Creating an Abuse Policy Part 2: What is Your Institutional Liability?

In our previous newsletter, we briefly examined what Canadian case law tells us about the legal duties that churches and other Christian institutions have towards victims of abuse. This week, we will answer one of the questions we get most often: What liability might an institution face when incidents of abuse or alleged abuse are brought to light?

This question is addressed directly in the Ontario government’s pamphlet “Reporting Child Abuse and Neglect: It’s Your Duty,” which details “your responsibilities under the Child, Youth and Family Services Act, 2017”. Page 4 notes:

Any professional or official who fails to report a suspicion is liable on conviction to a fine of up to $5,000, if they obtained the information in the course of their professional or official duties.

Their definition of a professional with a “particular responsibility to report” includes teachers, principals, youth and recreation workers, religious officials (pastors, consistory members), and child and youth service providers.

A thorough abuse policy should both prioritize the safety and wellbeing of victims as well as shield the institution from liability. Many institutions, however, fail to recognize how vulnerable they are to liability when abuse occurs—and find out too late that their policies and practices can have severe consequences. Here are three key case studies to consider:

If your institution gives someone power and privacy, it may pay for how they abuse it.

Leslie Curry was a childcare counsellor employed by The Children’s Foundation, a non-profit facility with two residential care facilities in British Columbia for emotionally troubled children between the ages of six and twelve. As a caregiver in the Vancouver home, Curry had intimate, private access to vulnerable children, including during bathing and bedtime. After investigating a complaint and verifying that he had abused a child in one of its homes, the Foundation discharged him; he was later revealed to be a serial abuser and was eventually convicted on 19 counts of sexual abuse.

One of the victims, Patrick Bazley, sued The Children’s Foundation. The lawsuit did not allege direct negligence in hiring or supervision, but argued that the foundation should be held vicariously liable because the job both created and materially enhanced the risk of abuse. The foundation argued that it should not be held responsible because it did not authorize the abuse and did not know that Curry was a pedophile when they hired him.

In Bazley v. Curry, the Supreme Court of Canada ruled in Bazley’s favor. The SCC found that the foundation’s care model created or materially increased the risk of abuse by giving an adult employee authority, trust, privacy, and intimacy with vulnerable children.

This ruling is a blunt warning for all institutions: Even if abuse that occurs violates every rule, and even if you are unaware of the abuse taking place, you may still be liable if your program gave the abuser the power and opportunity to perpetrate harm.

If you ignore abuse, courts may make you and the institution you work for pay.

In February 2005, during an “away” tournament in Ontario, a volunteer coach allegedly sexually touched a boy on the sports team. When Peter Kaija, the high school gym teacher who volunteered as the director of the children’s basketball program, learned of the allegation, he immediately fired the volunteer coach and held meetings with the parents of the team members. However, he did not report the allegation to the Children’s Aid Society (CAS).

When others reported the allegation, Kaija was charged with failing to report a suspicion of child sexual abuse as required by Ontario’s Child and Family Services Act (now the Child, Youth and Family Services Act, s. 125). Kaija was ultimately acquitted because the allegation came to him in his volunteer capacity rather than his professional capacity as a teacher. But the acquittal offers cold comfort: while the penalty for failing to report applies only to professionals, everyone has a duty to report, and even those who are eventually acquitted on a technicality can still be charged and dragged through the ordeal of a trial for failing to do so. The case is a stark warning for community organizations in general and religious institutions in particular.

Even though he did take some steps—firing the volunteer coach, meeting with parents—this was not enough to keep him out of court.

For churches, camps, youth programs, schools, and volunteer-led organizations, the lesson is clear: Firing (or removing) someone, warning leaders or parents, and attempting to deal with abuse allegations privately may not satisfy the law. If there are reasonable grounds to suspect child abuse, the safest course is report directly to the child protection authorities. “We dealt with it internally” may sound responsible or persuasive in a board meeting; it may sound like a confession in a courtroom.

Another relevant case is the Supreme Court’s ruling in John Doe v. Bennett. A priest had used his position of trust, spiritual authority, and access to abuse boys in the parish. The Court upheld liability for these sexual assaults against the Roman Catholic Episcopal Corporation of St. George’s, finding that the Corporation was legally responsible for what the priest had done and that the institutional structure that gave the priest power and access supported “vicarious liability.”

This ruling is crucial for religious organizations to understand because it highlights that an institution’s structure can become part of the legal case against it. Courts will ask whether the organization gave the perpetrator authority, access, trust, privacy, and credibility—and whether the leadership failed to respond properly when it had reason to act.

The warning here is severe: A church, charity, school or ministry cannot assume that abuse by a leader is the individual sin or crime of the alleged perpetrator. If the role given to the abuser by the institution provided him with opportunity or leadership failed to direct, discipline, or restrict the person properly, the institution itself may pay the price.

The institution may not have committed the abuse—and indeed, strongly opposed and abhorred it—but it may still be made to pay for creating the conditions in which the abuse took place.

Silence can protect an abuser. Reckless speech can make you the defendant.

The Supreme Court ruling Young v. Bella is a cautionary addition to the previous cases. Although it arose in Newfoundland under that province’s Child Welfare Act rather than Ontario’s legislation, its lessons apply broadly. While institutions may be liable for silence and negligence, they must also be extraordinarily careful about leveling accusations.

The case in question involved a social work student who submitted a paper that included an unfootnoted appendix describing child sexual abuse, written in the first person. Her professor wrongly suspected that the account could be autobiographical, and that the student had potentially abused a child. Without getting a proper explanation from the student, the suspicion was escalated within the university, and then to child protection authorities.

The appendix, it was discovered, had merely been copied from a textbook, but by the time this was confirmed, the student had suffered serious reputation and career harm, having been treated as a potential child abuser and even placed on the Child Abuse Registry. A jury found Memorial University and the professors negligent in the way the case was dealt with and awarded the student a staggering $839,400 in damages. The financial award was set aside on appeal but subsequently reinstated by the Supreme Court of Canada.

The key lesson of Young v. Bella is not that suspected abuse should not be reported, nor that an institution must investigate before reporting-the Court was clear that there is no obligation to conduct one’s own investigation or to have reasonable cause to believe abuse actually occurred before making a report. Rather, the lesson is that there must be reasonable cause even to make the report in the first place-information that child protection authorities could reasonably be asked to look into-and that acting on mere speculation, absent any such cause, can be very expensive.

The Acacia Group accompanies faith-based communities as they navigate integrating their faith and fundamental beliefs in their works, while working within the religious freedoms’ provisions of the applicable human rights codes and Charter, and case law.

Acacia’s team members will assist you with ​institutional abuse response​ and ​third party investigations​ to ensure that it meets legal requirements and reflects your faith traditions.

This newsletter is provided for general informational purposes only and does not constitute legal advice. No solicitor-client relationship is created by reading or relying on this newsletter. The information contained herein is current as of the date of publication and may not reflect subsequent legal developments. Readers should consult qualified legal counsel about their specific circumstances.

​​Jonathon Van Maren​ is a strategic communications consultant with The Acacia Group, where he supports churches, charities, and faith-based organizations in navigating complex cultural and public issues with clarity and conviction. He is an experienced writer, speaker, and author with more than a decade of leadership in national advocacy, and his work has been widely published across leading North American and European outlets. Drawing on deep expertise in media engagement and crisis communications, he helps clients protect their mission, strengthen their public voice, and advance their work with integrity.