Trial judge says connection between medical professional and hospital was too remote
The Ontario Court of Appeal has upheld a trial judge’s refusal to hold a hospital’s successor vicariously liable for a doctor accused of sexual abuse because the relationship between the hospital and the doctor was not close enough.
In Dunford v. Hamilton-Wentworth District School Board, 2025 ONCA 438, the appellant was a 19-year-old student in an alternative education program from 1982–83. The school operated on hospital grounds from 1973–83.
The hospital administered the school’s government funding. The respondent, Hamilton Health Services Corporation, later assumed the hospital’s liabilities as its successor.
The respondent did not employ the doctor involved in this lawsuit. The doctor was the school’s founder, clinical coordinator, and director. He held privileges at the hospital, independent of his roles at the school.
The appellant sued the respondent for damages. He alleged that the doctor sexually abused him and that the hospital was vicariously liable for this abuse.
In July 2024, a trial judge of the Ontario Superior Court of Justice issued a judgment citing K.L.B. v. British Columbia, 2003 SCC 51 (CanLII), [2003] 2 SCR 403. She addressed the two criteria required for a successful vicarious liability claim.
First, the appellant should establish a sufficiently close relationship between the doctor as the tortfeasor and the hospital. Second, the appellant should show an adequate connection between the tort and the doctor’s assigned tasks, such that the court could consider the tort a materialization of the risks created by the hospital’s enterprise.
The judge determined that the doctor committed the tort of sexual battery against the appellant. However, the judge refused to find the respondent vicariously liable for damages based on the doctor’s actions. The judge said the case did not meet the test’s first prong because the respondent’s relationship to the doctor was not close enough.
The judge relied on certain factors to reach her conclusion. She noted that the school staff reported to the doctor, and that the alternative education program’s success depended wholly or mostly on the doctor’s name and the letters of equivalency he signed.
The judge also found that the doctor:
The judge added that the hospital had minimal control over the doctor’s activities, no involvement in the curriculum, and no role in approving any curriculum adjustments.
The judge then cited Bazley v. Curry, 1999 CanLII 692 (SCC), [1999] 2 S.C.R. 534, which identified two policy rationales behind vicarious liability: fair and effective compensation and deterrence of future harm.
The judge ruled that imposing vicarious liability in the circumstances of this case would not satisfy the two policy considerations. First, she said compensation would be unfair since she could not consider the doctor’s misconduct a materialization of the enterprise’s risks, as the hospital was too remote from the doctor.
Second, regarding the deterrent effect, the judge held that the doctor was too independent for the hospital to take any measures relating to his conduct.
The appellant appealed the dismissal of his damages claim against the respondent. He did not challenge the sexual battery finding against the doctor.
The Court of Appeal for Ontario dismissed the appeal. The appeal court determined that the trial judge committed no extricable errors in principle or palpable and overriding errors.
First, the appeal court ruled that the judge stated and applied the correct legal test, appropriately observed that she had to determine whether the doctor acted on his own account or on behalf of the respondent as a non-profit entity, and reviewed all the relevant factors to reach her conclusion.
Second, the appeal court held that the judge addressed the two policy rationales behind vicarious liability in the Bazley case. The appeal court found no reason to interfere with her findings concerning the policy considerations.
Lastly, the appeal court concluded that the judge assessed the totality of the evidence. The appeal court noted that the judge expressly said she was considering the “total relationship” between the hospital and the doctor.
The appeal court added that the judge, rather than taking a siloed approach, individually weighed multiple factors that served as building blocks in her final determination that the relationship between the hospital and the doctor was not close enough to meet the first prong of the vicarious liability test.