Family Contends Diocese Liable Even If It Didn't Know
By Jonathan Sher
Free Press [Canada]
Downloaded June 9, 2003
If the Swales are to prevail in their lawsuit against the London Catholic Diocese, they may need to convince a judge the church is responsible for conduct it knew nothing about. The diocese contends it knew nothing of the sexual abuse later admitted by its priest, Barry Glendinning.
But even if that's true, the Swales argue the church should be held liable under a legal doctrine called vicarious liability.
The rationale behind the doctrine is twofold:
- Some employers create a risk when they give an employee power over a vulnerable person and are in a better position to pay for the harm that results.
- Liability gives employers an incentive to avoid harm by monitoring risk.
The Supreme Court of Canada has found the operator of a residential care facility liable for sexual abuse committed by its employees, while the British Columbia Supreme Court has ruled a Catholic diocese was liable for abuse committed by a priest assigned to work with children, says the Swales's lawyer, Paul Ledroit.
The London diocese created a risk by not screening applicants to the priesthood, not monitoring priests and encouraging clergy to be silent about sexual issues, Ledroit says.
"This encouraged a milieu of silence," Ledroit alleges.
The lack of supervision continued after Glendinning's conviction and three-year probation order that placed him under the supervision of his bishop and directed the church not to assign him to duties involving adolescents.
Within a year, he was an assistant pastor in Windsor, where he worked with children with whom he had sexual contact, Ledroit alleges.
The diocese disputes the claim, saying it had every reason to believe Glendinning had no tendencies that would have led him to the conduct alleged by the Swales.
Sexual molestation is so removed from his priestly duties that the diocese shouldn't be held vicariously liable.
"Any (sex) between Glendinning and another person would have been antithetical to (his) training, his vows as a cleric and to the tenets of the Roman Catholic faith," the diocese asserts.
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