. Courts should "openly confront the question of whether liability should lie against the employer" rather than bury it in labels (at para 41). The fundamental question is whether the wrongful act is sufficiently related to conduct the employer authorized, and liability is generally appropriate where there is "a significant connection between the creation or enhancement of a risk and the wrong that accrues therefrom" (at para 41). "Incidental connections to the employment enterprise, like time and place (without more), will not suffice" (at para 41).

The Court gave content to the inquiry. Subsidiary factors help measure the sufficiency of the connection, and they vary with the nature of the case (at para 41). For intentional torts, they may include the following (at para 41):

• "the opportunity that the enterprise afforded the employee to abuse his or her 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".

Mere opportunity does not suffice (at para 40). The employment must "materially enhance the risk, in the sense of significantly contributing to it, before it is fair to hold the employer vicariously liable" (at para 40). A random attack that merely happens to occur on the employer's premises during working hours will scarcely justify liability (at para 42). The strength of the causal link is what counts (at para 40).

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. (Bazley at para 42)

The Court described how risk climbs with the nature of the duties. An employee who spends only brief periods with children may present little more risk than a stranger, extended time alone with a child raises it, and duties that include supervising intimate activities such as bathing raise it further (at para 43). As the opportunity for abuse grows, so does the risk of harm (at para 43). A job that places the employee in a parent-like position of intimacy and power over a child may increase the risk that the employee takes advantage and that the child submits without effective complaint (at para 44). Where power and trust pervade the work, courts pay special attention to a power or dependency relationship, which "on its own often creates a considerable risk of wrongdoing" (at para 46).

Can a Charity Be Liable for Its Employee's Abuse?

Yes, on the same test as any other employer. The Foundation argued in the alternative that non-profit organizations should be exempt from vicarious liability, and no judge at any level accepted the suggestion (at para 47). The Court's reasons for refusing the exemption say as much about the doctrine as the test itself.

The Foundation advanced three arguments (at para 48). It said that fixing liability without fault on organizations performing needed public services is unfair, that non-profits rely on volunteers and are less able to supervise their agents, and that exposure to liability would make it difficult or impossible for such organizations to carry on their work. The Court acknowledged the force of the plea and described the work of churches and aid societies as selfless and generous (at para 49).

The answer came from the child's perspective. The Foundation's institution, however meritorious, "put him in the intimate care of Mr. Curry and in a very real sense enhanced the risk of his being abused" (at para 50). Given that a choice had to be made between two faultless parties, "it is fairer to place the loss on the party that introduced the risk and had the better opportunity to control it" (at para 54). Any special relief for non-profit organizations, the Court held, is a matter for the legislature (at para 56). The holding concerns a non-profit employer's liability for its employee; the volunteer discussion answered the Foundation's policy argument rather than deciding anything about volunteer relationships (at paras 48 and 52).

Why the Foundation Was Liable

Applying the test, the Court held the Foundation vicariously liable for Curry's sexual misconduct (at para 58). "The opportunity for intimate private control and the parental relationship and power required by the terms of employment created the special environment that nurtured and brought to fruition Curry's sexual abuse" (at para 58). The abuse was no accident of time and place. It grew out of the relationship of intimacy and respect the employer cultivated, and out of the special opportunities for exploitation that came with it (at para 58).

The Court also marked the outer edge of its ruling. McLachlin J. remarked that "it is difficult to imagine a job with a greater risk for child sexual abuse", and stated that future cases need not rise to the same level for vicarious liability to attach (at para 58). The appeal was dismissed with costs, and the matter went back to trial (at para 59).

What Bazley Means for Survivors Today

A survivor's practical problem is often collection, and Bazley speaks directly to it. The decision lets a survivor claim against the organization whose enterprise materially increased the risk of the abuse, and the Court quoted the observation that vicarious liability "improves the chances that the victim can recover the judgment from a solvent defendant" (at para 30). The Court grounded the doctrine in two policy goals, fair compensation of the person harmed and deterrence of future harm (at para 29).

The Court framed the test generally, for "an employee's sexual abuse of a client", rather than for children's homes alone (at para 46). Whether it is met in a later case turns on the employee's actual duties and the risk the particular enterprise created, measured through the listed factors of opportunity, power over the victim, intimacy inherent in the enterprise, and the vulnerability of potential victims (at paras 41–43). Deterrence does real work here too, because holding employers liable may encourage them to organize and supervise so that the risk they introduce into the community is managed (at paras 32–33).

Bazley binds courts across Canada, including Alberta. Vicarious liability does not depend on proving the organization's own negligence, and Bazley itself was decided on the assumption that the Foundation had not been negligent; the question is what the organization asked the employee to do, and whether those duties materially increased the risk of the abuse that occurred (at paras 5 and 46). In Bazley, the civil claim proceeded against the organization itself, not the individual abuser (at paras 4–5).