March 2013

COURT OF APPEAL: There is no automatic duty of care between a diocese and students harmed by priests

Michael Kennedy
Associate Lawyer

By Michael Kennedy

On March 8, 2013, the Ontario Court of Appeal in the case of Cavanaugh v. Grenville Christian College (2013 ONCA 139) ruled that students, who had allegedly suffered various forms of abuse at a private Anglican school at the hands of its headmasters, had no cause of action against the Anglican Diocese.  Writing for the court, Justice Doherty held that the Diocese owed the students no duty of care.

The school in question was founded in 1969 by two individuals who were ordained as Anglican ministers in 1977. These two individuals acted as headmasters and allegedly abused various students until the school closed in 1997.

The students sued the school, the headmasters and the Anglican Diocese. The students brought a motion to certify their action as a class proceeding pursuant to the Class Proceedings Act. However, Justice Perell of the Ontario Superior Court refused the certification and dismissed the action against the Diocese on the grounds that there was no duty of care or fiduciary duty between the Diocese and the students:

[92] The students have an indirect relationship with the Diocese. Moreover, the relationship or connection between the school and the Diocese, upon which the indirect relationship is built, is also remote, at least legally speaking. The Diocese did not own or contract with the school. There is no employee-employer relationship between the Diocese and Fathers Haig and Farnsworth. The Diocese has no control over the school's operations. There were no corporate or organizational connections. The Diocese was not relied upon for operational advice, and no parent asked for or received advice from the Diocese about enrolling their children in the school. The Diocese had no legal right or legal duty to control or intervene in the operation of the school.

[...]

[97] [I]t is not the case that the Diocese was involved in the management, operation, supervision and staffing of the school. The most that can be said is that the Bishop of the Diocese ordained Fathers Haig and Farnsworth as Anglican ministers and Fathers Haig and Farnsworth performed Anglican services and celebrations at the school. It is plain and obvious that the pleaded claim against the Diocese, even if factually proven, does not constitute a reasonable cause of action because there is no duty of care.

On appeal, Justice Doherty agreed with Justice Perell that there was no duty of care owed by the Diocese to the students. Justice Doherty explicitly rejected the argument that there is an automatic duty of care owed by a diocese to persons who are abused by priests. Instead, a duty of care will only arise if there is a foreseeability of harm and a relationship of proximity between the diocese and persons who engage with its priests.

Justice Doherty noted that there were no material facts supporting the students' allegation that the Diocese knew or should have known of the ongoing abuse; there were no material facts supporting a direct relationship between the Diocese and the school or the students; there was no allegation that the Diocese founded, controlled or was involved in the operation of the school in any way; and there was no allegation that the Diocese had any power over the headmasters in so far as running the school was concerned.

The Cavanaugh decision affirms that establishing a duty of care in cases between dioceses and students harmed by priests requires a fact-based analysis—there is no automatic duty of care. Based upon the decision, some relevant questions one could ask to assess whether a duty of care exists between a diocese and students at a religiously affiliated school are as follows:

1. Did the diocese own or contract with the school?
2. Were there organizational/corporate connections between the diocese and the school?
3. Is there an employer-employee relationship between the diocese and its priests?
4. Was the diocese responsible for the direction, control and discipline of its priests when the abuse was occurring?
5. Did the diocese have control over the school's operations? Did the diocese have any legal right to or duty to control the school?
6. Where did the alleged abuse occur? Was it on diocese property?

Read the case Docket: C55627.

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