MB v British Columbia 2003

FACTS:-

The Claimant was abused by her natural father from an early age. She was taken into care by the Ministry of Social Services at the age of thirteen and placed with foster parents, Mr and Mrs P. Mr P indulged in sexually inappropriate behaviour during this time and sexually assaulted the Claimant near to the end of June 1976.

The Claimant took out proceedings against her father (which settled before trial) and also against the government. The trial judge found that although the social workers were negligent in relation to their care of the Claimant, this was not causative of her damage. However the judge also found that the government was vicariously liable for Mr P’s torts and his breach of fiduciary duty to her. There was also a breach of the government’s non delegable duty of care to look after the welfare of foster children. The Court of Appeal dismissed the government’s appeal but reduced the award for non pecuniary loss on the grounds that the trial judge had failed to take into account, the Claimant’s pre care abuse. The Court of Appeal also concluded that social assistance payments should not have been deducted from the Claimant’s past loss of earnings. The government now appealed to the Canadian Supreme Court on a number of issues including the question of liability and on the question of the social assistance payments.

HELD:-

McLachlin CJ delivered the judgement of the majority of the court. She considered the facts of the case and addressed each of the issues.

Was the government vicariously liable for the sexual abuse of MB by her foster father

This issue had been answered in the case of KLB v British Columbia [2003] 2 SCR 403 where it was held that the government was not vicariously liable for torts committed by foster parents against foster children in their care.

Did the government’s conduct amount to a breach of a non delegable duty?

For the same reasons as laid out in KLB there non-delegable duty.

Was the Court of Appeal correct to reduce the awards for non-pecuniary loss and past loss of earnings?

It was a common sense proposition that social assistance benefit were a form of wage replacement. They were therefore deductible from the awards and they did not fit within the charitable benefits exception. The court would not endorse a new exception for social assistance payments.

In relation to interest on loss of earnings capacity, interest should be awarded on the basis that this was a loss accruing over time.

In relation to the trial judge’s award not taking into account the pre-care abuse, McLachlin J said that she could find no palpable and overriding error in the judge’s approach.

Justice Arbour dissented, finding that vicarious liability was made out in this case.