Date: Fri, 21 Oct 2005 16:38:08 -0400 (EDT)

From: David Cheifetz

Subject: Two employers vicarious liability apportionment contribution

It'll reappear cloaked within the Jacobi limitation on Bazely. Of course, that means that somebody will have to figure out some way to meaningfully state the limitation. Remember what the majority said in Jacobi - I'll quote from the headnote - "Given the weakness of the policy justification for the expansion of vicarious liability to non-profit organizations, the respondent is entitled to insist that the requirement of a "strong connection" between the enterprise risk and the sexual assault be applied with serious rigour." That's where the argument will be made: on the question of what's needed for a strong connection where the defendant is a charity. The defendant's lawyer will argue: take into account the fact that the defendant is a charity as one of the factors relevant in the decision as to what's enough to satisfy the requirement of "strong connection ... applied with serious rigour". If we make the "strong connection" threshold high enough, we've reintroduced the charitable immunity doctrine.

Best,
David

David Wingfield wrote:

I know. But you can see in a number of cases, such as in Doe v. Bennet in the NFLD CA, in the Ontario Superior Court or in the dissenting judgment in the BCCA in the Christian Brothers' cases, and in the BCCA's decision in Blackwater itself, that the doctrine of charitable immunity kept sliding into the law by the backdoor disguised as something else. It was able to do so, in part, because the SCC had dealt with the logic of the doctrine in Bazley, but not the doctrine itself. As far as I can tell, the only dictum by the SCC in modern times deprecating the doctrine is in Blackwater. McLachin CJ mentioned the concept in her dissent in Jacobi, but that was, after all, a dissent. So, I hope and trust, that following Blackwater, the doctrine is now dead, and dead in all its variants.

From: DAVID CHEIFETZ
Sent: Friday, October 21, 2005 2:16 PM
Subject: ODG: RE: two employers vicarious liability apportionment contribution

yes, but that doctrine couldn't logically survive the "logic" of Bazely, notwithstanding Jacobi, unless the courts simply declared an exception for "policy" reasons or the legislatures enact one - and the SCC wasn't prepared to do so. It's thrown the gauntlet back to the legislatures.

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