BC Court of Appeal Addresses Issue of Crown Liability for Pre-1974 Torts

At common law, the Crown can "do no wrong" and thus cannot be held liable, vicariously or otherwise, for wrongful acts committed by its agents or employees. The Crown Proceedings Act, first passed into law on August 1, 1974, changed the common law and made it possible for the Crown to be held liable as if it were an ordinary person. Until the last couple weeks, however, it remained an open question how far back such liability might extend.

The plaintiffs in Arishenkoff v. British Columbia were Doukhobor children who had been forcibly removed from their homes and sent to live in residential schools. At these schools, the children allegedly suffered both physical and sexual abuse at the hands of school employees. The acts of abuse were said to have occurred between 1953 and 1959.

A previous decision of the BC Court of Appeal in this same case determined that the lawsuits by the plaintiffs who alleged only physical abuse, as opposed to sexual abuse, were barred by the 30 year ultimate limitation period set out in BC's Limitations Act. However, the Court also ruled that the ultimate limitation did not apply to the claims of sexual abuse and those claims could therefore proceed.

The issue in the second Arishenkoff decision was whether the Crown could be liable for acts of sexual abuse which occurred before August 1, 1974. Specifically, the Court was asked to consider whether the BC Legislature intended, by the Crown Proceedings Act, to allow a person injured by a tort before August 1, 1974 to recover damages against the Crown. The Court very clearly answered that there was no such intention and thus the Crown could not be found liable for tortious acts committed by its agents or employees before August 1, 1974. Thus, even the Doukhobor plaintiffs who had been subjected to sexual abuse (rather than just physical abuse) could not succeed against the Crown and the lawsuits had to be dismissed.

The Court also held that discoverability rule, which is invoked in cases where the plaintiff could not have discovered that he or she had a cause of action until some time after the tort occurred (and thus has the effect of delaying the application of time limitations), did not apply. In an earlier decision of the BC Court of Appeal, B.(K.L.) v. British Columbia, it had been held that the discoverability rule did indeed apply to assist plaintiffs suing the government under the Crown Proceedings Act. The panel of five judges on the Arishenkoff case ruled that the decision in B.(K.L.) had been wrongly decided. Thus, the discoverability rule in BC is now limited to the cases involving statutes of limitation.

Interestingly, in another very recent SCC decision in the same subject area (abuse claims), Blackwater v. Plint, the issue of Crown immunity under common law principles was not even considered. In that case, Aboriginal children who were forced into residential schools in the 1940s, 1950s and 1960s brought an action against the Government of Canada and the United Church of Canada relating to acts of physical and sexual abuse suffered at the hands of residential school employees.

The key difference between the Blackwater and Arishenkoff is that the former relates to the federal Crown which has sole jurisdiction over issues concerning Aboriginal peoples (and to which the BC Crown Proceedings Act does not apply), while the latter relates to the provincial Crown. The federal equivalent of the BC Crown Proceedings Act is the Crown Liability and Proceedings Act, which was first enacted in 1953. Considering that some of the tortious acts in Blackwater were alleged to have been committed in the 1940s and 1950s, it is difficult to understand why the federal Crown did not attempt to make the same arguments as were advanced by the provincial Crown in Arishenkoff for those pre-1953 torts.

The Blackwater decision is also interesting for its discussion of the doctrine of charitable immunity, which essentially states that a charitable organization cannot be held vicariously liable for the tortious acts of its employees. The Court set aside the lower courts decision to exempt the United Church from liability under the doctrine for two reasons: 1) exempting non-profit organizations from liability simply because of the presence of government involvement would not motivate charitable organizations to take precautions to protect against sexual abuse, and 2) the Church was clearly the employer of the individuals who committed the tortious acts and thus was in a better position to supervise those individuals. So it now appears from the Blackwater decision that the doctrine of charitable immunity is no longer applicable in Canada.

The Arishenkoff decision can be accessed at: http://www.courts.gov.bc.ca/Jdb-txt/CA/05/
04/2005BCCA0481err1.htm

and the Blackwater decision can be accessed at: http://www.lexum.umontreal.ca/csc-scc/en/rec/
html/2005scc058.wpd.html

Readers with questions about the issues in dispute, or vicarious liability generally, are welcome to contact either Nigel Kent (telephone: 604-643-3135 or e-mail: npk@cwilson.com) or Valerie Dixon (telephone: 604-891-7743 or e-mail: vsd@cwilson.com).