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.