COURT FILE NO.: CV-08-0081-00

DATE: 2013 Apr 05

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

SCOTT LANGSTAFF

Plaintiff

– and –

ROBERT TERRY MARSON and THE HASTINGS AND PRINCE EDWARD DISTRICT SCHOOL BOARD

Defendant

R. Steven Baldwin, for the Plaintiff

S. Wayne Morris, for the Defendant, Hastings & Prince Edward District School Board

HEARD: January 24, 2013 at Belleville

TAUSENDFREUND J.

RULING

OVERVIEW

[1] The Plaintiff seeks a finding that the Defendant, The Hasting and Prince Edward District School Board (“School Board”), is vicariously liable for the wrongful acts of its now retired employee, the Defendant, Robert Terry Marson (“Marson”). Based on the same facts, the Plaintiff also seeks a ruling that the School Board owed a fiduciary duty to the Plaintiff, who at the relevant time was a student of the School Board and that the School Board breached that fiduciary duty.

[2] The School Board denies that the facts of this case support a finding of vicariously liability and denies that it owed a fiduciary duty to the Plaintiff and if it did that it breached such duty.

THE FACTS

[3] After a three week trial of this action on January 24, 2013, the jury returned answers to these and other questions:

1. Did the defendant, Robert Terry Marson, physically and sexually assault the plaintiff, Scott Langstaff, commencing September 1976 until October/November 1977?

Answer: Yes

2. Was the defendant, Hastings and Prince Edward District School Board, negligent in not preventing the physical and sexual assaults committed upon the plaintiff, Scott Langstaff?

Answer: Yes

[4] Marson was employed by the School Board as a teacher from 1962 until his retirement in 1997. In the 1970s, Marson was a science teacher at Harry J. Clarke Public School in Belleville. The Plaintiff, as a 12 year old, was enrolled at that school in 1976/77 and was taught science during that year by Marson.

[5] For about 20 years from the mid-1960s to the mid-1980s, Marson operated a “mini-zoo” in his classroom, ostensibly as part of the science curriculum. He did so with the knowledge and sanction of the School Board. The zoo consisted of a number of cages housing a variety of small animals. The cages needed to be cleaned and maintained and the animals fed. Marson recruited students to assist him in that regard. The Plaintiff was one such student.

[6] Marson was given a key to the school by the then Director of Education. The reason provided was to allow Marson access to the school after hours and on weekends and holidays to permit him to care for the animals in his mini-zoo. Although it was a policy of the Board that only the principal and janitor have a key to the school, Marson’s principals over the years had not been advised by Board Administration that Marson had been given such a key nor were the principals aware of that fact.

[7] At the request of Marson, the Plaintiff assisted Marson to maintain his mini-zoo. That allowed Marson to be alone in the classroom with the Plaintiff during recess, after school, on weekends and during holidays. Marson used that opportunity to serially sexually assault the Plaintiff over a period of about 12 months.

[8] In or about 2006, Marson was charged that he indecently assaulted the Plaintiff during the period September 1976 to December 1977. He was also charged with indecently assaulting and otherwise assaulting four other students at various times during the 1970’s. On January 23, 2008, Marson pleaded guilty and did not contest an Agreed Statement of Fact setting out these assaults, including the assault on this Plaintiff. Marson was found guilty, convicted and sentenced to a custodial term on these charges.

[9] Marson admitted that one of his motivations to establish his mini-zoo in his classroom was to “groom” likely student candidates as victims for his sexually deviant behaviour.

[10] One of Marson’s principals in the late 1960s to early 1970s advised Marson that there were concerns regarding Marson’s behaviour around children and that Marson should be careful. Marson understood the nature of that comment to refer to his actions of being sexually and physically involved with certain of his male students. Marson’s principal in the school year 1976/77 had been approached by a parent and asked if it was appropriate for Marson to be around young boys. That principal took no further action other than to tell Marson to be careful. That principal also decided to watch Marson “like a hawk”, but took no further action. The students at the school, in speaking to one another in the school hallway, would refer to Marson in derogatory terms, such as “weird”, “faggot” and “pervert”. There is an inferential suggestion that one or more of Marson’s colleagues and at least one principal were aware of the students’ chatter about Marson. On at least one occasion, the outside of Marson’s classroom window had been defaced in soap with the words “faggot” and “pervert”.

[11] No actions were taken by the Board, either to discipline Marson or to take steps to ensure that teaching assignments would no longer allow him to compromise the safety and integrity of his students.

[12] After Marson was charged, the Discipline Committee of the Ontario College of Teachers proceeded with a hearing on June 5, 2008. Marson did not contest that hearing. The College of Teachers concluded in their findings that Marson:

a. failed to concern himself with the welfare of his pupils while they were under his care;

b. contravened a law which caused students under his professional supervision to be put at or remain at risk; and

c. committed acts that would reasonably be regarded by the College as disgraceful, dishonourable and unprofessional.

[13] The College of Teachers, as part of its decision, further found that:

a. Marson committed unacceptable and repetitive acts of assault and indecent assault on his students between 1969 and 1979, while he was in a position of trust and authority. These acts are contrary to the Education Act, the Teaching Profession Act, and the Ontario College of Teachers Act;

b. Marson’s teaching practices were designed to make possible his determined and ongoing behaviour to exploit his students. He solicited the assistance of students within the school to work with him in his classroom and at recess, after school, at his home and on camping trips. He gained their trust, groomed them, attacked them and assaulted them, sexually and physically. These acts occurred while Marson was a classroom teacher. Marson displayed behaviour that is beyond any reasonable semblance of civil behaviour. He abused his position of trust in order to create a long-term pattern of abuse, control and sexual exploitation of his students, for his own sexual gratification and that abuse by him of his students has brought the teaching profession into disrepute and has lost the trust of the public.

c. The actions by Marson abused the power and trust vested in his role as a teacher. He caused emotional and psychological trauma and sexual harm to his students for his own gratification.

[14] The jury in this action was asked to provide particulars of the negligence they found as against the School Board. Excerpts of particulars provided by the jury include the following:

a. Marson’s key to the school was apparently given to him by a Superintendent of Education. This very key was central to some of Marson’s sexual exploitation of the Plaintiff. This key was apparently given by the Board as a reasonable necessity to properly care for mini-zoo animals. However, this was apparently done in the absence of stipulations and conditions relative to its use. In addition, providing a school key to Marson contravened Board policy, so all involved employees at the school should have been informed, including principals, teachers and caretakers. None of these individuals were so advised.

b. Confirmation by one principal that he was aware from the earliest time in Marson’s teaching career that Marson preferred the company of young males. There was no apparent follow-up by this principal. This early and later negligence might have contributed to any or some of Marson’s predatory actions.

c. At least one principal was aware that Marson preferred the company of young males and that he had a key to the school, but he did not undertake due diligence in supervising Marson nor informing his Superintendent.

d. The testimony of a teacher that to complain about other teachers was unethical. This is seen as an impediment to freely acting on any negative observations or concerns of another teacher.

e. A teacher’s complaint about any other teacher such as Marson required a frightening and complex formal meeting with a union representative and the principal. This is seen as a general deterrent from teachers coming forward to report any negative information about Marson.

f. A principal’s complaint about a teacher such as Marson could be viewed as harassment and therefore, a deterrent to a principal’s willingness to undertake investigative or follow-up actions.

g. Window washing was a prime opportunity for the custodian to come forward with notification to superiors about soaping of windows in respect of Marson.

h. There is sufficient evidence to indicate that the School Board did not act appropriately and was negligent in preventing or stopping general and sexual abuse of the Plaintiff by Marson.

ANALYSIS

[15] The Supreme Court of Canada decision of Bazley v. Curry, 1999 CanLII 692 (SCC), [1999] 2 S.C.R. 534 is the leading authority on the question of:

whether the organization that employed the offender should be held liable for the wrong. The law refers to such liability as "vicarious" liability. It is also known as "strict" or "no-fault" liability, because it is imposed in the absence of fault of the employer. - para 1

[16] The Supreme Court adopted the common law test known as the Salmond test (from Salmond and Heuston's treatise on torts). Under this test, employers are vicariously liable for employee torts falling within the "scope of employment":

An employee's wrongful conduct is said to fall within the course and scope of his or her employment where it consists of either (1) acts authorized by the employer or (2) unauthorized acts that are so connected with acts that the employer has authorized that they may rightly be regarded as modes -- although improper modes -- of doing what has been authorized. – para 6, ibid.

[17] It is only the second branch of the Salmond test that may apply to these facts.

[18] In applying the second branch of this test, the Court states at para 15, ibid:

First, a court should determine whether there are precedents which unambiguously determine on which side of the line between vicarious liability and no liability the case falls. If prior cases do not clearly suggest a solution, the next step is to determine whether vicarious liability should be imposed in light of the broader policy rationales behind strict liability. ...

[19] Addressing the policy purposes underlying the imposition of vicarious liability on employees, the Supreme Court of Canada stated at para 37, ibid, that these policy purposes are served only:

... where the wrong is so connected with the employment that it can be said that the employer has introduced the risk of the wrong... . The question in each case is whether there is a connection or nexus between the employment enterprise and that wrong that justifies imposition of vicarious liability on the employer for the wrong ...

[20] At para 29, ibid, the Court approved two main policy considerations which underlie the imposition of vicarious liability:

(1) provision of a just and practical remedy for the harm; and (2) deterrence of future harm.

[21] Addressing the policy consideration of deterrence of future harm, the Court at para 32, ibid adopted this statement:

If the scourge of sexual predation is to be stamped out, or at least controlled, there must be powerful motivation acting upon those who control institutions engaged in the care, protection and nurturing of children. That motivation will not in my view be sufficiently supplied by the likelihood of liability in negligence.

[22] The Court further stated at paras 33 and 34, ibid:

Holding the employer vicariously liable for the wrongs of its employee may encourage the employer to take such steps, (imaginative and efficient administration and supervision), and hence, reduce the risk of future harm... The policy grounds supporting the imposition of vicarious liability - fair compensation and deterrence - are related.

[23] The Court at para 46, ibid summarized the test for vicarious liability for an employee’s sexual abuse on a client/student:

... [it] should focus on whether the employer's enterprise and empowerment of the employee materially increased the risk of the sexual assault and hence the harm. The test must not be applied mechanically, but with a sensitive view to the policy considerations that justify the imposition of vicarious liability - fair and efficient compensation for wrong and deterrence. This requires trial judges to investigate the employee's specific duties and determine whether they gave rise to special opportunities for wrongdoing. ... special attention should be paid to the existence of a power or dependency relationship, which on its own often creates a considerable risk of wrongdoing.

[24] Also in 1999, the Supreme Court in T. (G.) v. Griffiths, 1999 CanLII 693 (SCC), [1999] 2 S.C.R. 570 considered that question of whether an employer can be vicariously liable for the sexual assaults committed by employees. The Court split 4:3 in holding that this employer was not vicariously liable for the intentional torts of sexual assault committed by a program director of a “Boys’ and Girls” club which provided recreational, but not residential, facilities for children. In that case, the sexual assaults were committed on children attending the club for recreational purposes. Binnie J. speaking for the majority at para 83 adopted this statement by the B.C. Court of Appeal in Bazley v. Curry:

... the fact that the teacher took advantage of his opportunity at the school to develop a relationship with the child is not enough: something more is required __ a close connection between the teacher's duties and his or her wrongful acts __ to render the school board liable without proof of negligence or other fault on its part.

[25] Both sides in this case agree and it is obvious that the first part of the “Salmond test” does not apply. The School Board clearly did not authorize acts of sexual assaults perpetrated by Marson on the students. I will therefore confine my analysis to the second part of the “Salmond test.” The question is whether the unauthorized acts by Marson are so connected with his authorized acts of teaching that they may be regarded as modes of doing an unauthorized act. Applying this second branch of the test, I must first determine if there are precedents which “unambiguously determine on which side of the line between vicarious liability and no liability” this case falls: see Bazley, supra at para 15.

[26] Although there are several reported decisions with the allegation of a teacher who sexually assaulted a student within the perimeter of the school environment, I find that these cases are each factually distinguishable from the facts of this case. For that reason, they are of little precedential value. Perhaps the case which factually comes closest to the case before me is John Doe v. Avalon East School Board, 2004 CarswellNfld 378, a decision of the Newfoundland and Labrador Supreme Court Trial Division. The Court there held a school board vicariously liable for the actions of a teacher committing an assault on a student. In that decision, the teacher required the student to leave the classroom and study alone on the pretext that the remainder of the class was writing an exam. When the student was then isolated from the rest of the class, the teacher fondled the student on the school premises. Based on the analytical framework set out in Bazley v. Curry, supra, the board was held vicariously liable for the actions of the teacher. The court stated at para 79:

John Doe was subject to the Board’s authority on that day, and such authority was exercised by [the teacher], the Board’s employee. The assault took place on school property, during school hours, during the time Doe was in class, and at the time, [the teacher] was responsible for providing instruction to Doe... [The teacher] had a significant degree of professional and legislative authority over his students. He was in a position of trust vis a vis his students. It was a direct abuse of that trust, and the authority granted by the school board, which was involved in [the] assault [on the student].

[27] Although this decision is of some guidance and assistance, it and the other reported decisions all, to some degree, are factually distinguishable. Accordingly, I will now address the second branch of the “Salmond test.”

[28] The School Board states that there must be a strong connection between Marson’s duties and his wrongful acts, as articulated by Binnie J. in T. (G.) v. Griffiths, supra. I agree. The fact that Marson took advantage of his position as a teacher to develop a relationship with the Plaintiff by itself is not enough. The School Board also states that the fact of Marson having a key to the school which provided him the opportunity to abuse the Plaintiff, by itself is insufficient to impose a finding of strict liability on the School Board. That may be so, but the issue of the key should not be viewed in isolation. It was the policy of the board that only principals and janitors have a key. If the policy were to be breached, as it was by the Director of the School Board in this case, at the very least, one or more of the following should have followed:

a. Marson’s principal at the time and all other subsequent principals should have been so notified;

b. Use by Marson of the key should have had conditions attached, such as:

i. Marson was to notify the principal each time he intended to use the key and access the school;

ii. Marson was not to be alone at the school with students, let alone only one student.

These are but examples of conditions which the Board might have imposed as part of the indulgence granted to Marson when given a key. These conditions are not to be seen as exhaustive.

[29] The School Board states that Marson had crafted an ora of secrecy not known to his principals, from time to time, and his fellow teachers. Factually, that is not so, based on the findings by the jury.

[30] The School Board further states that Marson’s duties as a teacher, while they provided him with the opportunity he wanted, did not materially enhance the risk of harm. I disagree. It was rather the very presence of the mini-zoo in his classroom which allowed Marson the opportunity to be alone with at least this Plaintiff in the classroom, during recess, after hours and on weekends. The establishment by Marson of the mini-zoo and its continued operation and presence in the classroom, was known to the School Board and sanctioned by it. As a rider to the leave granted to Marson to operate and maintain the zoo, the Board might and probably should have considered attaching terms to address prevention of the possible compromise of students’ safety in having Marson remain alone in a classroom with a student such as the Plaintiff during recess, after school and on weekends.

[31] The School Board further states that the imposition of vicarious liability on the Board for acts Marson committed as a teacher more than 30 to 40 years ago would not serve to deter future risk. Again, I disagree. In dealing with the emotional and physical welfare of our children, particularly in regard to the loco parentis position in which we place teachers, we must be certain that School Boards remain ever vigilant to the possibility of abuse. On these facts, I find that the Board’s failure to take appropriate prophylactic steps was, at least, cavalier neglect and likely negligence, as the jury found. In my view and apparently shared by this jury, an appropriate signal of deterrence must therefore be sent to this School Board.

[32] In applying the second branch of the “Salmond test,” I accept that I should consider these factors, as listed by Plaintiff’s counsel in his Factum:

a. The School Board has a legal duty to provide for the safety of its students;

b. The law compels parents to send their children to school;

c. The School Board stands in loco parentis to the child and exercises the legal authority to guide, direct and discipline the child;

d. The child is required to respect and follow the directions of the teachers;

e. The teachers are expected to be role models of attitudes, behaviour, and morality to the child.

f. The science curriculum designed by Marson was approved by the School Board;

g. Marson’s teaching practices were designed to make possible the exploitation of students;

h. The design by Marson of his mini-zoo was couched in terms of a pedagogic experience, but was actually designed to permit Marson to gain the trust of students leading to his opportunity to then groom them for personal exploitation; and

i. The School Board admitted that Marson’s activities in using school premises and school resources were in furtherance of creating and committing his acts of exploitation. The responsibility for the caretaking and custodial duties associated with the mini-zoo was not that of the custodians, but fell on Marson and his chosen victims.

[33] I find that the School Board is vicariously liable to the Plaintiff for the acts of Marson in exploiting and sexually assaulting the Plaintiff.

FIDUCIARY DUTY

[34] The Plaintiff urges that the School Board was in a fiduciary relationship to the Plaintiff and that it breached that duty. The scope of this trial focused on the acts of the teacher and the question of the vicarious liability of the School Board for those actions.

[35] In light of the damages already assessed by the jury, the Plaintiff seeks no additional compensation for a breach of the Defendant’s fiduciary duty owed to him, were I to so find. Accordingly, any finding I were to make in that regard would be obiter. For that reason, I decline to do so.

[36] If the parties are unable to resolve the question of costs of this trial, I may be spoken to within 45 days. In that event, I would expect to receive written submissions.

The Honourable Mr. Justice Wolfram U. Tausendfreund

Released: April 05, 2013

COURT FILE NO.: CV-08-0081-00

DATE: 2013 Apr 05

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

SCOTT LANGSTAFF

Plaintiff

– and –

ROBERT TERRY MARSON and THE HASTINGS AND PRINCE EDWARD DISTRICT SCHOOL BOARD

Defendant

Ruling

Tausendfreund J.

Released: April 05, 2013