Court of Appeal for Ontario

Date: 2025-06-17
Docket: COA-24-CV-0677
Panel: Janet Copeland, Paul J. Monahan, Mahmud Rahman JJ.A.

Between:
John Dunford
Plaintiff (Appellant)

and

Hamilton-Wentworth District School Board and Hamilton Health Sciences Corporation
Defendants (Respondents)

Appearances:
Michael Wilchesky and Nahid Atrchin, for the appellant
Deborah Berlach and Landan Peleikis, for the respondents

Heard: May 26, 2025

On appeal from the judgment of Justice Marie-Andrée Vermette of the Superior Court of Justice, dated July 15, 2024, with reasons reported at 2024 ONSC 2991.

Reasons for Decision

I. Introduction

[1] The appellant appeals the dismissal of his claim for damages against the respondent.

[2] The appellant was a student in an alternative education program, known as the Cool School. He attended the school in 1982 and 1983, when he was 19 years old. The school was launched as a pilot project by Dr. James E. Anderson in 1971. The Cool School was designated as a Chedoke Hospital(s) program and operated on hospital grounds from late 1973 to 1983. The school’s government funding was provided to the hospital through its regional adolescent services department. The hospital was involved in administering the school’s funding, which was first provided by the Ministry of Education and later by the Ministry of Community and Social Services. The respondent Hamilton Health Sciences Corporation assumed the liabilities of Chedoke Hospital(s), its predecessor.

[3] The respondent did not employ Dr. Anderson. While he did have privileges at the hospital, they were independent of his involvement with the school. The appellant alleged that Dr. Anderson sexually abused him. He sued the respondent alleging that the hospital was vicariously liable for this abuse.

[4] The trial judge found that Dr. Anderson committed the tort of sexual battery against the appellant. This finding is not at issue on appeal. However, the trial judge concluded that the respondent was not vicariously liable for Dr. Anderson’s shameful conduct because its relationship to the doctor was not sufficiently close to make imposing vicarious liability appropriate.

II. Issues on Appeal

[5] The appellant alleges that the trial judge erred in finding that the relationship between the respondent and Dr. Anderson was not sufficiently close so as to hold the respondent vicariously liable. Specifically, the appellant argues that the trial judge applied the incorrect test for vicarious liability, failed to properly consider the two underlying policy considerations for vicarious liability, and failed to consider the totality of the evidence. The appellant contends that the totality of the evidence should have led the trial judge to find the respondent vicariously liable.

III. Analysis

[6] Before addressing the issues on appeal, it is important to highlight the applicable standard of review. A trial judge’s finding respecting vicarious liability is a question of mixed fact and law: E.B. v. Order of the Oblates of Mary Immaculate in the Province of British Columbia, 2005 SCC 60, para 23. This court will not interfere with such a finding absent an extricable error in principle or a palpable and overriding error. We do not find that the appellant has established any such errors.

[7] First, the trial judge stated the correct legal test and applied it. At the outset of her analysis, the trial judge set out the two criteria that the plaintiff had to satisfy to make out a successful vicarious liability claim: 1) a sufficiently close relationship between the tortfeasor and the person against whom liability is sought; and 2) a sufficient connection between the tort and the tortfeasor’s assigned tasks such that the tort can be regarded as a materialization of the risks created by the enterprise: see K.L.B. v. British Columbia, 2003 SCC 51, para 19. The trial judge also correctly observed that, because this case involved a non-profit entity, she had to decide whether Dr. Anderson was acting “on his own account” or on behalf of the respondent: see K.L.B., at para. 21. In her thorough analysis, the trial judge reviewed all of the relevant factors and concluded that the hospital’s relationship was not sufficiently close to Dr. Anderson to make vicarious liability appropriate. The factors that the trial judge relied on in coming to her conclusion included the following:

• Dr. Anderson was not the hospital’s agent and had no authority to bind the hospital;
• The hospital had little control over Dr. Anderson’s activities;
• The hospital had no involvement in the curriculum and had no role in approving any changes to it;
• The Cool School staff reported to Dr. Anderson and he made all of the decisions with respect to student admission;
• The program’s success depended entirely or largely in part on Dr. Anderson’s name and the weight given by the letters of equivalency he signed;
• Dr. Anderson recruited the tutors at the Cool School;
• Dr. Anderson took on financial risk at the beginning of the project; and
• Dr. Anderson was the sole and ultimate decision-maker with respect to all important aspects of the program.

[8] The appellant’s complaint that the trial judge did not give appropriate weight to certain factors is really a request to have this court re-weigh the factors the trial judge already analyzed.

[9] Second, the trial judge’s reasons demonstrate that she was alive to the two policy considerations behind vicarious liability: fair and effective compensation and deterrence of future harm: see Bazley v. Curry, paras 30-32. The trial judge concluded that imposing vicarious liability in these circumstances would not further the two policy goals because the relationship between the hospital and Dr. Anderson was not sufficiently close. The trial judge was not required to consider these policy goals separately in her analysis. As the Supreme Court explained in John Doe v. Bennett, 2004 SCC 17, para 20, citing K.L.B., at para. 20:

Vicarious liability is based on the rationale that the person who puts a risky enterprise into the community may fairly be held responsible when those risks emerge and cause loss or injury to members of the public. Effective compensation is a goal. Deterrence is also a consideration. The hope is that holding the employer or principal liable will encourage such persons to take steps to reduce the risk of harm in the future. Plaintiffs must show that the rationale behind the imposition of vicarious liability will be met on the facts in two respects. First, the relationship between the tortfeasor and the person against whom liability is sought must be sufficiently close. Second, the wrongful act must be sufficiently connected to the conduct authorized by the employer. This is necessary to ensure that the goals of fair and effective compensation and deterrence of future harm are met. [Emphasis added.]

[10] The trial judge concluded that compensation would not be fair because the hospital was too remote from Dr. Anderson to consider that he acted on the hospital’s behalf. For the same reason, his misconduct could not be regarded as a materialization of the hospital’s own risks. In terms of the deterrent effect, Dr. Anderson was too independent for the hospital to take any measures with respect to his conduct. Therefore, imposing vicarious liability would not satisfy the two policy rationales. We see no reason to interfere with these findings.

[11] Finally, we do not accept the appellant’s submission that the trial judge failed to consider the totality of the evidence. We do not read the trial judge’s reasons as having adopted a siloed approach in assessing the various factors in her analysis. The factors that the trial judge addressed individually were building blocks in her ultimate conclusion that the relationship between the hospital and Dr. Anderson was not sufficiently close, thereby failing to meet the first prong of the vicarious liability test. Further, the trial judge stated explicitly that she was considering the “total relationship” between the hospital and Dr. Anderson. A fair reading of her analysis demonstrates that she considered the totality of the evidence.

IV. Disposition

[12] The appeal is dismissed.

[13] The respondent is entitled to its costs of the appeal in the amount of $25,000, as agreed upon by the parties.

“J. Copeland J.A.”
“P.J. Monahan J.A.”
“M. Rahman J.A.”