Case information

Torts — Vicarious liability — Hospitals — Physicians — Whether hospitals exempt from vicarious liability — If not, whether defendant being hospital and tortfeasor being doctor and hospital program director impacts test for vicarious liability — Whether allegation of intentional wrong impacts test for vicarious liability — Proper approach to twin policy considerations in analysis for vicarious liability — Whether fair compensation should inform sufficient closeness analysis — Whether, if organization controls enterprise’s level of independence, vicarious liability would have no deterrent effect.

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

Mr. Dunford was a student in an alternative educational program known as the “Cool School” in 1982-83, when he was 19 years of age. The School had been launched by its director, Dr. Anderson, in 1971, as a pilot project. The Cool School was designated as a Chedoke Hospital program, and was operated on Hospital grounds from 1973-83. It received government funding through the Hospital’s regional adolescent services department, and the Hospital was involved in administering that funding. Although Dr. Anderson had privileges at the Hospital, they were independent of his involvement with the school, and the Hospital did not employ him. Mr. Dunford alleged that Dr. Anderson had committed sexual battery against him through the misuse of the power and authority conferred on him by his job. Mr. Dunford further alleged that the Hospital was vicariously liable for this abuse. At the time of trial, Mr. Dunford was 61 years of age, Dr. Anderson had died, and the Chedoke Hospital’s liabilities had been assumed by its successor, the respondent Hamilton Health Services Corporation.

The trial judge dismissed the action, finding that, while Dr. Anderson had committed the tort of sexual battery against Mr. Dunford, Dr. Anderson’s relationship to the Hospital was not sufficiently close to make imposing vicarious liability appropriate. Due to the remoteness of the relationship between Dr. Anderson and the Hospital, imposing vicarious liability would not achieve the policy goals behind vicarious liability, either: it would not be fair or have a deterrent effect. The Court of Appeal dismissed Mr. Dunford’s appeal.