M.(F.W.) v. Mombourquette

Share Button

                   M. (F.W.) v. Mombourquette

 

       F.W.M. v. JAMES MOMBOURQUETTE and ROMAN CATHOLIC &

              EPISCOPAL CORPORATION OF ANTIGONISH

 

                      28 C.C.L.T. (2d) 157

 

                  Nova ScotiaSupreme Court

                         Goodfellow J.

               Heard – August 16-18 and 25, 1995.

                  Judgment – November 2, 1995.

 

Trespass – Trespass to person – Assault and battery -Battery-

Breach of fiduciary duty – Sexual interference by priest

involving young male altar-server – Disclosure by victim after

affluxion of more than 20 years – Limitation of Actions Act not

barring claim because plaintiff not initially aware of

connection between tort and his problems – Diocese also having

fiduciary duty to protect children – General and aggravated

damages, but not punitive damages, awarded.

 

 

     In 1969, when the plaintiff was 12 years old and an altar

server at his rural church, he was subjected to inappropriate

sexual behaviour by the parish priest, the defendant M.  The

plaintiff kept the incident “bottled up inside himself” until

1990, when he disclosed his experience to a police officer.  M

pleaded guilty in criminal proceedings and was sentenced to two

years’ imprisonment.  In 1993, the plaintiff commenced a civil

action seeking general and punitive damages.  No defence was

filed on M’s behalf and default judgment was entered against

him.  The diocesan corporation, however, denied liability,

founding its defence partly upon the Limitation of Actions Act

(N.S.), partly upon a denial of any vicarious liability for

M’s negligence, and partly upon a denial of any fiduciary

relationship between the corporation and the plaintiff.

 

HELD – The action was allowed.

 

     The plaintiff’s actions were not considered statute-barred

since the plaintiff did not possess the degree of awareness of

the nexus between the defendant’s misconduct and his own

current problems until 1990. Only then did the limitation

period start to run.

 

 

     M was an employee of the diocese in the true legal sense

of that word, subject at all material times to its control,

direction and authority. M had been acting “in the course of

his employment” when he made the assaults on the plaintiff.

Vicarious liability is imposed upon employers who place an

employee in a position of trust and authority which facilitate

the capacity to do wrong.  Here, M had been placed in a

commanding position over the lives of the children of the

community, in which capacity he acted with the authority of his

employer.  When a priest conducts himself negligently within

the confines of the general authority derived from his

employer, the employer too must be held liable.

 

     The diocese could not be said to have been negligent in

failing to adopt adequate screening or psychological testing

processes before placement of its priests.  The evidence did

not show that the diocese had possessed actual knowledge of M’s

proclivities at the relevant time, such as would have demanded

resolute action.  Over and above the priest’s duty of care to

the children of his parish there was a fiduciary duty rooted in

relationships of special authority and vulnerability and imbued

with obligations of trust.  The diocese, through its servants

or agents, had a fiduciary or trust duty to care for and

protect the child from any abuse by the power the priest held

over the children.  The priest’s abuse of his power in sexually

assaulting the plaintiff was a breach of his fiduciary duty, a

breach for which both he and the diocese were liable.

 

     General damages of $25,000 were awarded.  No award of

punitive damages was warranted upon the facts in evidence,

either against M or the diocese.  Punitive damages should be

reserved for exceptional cases and peculiar care should be

taken to avoid usurping the function or second-guessing the

pronouncements of the criminal courts.

 

Cases considered

 

     Andrews v. Grand & Toy Alberta Ltd.,

       [1978] 2 S.C.R. 229, 3 C.C.L.T. 225, [1978] 1 W.W.R.

       577, 19 N.R. 50, 8 A.R. 182, 83 D.L.R. (3d) 452 –

       considered.

 

     Barrett v. “Arcadia” (The),

       [1977] 4 W.W.R. 12, 2 C.C.L.T. 142, 76 D.L.R. (3d) 535

       (B.C. S.C.) – distinguished.

 

     Conrad v. Household Financial Corp.

       (1992), 45 C.C.E.L. 81, 118 N.S.R. (2d) 56, 327 A.P.R.

       56 (C.A.) – considered.

 

     Hill v.ChurchofScientologyofToronto,

       25 C.C.L.T. (2d) 89, 184 N.R. 1, 126 D.L.R. (4th) 129,

       24 O.R. (3d) 865 (note), 84 O.A.C. 1, [1995] 2 S.C.R.

       1130, (sub nom. Hill v.ChurchofScientology) 30

       C.R.R. (2d) 189 – followed.

 

     Lloyd v. Grace, Smith & Co.,

       [1912] A.C. 716 (H.L.) – considered.

 

     M. (K.) v. M. (H.),

       142 N.R. 321, 14 C.C.L.T. (2d) 1, 96 D.L.R. (4th) 289,

       57 O.A.C. 321, [1992] 3 S.C.R. 6 – considered.

 

     Norberg v. Wynrib,

       [1992] 4 W.W.R. 577, 12 C.C.L.T. (2d) 1, 68 B.C.L.R.

 

       (2d) 29, 138 N.R. 81, 9 B.C.A.C. 1, 19 W.A.C. 1, 92

       D.L.R. (4th) 449, [1992] 2 S.C.R. 226 [additional

       reasons at [1992] 2 S.C.R. 318, [1992] 6 W.W.R. 673,

       74 B.C.L.R. (2d) 2] – considered.

 

     Plains Engineering Ltd. v. Barnes Security

       Services Ltd.

       (1987), 56 Alta. L.R. (2d) 331, 43 C.C.L.T. 129, 83

       A.R. 170, 19 C.C.E.L. 205 (Q.B.) – distinguished.

 

     R. (G.B.) v. Hollett

       (1995), 143 N.S.R. (2d) 38, 411 A.P.R. 38 (S.C.)

       – applied.

 

     R. v. Levy Brothers Co.,

       [1961] S.C.R. 189, 26 D.L.R. (2d) 760 – considered.

 

     Thompson v. Zurich Insurance Co.

       (1984), 45 O.R. (2d) 744, 5 C.C.L.T. 251, [1984]

       I.L.R. 1-1767, 7 D.L.R. (4th) 664 (H.C.) –

       considered.

 

     Vorvis v. Insurance Corp. ofBritish Columbia,

       25 C.C.E.L. 81, 42 B.L.R. 111, [1989] 4 W.W.R. 218, 36

       B.C.L.R. (2d) 273, 94 N.R. 321, 58 D.L.R. (4th) 193,

       [1989] 1 S.C.R. 1085, 90 C.L.L.C. 14,035 –

       considered.

 

     Warner v. Arsenault

       (1982), 27 C.P.C. 200, 53 N.S.R. (2d) 146, 109 A.P.R.

       146 (C.A.) – considered.

 

Statutes considered

 

     Limitation of Actions Act,

       R.S.N.S. 1989, c. 258 –

       s. 2(5) [am. 1993, c. 27, s. 1]

 

     Motor Vehicle Act,

       R.S.N.S. 1989, c. 293.

 

Rules considered

 

    Nova Scotia, Civil Procedure Rules –

 

       R. 41A

 

Tariffs considered

 

     Costs and Fees Act,

       R.S.N.S. 1989, c. 104 –

       Schedule 3, Tariff “A”

 

     ACTION for damages for battery and for breach of fiduciary

duty against priest and his employer.

 

    Michael F. LeBlanc and Anne O’Neil, for plaintiff.

    Deborah K. Smith and Alexander G. MacDonald, Q.C., for

      defendant, Roman Catholic & Episcopal Corporation of

      Antigonish.

    Coline Morrow, Paul MacLean and David Demicon (Articled

      Clerks).

    James Mombourquette, not in attendance or represented.

 

                                           (Doc. S.H. 85190/92)

 

       November 2, 1995.  GOODFELLOW J.: –

 

 

     1.  Background

 

[para1]     F.W.M. was born April 13, 1957, in St. Regis,

Sydney,Nova Scotiaand spent his early childhood inRichmond

County. He lived with his family in a number of small

communities such as D’Escousse,Martiniqueand Pomquette.

These communities are within three to four miles of each other

and when F.W.M. was between the age of nine/ten and thirteen,

he was an altar server at St. Hyacinth’s parish in D’Escousse.

This parish is part of the Roman Catholic Diocese of

Antigonish.  He was a member of a close family and although his

father was an infrequent church attender, his mother attended

with frequency and the family would be described as religious.

The family were involved in christian programs and F.W.M. had

his first communion, his confirmation and his baptism at St.

Hyacinth’s.  Before moving to the mainland, F.W.M. attended

schools inMartinique, D’Escousse and Arichat.  Many of his

teachers were nuns, and religion was a course taught in school.

F.W.M. was brought up as a catholic and attended church

regularly.  He became an altar server in late 1965 or early

1966 and continued until 1971. He remembers a Monseigneur

Boudreau, who was there for a short time and left in 1966 and

thereafter his parish priest was the defendant, Father James A.

Mombourquette.  Father Mombourquette resided in the Glebe House

across the road from the church, and F.W.M. has no recollection

of anyone else living there other than Father Mombourquette.

 

[para2]     One evening in 1969, he alone was invited by Father

Mombourquette to the Glebe House.  Father Mombourquette

mentioned a weight lifting program and showed the boy some

weights upstairs in the Glebe House. Father Mombourquette told

him that before he started the weightlifting program he had to

take off his clothes, get weighed and be measured. The boy was

hesitant and although he had no understanding of sexuality, he

was troubled by the aspect of taking off his clothes. Father

Mombourquette overcame this by showing the boy slides of

pictures of boys who he weighed with their clothes off and this

convinced F.W.M. to do likewise, even though he remained very

uncomfortable.  It is F.W.M.’s best recollection that he was

there approximately an hour on this occasion and that Father

Mombourquette drove him home afterwards.  There were two

further occasions where Father Mombourquette invited the boy to

the Glebe House.  On the second occasion Father Mombourquette

came to F.W.M.’s home or to the church and in any event, drove

F.W.M. to the Glebe House.  On arrival, Father Mombourquette

complained of a sore back and wanted the boy to give him a back

rub.  Father Mombourquette took the boy up to his office to a

room with a cot, off by the side of the bathroom and had the

boy give him a back massage. Before this, Father Mombourquette

took off all his clothes and laid a piece of green plastic

sheet on the bed and gave a liquid substance to the boy for the

massage. During the course of the massage, Father Mombourquette

rolled over, took the boy’s hand and put it on his penis and

asked him to massage his penis.  Father Mombourquette

ejaculated although the boy had no appreciation of the sexual

aspect of what was transpiring.  F.W.M. felt he had given

Father Mombourquette a massage and had done what he was told

and was not aware at that time that it was wrong.  Father

Mombourquette went to the washroom and then drove the young boy

home.  On the final occasion, the scenario was repeated, the

use of a plastic sheet, etc., and Father Mombourquette, on this

occasion, took the boy’s hand and placed it on his penis.

 

[para3]     There is some indication that he may have disclosed

to his father about being weighed or photographed by Father

Mombourquette, but he has no recollection of this.  He did not

report or discuss with anyone what had happened because he was

faced with the reality that he would not likely be believed by

the community or his parents because of the position occupied

by a priest in the community.

 

[para4]     After the third visit, the young boy tried to avoid

contact with Father Mombourquette, and on several occasions

when Father Mombourquette came to the boy’s home, he would

observe Father Mombourquette’s motor vehicle turn into the

driveway, at which time the boy would disappear.  His initial

fear was in relation to the removal of his clothes.  That is

what troubled the young boy as he did not have any real

appreciation that his sexual integrity had been invaded, and

therefore, under no circumstances can he be considered to have

consented in any manner whatsoever.

 

[para5]     F.W.M. entered a vocational program inRichmond

County.  He left in 1975 to move to the mainland, and he had

little to do with the catholic church from 1975 until 1982.  He

was married in 1977 and did not, prior to and during the early

years of the marriage, make any disclosure of the sexual abuse

to his wife, members of his family or authorities.  He kept it

bottled up inside himself.

 

[para6]     F.W.M. returned to the catholic church in 1982,

although one of his children was baptized in 1979.  His wife

continued to go to church, but he did not until around 1982,

when he decided to get back into religion and became a very

active member of his parish, including the holding of several

responsible positions on various committees of the parish.

 

[para7]     In 1990 Sergeant Penny (then Corporal Penny) called

him but did not tell him the purpose of his visit.  F.W.M.

assumed it was related to an accident.  His wife had taken the

children next door as Sergeant Penny wanted to speak to him

privately.  Sergeant Penny informed him of the investigation

with respect to a number of priests and for the first time

F.W.M. told a person in authority.  Quite likely this

represented the very first time he conveyed any real

appreciation of what had transpired to anybody.

 

[para8]     Father Mombourquette was charged with two counts of

indecent assault and pleaded not guilty.  The preliminary

inquiry was held in April 1992.  F.W.M. was compelled to give

evidence.  Father Mombourquette was committed for trial for

November 1992.  Immediately prior to trial Father Mombourquette

agreed to plead guilty to four charges and all additional

charges were dropped with the consent of the alleged victims.

Two of the charges to which Father Mombourquette pleaded guilty

related to F.W.M.  Father Mombourquette was sentenced to two

years imprisonment.  F.W.M. commenced this civil action by

originating notice, issued January 13, 1993.

 

[para9]     F.W.M. advances no claim for special damages and

seeks general damages of $35,000 and punitive damages in the

amount of $10,000.

 

[para10]     Father James A. Mombourquette did not file a

defence to this civil action, and judgment has been entered by

default against him.  Father Mombourquette was ordained in 1962

and assigned to the Diocese of Antigonish and spent his first

year on staff atSt.FrancisXavierUniversity.  Father

Mombourquette served at a number of parishes, starting with

Petit De Grat from 1963 to 1966, and then he went to St.

Hyacinth.  Monseigneur Boudreau was in residence in St.

Hyacinth at that time and remained for four years.  It was

after Monseigneur Boudreau left that Father Mombourquette set

up his weightlifting program.  To describe it as a

weightlifting club is a bit of a misnomer, and in the early

years, Father Mombourquette described it as very elementary

with very little equipment that he purchased himself. When

Father Mombourquette gave a statement to the R.C.M.P., he

answered essentially that he didn’t remember, he didn’t recall

what took place, dates, etc., but he acknowledged that it was

quite likely he took photographs of boys.  In direct response

with respect to the sexual acts, he simply said, he didn’t

remember.  It was not until 1989, when approached by Bishop

Colin Campbell that he made any real admission.  Even then he

misled Bishop Campbell initially, and when he was discovered in

this civil action, he had a better recollection of events and

admitted one of the sexual assaults upon F.W.M., but frequently

he resorted to responses that he didn’t remember events.  When

asked if it could be assumed that he could not recall whether

F.W.M. was the first boy that he was involved with in

inappropriate conduct, he responded, “A.  Yeah, you can assume

that”.  Many of the names disclosed in his discovery testimony

relate to having taken photographs of and not recalling any

sexual activity as such, however, he does not deny but simply

does not recall specifics but acknowledges that there were at

least three other boys that he was involved with that went

further than simply having them undress.  In view of the fact,

he mentions a number of names and does not differentiate

between the boys as to the extent of his activity, there will

continue a publication ban on any evidence that could possibly

identify any of these boys.

 

[para11]     I agree with the view expressed by Father Basil

Carew that the public is becoming more sensitive to abused

persons, especially where they were victimized at a young age.

Nevertheless the determination of disclosure is solely the

decision of the individual victim.  The movement to disclosure

is accelerating with the public recognition and acceptance that

there is absolutely no guilt whatsoever on the part of a

victim, nevertheless, the decision of disclosure is a personal

one for each and every victim to make by her/himself.

 

[para12]     The Roman Catholic & Episcopal Corporation of

Antigonish denies liability.

 

2.  Issues

 

     (1)  Is F.W.M. barred from proceeding with his action,

     having failed to commence it within the six-year period

     permitted in the Limitation of Actions Act?

 

     (2)  Is the Roman Catholic and Episcopal Corporation of

     Antigonish vicariously liable for the negligent actions of

     Father Mombourquette?

 

     (3)  Is the Roman Catholic and Episcopal Corporation of

     Antigonish in breach of its fiduciary duty towards F.W.M.?

 

     (4)  Damages?

 

3.  Structure of the Diocese

 

[para13]     We learned from the evidence of Bishop Colin

Campbell:

 

        Q.  Now, just . . . if you can help me a little bit

     with the Church structure for a moment.  Is it fair for

     one to say that the buck stopped at the Bishop for each

     Diocese?

 

        . . .

 

        A.  Yes, okay.  Yes.

 

        . . .

 

        Q.  And you would agree with me that the Bishop is the

     supervisor, is the boss of the priests?

 

        A.  Yes.

 

        . . .

 

        Q.  All right.  Now, in dealing with the Church

     structure, my understanding is that the priest is placed

     in a parish and the priest is moved from parish to parish

     at the direction of the Bishop?

 

        A.  Correct.

 

        Q.  And as each priest receives a new parish, that is

     appointed to a new parish, he’s required to take a

     profession of faith before the Bishop or someone appointed

     by the Bishop to acknowledge his faith and to acknowledge

     his intentions in respect to his new undertaking or his

     new parish.  Correct?

 

        A.  That is correct.

 

        Q.  And so where the priest practices is very much

     directed by the Bishop?

 

        A.  Yes.

 

        . . .

 

        Q.  Yes.  Now, it’s my understanding that with respect

     to being paid, that a priest is paid basically by his

     parishioners?

 

        A.  Correct.

 

        Q.  That is he’s paid by the people he serves in his

     own community?

 

        A.  Right.

 

        Q.  But the Church does maintain the right or the

     responsibility I guess to pay a priest if, in fact, that

     community doesn’t have enough money to pay the priest?

     Correct?

 

        A.  Correct.

 

        Q.  And so . . . and the Church and the Bishop, the

     Diocese itself, they also are the ones that determine what

     priests in the Diocese should be paid?  How much they

     should receive?  Correct?

 

        A.  No, that’s not quite correct.  There is a standard

     scale that all priests receive.

 

        Q.  Yes.  And that’s set out by the Diocese, correct?

 

        A.  Correct.

 

        Q.  Yes.  And that’s . . . so it’s on the direction of

     the Bishop or the bishop’s office?

 

        A.  Yes.

 

        Q.  All right.  Now, I just wanted to tie a couple of

     things together. In Antigonish, the Bishop resides and has

     resided for a number of years in the Town ofAntigonish

     itself, correct?

 

        A.  That is correct, yes.

 

        Q.  And in that . . . in the place where he resides,

     there’s not only the Bishop’s office but also the Chancery

     office?

 

        A.  That’s correct.

 

        Q.  And the administration, if you like, of the Church

     basically goes forward from that office?

 

        A.  Yes.

 

        Q.  And that would have been the situation in the

     1960’s and 1970’s?

 

        A.  That is correct.

 

        Q.  Under Bishop Power?

 

        A.  That’s [sic] is correct.

 

        . . .

 

        Q.  Right.  And you agree with me though it’s important

     that the Bishop get to these individual communities – not

     only to deal with the priest, the individual priest to see

     him in his own environment, but also to deal with the

     people.  Correct?

 

        A.  Precisely.  His role is not just personnel leader

     the priest. He’s also the leader of the people.

 

        Q.  That’s right.  And so this is an opportunity

     . . . these visits to the parish are an opportunity for

     him to familiarize himself with the people and with the

     issues that may affect those people in any community, is

     that correct?

 

        A.  That’s correct.

 

        Q.  Do you agree with that?

 

        A.  Absolutely.

 

        . . .

 

        Q.  All right.  We’ve already established, I think, and

     I apologize for re-asking this cause I think we covered it

     – that you as the Bishop or the Bishop of the day were

     responsible for the disciplining of the priests?  Correct?

 

        A.  Yes.  Yes, I was.  Yes, I am.

 

        . . .

 

        Q.  Now with respect to the Church property, my

     understanding is that the Church itself and the Rectory

     where the priest would live, the Glebe House, they would

     be properties that would be owned by the Church, by the

     Diocese, is that correct?

 

        A.  That is correct.

 

        Q.  And so, for example, in St. Hyacinth’s and in

     D’Escousse, that Church and the Rectory which is across

     the street, would be owned by the Church, by the Diocese.

 

        A.  Yes.

 

        Q.  Okay.

 

        A.  In the sense that there is one corporation for the

     Diocese.  All the properties of all the parishes is owned

     by one corporation, but the day to day management and so

     on, is acted on as if it were owned by the parish.

 

        Q.  Yes.  I understand that.  I know that the Church

     . . .  And as I understand it as well, each individual

     parish are assessed and they pay money to the Diocese

     . . .

 

        A.  That is correct.

 

        Q.  . . . with respect to the overall supervision by

     the Diocese of these individual parishes.

 

        A.  That’s correct.

 

        Q.  . . . with respect to the overall supervision by

     the Diocese of these individual parishes.

 

        A.  That’s correct.

 

        Q.  Correct.  Now, I know we touched on this earlier,

     but I just want to clarify the duties of a Bishop and I’ll

     ask you when we finish whether or not those duties are

     consistent with what they would have been for a Bishop in

     the 1960’s or the 1970’s.  You would agree with me that a

     Bishop – as part of your job as Bishop, you are to oversee

     and manage all of the parishes of the Dioceses.

 

        A.  That is correct.

 

        Q.  You are also, as the Bishop, responsible to see to

     it that people of the parishes were properly served by

     parish priests.

 

        A.  That is correct.

 

        Q.  You also were involved in the overseeing of

     appointments of clergy to various places in the Dioceses.

 

        A.  Yes.

 

[para14]     Father Mombourquette, in his discovery evidence,

on p. 69 stated:

 

     Q.  And when you became a priest you were again assigned

     to Antigonish?

 

     A.  The diocese, sure and then ordained.

 

     . . .

 

     A.  My first real appointment was at St. F. X.

 

     Q.  To staff?

 

and on p. 110:

 

        Q.  Any Time prior to going to Stellarton.  Did you

     discuss your problems with anyone because I think you were

     left for a period of a few months at Petit De Grat before

     you went to Stellarton?

 

        A.  Yes, I went to Petit De Grat.

 

        Q.  Yes.

 

        A.  I think it was 1989.

 

        Q.  ’88, June ’88?

 

        A.  ’88, yeap.

 

        Q.  Between June of ’88 and September of ’89 when you

     were transferred to Stellarton did you discuss with

     anyone, priests, Bishop or anyone any potential problems

     that you had with sexual . . .

 

        A.  When the Bishop called me, he came to see me.

 

        Q.  Alright, well after that time when the Bishop came

     to see you.  I guess that was in September of 1989 and you

     were moved from . . .

 

        A.  I went to Stellarton.

 

        Q.  You understood the reason that you were sent there

     eh?

 

        A.  Yes.

 

        Q.  You were sent there because they wanted you to have

     – I think that there was a request that you be supervised

     by another priest.  Is that right?

 

        A.  I asked to go with somebody else because I didn’t

     want to be pastor any more.

 

        Q.  You asked for the transfer out of Petit De Grat.

 

        A.  I asked to go to someone, but I didn’t ask to go to

     Stellarton.

 

        Q.  Alright, so it wasn’t the – are you telling me that

     it wasn’t the Bishop’s decision to transfer you, but

     rather your own that you be transferred?

 

        A.  Well no, the Bishop decides.  The Bishop made the

     decision.

 

[para15]     From the discovery evidence of Bishop William

Edward Power:

 

        Q.  Okay.  When you came to Antigonish, can you just

     tell me what was the type of administration that the

     diocese had at that time.  The administration that would

     have been in place?

 

        A.  Well I’m afraid I will have to ask you what you

     mean by administration?

 

        Q.  I probably don’t have it, I’m not correctly stating

     it but, obviously you are the bishop?

 

        A.  Yeah, what was the structure, you mean?

 

        Q.  Yeah, in this diocese?

 

        A.  Well there is a basic structure laid down by the

     laws of the church.  Every diocese has a bishop and he

     had, if he sees fitting a vicar general who assist him in

     the administration of the diocese according to the amount

     of authority the bishop decides give him.

 

        Q.  Yes?

 

        A.  And then regions are separated, not separated but

     structures in what we call deaneries.  So, you have in

     this diocese if my memory is correct, there was nine (9)

     or ten (10) deaneries when I came.  A priest is appointed

     or chosen depending upon the bishop be the head of that

     deanery and his responsibilities are laid down in Canon

     Law. Then you have a chancellor who it [sic] the official

     notary of the diocese and assistants as depending on the

     size of the diocese.  Then you have the rest of the

     system, you have what you call in those days was an

     officialese who assisted the bishop in all cases that

     concerned law, such as annulments and if any priests

     disputes with the bishop well then that was kind of the

     judge that goes before and all those kinds of things that

     any human society has.

 

and also at p. 76:

 

        Q.  So that it’s clear, the church pays the priest, the

     diocese pays the priest?

 

        A.  The parish pays the priest.

 

        Q.  Alright but, the parish is certainly over seen by

     the bishop.  For example, Antigonish, you would have been

     head, had control or you would have been head of the

     parishes of this . . .

 

        A.  Well it’s an Episcopal Incorporation and all the

     parishes belong or are a part of it.

 

        Q.  Yes.

 

        A.  But, for administrative purposes it’s the parish

     that pay the individual priest.  There is a fund that if

     the parish is not able if after all it’s expenses, is

     unable to pay the parish priest his legitimate salary then

     the diocese subsidies but, only in the cases that are

     necessary.

 

        Q.  Alright.

 

        A.  Otherwise it has nothing to do with the chancery

     office or the administration of the diocese, the salary of

     a priest.

 

        Q.  But, the actual figure as to what a priest is to be

     paid that is set?

 

        A.  That is diocesan policy, yes and is established by

     the diocese.

 

        Q.  What about benefits that they would get, pension

     um, medical, dental any of that kind of stuff.  Are those

     controlled by the diocese?

 

        A.  Again this diocese is different.  Way back out of

     mutual fraternal charity a society known asSt. Joseph’s

     Society was established back in the 1930’s.  Every priest

     contributed some money to it and it was established how

     much he was to contribute to it.  That money was used in

     case a priest got himself into debt due to medical

     expenses and all these kinds of things before Medi-Care

     and all that.  So, it was a fraternal charity thing.  When

     with the changing of the times and there beginning of

     fewer priests, when I came here one particular county had

     eight (8) assistant priests and now there is nobody as an

     assistant to the parish.  So as a priest got on in years

     he remained as pastor which we would give him a younger

     man as an assistant who did most of the work because there

     was no pension scheme.  We established a pension scheme

     only somewhere in the 70’s, somewhere around there I think

     it was, I don’t remember exactly.  The priest contributes

     and the parish contributes and it is geared to such that

     it increases with the cost of living I think and so every

     priest who retires, receives this pension.  When it comes

     to the other thing that you have Medi-Care so the health

     thing is not a problem but, they belong up to last year it

     was the Blue Cross, as a group.  Now it has gone on to

     some insurance company I think.  They gave them a better

     deal apparently.  This takes care of a lot of the things

     that the Medi-Care doesn’t cover and glasses and teeth and

     these kinds of things.

 

        Q.  That would be a program that would be set up

     through the diocese?

 

        A.  Yes.

 

4.  Issue (1)  Is F.W.M. barred from proceeding with his

action, having failed to commence it within the six-year period

permitted in the Limitation of Actions Act?

 

[para16]     Both counsel cite the Supreme Court of Canada

decision of M. (K.) v. M. (H.) (1992), 142 N.R. 321.  To follow

the conclusions of the justices it is helpful to briefly review

the facts and lower courts’ pronouncements.

 

[para17]     K.M. testified sexual abuse by her father

commenced when she was about eight years of age and progressed

to regular sexual intercourse two or three times a week when

she was between the ages of ten and eleven.

 

[para18]     On one occasion she tried to tell her mother of

the abuse, and before she left home she disclosed the incest to

a school counsellor who referred to a psychologist.  The father

had the daughter recant her allegations of abuse.

 

 [para19]     After leaving home to take employment as a

babysitter she told her employer of the incest, and in the

following year she told her husband to be.  When her marriage

ended some years later, she sought counselling for depression,

and her psychologist had the previous file and raised the

subject of incest.  Around this time she met another gentleman

who she wished to marry and she told her husband to be about

the incest, and as a result, commenced attendance at a self-

help group for incest victims.

 

[para20]     In 1985 she had therapy with a marital and family

therapist who expressed the opinion at trial that she would

have been unaware of the connection between the incest and her

psychological and emotional injuries until she understood that

she was not responsible for her childhood abuse and had signed

the blame to her father.  Even though she had an awareness of

the fact of incest, she repressed or blocked out much of it,

and although there were disclosures that indicated some

awareness of the incest and its consequences, it was not until

she began therapy that she could make a connection between the

two.

 

 [para21]     In 1985 she commenced a suit against her father,

and at the end of the jury trial which made a finding of

liability on the father, the trial judge dealt with a motion

for dismissal of the action on the ground it was barred by the

Limitation of Actions Act.

 

[para22]     The trial judge found that from the age of 16 she

was aware that she had been wronged and had suffered adverse

effects and accordingly her cause of action was reasonably

discoverable at that time, and the subsequent lapse of time

contravened the Limitation of Actions Act.

 

[para23]     The Ontario Court of Appeal dismissed an appeal

from this finding, and the Supreme Court of Canada granted

leave to appeal.  One is hard pressed to avoid the conclusion

of both the Trial Judge andOntarioCourt of Appeal of a

factual history that could well lead one to the conclusion that

the victim had more than a substantial awareness of the harm

and its actual cause long before the six-year limitation period

expired.  Nevertheless, we are bound by the determinations of

the Supreme Court ofCanada.  The comments of Madam Justice

McLachlin, with respect to the burden of proof resting upon the

plaintiff, makes sense.  LaForest, J. wrote the majority

opinion.

 

[para24]     LaForest, J. stated his conclusions at p.

334-335:

 

     . . . I am of the view that this appeal should be allowed.

     Incest is both a tortious assault and a breach of

     fiduciary duty.  The tort claim, although subject to

     limitations legislation, does not accrue until the

     plaintiff is reasonably capable of discovering the

     wrongful nature of the defendant’s acts and the nexus

     between those acts and her injuries.  In this case, that

     discovery took place only when the appellant entered

     therapy, and the lawsuit was commenced promptly

     thereafter.  The time for bringing a claim for breach of a

     fiduciary duty is not limited by statute inOntario, and

     therefore stands along with the tort claim as a basis for

     recovery by the appellant.

 

[para25]     LaForest, J., after reviewing extensively

jurisprudence on the application of the discoverability rule,

said:

 

               Application Of The Discoverability

                         Rule To Incest

 

[30]  In my view the only sensible application of the

discoverability rule in a case such as this is one that

establishes a prerequisite that the plaintiff have a

substantial awareness of the harm and its likely cause before

the limitations period begins to toll.  It is at the moment

when the incest victim discovers the connection between the

harm she has suffered and her childhood history that her cause

of action crystallizes.

 

[para26]     The factual situation in this case falls markedly

short of the evidence as to substantial awareness of the harm

and its cause.  In this case, F.W.M. kept the matter within

himself other than he may at one time made an effort to tell

his father.  He did not, as K.M. did, advise an employer, a

spouse, a psychologist, a further intended spouse, school

counsellor, etc.  Many of K.M.’s communications as to possible

awareness were made in relatively close proximity to the

conclusion of the criminal activity incest by her father.

 

[para27]     F.W.M.’s evidence alone was more than sufficient

to overcome any burden upon him.  The expert testimony of a

psychologist is not a prerequisite.  In this case, F.W.M. truly

bottled up his emotions and did not effectively communicate

what had happened to anyone until Sergeant Penny came to see

him in 1990.  This is the very earliest F.W.M. would have the

degree of awareness and appreciation as defined by the Supreme

Court of Canada.  Accordingly, the limitation period for

negligence and a breach of fiduciary duty only commenced to run

in 1990 and presents no procedural bar to F.W.M. proceeding

with his suit.

 

[para28]     As a result of this decision, a recent amendment

to the Nova Scotia Limitation of Actions Act added s. 2(5):

 

        Sexual abuse

 

        (5)  In any action for assault, menace, battery or

     wounding based on sexual abuse of a person,

 

        (a)  for the purpose of subsection (1), the cause of

     action does not arise until the person becomes aware of

     the injury or harm resulting from the sexual abuse and

     discovers the causal relationship between the injury or

     harm and the sexual abuse; and

 

        (b)  notwithstanding subsection (1), the limitation

     period referred to in clause (a) of subsection (1) does

     not begin to run while that person is not reasonably

     capable of commencing a proceeding because of that

     person’s physical, mental or psychological condition

     resulting from the sexual abuse.  R.S., c. 258, s. 2;

     1993, c. 27, s. 1.

 

[para29]     I agree with MacDonald, J. in R. (G.B.) v.

Hollett, July 24, 1995 not yet reported [now reported at

(1995), 143 N.S.R. (2d) 38 (S.C.)], that the discoverability

rule as set out in M. (K.) v. M. (H.) is broad enough to apply

to actions in negligence, and the amendment benefits victims of

sexual abuse generally, and is not to be restricted to victims

of incest.

 

 [para30]     The first issue is answered in the negative.

 

5.  Issue (2)  Is the Roman Catholic and Episcopal Corporation

of Antigonish vicariously liable for the negligent actions of

Father Mombourquette?

 

[para31]     In order for F.W.M. to establish vicarious

liability on the part of the Roman Catholic and Episcopal

Corporation of Antigonish, he must establish that the

defendant, Mombourquette, was an employee of the Diocese, and

that the negligent acts of the employee occurred in the course

of his employment.

 

[para32]     Reference is made to Salmond and Heuston on the

Law of Torts (20th ed., 1992) where it is stated at pp.

456-457:

 

        A master is not responsible for a wrongful act done by

     his servant unless it is done in the course of his

     employment.  It is deemed to be so done if it is either

     (1) a wrongful act authorized by the master, or (2) a

     wrongful and unauthorized mode of doing some act

     authorized by the master.  Although there are few

     decisions on the point, it is clear that the master is

     responsible for acts actually authorized by him:  for

     liability would exist in this case, even if the relation

     between the parties was merely one of agency, and not one

     of service at all.  But a master, as opposed to the

     employer of an independent contractor is liable even for

     acts which he has not authorized, provided that they are

     so connected with acts which he has authorized that they

     might rightly be regarded as modes – although improper

     modes – of doing them.  In other words, a master is

     responsible not merely for what he authorizes his servant

     to do, but also the way in which he does it.  If a servant

     does negligently that which he was authorized to do

     carefully, or if he does fraudulently that which he was

     authorized to do honestly, or if he does mistakenly that

     which he was authorized to do correctly, his master will

     answer for that negligence, fraud or mistake.  On the

     other hand, if the unauthorized and wrongful act of the

     servant is not so connected with the authorized act as to

     be a mode of doing it, but is an independent act, the

     master is not responsible: for in such a case the servant

     is not acting in the course of his employment, but has

     gone outside it. (emphasis added)

 

[para33]     Was Father Mombourquette an employee of the

Diocese?

 

[para34]     It is clear, from the evidence of Bishops Power

andCampbelland of Father Mombourquette, that all of the

indices of an employee/employer relationship existed.  The

Diocese determines in the first place the enrollment of those

who may pursue the priesthood, and the Diocese monitors the

progress of the student throughout and until ordination. Upon

ordination, the Diocese directs and controls the assignment of

where the priest is to be located.  Although the hope and

expectation is that the individual parish will provide the

financial resources for payment of the remuneration to the

priest and other costs relative to the priest, nevertheless the

rate of the remuneration is set and determined by the diocese,

and when funds are inadequate from an individual parish, the

expenses of the priest are met by the diocese. The diocese is

responsible for the discipline, direction and assignment of the

individual priests within the Diocese.  The Diocese clothes the

priest with the capacity and authority of a spokesperson for

the Roman Catholic Church.  Additionally, but by no means a

requirement, is the fact that the Diocese owns the church

property, and in this case the glebe residence available to the

priest.

 

[para35]     Without the control, direction and authority

exercised by the Diocese, Father Mombourquette could not

function, and would not have been accepted as a priest of the

church.  I also note that the Diocese met the legal obligations

upon an employer for payment of the employer’s responsibility

for such things as Canada Pension Plan, medical insurance, etc.

 

[para36]     I find as a fact, that an employee/employer

relationship existed between the Diocese and Father

Mombourquette at all times.

 

[para37]     Was Father Mombourquette acting in the course of

his employment when he committed the assaults upon F.W.M.?

 

[para38]     The Diocese relies upon Barrett v. “Arcadia” (The)

(1977), 2 C.C.L.T. 142 (B.C. S.C.).  In this case, Fernandes

was employed as an officer’s steward, and on the night in

question he posed as a cabin steward and entered Ms. Barrett’s

state room.  He advised her that he was her cabin steward and

therefore she had no reason to believe that he was not acting

in that capacity.  Cabin stewards were supplied with master

keys to certain cabins and are appointed only after lengthy

service with the company.  A cabin steward is authorized to

enter a passenger’s cabin and to be within the passenger’s

area.  An officer’s steward is not.

 

[para39]     MacFarlane, J. of theBritish ColumbiaSupreme

Court concluded, at p. 144:

 

        The assault by Fernandes upon the plaintiff was an act

     clearly separate from, and unconnected with, his

     employment as an officer’s steward.  It was an act of

     private and personal interest, unrelated to his

     employment, and not one for which his employer can be held

     vicariously liable.

 

[para40]     With respect, I do not think the Barrett case

assists the Diocese.  It is a case decided almost 20 years ago,

and while I make that comment, it does not play any part in my

actual determination.  I simply indicate that it is not all

that certain that the same result would take place today.

 

[para41]     In any event, it was not an assault by a person

who had authority generally in the area in which the assault

occurred.  Fernandes was not clothed with the capacity of a

passenger steward with access to master keys, and he was

conducting himself in a manner totally unconnected with his

employment as an officer’s steward.

 

[para42]     An interesting question to raise with respect to

the Barrett case is, what would be the result had Fernandes

been a passenger’s steward?

 

[para43]     The Diocese also refers to Plains Engineering Ltd.

v. Barnes Security Services Ltd. (1987), 43 C.C.L.T. 129 (Alta.

Q.B.).  Barnes Security were engaged to provide security for a

commercial building under contract which provided for the

attendance of a guard or guards. A new employee guard of Barnes

Security, while alone on guard duty, deliberately set the

building on fire and was subsequently convicted of arson.

 

Hutchinson, J. of the Alberta Court of Queen’s Bench approached

the question of whether or not Barnes Security was vicariously

liable by first asking what acts are authorized and then asking

whether an act can be treated as so connected with an

authorized act as to amount to a mode of performing it.

 

[para44]     The setting of a fire by a person employed to

attend the security of a building cannot remotely be included

in the general authority given to that employee by the

employer.

 

[para45]     Discovery evidence of Bishop Colin Campbell:

 

        Q.  Now, Bishop, with respect to the ministry, to the

     Catholic Church and children . . .

 

        A.  Uh, huh.

 

        Q.  There is in the . . . as part of your program to

     try to involve the children in the Church and the priest

     is encouraged to do things of a nature that allows the

     children to participate.  For example, youth clubs, dances

 

     at the Church’s, allowing Scouts and Guides and type of

     programs in the Church.  Those are all types of things

     that are sort of encouraged to bring the children to the

     church.  Would you agree with that?

 

        A.  Yes.

 

        Q.  And in fact, that would have been the situation

     that existed in the 1960’s and the ’70’s, in the sense

     that there is nothing any different about that.  The

     children were important to the church.

 

        A.  Yes.

 

        . . .

 

        Q.  What about altar boys?  Certainly there would be a

     fair . . .

 

        A.  Yes.  Some were younger, yes.

 

        Q.  . . . bit of involvement.

 

        A.  Yes.

 

        Q.  And altar boys would be both pre-adolescents and

     adolescents, correct?

 

        A.  Yes, yes.

 

        Q.  And as I said, just to be clear about this, there

     was . . . this was actually encouraged by the Church.

 

        A.  Yes.

 

        Q.  I mean it was encouraged that the priest, as part

     of his community function, that he would involve these

     children in the Church.

 

        A.  Yes.

 

        Q.  So it’s not surprising that we have a situation

     whereby priests did get involved in programs with children

     or adolescents involving, say, for example, weight lifting

     programs – something along those lines, because that would

     be consistent with the theory that we’re trying to you

     know foster that relationship between the church and these

     young people, correct?

 

        A.  It would be consistent yes.

 

        Q.  And as well, it was not uncommon and it was known

     to people in general that sometimes, particularly altar

     servers or adolescents, would at times be invited to the

     Rectory to participate . . . watch baseball games or

     hockey games and participate in other types of activities

     – again, not suggesting illegal activities, with the

     priest.

 

        A.  Yes.

 

        Q.  That wouldn’t have been an uncommon situation, that

     you’d find a child or an adolescent, an altar boy or an

     adolescent, at a Glebe House.

 

        A.  That’s correct.

 

        Q.  And again, there was no direction from the Bishop

     or from the Diocese itself, that would prohibit such

     activity.  Not back then.

 

        A.  That’s correct.

 

        Q.  Now with respect to the Church property, my

     understanding is that the Church itself and the Rectory

     where the priest would live, the Glebe House, they would

     be properties that would be owned by the Church, by the

     Diocese, is that correct?

 

        A.  That is correct.

 

        Q.  And so, for example, in St. Hyacinth’s and in

     D’Escousse, that Church and the Rectory which is across

     the street, would be owned by the Church, by the Diocese.

 

        A.  Yes.

 

        Q.  Okay.

 

        A.  In the sense that there is one corporation for the

     Diocese.  All the properties of all the parishes is owned

     by one corporation, but the day to day management and so

     on, is acted on as if it were owned by the parish.

 

        Q.  Yes.  I understand that.  I know that the Church

     . . .  And as I understand it as well, each individual

     parish are assessed and they pay money to the Diocese

     . . .

 

        A.  That is correct.

 

        Q.  . . . with respect to the overall supervision by

     the Diocese of these individual parishes.

 

        A.  That’s correct.

 

        Q.  . . . with respect to the overall supervision by

     the Diocese of these individual parishes.

 

        A.  That’s correct.

 

        Q.  Correct.  Now, I know we touched on this earlier,

     but I just want to clarify the duties of a Bishop and I’ll

     ask you when we finish whether or not those duties are

     consistent with what they would have been for a Bishop in

     the 1960’s or the 1970’s.  You would agree with me that a

     Bishop – as part of your job as Bishop, you are to oversee

     and manage all of the parishes of the Dioceses.

 

        A.  That is correct.

 

        Q.  You are also, as the Bishop, responsible to see to

     it that people of the parishes were properly served by

     parish priests.

 

        A.  That is correct.

 

        Q.  You also were involved in the overseeing of

     appointments of clergy to various places in the Dioceses.

 

        A.  Yes.

 

 [para46]     The Supreme Court ofCanadain R. v. Levy Brothers

Co., [1961] S.C.R. 189 dismissed an appeal from the finding

post office personnel authorized to deal with dutiable mail who

stole a parcel of diamonds to which their employment gave

access rendered the employer liable.

 

[para47]     In Lloyd v. Grace, Smith & Co., [1912] A.C. 716

(H.L.) a solicitor’s clerk engaged to draw documents and

handle property conveyances who defrauded one of the firm’s

clients by having a client sign documents transferring property

to him rendering the solicitor liable for the fraud of the

employee.

 

[para48]     The key requirement is that the employer placed

his employee in a position of trust and authority and

facilitated the capacity to do wrong.  Without that position

and authority, the wrong could not take place.

 

[para49]     A direct determining factor is the position in

which the employee was placed by his employer.

 

[para50]     The starting point must be a review of the

position of the priest within the community.  A priest in a

rural catholic community at the time of these assaults was, as

described by F.W.M., a figurehead.  A priest was a powerful and

influential member of the community, and as F.W.M. said, you

took what the priest said without question.  The priest was the

centre of the community, and above him was the bishop who was a

figure above everybody else with full control of all the

church.  The church encouraged the participation of youth, and

F.W.M. was no exception.  He had his first communion, his

confirmation and his baptismal at St. Hyacinth, and he became

an altar server under Father Mombourquette.  The priests were

involved in a commanding position with the lives of the

children of the community, and that involvement was not limited

to spiritual teaching.

 

[para51]     It is clear from the evidence of F.W.M., Bishops

Power andCampbelland Father Mombourquette that part of the

duty of a priest is to look after all parishioners including

children.  Not only does the priest have authority to work with

children, but he is mandated to encourage activities within the

church by children, such as participation as altar boys, choir,

sports, recreational activities, etc.  Priests are expected to

conduct themselves in these areas.  Such are clearly within

their duties and responsibilities.

 

[para52]     Criminal activity per se is not authorized by an

employer.  Criminal activity is often diametrically opposed to

the nature of employment that gives rise to a fiduciary

relationship.

 

[para53]     A bank employee is held out as the epitome of

trustworthiness and honesty.

 

[para54]     A spiritual advisor is one who conducts her/

himself on the highest moral plain.

 

[para55]     If a bank clothes an employee with the capacity,

through employment, to commit a criminal activity such as

theft, or if a church clothes a spiritual advisor to recruit

young people as altar servers and to involve youth in

activities that increases the fiduciary relationship between

the advisor and child, then in circumstances where there is an

abuse within the confines of that authority, such is not

remote.  Such is not the case of a bank employee holding up a

bank on a frolic of his own or of a priest sexually assaulting

a stranger in a downtown playground.

 

[para56]     A spiritual advisor to a parish within an

institution that reaches out to children and involves them in

participation within the church, almost by blind obedience,

does place the spiritual advisor, in most situations, in a

position of acting with the authority of his employer when

dealing with children within areas approved of by the church,

and therefore, when a priest conducts himself negligently in

the confines of the general authority derived from his

employer, the employer must also be held liable.

 

[para57]     Father Mombourquette was conducting himself as a

parish priest, and although he removed his clothes as part of

the assaults, he remained to the then child, now F.W.M., a

priest.  The Diocese fosters, in the eyes of the young, a

belief that the priest is next to God. The Diocese facilitated

the wrong.  Without the authority and power of control over

children provided by the Diocese, the wrong could not have

occurred.

 

 [para58]     Father Mombourquette’s relationship with F.W.M.

was connected to his authorized duties.

 

[para59]     The second issue must be answered in the

affirmative.

 

6.  Issue (3)  Is the Roman Catholic and Episcopal Corporation

of Antigonish in breach of its fiduciary duty towards F.W.M.?

 

[para60]     Before addressing this issue I wish to comment on

the position advanced by F.W.M.’s solicitor that the Diocese

was itself negligent in not having a proper screening and

psychological testing process in place prior to and at the time

of these assaults and that the Diocese knew or ought to have

known specifically that Father Mombourquette was committing

sexual assaults on young boys.

 

[para61]     The evidence discloses an interview, application

and monitoring process at the time Father Mombourquette applied

for the priesthood during the period leading up to his

ordination.  I accept the evidence of Bishop Colin Campbell

that the conduct advanced by F.W.M.’s solicitor, namely

psychological testing, screening, etc. did not exist beyond

essentially that which the Diocese conducted and therefore no

such standard should be applied retroactively.  The duty of the

Diocese to parishioners did not at that time require a standard

not in existence 20 to 25 years ago.

 

[para62]     It is clear from the evidence of Sergeant Penny

that in or about 1989 two parishioners approached Bishop

Campbellexpressing their concerns with respect to photographs

of them having been taken by Father Mombourquette as young

boys, and they assured Bishop Campbell that nothing untoward

beyond the taking of these photographs occurred. Their interest

was in having the photographs destroyed.  It was at this time

that Father Mombourquette initially misled Bishop Powell. With

the passage of time, it became well known within the community

that Father Mombourquette had taken photographs of young boys

in the nude.  However, this was long after the sexual assaults

against F.W.M.

 

[para63]     The evidence does not disclose any actual

knowledge by the Diocese nor circumstances in which the Diocese

ought to have known that Father Mombourquette was engaging in

criminal sexual assaults.

 

[para64]     It is easy to commence a list of relationships

that are fiduciary in nature.  Heading any such list would

likely be the relationship between a spiritual advisor and a

child, and the relationship of a child and a parent and the

list would include many professionals, social workers, school

teachers, counsellors, coaches, choir masters, big brothers,

big sisters, etc. etc.  In addition, relationships between

executors, trustees, directors and others, are fiduciary in

nature, and sometimes a fiduciary relationship is established

by statute.  In any and all fiduciary relationships, there is

the element of vulnerability of one party in relation to

another party.  A fiduciary relationship exists between the

Diocese by its servant or agent, the parish priest and the

parishioners.  This is particularly so when the parishioner is

a child.

 

[para65]     The relationship of a priest to a child

parishioner gives rise to a duty of care, the breach of which

constitutes the tort of negligence. There is, however, a

fiduciary relationship.  The hallmark of a fiduciary

relationship is trust.  The high degree of trust was clearly

described in the evidence of F.W.M.

 

[para66]     Fiduciary relationships exist in professional

relationships between a doctor and patient, lawyer and client

and in the family relationships such as a parent and child.

The relationship arises in many areas of society where an adult

has, for periods of time, power and control that often reaches

a position of total authority. Athletic coaches, choir masters,

girl guide and cub leaders, big brothers and big sisters are

all examples of relationships where the fiduciary is entrusted

with power in order to perform his or her function.  An abuse

of that power is actionable.

 

[para67]     It is clear that the relationship of the boy,

F.W.M., and the priest, Father Mombourquette, attained a

dependency and control level that in many aspects exceeded that

of parent to a child.

 

[para68]     F.W.M. was a child in a catholic family, in a

catholic community, and the Diocese priest represented to the

child the ultimate power and authority in the community.  The

very name “Father” symbolizes the supreme authority of the

church to a child, such as F.W.M. was, and like most religions,

this creates and fosters a very special relationship between

the spiritual advisor and the child.  Recruitment of a young

child into direct involvement in the church as an altar server

is but one part of the development and strengthening of the

degree of vulnerability of the child to a priest.  The

vulnerability of a child reaches the point of being at the

mercy of the priest in the exercise of power granted to the

priest.  The Diocese, through its servants and agents, has a

fiduciary or trust duty to care for and protect the child from

any abuse by the power the priest holds over the child.  Sexual

assault by a priest utilizing that power represents a

fundamental breach of the obligation arising from the

relationship.  The breach of a fiduciary relationship must be a

breach of an obligation imposed by that relationship.  Father

Mombourquette, acting as a servant or agent of the Diocese,

committed a fundamental breach of that relationship for which

both he and the Diocese are liable in law.

 

[para69]     The third issue must be answered in the

affirmative.

 

7.  Issue (4)  Damages?

 

(1)  Special Damages

 

[para70]     The distinction between special and other damages

reflects a pleading rule that special damages are to be

specifically pleaded and specifically proven.  Special damages

are those such as repairs to a motor vehicle, ambulance costs,

lost clothing, loss of earnings to date of trial, etc. which

damages are capable of precise calculation. Special damages are

recovered as a matter of restitution, placing the injured party

in the same financial position she/he would have been had the

injury not occurred.

 

(2)  General Damages

 

[para71]     General damages, unlike special damages, are not

capable of precise calculation.  An injured party is to receive

compensation for the injury and consequences of the injury.  I

doubt very much if you will ever find a person who has suffered

an amputation, loss of sight, continuing pain and interference

with the amenities of life, scarring occasioned by invasion of

one’s sexual integrity, etc. etc. who would willingly trade the

loss and consequences, given a choice.  This is likely so, even

in the United States where illogical and extravagant awards of

general damages are pronounced with some frequency.

 

[para72]     Although the measurement of general damages are

far more difficult to address than the restitution for special

damages, nevertheless, we are not without guidance and a long

history of assessing damages.

 

[para73]     In dealing with nonpecuniary awards, it is useful

to keep in mind what Dickson, J., speaking for the Supreme

Court of Canada said in Andrews v. Grand & Toy Alberta Ltd.,

[1978] 2 S.C.R. 229 at p. 261.

 

        There is no medium of exchange for happiness.  There is

     no market for expectation of life.  The monetary value of

     nonpecuniary loss is a philosophical and policy exercise

     more than a legal or logical one. The award must be fair

     and reasonable, fairness being gauged by earlier

     decisions; but the award must also of necessity be

     arbitrary or conventional . . .

 

[para74]     Damages address the consequences of the injury.

The Supreme Court ofCanada, in Norberg v. Wynrib, [1992] 2

S.C.R. 226, provides some very limited guidance in that the

Court assessed general damages for the adult sexual assault

victim who was subjected to sexual assaults over a period in

excess of one year.  Sexual assaults generally result in a

greater impact on the victim than non-sexual assaults.

Invariably there is a psychological aspect arising out of the

invasion of one’s sexual integrity, and it is not necessary to

have expert opinion to reach that conclusion.  F.W.M. has

suffered emotionally over a fairly prolonged period.  In the

Supreme Court of Canada case, Ms. Norberg was frequently

depressed and had a recall of the events on an almost daily

basis with a feeling of shame and humiliation.  In these

circumstances the Supreme Court of Canada awarded general

damages of $20,000.

 

[para75]     I am grateful to the solicitor for the Diocese for

her extensive analysis of the damage award cases contained in

her post-hearing memorandum of September 11, 1995.  I agree

with her that the cases cited are of little assistance because

they invariably contain assaults that in themselves were on a

higher and even more degrading scale usually occurring over a

much more prolonged period of time and involving acts of anal,

vaginal and oral intercourse.  Not surprisingly, in most of the

cases the victim suffered severe depression, chronic

psychological distress, nightmares, inability to function in

school, the work place or in any personal or sexual

relationship with another person.  Often, as a direct result of

the prolonged abuse, these cases disclose attempts at suicide,

criminal activity and dependency upon alcohol and other drugs.

 

[para76]     Indicating that these were not present in this

case does not diminish the fact that F.W.M. suffered.  He

suffered greatly. He has been able to call upon his wife,

family and his faith which, although severely strained and

shaken, was never entirely obliterated. He has had the

assistance of Father Basil Carew and Sister Sacca and has come

to learn the human frailties of any member of an institution do

not necessarily destroy the message of the institution.  While

it is not necessary to compensate him for any hospitalization,

job interference, drug rehabilitation, etc., etc., he is

entitled to general damages for pain and suffering,

humiliation, interference in his family relationship and the

stress he has undergone in attempting to deal with his

victimization.  While he will never be able to put the matter

entirely out of his mind, he has, through the strength of his

own character and family and with the assistance of Father

Carew and Sister Sacca, come a very long way in the healing

process.  His general damage claim is, on the overall scheme of

abuse cases, on the lower level where general damages are

warranted in the range of $10,000 to $25,000.

 

[para77]     In all the circumstances, I award general damages

to F.W.M. of $23,000.

 

8.  Punitive – Exemplary Damages

 

[para78]     Definition:  An award of punitive damages is based

on the defendant’s conduct rather than the plaintiff’s loss.

These damages are awarded to:

 

     i)  punish the wrongdoer;

 

     ii  deter the tortfeasor or others from committing a

     similar act; or

 

     iii  prevent the wrongdoer from acquiring an undue profit

     from his unlawful act

 

[para79]     Punitive damages are designed to express the

repugnance of the public towards the outrageous and despicable

conduct of the defendant.

 

[para80]     In Conrad v. Household Financial Corp. (1992), 118

N.S.R. (2d) 56, the Nova Scotia Court of Appeal approved an

award of punitive damages which were clearly separate from the

compensatory damages to Mrs. Conrad for the contractual breach

of employment and represented an actionable wrong that occurred

post the breach of contract which conduct was described as

reprehensible.

 

[para81]     Freeman, J.A., at p. 60, made it clear that Mrs.

Conrad recovered under the contract for general damages and

that she was entitled to punitive damages because her

employer’s conduct towards her was reprehensible and the

circumstances also warranted a warning to other employers not

to abuse their relatively advantageous positions over their

employees.  Freeman, J.A. went on at p. 61 to adopt MacIntyre,

J. in Vorvis v. Insurance Corp. ofBritish Columbia, [1989] 1

S.C.R. 1085 at p. 1107 where MacIntyre, J. discussed the

exceptional character of punitive damages and stated:

 

        . . . Punitive damages may only be awarded in respect

     of conduct which is of such nature as to be deserving of

     punishment because of its harsh, vindictive, reprehensible

     and malicious nature.  I do not suggest that I have

     exhausted the adjectives which could describe the conduct

     capable of characterizing a punitive award, but in any

     case where such an award is made the conduct must be

     extreme in its nature and such that by any reasonable

     standard it is deserving of full condemnation and

     punishment.

 

[para82]     He cited with approval Warner v. Arsenault (1982),

53 N.S.R. (2d) 146, 109 A.P.R. 146 (C.A.), in which the late

Mr. Justice Pace of this court stated at p. 152:

 

        Exemplary or punitive damages may be awarded where the

     defendant’s conduct is such as to merit punishment.  This

     may be exemplified by malice, fraud or cruelty as well as

     other abusive or insolent acts toward the victim.  The

     purpose of the award is to vindicate the strength of the

     law and to demonstrate to the offender that the law will

     not tolerate conduct which wilfully disregards the rights

     of others.

 

[para83]     In Thompson v. Zurich Insurance Co. (1984), 45

O.R. (2d) 744 (H.C.), Penell, J. at p. 753 stated:

 

        To support an award of punitive damages, there must be

     evidence of malice directly or inferentially.  Malice,

     however, does not solely mean personal ill will.  It may

     also mean such a wanton and reckless disregard of the

     right of another as amounts to the equivalent of malice.

 

[para84]     La Forest, J. in Hill v.ChurchofScientologyof

Toronto S.C.C. #24216, July 20, 1995 [now reported at (1995),

25 C.C.L.T. (2d) 89 (S.C.C.)], at p. 84:

 

        (4)  Punitive Damages

 

        (a)  General Principles

 

        Punitive damages may be awarded in situations where the

     defendant’s misconduct is so malicious, oppressive and

     high-handed that it offends the court’s sense of decency.

     Punitive damages bear no relation to what the plaintiff

     should receive by way of compensation.  Their aim is not

     to compensate the plaintiff, but rather to punish the

     defendant.  It is the means by which the jury or judge

     expresses its outrage at the egregious conduct of the

     defendant.  They are in the nature of a fine which is

     meant to act as a deterrent to the defendant and to others

     from acting in this manner.  It is important to emphasize

     that punitive damages should only be awarded in those

     circumstances where the combined award of general and

     aggravated damages would be insufficient to achieve the

     goal of punishment and deterrence.

 

[para85]     In Norberg v. Wynrib an adult became addicted to

pain killers and to one addictive drug in particular.  She

obtained the drugs from various doctors and from her sister and

eventually began to see Dr. Wynrib, an elderly medical

practitioner.  Using several pretexts she obtained

prescriptions from him.  At some point the doctor made

suggestions of a sexual nature, and Ms. Norberg went elsewhere,

but in due course returned to Dr. Wynrib and there followed

several instances of fondling and simulated intercourse over a

period in excess of one year.  Ms. Norberg admitted that the

doctor did not at any time use any physical force, and that she

“played” on the fact that he liked her and that she knew

through the relationship that he was lonely.  The Trial Judge

dismissed Ms. Norberg’s claim on the basis of consent and the

Court of Appeal, in the majority view, agreed with the Trial

Judge.  On appeal to the Supreme Court of Canada, the appeal

was granted and the issue of damages was addressed for the

first time.  In addition to awarding general damages for pain,

suffering, humiliation, etc., the Court noted that, in several

of the sexual assault cases, punitive damages were not awarded

where the offender had been convicted on the basis that such an

award would amount to double punishment.  The Supreme Court of

Canada, in awarding $10,000 punitive damages, concluded that

the doctor’s conduct, while not harsh, vindictive or malicious,

was reprehensible and offensive. It was also the exchange of

drugs for sex by a doctor in a position of power and that such

conduct cried out for deterrence.

 

[para86]     F.W.M.’s solicitor seeks an award of punitive

damages on the basis that an award of general damages would not

address the need for punishment and deterrence.  F.W.M.

particularly advances the conduct of the Diocese in

transferring Father Mombourquette to another parish, the

raising by the Diocese in its pleadings – defence of an

assertion of fault on the part of F.W.M., and an article by

Bishop Colin Campbell in the Antigonish Casket plus a general

alleged attitude of lack of concern for F.W.M. as a victim.

 

[para87]     It is worth re-reading the passage quoted above of

LaForest, J.’s comments on punitive damages in Hill v. Church

of Scientology ofToronto.  The misconduct should be so

malicious, oppressive and high handed that it offends the

Court’s sense of decency to such an extent that it calls for

punishment which carries with it a deterrent element.  Care

must be exercised that punitive damages do not simply become an

add-on for conduct that is already addressed in the award of

general damages.  There is no doubt, from a reading of the

reported cases, that the Roman Catholic Church has on occasion,

when a priest’s sexual misconduct has come to light, responded

by simply transferring the priest elsewhere to another parish,

treatment centre or to a university, etc.  In some cases, where

the priest has been transferred to another parish without any

safeguards, the sexual misconduct has continued, and such high-

handed oppressive, arrogant conduct on the part of the

church normally warrants an additional award of punitive

damages to anyone who was so injured by such a course of

action.

 

[para88]     The transfer in this case of Father Mombourquette

from St. Hyacinth was, at his request, to a supervised

environment and he was given psychological testing and

counselling.  More important for this case is that Father

Mombourquette did not come in contact with F.W.M. any time

after his transfer, and therefore the transfer process did not

impact on F.W.M. and does not give rise to any award of

additional damages to F.W.M.

 

[para89]     F.W.M. also raises the fact the pleadings-defence

filed by the Diocese raises the issue of fault or participation

willingly by F.W.M.  The pleadings are legal documents setting

out in fairly broad terms the boundaries of the law suit.  The

general practice of lawyers is to spell out any possible legal

positions so as to avoid the necessity and expense of amending

pleadings as the law suit develops and the facts crystallize.

A clear example of such pleadings is the position frequently

seen in motor vehicle cases where the plaintiff will allege

particulars of negligence such as:

 

     1.  The defendant’s ability to operate a motor vehicle was

     impaired by alcohol or drugs;

 

     2.  The defendant operated his/her motor vehicle at an

     excessive rate of speed in the circumstances contrary to

     the Motor Vehicle Act.

 

[para90]     Usually by the time of discovery the evidence will

be available in many cases to show that these particular

allegations are not relevant and they are no longer pursued.

 

[para91]     I recognize that a party is bound by the pleadings

filed on its behalf by its solicitor.

 

[para92]     In this case I am satisfied that the solicitor was

attempting to protect the Diocese, his client’s interests.

While it failed to make its position clear to its solicitor,

the Diocese had no intention of pursuing the establishment of

fault or blame on F.W.M.  The Diocese’s defence throughout has

been one of defining the responsibility for the negligent

criminal acts of its servant and its own position as a

fiduciary.  I appreciate that the formal pleadings remained for

a lengthy period of time, and would have been called into

question by F.W.M.  Fortunately, he engaged experienced counsel

who undoubtedly outlined the legal position of pleadings to

him.  The Diocese did call for the formal withdrawal of such a

position when it was brought to its attention.

 

[para93]     Evidence of Bishop Colin Campbell:

 

     Q.  And when you learned of it, what did you do?

 

     A.  We instructed counsel to change it immediately.

I am completely satisfied that there was no intent to cause

hurt. While unfortunate, the history of the pleadings does not

amount to oppressiveness or high handedness on the part of the

Diocese.

 

[para94]     Bishop Colin Campbell wrote an article for the

Antigonish Casket, and this caused F.W.M. some concern.  I have

no doubt Bishop Campbell, as he said in evidence with

considerable force, regrets that portion of the article which

indicates that, with respect to theNewfoundlandsituation, the

question arose there as to the position of the older boys

continuing and, in some cases, seeking out the priest who

introduced the victim to the sexual misconduct.  It is

necessary to read the entire article, and it clearly expresses

concern for the well being of the victims of abuse by priests.

When F.W.M. spoke of this article, he did not convey to me any

impression of strong or lasting impact.  This article and

everything F.W.M. read or heard did convey to him, to some

extent, a measure of confirmation of what he was already

struggling with, namely, why, as a totally innocent victim, he

had to give evidence at the preliminary inquiry, be prepared to

give evidence at the trial, and is compelled to pursue a legal

remedy before obtaining total recognition of the fact that he

is a completely innocent victim.  Much of the difficulty lies

with the balancing required by the justice system when a matter

is before the courts on a criminal basis that could, and

rightly did in this case, deprive someone of their freedom,

does place some limitations and delay upon the eventual point

where a victim can get on with his/her life.

 

[para95]     It should also be noted that the Diocese directed

a letter from Father Angus MacDougall, June 28, 1991 to the

Crown Prosecutors Office as follows:

 

        Dear Mr. Murphy:

 

        Pursuant to the request of your offices, the Sexual

     Misconduct Committee and the representatives of the

     Dioceses of Antigonish will not interfere directly with

     the complainants or their families in relation to the

     charges against Father Clare Richard.

 

        It is, however, the mandate of the Sexual Misconduct

     Committee of the Dioceses of Antigonish that an offer of

     counselling and support be extended to all complainants

     and their families.

 

        In order to strike a balance between your directive and

     our mandate, we would request that you forward the

     following letter to the complainants and their families

     involved in the charges referred to above.

 

        Yours truly,

 

        Sgd. Father Angus MacDougall

 

[para96]     The attached letter under the same date, June 28,

1991 stated:

 

        Dear

 

        Bishop Colin Campbell, Bishop of the Dioceses of

     Antigonish, wishes to offer you and members of your family

     the counselling services of the Diocesan Family

     Counselling Agency.

 

        Should you wish to accept the offer of counselling by

     the Diocesan Agency or other counselling services, please

     contact Father MacDougall at 752-2024.

 

        Please be assured that all your inquiries and the

     counselling services itself will be kept strictly

     confidential.

 

        Yours truly,

 

        Sgd. Father Angus MacDougall

 

[para97]     The Crown Prosecutor wrote to the R.C.M.P. as

follows:

 

        Dear Cpl. Penney:

 

        Re:  R. vs. Rev. James Mombourquette, Rev. Clair

     Richard and Rev. Claude Richard

 

        Enclosed please find a copy of a letter that I have

     received from Father Angus MacDougall dated June 28, 1991.

     His letter, I believe, is in response to a conversation

     that I had with A.G. MacDonald indicating that it may not

     be appropriate for the Sexual Misconduct Committee of the

     Dioceses of Antigonish to contact the complainants or

     their families in relation to the charges against the

     above noted Roman Catholic Priests.

 

        I am also enclosing a copy of the letter that Father

     Angus MacDougall has requested that be provided to

     complainants and their families.  At this point in time I

     will have no contact with the complainants or their

     families and therefore, since you are presently having

     contact with these persons, I would ask you to please make

     them aware of the contents of Father Angus MacDougall’s

     letter.

 

        Yours very truly,

 

        Sgd. for Richard J. MacKinnon

 

         Crown Attorney

 

 [para98]     The Crown Prosecutor passed on this correspondence

to the R.C.M.P. July 5, 1991, however, as criminal

investigations were still underway, the R.C.M.P. apparently did

not pass on the correspondence to any of the victims.

 

[para99]     After careful reflection on all of the evidence, I

conclude that F.W.M. has failed by a fairly wide margin to

establish a claim for punitive damages.  Having made that

determination, I want to comment that the award of punitive

damages is developing in law a two-tiered system of recovery by

a victim.  You can now have two identical cases where a court

can determine the criminal punishment of the offender was

adequate punishment and deterrence and that victim will then

receive substantially less than another victim possibly by the

same offender where the victim could not tolerate the stress of

a criminal trial.

 

[para100]     The awarding of punitive damages that is

developing is to some extent becoming a second guessing of the

sentencing judge in a criminal matter.  It is in the criminal

matter that the court addresses the principles of sentencing

including specific and general deterrence, and to add

additional punishment in a civil action can be viewed as a

questioning of the adequacy of the sentence.  It seems to me

that punishment and deterrent are more appropriately left for

the criminal field, and that if the law wishes in civil matters

to express its additional repugnance by a financial punishment,

it would be far better to deal with it in the form of a victim

surcharge or direction for payment of damages to some general

fund to provide counselling and rehabilitation for sexually

abused persons.

 

[para101]     We should not lose sight of the fact that in any

law suit there are elements of deterrent already present.  The

uncertainty of outcome creates pressure that is not normally

enjoyable, the cost in time and energy, and of course, the cost

of legal services.  Media attention directed particularly to

the losing party is usually something the losing party would

prefer to do without.  Additionally, there is the prospect of

an award of costs against the party.  Punitive-exemplary

damages should be reserved for exceptional circumstances.

 

[para102]     Claim for punitive-exemplary damages has not been

established.

 

8.  Aggravated Damages

 

[para103]     The Supreme Court ofCanadarecently, in Hill v.

ChurchofScientologyofToronto#24216, July 20, 1995, La

Forest, J. stated at pp. 80 and 81:

 

        (3)  Aggravated Damages

 

        (a)  General Principles

 

        Aggravated damages may be awarded in circumstances

     where the defendants’ conduct has been particularly high-

     handed or oppressive, thereby increasing the

     plaintiff’s humiliation and anxiety arising from the

     libelous statement.  The nature of these damages was aptly

     described by Robins J.A. inWalkerv. CFTO Ltd., supra, in

     these words at p. 111:

 

        Where the defendant is guilty of insulting, high-

     handed, spiteful, malicious or oppressive conduct which

     increases the mental distress – the humiliation,

     indignation, anxiety, grief, fear and the like – suffered

     by the plaintiff as a result of being defamed, the

     plaintiff may be entitled to what has come to be known as

     “aggravated damages”.

 

        These damages take into account the additional harm

     caused to the plaintiff’s feelings by the defendant’s

     outrageous and malicious conduct.  Like general or special

     damages, they are compensatory in nature.  Their

     assessment requires consideration by the jury of the

     entire conduct of the defendant prior to the publication

     of the libel and continuing through to the conclusion of

     the trial.  They represent the expression of natural

     indignation of right-thinking people arising from the

     malicious conduct of the defendant.

 

        If aggravated damages are to be awarded, there must be

     a finding that the defendant was motivated by actual

     malice, which increased the injury to the plaintiff,

     either by spreading further afield the damage to the

     reputation of the plaintiff, or by increasing the mental

     distress and humiliation of the plaintiff.

 

 

[para104]     Aggravated damages are awarded for the

aggravation by the conduct of the offender that causes

additional consequences to the injured party which consequences

are not encompassed within the basic general damage award.

 

[para105]     There is no additional aggravation or conduct in

this case warranting any additional damages and the

consequences to F.W.M. have been addressed in the award of

general damages.

 

9.  Costs

 

[para106]     Unless there has been a payment into court or

offer of settlement pursuant to Civil Procedure Rule 41A that

requires consideration, F.W.M. will have his costs against the

defendants which I tax in accordance with tariff “A”, schedule

3 in the amount of $2,850.  F.W.M. is also entitled to his

disbursements, and if the parties are unable to agree, then I

am prepared to conduct a taxation.

 

                                                Action allowed.

 

 

 

End of document.

 

 

Leave a Reply

Your email address will not be published. Required fields are marked *