Lawyer Monthly speaks with Isaac Zisckind, a lawyer at the renowned Canadian firm Diamond & Diamond Lawyers, in this feature.
The recent news of 66 charges being laid against a former employee of the Nova Scotia Youth Centre for historical sexual abuse has brought critical questions of institutional accountability to the forefront of Canadian legal news. This case, stemming from the four-year RCMP investigation known as Operation Headwind, involves allegations against a single individual for assaults on more than 300 youths over a period spanning from 1989 to 2015.
We invited Mr. Zisckind to provide his expert insight into the complex legal doctrines that empower survivors to seek justice not only from individuals but also from the very institutions that failed to protect them, exploring the civil litigation pathways for holding organizations accountable.
The Dual Paths to Accountability
The criminal charges are a monumental step, brought about by the immense courage of survivors who came forward to share their truth after years of silence. However, legal professionals and the public need to understand that the criminal system is only one path to justice and serves a specific function. Its purpose is to determine guilt and impose punishment on behalf of the state. The standard of proof is the highest in Canadian law: beyond a reasonable doubt. This process can often feel disempowering for the survivor, as they are positioned as witnesses rather than the driving force behind the proceedings. Their role is to provide evidence for a case that the Crown ultimately controls, and the outcome focuses on penalty, not personal restitution for the victim.
This is where the civil justice system offers a powerful, parallel path focused on personal healing, acknowledgment, and empowerment for those affected by institutional abuse. A civil lawsuit is initiated and controlled entirely by the survivor, placing them at the center of their quest for justice. The goal is not to seek imprisonment but to hold the perpetrator and, crucially, the responsible institution financially accountable for the immense harm caused. This includes securing compensation for damages such as pain and suffering, therapy costs, and lost income. The standard of proof is less stringent: a balance of probabilities. This survivor-centric approach confirms that the events were more likely than not to have occurred. It can be an incredibly validating and vital part of the healing journey for individuals rebuilding their lives.
Examining Institutional Culpability
In cases of historical abuse, the wrongdoing is rarely limited to one individual; it is often enabled, ignored, or covered up by the organization that placed the abuser in a position of power and trust. The civil litigation system provides the legal tools to address this systemic failure directly, moving beyond a single employee's actions to scrutinize the institution's responsibility. Two key legal arguments come into play in these situations: the doctrine of vicarious liability, which links an employee's actions to the employer, and direct negligence, which examines the organization's failures to ensure safety. These principles are fundamental to achieving survivor justice and holding powerful entities liable for their actions and inactions.
The Doctrine of Vicarious Liability
Vicarious liability is a legal principle holding an employer responsible for the wrongful acts committed by an employee, provided the employment itself created or enhanced the risk of that harm occurring. In the Nova Scotia Youth Centre case, the Province of Nova Scotia operated the facility, hired the accused swim instructor, and granted him authority and unsupervised access to vulnerable youths. The very structure of this employment relationship created the opportunity and the specific risk that allegedly led to decades of abuse, making the institution legally answerable for the consequences. This doctrine ensures that organizations cannot simply distance themselves from employees' actions when those actions are so closely connected to the duties and powers entrusted to them by the employer.
Beyond Liability: The Case for Direct Negligence
The argument for institutional accountability is further strengthened when there is clear evidence that the organization knew, or should have known, about the risk of abuse and failed to take preventative action. A government-commissioned report in 1995 had already found that youths were victims of abuse at the Waterville facility, a fact that put the province on direct notice of the pervasive danger. Despite this official acknowledgment, the abuse allegedly continued for another 20 years, suggesting a profound and sustained failure to act on this knowledge. This strengthens the case for holding the institution directly negligent in its duty of care, arguing that it breached its fundamental responsibility to protect the vulnerable individuals under its supervision.
Overcoming Barriers to Justice for Survivors
For decades, survivors of historical abuse faced immense legal barriers, often being told by the legal system that it was too late to seek justice due to restrictive time limits. The passage of time, coupled with the psychological difficulty of confronting past trauma, created what seemed like insurmountable obstacles for many. Fortunately, the legal landscape across Canada has evolved significantly to recognize the complex nature of trauma and remove these outdated impediments. This shift reflects a deeper societal understanding that the journey to healing and justice does not follow a predictable timeline, especially for survivors of institutional abuse.
The Significance of Removing Statutes of Limitation
One of the most important developments for survivor rights in Canada is the removal of time limits for filing civil lawsuits for cases related to sexual assault. Nova Scotia's Limitation of Actions Act, for example, explicitly states there is no statute of limitations for lawsuits based on misconduct of a sexual nature, a policy mirrored in other provinces. This legislative change is a powerful acknowledgment that trauma does not have an expiry date and that a survivor's readiness to come forward can take many years. It ensures the doors to justice remain open, regardless of when a survivor feels psychologically prepared and able to tell their story, thereby aligning the legal process more closely with the realities of healing from historical abuse.
Strength in Numbers and a Trauma-Informed Process
Survivors of institutional abuse do not have to walk this difficult path alone, and the legal system offers mechanisms to amplify their collective voice. A class-action lawsuit allows a group of individuals with similar claims to act as a unified force, pooling resources and reducing the emotional burden on any single person. The powerful precedent set by the Nova Scotia Home for Colored Children case, which resulted in a $34 million settlement from the province, proves this is an effective path to justice. Furthermore, a modern, trauma-informed legal team prioritizes the survivor's well-being throughout the process. This involves protecting their privacy through pseudonyms and publication bans and aiming for a resolution through a confidential settlement, avoiding the potential public trial re-traumatization.
A Concluding Call for Systemic Reform
While securing financial compensation is a critical component of a civil claim, this work's ultimate goal is to provide a measure of personal justice for the survivor and to compel systemic change within our institutions. When organizations are held financially accountable for their failures to protect the vulnerable, it creates a powerful incentive for reform. It forces them to implement stronger oversight, more rigorous employee screening processes, and a culture that truly prioritizes the safety of children and other at-risk individuals. This form of litigation sends an unequivocal message across society that protecting predators or ignoring abuse will carry severe and lasting consequences.
My message to survivors is that it is never too late, and you are not alone in your journey toward accountability and healing. The legal system, while imperfect, now offers more avenues for justice than ever before, and your voice deserves to be heard. For my fellow legal professionals, our duty extends beyond the courtroom; we must continue to advocate for these trauma-informed approaches and ensure that every survivor's story is met with the dignity, respect, and expert legal support it deserves. The pursuit of justice for one can lead to greater safety for all.
