Fri, 21 Oct 2005 16:38:08 -0400 (EDT)
Two employers vicarious liability apportionment contribution
reappear cloaked within the Jacobi limitation on Bazely.
Of course, that means that somebody will have to figure out some
way to meaningfully state the limitation. Remember what the majority
said in Jacobi - I'll quote from the headnote - "Given
the weakness of the policy justification for the expansion of vicarious
liability to non-profit organizations, the respondent is entitled
to insist that the requirement of a "strong connection"
between the enterprise risk and the sexual assault be applied with
serious rigour." That's where the argument will be made: on
the question of what's needed for a strong connection where the
defendant is a charity. The defendant's lawyer will argue: take
into account the fact that the defendant is a charity as one of
the factors relevant in the decision as to what's enough to satisfy
the requirement of "strong connection ... applied with serious
rigour". If we make the "strong connection" threshold
high enough, we've reintroduced the charitable immunity doctrine.
know. But you can see in a number of cases, such as in Doe
v. Bennet in the NFLD CA, in the Ontario Superior Court or
in the dissenting judgment in the BCCA in the Christian Brothers'
cases, and in the BCCA's decision in Blackwater itself,
that the doctrine of charitable immunity kept sliding into the
law by the backdoor disguised as something else. It was able to
do so, in part, because the SCC had dealt with the logic of the
doctrine in Bazley, but not the doctrine itself. As far
as I can tell, the only dictum by the SCC in modern times deprecating
the doctrine is in Blackwater. McLachin CJ mentioned
the concept in her dissent in Jacobi, but that was, after
all, a dissent. So, I hope and trust, that following Blackwater,
the doctrine is now dead, and dead in all its variants.
Sent: Friday, October 21, 2005 2:16 PM
Subject: ODG: RE: two employers vicarious liability apportionment
but that doctrine couldn't logically survive the "logic"
of Bazely, notwithstanding Jacobi, unless
the courts simply declared an exception for "policy"
reasons or the legislatures enact one - and the SCC wasn't prepared
to do so. It's thrown the gauntlet back to the legislatures.
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