Breaking the chain – a comparison of vicarious liability for grooming in England and Canada

In the criminal case of R v Taylor [2022] EWCA Crim 1027, Holdroyd LJ (VP) explained that sexual grooming is not a ‘term of art’ but instead “covers a wide range of conduct and, whilst it can no doubt be said that one can recognise it when one sees it, it is an imprecise term. There is no hard border between that which can and which cannot be labelled “grooming””.

This inherent and, arguably inevitable, lack of precision has stark consequences in civil law, and in particular in the context of claims in which organisations are alleged to be vicariously liable for grooming behaviour by employees or those in positions equivalent to employment.

Two recent decisions, one from England and the other from Canada, serve as a striking illustration of the difficulties involved in determining whether the ultimate acts of abuse, which often occur at the end of a long period of manipulation, are sufficiently closely connected to the acts which the tortfeasor was authorised to carry out that that they can be said to have occurred in the course of employment.

In each case, the Court referred to the decision of the Supreme Court of Canada in Jacobi v Griffiths [1999] 174 DLR (4^th) 71, one of two authorities (alongside Bazley v Curry [1999] 174 DLR (4^th) 45) about which Lord Steyn in Lister v Hesley Hall stated:

“Wherever such problems are considered in future in the common law world these judgments will be the starting point”

Jacobi is especially important in this context because of the structured analysis  that the majority of the court applied in rejecting vicarious liability for what was, on the facts, quintessential grooming behaviour. The case concerned the Boys and Girls Club of Vernon, a not-for-profit organisation which had the stated purpose of providing guidance and promoting the health, social, educational, vocational and character development of children. It organised activities for the local community but was not a residential facility. The children attended after school or on weekends, and went home to their parents at the end of the day. The tortfeasor, Mr Griffiths, was employed by the club as its Program director, whose function was to supervise staff and organise activities. He was encouraged to act as role model and mentor to the children. The claimants, two siblings aged 13 and 11, lived within walking distance of the club and attended regularly. The trial judge accepted that their home life was tumultuous and the club offered a refuge, providing stability and a sense of community. Griffiths cultivated a relationship with the siblings at the club, grooming them and gaining the trust of their mother as well. They began to visit his home, in full knowledge of, and by arrangement with, their mother. After a time, Griffiths began to sexually abuse the children. All of the assaults occurred in his home, with the exception of one incident of sexual touching in the club’s van during a sporting event.

Binnie J, giving judgment for the majority (the court was divided 4 to 3 in favour of dismissing the claim) provided a systematic and forensic analysis of the facts, with a particular focus on the need to establish whether the ‘chain’ of events leading from the initial grooming activity at the club through to the assaults was a seamless and unbroken one. It is necessary to reproduce his detailed reasoning in full in order to understand and contrast the two recent decisions from England and Canada referred to above:

80. The key to this case, in my view, is that the Club’s “enterprise” was to offer group recreational activities for children to be enjoyed in the presence of volunteers and other members.  The opportunity that the Club afforded Griffiths to abuse whatever power he may have had was slight.  The sexual abuse only became possible when Griffiths managed to subvert the public nature of the activities.  The success of his agenda of personal gratification, which ultimately progressed to sex acts, depended on his success in isolating the victims from the group.  The progress from the Club’s program to the sexual assaults was a chain with multiple links, none of which could be characterized as an inevitable or natural “outgrowth” of its predecessor:

(1)   The Club provided Griffiths with the opportunity to work with children.

(2)   While it was undoubtedly part of Griffiths’ job to develop a positive rapport with the children, the relationship envisaged by the Club had no element of intimacy comparable to the situation in Children’s Foundation.

(3)   While Griffiths might come into occasional physical contact with children by reason of his job, e.g., steadying a child on a piece of gym equipment, the authorized “touching” had no more to do with parenting, nurture or intimacy than could be said of a normal adult reaching out to steady a child who, e.g., tripped over a carpet.

(4)   Griffiths enticed each child to his home to cultivate a one-on-one relationship.  The Club activities did not require the Program Director to be alone with a child off Club premises and outside Club hours.  Such a practice was explicitly prohibited after 1988.

(5)   Griffiths established his own bait of home attractions, such as video games, that had nothing to do with Club activities.  It was not part of his job to entertain children at home after hours.

(6)   Unlike the situation in Children’s Foundation, the appellants’ mother was a parental authority interposed between the assailant and his victims.  She gave permission to the children to go to Griffiths’ home.  No doubt, knowing of Griffiths’ job at the Club, she did not regard him as a stranger or as a threat.  Nevertheless, it must have been evident to a reasonably cautious parent that Griffiths’ home entertainment was not part of the Club’s program.

(7)   Once the children were drawn into his home-based activities, Griffiths gradually increased the level of intimacy, initially with Randy and subsequently with Jody, in terms of banter and sexually suggestive talk.  This was not only unauthorized, it was antithetical to the moral values promoted by the Club.

(8)   Eventually, when Griffiths saw his chance, he committed the assaults.

81  If it was the law that the provision of “opportunity” was enough to render the employer liable, then the progression from step 1 to step 8 might be seen as a series of  “but-for” opportunities sufficient to impose liability.  But that is not the law.  I accept that “but for” the opportunity created by Griffiths’ employment at the Club, it is unlikely these assaults would have occurred in the way that they did.  As pointed out by McLachlin J. in Children’s Foundation (at para. 37), however, the relevant nexus, if it exists, is between the job-related conduct at step one and Griffiths’ criminal assault at step eight.  It is not enough to postulate a series of steps each of which might not have happened “but for” the previous steps.  Where, as here, the chain of events constitutes independent initiatives on the part of the employee for his personal gratification, the ultimate misconduct is too remote from the employer’s enterprise to justify “no fault” liability.  Direct liability would attach, of course, if the employer could be found derelict in respect of any of its own responsibilities towards these children.  However, this appeal has been argued on the assumption that there is no such fault on the part of the employer.

82   My colleague finds that because the Club’s formal constitutional objectives include the provision of “behaviour guidance and to promote the health, social, education, vocational and character development of boys and girls” (para. 16) it must be taken to have “encouraged an intimate relationship to develop between Griffiths and his young charges” (para. 17).  With respect, using words like “intimate” and “trust and power” to describe the ordinary relationship between recreational directors and their after-school participants robs these words of their capacity to differentiate situations where vicarious liability may be appropriate from those where it is not.  As noted by Professor H. J. Laski over 80 years ago in “The Basis of Vicarious Liability” (1916), 26 Yale L.J. 105, at p. 114:

The real problem in vicarious liability, in fact, is not so much the rectitude of its basal principles, as the degree in which they are to be applied.  [Emphasis added.]

I do not accept that an enterprise that seeks to provide a positive role model thereby encourages intimacy.  Nor do I believe that “mentoring”, as such, puts one on the slippery slope to sexual abuse.  If it did, any organization that offered “role models” would be looking at no-fault liability.  Most organizations dealing with children inevitably involve role models, from the neighbourhood soccer league to Girl Guides to the Duke of Edinburgh awards programs.  “Mentoring” is characteristic of everything from Air Cadets to Big Sisters.  I can find in the evidence nothing to suggest that Griffiths’ own role required anything more than the establishment of a “rapport” with the children.  There is no suggestion that physical intimacy would be either necessary or desirable.  Intimacy between Griffiths and one or more of the members, even if maintained on a wholly non-sexual level, would have been destructive of the Club’s program, leading to problems of favouritism, feelings of exclusion, and dissension. 

83   The Club did not confer any meaningful “power” over the appellants.  They were free to walk out of the Club at any time.  They went home to their mother every night.  In the circumstances I agree with the point made by Newbury J.A. in the British Columbia Court of Appeal in the Children’s Foundation case (1997), 30 B.C.L.R. (3d) 1 (sub nom. B. (P.A.) v. Curry), at pp. 39-40:

Where, for example, a teacher uses his or her authority to develop a relationship with a pupil in his or her class and then abuses that relationship by approaching the child at a park during the summer holidays, it may be said that by employing the teacher and giving him or her some authority (albeit not parental authority) over the child, the teacher’s employer “made the wrong more probable”.  But it is likely vicarious liability would not be imposed on the employer given the absence of a close connection between the teacher’s duties and his or her wrongful acts.  To put the matter another way, the fact that the teacher took advantage of his opportunity at the school to develop a relationship with the child is not enough:  something more is required ^__ a close connection between the teacher’s duties and his or her wrongful acts ^__ to render the school board liable without proof of negligence or other fault on its part.  [Emphasis added.]

84  Griffiths took advantage of the opportunity the Club afforded him to make friends with the children.  His manipulation of those friendships is both despicable and criminal, but whatever power Griffiths used to accomplish his criminal purpose for personal gratification was neither conferred by the Club nor was it characteristic of the type of enterprise which the respondent put into the community.  That being the case, I do not think the one act of sexual touching which occurred on the Club van, given that it was a minor and incidental part of Griffiths’ ongoing campaign of sexual predation outside Club facilities and outside Club hours, was sufficient to trigger no-fault liability.  As McLachlin J. pointed out in Children’s Foundation at para. 45, the mechanical application of time and place criteria obscures the more fundamental analysis.

For Binnie J, then, the critical point was the lack of any job-conferred intimacy or power in respect of the individual children. A position of ‘authority’, even with the added element of mentorship, or the status of a ‘role model’, was not enough, and was far removed from the position of the warden in a residential school operating in close contact with children on their own, often in situations of emotional or physical vulnerability, away from other adults or members of the public. From this foundation, the acts of grooming, albeit beginning at the club, were not a natural ‘outgrowth’ of the core relationship conferred by Griffith’s authorised employment role. Instead, the grooming ‘subverted’ that relationship, and each step that he took to isolate and remove the children from the relatively safety of the club was progressively more remote. Crucially, there came a point where even though the children would never have agreed to go to Griffiths’s home ‘but for’ their interaction at the club, the chain was broken by the interposition of the children’s mother, who gave them permission to attend his home in full knowledge of the fact they were carrying out activities (playing video games etc) unrelated to the club’s activities. These were the ‘bait’ that Griffiths used to entice the children into a private space, at which point he began to initiate the acts of sexualised behaviour which ultimately progressed onto abuse.

In Dubai Aluminium v Salaam [2003] AC 366, Lord Nicholls stated that: “The crucial feature or features, either producing or negativing vicarious liability, vary widely from one case or type of case to the next. Essentially the court makes an evaluative judgment in each case, having regard to all the circumstances and, importantly, having regard also to the assistance provided by previous court decisions. In this field the latter form of assistance is particularly valuable’.

It follows that whilst every case necessarily turns on its own facts, the analysis in Jacobi v Griffiths, given its importance (per Lord Steyn) as a seminal decision in this field of law, provides an especially helpful framework against which to compare the two more recent grooming cases.

TWG v Scout Association

The Claimant, aged 10, was sexually abused by Leroy Grubb, an assistant cub scout leader. The first assault occurred when Grubb appeared “out of nowhere” in his scout uniform on the Claimant’s secluded, unlit route home. The abuse was repeated on approximately 12 further occasions in the same place, always within roughly 8 to 10 minutes of the Claimant leaving the scout hut. The Claimant described being ‘frogmarched’ to a remote road, where he was forced to perform oral sex or to masturbate Grubb. The Claimant described being too scared of Grubb to report the abuse.

The Defendant denied any vicarious liability, arguing that Grubb’s position as assistant scout leader did not include any pastoral role or any responsibility for walking the Claimant home after cub meetings. It argued that the authorised activities had ceased before any of the abuse occurred and that the tortious behaviour was physically and temporally removed from cub group meetings. At most, the Defendant said, Grubb’s position presented an opportunity for him to commit the offences, but this could never be enough to establish vicarious liability.

The Court found the Defendant vicariously liable. The starting position was the fact that the Claimant was known to Grubb because he was cub scout under his supervision. Grub occupied a position of trust and authority, which he used to gain the Claimant’s confidence and to acquire knowledge of his circumstances and movements outside the cub scout meetings. He presented himself as a trusted adult who could ensure the Claimant got home safely, before abusing that position of trust by committing the assaults. The Claimant was ‘targeted’ because he was a child over whom Grubb exercised authority and influence.

In language reminiscent of that used by Binnie J in Jacobi, the Court held that “the relevant chain of events began at cub meetings, arose from the relationship established there and depended upon the authority, trust and opportunity that Grubb derived from his role as Assistant Cub Scout Leader”

Is this reasoning sound?  It is arguable that TWG comes close to collapsing the distinction between ‘mere opportunity’ and ‘sufficiently close connection’ by treating the acquisition of trust and knowledge of the victim’s movements — the very things that create opportunity — as though they were themselves the connection. In other grooming cases, the initial element of trust and authority created by the tortfeasor’s authorised activities has enabled them to manipulate their victim over time. There is often an unbroken continuum of influence over the child, and in the words of Binnie J, each subsequent act was a natural ‘outgrowth’ of the next, as the abuser exploited and seduced the child under the subsisting authority and power conferred by their original role. In TWG, it is far from clear what role the ongoing influence of trust and authority (which undoubtedly facilitated Grubb’s access to and targeting of the Claimant initially) played. The first assault occurred when he appeared from nowhere, and although in each subsequent assault the Claimant was too scared to speak for fear of repercussions from Grubb himself, it is not apparent that this related in any substantive way to the trust and authority that he held as a cub scout leader, as opposed to the fear he induced as a sexual predator.

H.N. v School District 61

The claimant was a gifted 11-year old boy who began writing a novel. A school teacher, Mr Haissell, arranged for a retired teacher, Redgate, to volunteer as a tutor once a week to assist the Claimant in his endeavour. Tutorials took place once a week for about 40 minutes in an empty English classroom. The door was always open and school teachers would check in on the Claimant and Redgate intermittently. Initially the Claimant and Redgate sat on opposite sides of a desk. However, over a period of time Redgate moved closer, and at times close enough for their arms to touch. The tutoring continued throughout the school year and concluded when the Claimant completed Grade 6 (the final year of elementary school in Canada).

Shortly before the completion of grade 6, the Claimant began visiting Redgate’s home. The Claimant had almost completed his novel. This was an arrangement put in place between Redgate and the Claimant’s mother, although the school was aware of it and did not object. There were about 50 visits over a period of 5 years, just two of which occurred whilst the Claimant was still in grade 6.  During this lengthy period, the Claimant would visit to play cards, watch movies and occasionally work on other projects. Redgate began recounting sexual experiences to the Claimant, which escalated to lingering kisses on the lips and ultimately serious sexual abuse.

It was common ground between the parties that Redgrave’s conduct constituted classic grooming behaviour. Expert evidence adduced by the Claimant, and accepted by the Court, stated that:

“Because the introduction of Mr Redgate to HN was initiated by Mr Haissell and the administration at [the] school, Mr Redgate was able to access HN, gain his trust and that of his parents, and begin desensitising HN to physical contact. Consequently, Mr Redgate was able to further isolate HN from his parents and guardians by continuing their editing sessions and “friendship” to his private residence, where he continued to sexually groom HN…before the alleged sexual assaults and batteries began”.

At first instance, the court dismissed the claim. The Claimant appealed to the Court of Appeal for British Columbia. Harris J, giving the lead judgment, dismissed the appeal. Harris J started by identifying the ‘critical importance’ of identifying the strong connection between the powers, duties and responsibilities of the employee and the subsequent abuse. He stated that  “unless the necessary strong connection is identified, the most that can be said is that working with a young, vulnerable child offers a potential abuser the opportunity to commit abuse…Inherent in all adult/child relationships in institutional settings is a risk that a potential abuser will take advantage of an opportunity to abuse a victim…if this were sufficient, then it would argue for direct rather than vicarious liability. To avoid this result, it is necessary to place proper weight on “the school-created features of the relationship between this claimant and this wrongdoing employee, and the contribution of the respondent’s enterprise to enabling the wrongdoer…to do what he did in this case””.

The court endorsed the first instance judge’s conclusion that ‘mentoring’ and being a ‘role model’ were not of themselves sufficient. They did not inherently encourage intimacy, or inevitably create a ‘slippery slope to sexual abuse’.  Redgate was not placed in a position of trust regarding the Claimant’s “care, protection or nurturing”, as would be the case in a school dormitory or residential setting. The court regarded Jacobi as the key controlling authority. Following Binnie J’s reasoning (above), it agreed with the first instance judge that although Redgate’s interaction with the Claimant did not take place in public, it did take place in an open classroom, during school hours, with occasional supervision by other teachers. Redgate’s role for the school involved no expectation of physical contact or being alone with HN outside the school or outside school hours. By contrast, the visits to Redgate’s home were an arrangement put in place with the claimant’s parent’s, acting as an interposed adult authority. Although the school was aware of them, it took no positive steps to authorise or facilitate them. Redgate therefore subverted the slight opportunity created by the tutoring arrangements authorised by the school to carry out his prolonged grooming behaviour over a period of years which only then ultimately led to sexual abuse in his own home.

The Claimant argued that the trial judge had failed to recognise and give weight to the fact that the grooming behaviour started at school and was the essential foundation for everything that followed. It was contended that the trial judge had “improperly sequestered or firewalled off the home visits from the rest of the relationship with the school, thereby severing the analytical connection between what happened at the school and the subsequent abuse”. The court rejected this argument. It held that the judge recognised and understood the “dynamics of the relationship between abuser and potential victim” but “the fact that an enterprise provides an opportunity for an abuser to initiate grooming of a potential victim is not sufficient to impose vicarious liability”. It was wrong, the Court held, to suggest that “the die was cast at the school” and that what happened was rendered likely, if not inevitable, as a result. This went well beyond the expert evidence, which demonstrated that the initial grooming behaviours, such as those which occurred at the school (brushing arms, sitting side by side) are only weakly associated with the ultimate abuse. There was a long sequence of events, almost all of which occurred away from school and by arrangement with the Claimant’s parents, which carried much greater weight and psychological influence in manipulating the Claimant into a state whereby he was exposed and vulnerable to intimacy, sexual touching and ultimately the abuse itself.

Plainly, there a significant factual differences between HN v School District 61 and the case of TWG v Scout Association. However, the reasoning of the Court in HN suggests that, at least in Canada, there is greater focus on the need for some element of intimacy, nurture, care (or, in other settings, discipline or power) inherent in the tortfeasor’s authorised relationship with the victim. The mere fact that an adult is working with children, and even if they may be a role model or mentor, is not sufficient because it is a relatively superficial relationship which provides only a limited opportunity to initiate the sort of early grooming behaviour which is a weak predictor of successful sexual abuse. In the case of HN, it was the private tutoring arrangements with the Claimant’s parents which conferred the essential intimacy and trust which allowed Redgate to ensnare the Claimant, gain his trust, exploit his vulnerability and force him into sexualised behaviour and abuse. These were not strongly connected to his role as tutor, even though they would not have happened ‘but for’ it. They were sufficiently remote, or in the language of Binnie J in Jacobi, not ‘natural outgrowths’ of his authorised activities within the school. The chain was broken.

Significantly, the Supreme Court of Canada has now given permission to the Claimant to appeal the decision in HN v School District 61. The appeal will be heard by the Court on 13^th November 2026. The fact that the Supreme Court has given permission suggests that it has chosen to revisit the question of how the seminal decisions in Bazeley and Jacobi, decided 27 years ago, should be applied and understood in the context of the modern understanding of sexual grooming behaviour. Whatever the Court’s decision, it is likely that it will now become the leading modern authority on the issue and that the English Courts will be strongly influenced by it, given the respect that is afforded to decisions of the Canadian Supreme Court within the common law world.