K.L.B.+v.+British+Columbia

... shorter version to be posted soon


 * K.L.B., P.B., H.B., V.E.R.B.** = appellants; **The Crown** = respondent

K.L.B., P.B., H.B., V.E.R.B. = appellants; The Crown = respondent

__**Facts:**__ - Appellants are siblings who suffered abuse in 2 foster homes, the Pleasance home and the Hart home, including sexual abuse of one child (K.) in the Hart home. - Ministry social workers had glossed over or ignored warning signs in the Pleasance and Hart files prior to placement in these homes


 * __Issue:__** On what grounds can the government be held liable for the tortious conduct of foster parents toward children whom the government has placed under their care?

- Direct negligence: YES, //but// subject to the limitations defense (//Limitations Act//) - Vicarious liability for the foster parents’ conduct: NO -  Breach of fiduciary duty: NO
 * __Held:__** Appeal dismissed à Crown


 * __Reasoning (C.J.):__**

__1. Direct Negligence__: YES - direct negligence of a legal person (here, the government) based on wrongful actions of those who are principal organs of that legal person - duty of care under the //Protection of Children Act// (1960) imposes a high standard of care for the Superintendent of Child Welfare and holds the government responsible for harm sustained by children in foster care when it was reasonably foreseeable that the government’s conduct would expose the children to harm

- **Application to this case**: it //was// reasonably foreseeable, based on the standards of the day (i.e. the standard of a prudent parent at that time) à system of placement and supervision was faulty, permitting abuse

__2. Vicarious Liability of the Government for the Torts of Foster Parents__: NO - vicarious liability: person is held responsible where the risks inherent in his/her enterprise materialize and cause harm (1) sufficiently close relationship between tortfeasor and defendant (2) sufficient connection between the tort and the tortfeasor’s assigned tasks - criterion (1) is often in context of employer/employee relationship; - //Bazley//: 2 policy goals served by criterion (1) = compensation and deterrence - //Sagaz//: central question as to whether someone is an employee is a //functional// inquiry (not just whether there is a contract): is the worker performing services as a person in business on his own account or on behalf of the employer? * factors (may) include: //level// //of// //control// over worker’s activities; whether worker provides own equipment, hires own helpers, has managerial responsibilities

- **Application to this case**: Government NOT vicariously liable for foster parents’ wrongs, because while they serve a public goal, foster parents are & should be independent of close government control: “they must operate independently of day-to-day state control if they are to meet the goals of foster care.”  * foster parents exercise full managerial responsibility over their household (private home), do not act on behalf of the government, do not hold themselves out or are perceived as government agents in the community

__3. Liability for Breach of a Non-Delegable Duty__: NO - no clear rule re what counts as a non-delegable duty, so we must look at examples - //Lewis v. British Columbia//: terms a statute may provide for a non-delegable duty

 * //Protection of Children Act// does //not// offer any basis for imposing a non-delegable duty on the Superintendent to ensure that no harm comes to children through the abuse or negligence of foster parents  * //Act// makes Superintendent solely responsible for a child’s well-being //before// placement, not necessarily //after//
 * - Application to this case:**

__4. Liability for Breach of Fiduciary Duty to children__: NO - in dispute here: not the existence but //content// of the government’s fiduciary duty  * content of parental fiduciary duty about disloyalty: parents putting their own or someone else’s interests ahead of the child’s = breach

- **Application to this case:** no evidence that government put its own interests ahead of children’s or that its actions amounted to a betrayal of trust or disloyalty  * at worst, the Superintendent/social workers failed to properly assess whether the children’s needs and problems could be met in the homes, discuss acceptable discipline with foster parents, conduct frequent visits

- foster parents //do// act on behalf of the government - policy goals of just compensation and deterrence of future harm //are// met by finding vicarious liability
 * __Reasoning (Arbour J.):__** government //is// vicariously liable (but claims are statute-barred [//Limitation Act//])

- 1st criterion: sufficiently close relationship between defendant and tortfeasor  * not whether a person is acting “on his own account” (suggests a chance of profit), but whether foster parents act on behalf of the government  * main factor: level of control over tortfeasor’s actions, i.e. the //right// of control, not necessarily control //in// //fact//) -  2nd criterion: sufficient connection between wrongful activities & tortfeasor’s assigned tasks  *  Employer/defendant significantly/materially increases the risk of harm by putting the employee/tortfeasor in a position and requiring certain assigned tasks  *  foster care scenario reflects the highest possible degrees of power, trust, intimacy