“Basilian Fathers lose appeal in sexual abuse case (updated)” & related article

The Ontario Court of Appeal has dismissed the two main components of a three-pronged appeal by the Basilian Fathers of Toronto concerning the awarding of $2.57 million in damages to a former St. Charles College student in the 1960s.

In its decision announced Friday, Justice Julie A. Thorburn, on behalf of the three-member court of appeal panel, did rule in favour of the Basilian Fathers on a third.

Critically, the ruling does not affect the $2.57 million awarded to former student Rod MacLeod.

William Hodgson Marshall sexually abused MacLeod more than 50 times while he was a student at St. Charles College from 1963-67, a school run by the Basilians.

Eventually, MacLeod sued Marshall, Basilian Fathers, the Sudbury Catholic District School Board, and the Roman Catholic Episcopal Corporation of the Diocese of Sault Ste. Marie, which he won.

The Basilians, however, appealed the amount of money they have to pay, arguing the jury instruction on how to assess damages for past income loss was wrong, the punitive damages award was excessive and that prejudgment interest should not have been awarded at the rate of five per cent.

“The jury awarded damages for past and future economic loss in the amount of $1,5888,781 without explanation,” said the court in its ruling concerning the jury instruction. “While the charge might have been put more clearly in respect of the fact that damages for income loss must be commensurate with the percentage chance that the opportunity would have materialized, the trial judge made no reversible error in articulating the legal principles. The Basilians’ counsel did not object to the charge and made no submissions to the trial judge or in his closing to the jury on the issue.”

As for punitive damages, the court dismissed the Basilian argument the award was excessive.

“The jury granted $500,000 in punitive damages, well over the $225,000 range suggested by the trial judge,” said the court. “The trial judge asked the jury to provide full particulars on the conduct the jury considered as justification for the punitive damages award.

“The jury articulated the following reasons for the punitive damages award, which corresponded closely with several of the Whiten factors: concealment: silent shuffle undertaken to divert in conjunction with complaints, avoiding scandal, neglected to document offences. Put children in harm’s way – grossly negligent. No reconciliation with the victims, did not follow own policy from 1991. Betrayal of trust with the community.

“In rendering the award, the jury was no doubt taking into account the evidence that the Basilians knew Marshall had been abusing boys before he was ever ordained, they allowed Marshall to sexually abuse children for more than three decades as a teacher and religious figure, and they decided to move him to different schools when incidents of abuse were reported instead of preventing further harm.

“While the award is high, the jury took into account the general objective of punitive damages as punishment, deterrence, and denunciation. The decision also addresses the factors set out in Whiten to determine the blameworthiness of the defendant’s conduct. The more reprehensible the conduct, the higher the rational limits for punitive damages.

“The jury may well have been concerned by the fact the Basiliams did not follow their own policy set in 1991, regarding the need to reach out to the victims. This failure to follow their own policy undercuts the Basilians’ argument that they should not be judged by contemporary standards, as the Basilians failed to meet even their own standards.

“For these reasons, the quantum is not so plainly unreasonable and unjust as to warrant judicial interference. I would also dismiss this ground of appeal.”

Thorburn, however, did side with the Basilians’ on the awarding of a five per cent interest rate with prejudgment interest as “…the trial judge understood that there was a general right to exercise discretion but did not articulate any of the factors listed in s. 130 of the CJA (Courts of Justice Act), and more importantly, he concluded that the prejudgment rate should be five per cent because s. 258.3 (8.1) does not apply in this case. In so doing, he failed to consider the fluctuation in market rates from the time the claim was issued to the time judgment was rendered.”

Thorburn instructed the two parties in the case to provide to the court written cost submissions of no more than five pages in 10 days.

MacLeod, now 69, who was represented by Beckett Personal Injury Lawyers, said in a statement Friday he was pleased with the ruling.

“Today’s decision by the Court of Appeal vindicates the decision of six members of the public who spent three weeks listening to the evidence of how the Basilians conducted themselves and rendered a well-thought-out, detailed decision punctuated by the substantial size of the award.”

When the Toronto civil case jury awarded $2.5 million in damages to MacLeod, it was believed to be the largest civil award in Canada given to a victim of priest abuse.

The Basilian Fathers appealed the $500,000 awarded in punitive damages and $1.58 million in lost income.

The jury also awarded $350,000 in general damages and $75,000 in aggravated damages, which the Basilians did challenge.

MacLeod was a student at St. Charles College high school in Sudbury from 1963-1967. At the time, St. Charles was an all-boys school.

Marshall was a Basilian priest when he abused the young MacLeod, one of his many victims. In 2011, Marshall was convicted of abusing 17 young people over his 38-year career, including in Sudbury, Windsor and Sault Ste. Marie. He was given a two-year sentence for his crimes.

Marshall at one point was principal at St. Charles, which the Basilians ran at the time. He was later defrocked as a priest after the sexual abuse surfaced. He died in 2014.

Evidence at Marshall’s criminal trial detailed how he abused children — the youngest was seven years old — in his office, in school showers, in dormitories and the church rectory. Victims told of other priests walking in on the assaults, but never reporting what they saw.

He was given the nickname “Happy Hands Marshall” in the 1950s for his tendency to touch students.

MacLeod said in April 2018 he never fully overcame the psychological damage Marshall caused. “The problem was I came from a very strong Catholic family and was taught the priest could do no wrong,” MacLeod told Postmedia.

Throughout his life, the emotional and psychological pain from the abuse “bubbles up inside me,” he said.

MacLeod said he abruptly left what would have been a successful career in the military. He had a strong career in the construction business, but never felt worthy.

“That’s been the story of my life. I have great success and then it just falls apart because of this energy inside that says, ‘Look, you are not worth anything,’” he said.

In their statement following the jury’s awarding of compensation to MacLeod, the Basilian Fathers said they have “accepted full responsibility for the actions of Hodgson Marshall, and continue to be committed to providing support to the victims of abuse, as well as ensuring that policies and protocols are in place that support the eradication of sexual abuse.

“As Mr. MacLeod made his circumstances known throughout the course of his lawsuit, the Basilian Fathers focused on efforts to fairly compensate Mr. MacLeod. They think the appellate court can best make a final determination of this compensation.”

The Basilians are a Roman Catholic religious order of priests who operate on three continents, with their headquarters in Toronto.

The jury heard Marshall was reported six times over his career, but was allowed to continue in his role as a priest and teacher.

The reports of sexual abuse of boys started in 1947, occurred twice in the 1950s, twice in the 1970s and again in 1989 around the time of his retirement from teaching.

“A further report in 1996 was the most disturbing,” Beckett Personal Injury Lawyers said following the jury’s awarding of damages. “Father Marshall, then ministering on the Caribbean island of St. Lucia, ultimately admitted to his Basilian superiors that he had abused upwards of almost 90 boys over his career.

“The Basilian response was limited with no effort at outreach to the boys, no involvement of police and no publication of the fact that one of their own had left such a wake of devastation across the land.

“The hope is that this outcome will motivate change within the Catholic Church.”

In 2016, a $4.25-million lawsuit filed by another former Sudbury student against Marshall, the Basilian Fathers of Toronto and the Diocese of Sault Ste. Marie, was settled.

Rob Talach of Beckett Personal Injury Lawyers said the matter was settled in the man’s favour, but could not go into details due to a confidentiality condition. The victim was 67 at the time the agreement was reached.

The victim said he was forced to engage in masturbation, fondling and oral sex with Marshall, starting when he was 14.

The case and the impact of Father Marshall’s abuse on a number of his victims are showcased in the award-winning documentary film PREY that will be aired by TVO on Nov. 19. The film has played at film festivals in Canada and Europe, including Cinefest in Sudbury.

hcarmichael@postmedia.com

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