Updated: March 21, 2019 6:34 PM ED
All they speak are empty words.
When Bob McCabe filed his lawsuit against the Archdiocese of Toronto in 2014, he says church leaders told him how sorry they were that he’d been sexually assaulted as an altar boy by one of their priests more than 50 years before.
And yet not only did they still refuse to settle, forcing the case to go to a gruelling trial, but when the jury awarded him $550,000 they took the Guelph man back to court to appeal the amount.
“Father (Brian) Clough said we’re really sorry, it should never have happened, but then they appeal it? I was absolutely disgusted. And all because they didn’t like the number, they appealed it and put a victim through another two years of trauma. It’s unconscionable,” says McCabe, 67.
“It all comes down to money.”
After a 16-day trial, a jury in 2017 ordered the diocese to pay McCabe general and aggravated damages of $250,000, loss of income of $280,000, treatment expenses of $5,000, and punitive damages of $15,000 for increasing his suffering by waiting until the morning of the trial before admitting fault.
McCabe was relieved the Ontario Court of Appeal’s decision earlier this week upheld all but the punitive damages.
“The tension just exhaled out of me. I’ve been in limbo for years and I now had my life back.”
He was 11 when Father Alphonse Robert came to Scarborough where he lived with his devout Roman Catholic family.
“I was the most naive little sucker you ever met,” he recalls.
“When the priest wore the collar, he was God’s representative and you never questioned what he told you to do. That was drilled into me by my own mom.
“I was the perfect victim for this guy and he scoped me out perfectly. The mind of a pedophile must have some kind of instinctive radar — not only who is susceptible, but who won’t say anything.
“In fact, I thought it was my fault.”
In 1963, the priest took him to visit the Basilica of Notre Dame in Montreal and they stopped overnight in Cornwall.
That’s where Robert fondled the altar boy and performed oral sex on him.
McCabe remembers he couldn’t get home fast enough. He also vividly recalls knowing he couldn’t tell his parents.
“It was me against God. They were never going to believe me.”
Robert would be moved around, with new allegations sending him off to new parishes.
And new victims.
In the ensuing decades, McCabe learned to drown his nightmares in alcohol — ultimately losing his job, destroying his first marriage and alienating his children.
He contemplated suicide.
“But I didn’t have the courage. I was even a failure in death.”
In Dec. 2010, McCabe sought help.
On Christmas Day three years later, finally sober, the memories of the assault suddenly came flooding back.
He knew Robert was dead, but it was time to hold the church accountable.
“My lawyers warned it was going to be hell. But I had no idea.”
He figures the church’s strategy was to drag it out and hope he’d walk away long before it got to trial.
“They ran into someone like me who’s too Irish and too stubborn to do that.”
But when the church appealed the $550,000 award, he admits it almost drove him back to drink for the first time in eight years.
He’s lucky to have a good therapist, a new wife, and children who have forgiven him.
He worries about other victims who don’t have that kind of support to pull them back from the brink.
That’s why McCabe is setting aside some of the award to set up a foundation to pay for counselling for sexual abuse victims.
He believes there are many like him still hidden in the archdiocese’s records, broken men abused by the same priest, or by others, and who’ve been left to battle addictions or PTSD on their own.
“I don’t believe a pedophile just picks out one child,” he says.
“If there are other victims – though I classify myself as a survivor — I would love to find them and seek justice for them.”
So he is challenging the Toronto diocese to make this right.
“Open up your records,” McCabe insists, his voice breaking.
“Men are dying.”
Why appeal court quashed this punitive damage award
21 March 2019
by Greg Meckbach
If your client is successfully sued for being vicariously liable for the behaviour of a sexual offender, should that client have to pay punitive damages simply for not admitting liability before the trial?
Judges are not unanimous on this issue.
In a ruling released Tuesday March 19, the Court of Appeal for Ontario ruled partly in favour of The Roman Catholic Episcopal Corporation for the Diocese of Toronto, which was successfully sued by a sexual assault victim, whose assailant was a priest.
Lawsuits arising from sexual abuse on the part of priests has cost churches – and their insurers – millions in recent decades. Often the plaintiffs allege the church corporations were negligent in failing to prevent the abuse.
The lawsuit against the Diocese of Toronto arose from the 1963 sexual assault by Father Alphonse Robert of the victim, who was an 11-year-old altar boy at the time. The perpetrator has since died.
In 2017, a jury ruled that the diocese was vicariously liable for Father Robert’s behaviour. The victim was awarded $550,000, which include $15,000 in punitive damages. The rest of the award – which was upheld on appeal – was comprised of $250,000 in general and aggravated damages of $280,000 for loss of income and treatment expenses of $5,000.
The diocese, which admitted it was vicariously liable, appealed the damage award and was partly successful. By the time the trial started, the only dispute was on how much money the victim should be awarded.
In its divided ruling released March 19, 2019, two of the three appeal court judges quashed the $15,000 in punitive damages. The majority ruled that Justice Gordon Lemon of the Ontario Superior Court of Justice should not have let the jury decide whether to award punitive damages.
Not all plaintiffs who win lawsuits are awarded punitive damages, which are only intended if the defendant’s actions were “egregious, high-handed and outrageous,” Justice Lois Roberts of the Court of Appeal for Ontario wrote.
It was not improper or malicious for the diocese to not admit liability before the trial, Roberts wrote on behalf of herself and Chief Justice of Ontario George Strathy.
Justice Mary Lou Benotto had a different take, in her dissenting ruling.
It was reasonable for trial judge Lemon to ask the jury whether the failure of the diocese to admit liability before the trial warrant an award of punitive damages, Justice Benotto wrote.
The failure of the diocese to admit liability was making the plaintiff’s trauma worse, a forensic psychologist testified during trial. This was why Justice Lemon put the decision of punitive damages to the jury.
But no reasonable jury, properly instructed, could make such an award, Justice Roberts countered.
“There was no basis in fact or law for this claim that punished the appellant for not making an earlier admission of liability. Punitive damages cannot be awarded solely for the failure or delay of a defendant to admit liability. To create such a category of punitive damages would completely undermine the foundation of the litigation process,” wrote Roberts.
Litigation is an adversarial and expensive process, Justice Roberts added.
“Regardless of the underlying cause of action, all parties find the litigation process enormously stressful, especially plaintiffs who bear the burden of proving liability and damages because they commence the proceedings. In sum, while a defendant’s failure or delay to admit liability may give rise to an adverse costs award, it does not serve as a standalone basis for punitive damages.”
TORONTO—A Roman Catholic priest’s sexual abuse of an 11-year-old altar boy more than 50 years ago warranted an award of more than half a million dollars in compensation, Ontario’s highest court ruled on Tuesday.
In reaching its decision, the Court of Appeal rejected arguments from the Toronto diocese that the victim’s lawyer had inflamed the jury with closing comments.
However, in a split decision on one part of the appeal, the court set aside the jury’s award of $15,000 in punitive damages, saying the Toronto diocese did nothing wrong in refusing to admit liability until after the trial started.
Court documents show the boy was raised in a devout Catholic family who believed a priest, as “God’s representative,” was to be respected and obeyed. In 1963, newly arrived priest, Father Alphonse Robert, befriended the 11-year-old’s family, and ended up inviting him on a trip to visit the Basilica of Notre Dame in Montreal.
According to agreed facts, Robert arranged to spend the night in a motel room in Cornwall, Ont., where the priest fondled the boy sexually and performed a sex act on him.
The boy came to believe the incident was his fault and that he was “damned to hell,” court documents show. The result was decades of difficulties with family relationships and alcoholism.
The victim sued the parish in 2014, by which time Robert had died. He sought various damages for mental distress and loss of income, as well as punitive damages.
The church, which spent years denying liability, admitted fault on the opening day of the jury trial before Superior Court Justice Gordon Lemon. As a result, the only issue at play was the amount of compensation.
In May 2017, after hearing expert evidence, the jury awarded the plaintiff general and aggravated damages of $250,000, another $280,000 for loss of income, and punitive damages of $15,000.
The diocese appealed. Among other things, the church argued inflammatory closing comments from the plaintiff’s lawyer led to a miscarriage of justice that required a new trial. Those comments included the lawyer urging jurors to identify with the victim as an 11-year-old and to “do the right thing.”
The Appeal Court rejected the arguments, saying the judge’s instructions to the jury — including about the comments — were fair, and that the damages award was reasonable and supported by the evidence.
“I note that the impugned statements came at the conclusion of a 16-day trial, which was devoid of any allegation of inflammatory comments to the jury,” Justice Mary Lou Benotto wrote for the court. “The jury was not acting out of an impermissible sense of outrage caused by the closing submissions of the respondent’s counsel.”
On the sole issue of $15,000 in punitive damages, Benotto found herself off-side with her two appeal-panel colleagues, Justice Lois Roberts and Chief Justice George Strathy.
Benotto said she would have let the award stand as “symbolic condemnation” of the diocese’s “uniquely egregious” conduct in only admitting liability after the trial started.
“There was specific evidence that (the victim) was suffering physically and mentally during the time that the appellant was denying liability,” Benotto wrote in her dissent.
However, in quashing the punitive damages award, the majority said the church was entitled to deny liability as long as it did. Exercising its litigation rights could not be characterized as egregious misconduct, Roberts wrote for herself and Strathy.
“In essence, the trial judge created a new and unprecedented category of punitive damages arising out of the timing of the appellant’s admission of liability,” Roberts said. “To create such a category of punitive damages would completely undermine the foundation of the litigation process.”