Case information

Torts — Vicarious liability — Intentional torts — Sexual assault of children — Volunteer tutor provided to child by school — Tutor began grooming child during in-school tutoring sessions — Tutor insinuated himself into child’s life and continued grooming child when in-school tutoring ending — Child sexually assaulted by tutor — Whether test for vicarious liability inconsistently applied in trial courts — Whether test should be modified to account for societal and legal change and understanding of liability for affording opportunities to groom young victims to perpetrate sexual violence — When Supreme Court of Canada should overrule or depart from its own precedents pursuant to doctrine of horizontal stare decisis.

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The critical facts were undisputed. When H.N. was in grade six, he required greater challenge in English, so tutoring sessions were proposed as enrichment. H.N.’s teacher suggested a qualified, recently retired teacher, Mr. Redgate, as a tutor. Mr. Redgate, having met with H.N. and his mother, agreed to volunteer as his tutor. They had weekly 40-minute tutoring sessions held in an empty classroom during class time. The school secretary directed them to the classroom and knew where they were. They could be observed, and the teacher checked on them from time-to-time. Mr. Redgate made incremental physical advances to H.N. — sitting next to H.N., moving so their arms touched occasionally; he hugged him at school once. He then began to insinuate himself into H.N.’s life outside of school. H.N. visited Mr. Redgate’s home twice during the grade six year. The grade six teacher knew of those visits, but did not inform the school principal or suggest that Mr. Redgate do so. H.N. made approximately 50 visits to Mr. Redgate’s home over the next five years. Mr. Redgate became increasingly affectionate and intensified his emotional manipulation and the relationship became more emotional and sexual. Mr. Redgate died before trial, but the matter continued against his estate and the School District.

The trial judge found that Jacobi v. Griffiths, [1999] 2 S.C.R. 570, was the governing precedent. Applying it, he found that vicarious liability had not been made out against the School District. The Court of Appeal dismissed the appeal.