Date: Sun, 23 Oct 2005 13:39:09 -0400

From: David Cheifetz

Subject: Sup Ct Canada Non-Delegable Duty

Neil,

... can anyone suggest why in a decision which seems from the headnote to be dealing with the issue of non-delegable duty of care for sexual assault of children in care ... [there isn't] a single reference to the High Court of Australia decision in Lepore v NSW?

The scope of the non-delegable duty argument (at least in cases where vicarious liability is an available argument) was severely circumscribed in prior SCC cases referred to in Blackwater - KLB, EDG, Lewis - and neither of KLB nor EDG mention Lepore. Look at KLB starting at para 30 for the non-delegable duty discussion. I've mentioned that Lepore isn't referred to in the SCC cases because KLB et al were argued at the end of 2002 and judgment was released in the fall of 2003, after Lepore. We should assume that the SCC panel in KLB et al knew about Lepore. That might be part of the reason.

Apart from that, the only reported decision that I'm aware of in which the HCA decision in Lepore was cited is another sexual assault case at a residential school. Lepore was referred to in the BCCA decision: B.(E.) v. Order of the Oblates of Mary Immaculate, 2003 BCCA 289 (CanLII). The appeal in that case was argued before the SCC in Dec 2004 and is presently under reserve. Perhaps the SCC is saving any discussion of Lepore for its reasons in Oblates. (I make no reference to the possibility of the reappearance of the wandering inflatables from the circa 1980s Pink Floyd London concert.)

It seems to me that the statement at the end of para 17 of the BCCA decision in Oblates is probably as good as any summary of the current Canadian approach to cases were non-delegable duty liability and vicarious liability might overlap. It comes from the BCCA reasons in EDG: "I do not think that vicarious liability and non-delegable duty should overlap to permit inconsistent results for the same tort by an employee. The duplication of vicarious liability and non-delegable duty would create doctrinal confusion for no valid policy purpose."

I expect there are other readers of this list who could provide a better answer.

Best

David

----- Original Message -----
From: Neil Foster
Sent: Friday, October 21, 2005 9:07 PM
Subject: Re: ODG: two employers vicarious liability apportionment contribution

Dear Colleagues;

I'm not aware that there ever was a "charitable immunity" doctrine in Australian law so I won't comment on that. But I'd be grateful for others' comments on the "two employer" aspect of this decision. I haven't had a chance to read the whole judgement but I notice this issue is discussed in Blackwater at paras [36]-[38] in what to me is an astonishingly cavalier way- a reference back to Atiyah's book from 1967 (!) is used to simply declare that there is no problem with a person having two employers. I can just believe it if we are talking about someone engaged by partners in a firm, where there is a true "partnership" in the sense recognised by the law for many years of people jointly pursuing a profit. But to then slide over and say this applies here because in some loose sense the Church and Canada were engaged in a "partnership" in caring for children seems a bit rich. After all, at least the Eng CA in Viasystems thought it necessary to analyse the previous law in some detail before making what they seemed to acknowledge to be a change.

Of course it is entirely likely that I am completely ignorant of developments in the common law in Canada which have previously seen an acceptance of the "two employers" view. I'd be grateful if anyone can enlighten me if this is so.

Also maybe I'm just feeling particularly parochial but can anyone suggest why in a decision which seems from the headnote to be dealing with the issue of non-delegable duty of care for sexual assault of children in care does my search facility reveal not a single reference to the High Court of Australia decision in Lepore v NSW?

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