CITATION: K.M.M. v. The Roman Catholic Episcopal Corp., 2011 ONSC 2143
COURT FILE NO.: 56051 DATE: 2011/04/20
SUPERIOR COURT OF JUSTICE — ONTARIO
BETWEEN:
K.M.M.
R. P. M. Talach & A. D. Lealess for the Plaintiff
Plaintiff
and –
THE ROMAN CATHOLIC EPISCOPAL
CORPORATION OF THE DIOCESE OF
LONDON IN ONTARIO, BISHOP
RONALD PETER FABBRO and BISHOP
JOHN MICHAEL SHERLOCK
Chris Blom & Susan Adam Metzler for the Defendants, The Diocese of London and Bishop John Michael Sherlock
Defendants
HEARD: March 14, 15, 16, 17, 18, 21, ) 22, 23, 24, 28 & April 1, 2011
LITTLE J.:
REASONS FOR JUDGMENT
[1] The plaintiff K.M.M., who is now 41 years old, was sexually abused in her youth by her parish priest, Father Charles Sylvestre (“Sylvestre”). The abuse has had a serious, negative impact upon her life.
[2] She seeks. compensation from the remaining defendants, namely, the Roman Catholic Episcopal Corporation of the Diocese of London in Ontario (“the Diocese”) and its then Bishop, John Michael Sherlock, (“Bishop Sherlock”), for the damages she sustained as a result of the abuse.
[3] The major issue to be determined in this case is the extent to which the plaintiff’s
difficulties were caused by the sexual abuse.
[4] Two other life events occurred which are contributing factors to those difficulties,
namely:
(a) the fact that she was adopted and eventually, in February 1997, sought out, located and met her birth mother; and
(b) the fact. that in high school she realized she was a lesbian but did not openly acknowledge that fact until approximately 2000. At that time, she terminated her marriage of eight years, which marriage had produced two children, and eventually established her present relationship with a female partner. This relationship is now of some four or five years in duration.
[5] The plaintiff attributes the bulk of her present anxiety condition, her alleged reduced employment and scholastic success and her psychological problems to the sexual abuse.
[6] The defence position is that the abuse was but a minor contributor to the plaintiff’s present malaise and station in life.
The Plaintiff’s Life
[7] She was adopted when one month old into a stable, loving Roman Catholic family which included three older brothers. She was the only adopted child and she was adored, and if anything, spoiled. When of school age, she attended St. Ursula’s Catholic School initially which was close to her residence in Chatham and adjacent to St. Ursula’s Church and Rectory. Sylvestre was the parish priest who resided in the Rectory.
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[8] She ‘says she was abused sexually by him for a period extending from the time she was at the end of grade three and seven years old until grade five when she was ten years old and had started to develop physically and commenced wearing a brassiere.
[9] She was moved at her parent’s behest, at that time, to the public school system in 1980, initially attending Queen Elizabeth School and later, John McGregor Secondary School.
[10] At Queen Elizabeth School she had some initial trouble adjusting and had to repeat grade five.
[11] She testified that she was angry at that time because her life was “not what it used to be — everything had changed and I had changed. Everything was different.”
[12] She further indicated that at the time she changed schools, she was very withdrawn. She also experienced some difficulty with mathematics, which she attributed to not obtaining a good foundation initially because of her withdrawn state following the abuse. She couples that with the fact that she developed a particular dislike for her then math teacher, who on one occasion threw chalk at her.
[13] She denies any particular “learning disability” in math, but acknowledges a continued dislike for the subject and the fact that she had to take remedial math classes at one stage.
[14] Interestingly enough, her high school years appear to be relatively normal. While she was in the general stream, rather than the academic stream, she participated in numerous sports, was a cheerleader, a member of student’s council and, as she indicated, hung out with the “in-crowd.” She also had a boyfriend who was a football player and who she eventually married on October 26, 1992. It was during her high school years that she realized she was a lesbian but elected not to tell anyone because she felt it was important “to be like everyone else.”
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[15] She graduated from high school with an Ontario Secondary School Diploma in 1988.
[16] Her high school days were also marked by two incidents of note. She was involved in a minor shoplifting episode that did not result in charges. Also, at about the age of 16, upon breaking up with her boyfriend, she overdosed on her mother’s heart pills in order to, in her words “seek attention.” I place little value on either of these incidents as being extraordinary, although the latter may have in some way been connected with her sexual predisposition, as it occurred at the time she was becoming more physically active with her boyfriend. However, she has displayed no suicidal ideation since that time. If anything, the overdose incident, in my view, was more related to her sexual predisposition than to the abuse.
[17] She enjoyed her cosmetology courses in her final year of high school and her co¬op placement at a hairdressing salon and upon graduation from high school, successfully completed a one-year college course as a hairdresser.
[18] She worked as a hairdresser for a couple of years until she realized that she was allergic to the chemicals involved in her occupation. She was obliged to quit.
[19] Following her hairdressing career, she worked at four different jobs: with the City of Chatham, Wendy’s, Japan Camera, and coaching figure skating, until her father obtained a job for her at Navistar, a truck assembly plant, in 1995. She worked there for the next five years.
[20] During those five years, she took two maternity leaves and a stress leave; the latter at the time of her reuniting with her birth mother. During a major layoff in the year 2000, she accepted a payout package being offered by Navistar. This was at approximately the same time as she ended her marriage.
[21] She then worked in merchandising for a couple of years before pursuing a Bachelor of Arts Degree in Psychology at the University of Windsor, which degree she
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obtained in 2005. She was not successful thereafter in upgrading her Arts Degree to an Honour’s Degree. Since then, she has experienced a spotty work record.
[22] On two separate occasions since 2006, however, she has obtained relatively acceptable employment but she has been unable to maintain the same. In November 2007, she commenced work as a counsellor at the Academy of Learning in Chatham. Within three months, she became the director of two other staff members. She was terminated for falsifying records. Her income at that job was in the range of approximately $30,000.00 annually.
[23] The second job of some note was as an employment counsellor with Goodwill in Chatham where she worked from April until August 2009. Her employment contract was not renewed. She felt that it should have been renewed as all her co-workers’ contracts were renewed. Hers was not due to an apparent personality conflict with her superior.
[24] Her income at Goodwill was approximately $40,000.00 annually.
[25] For the last year, she has been working as a sales associate for Telus in a mall in Chatham earning approximately $30,000.00 per year.
The Parties’ Positions
[26] The plaintiff’s position is that but for the sexual abuse she experienced, she would have remained at St. Ursula’s School through to high school, then been admitted into the high school in the academic stream. She would then have gone on to obtain her Arts Degree immediately following high school and perhaps a Master’s Degree in Social Work, following which she would have worked as a social worker. But for the sexual abuse, it is her position that she has sustained a substantial loss of income to date and that her fixture income expectations have been severely compromised.
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[27] The defendants reject the plaintiff’s scenario. They acknowledge that the plaintiff has sustained some general damages as a result of the sexual abuse. They deny that her past or future earnings have been affected in any way by the abuse.
[28] The plaintiff alleges that as a result of Sylvestre’s abuse:
(a) she has been left with a lack of self-esteem;
(b) she achieved lower scholastic marks than would otherwise have been realized;
(c) she has experienced serious workplace difficulties;
(d) she is withdrawn and has personal relationship difficulties due to lack of trust; and
(e) she has experienced a serious loss of enjoyment of life, stress and anxiety related problems, and depression.
[29] She alleges that her lack of self-esteem, her lack of personal body image, her weight problem and late teenage bulimia, her inability to work with men generally, her inability to stand up for herself, her stress related difficulties, her high school suicide attempt, her latent anger and in fact her general impaired mental and physical condition, axe all sourced with Sylvestre’s physical abuse.
[30] The plaintiff’s position is that, the Diocese is not only vicariously liable, but is also liable in negligence. The plaintiff further sues Bishop Sherlock personally for negligence alleging that she is not only entitled to general damages and loss • of past and future income, but also aggravated and/or punitive damages against the defendants.
[31] As indicated, the defendant acknowledged the plaintiff’s entitlement to general damages as against the Diocese but deny that the plaintiff’s income earning ability has, in any way, been impacted by the actions of Sylvestre. The defendants further deny both the plaintiff’s entitlement to punitive damages and any personal liability whatsoever on behalf of Bishop Sherlock.
Sexual Abuse: Its Nature and Impact
[32] Many cases have been cited and referred to me relating to clergy abuse_ In the last ten years, a great deal of information has come to light relating to the impact of sexual abuse upon victims. In 2006, Sylvestre was convicted of 47 counts of indecent assault on 47 separate women. The assaults were all historical in nature. There were apparently numerous other victims of Sylvestre not involved in the criminal charges. The plaintiff is one of them.
[33] Forty-six of those victims submitted to testing by a team of psychologists under the guidance of Dr. Peter Jaffe, who was called as an expert witness in this case. A report entitled “From isolation to Action” (Exhibit 47) was prepared listing the common life adjustment difficulties as reported by those 46 victims. The report notes that:
• More than 50% of those victims reported low self-esteem, depression, anxiety, flashbacks, loss of faith, intimacy difficulties and family ‘relationship problems as being common traits experienced as a result of Sylvestre’s abuse;
• 30% of the ladies reported adjustment difficulties in both education employment;
• 17% reported sexuality difficulties emanating in various fashions including celibacy, promiscuity or confusion relating to sexual orientation;
• 80% indicated an inability to trust others as a result of the sexual abuse of Sylvestre.
[34] It appears that there is little relationship between the frequency and nature of the abuse, and the severity of the impact on the victim. It is a subjective thing. However, the more serious and frequent the abuse, the longer it appears it will likely take for any subsequent treatment to be successful, if ever.
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[35] The consequences of the abuse seem to be magnified by the elevated position of the abuser. In this case, a highly respected priest, revered not only by the victims, but also their parents, would no doubt have the greatest negative impact upon the victims relating to future lack of trust in personal relationships. How can the institution that is there to help you, not only not help you, but be the cause of the problem? Who do you trust?
The Experts
[36] As indicated, the plaintiff called Dr. Peter Jaffe, a psychologist with considerable experience on the impact of childhood abuse even prior to preparing his report based on information he received from the Sylvestre victims.
[37] The defence called as an expert witness Dr. Robert J. Camargo, a clinical psychologist, whose experience related more to treating priests who had been the abusers. However, he acknowledged having treated a number of nuns in the past who had been sexually abused themselves.
[38] Both psychologists had the opportunity to apply a battery of tests to the plaintiff. Both psychologists were impressive witnesses. Both of their reports, which were admitted in evidence, contained:
(a) the plaintiff’s observations of herself;
(b) the results from psychological testing; and
(c) the psychologist’s observations and conclusions.
[39] Not only are the testing results similar, but so are the two psychologists’ conclusions. The difference seems to be in their assessment of the magnitude of the impact of the sexual abuse.
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[40] Contrary to Dr. Jaffe’s views, Dr. Camargo, conceding some impact on the plaintiff of the sexual abuse, concludes that it did not cripple her interpersonal capacities. He relies upon the fact that she has been able to maintain healthy relationships with her family, friends and partner despite the abuse and that she appears to be reasonably competent in “interpersonal types of work, such as her current sales position with Telus Mobility.” (Exhibit 57, p . 27, para. 3)
[41] Dr. Jaffe, on the other hand, finds the plaintiff to have “been significantly impacted by the sexual abuse at the hands of Sylvestre.” He finds her daily functioning hampered by her depression, anxiety and post-traumatic stress disorder observing that she suffers from poor self-esteem. He notes that the abuse was, in his opinion “a material contribution to her current distress and life trajectory.” (Exhibit 37, Tab 2)
[42] Dr. Jaffe concludes that the abuse played a significant role in her not living up to her full potential. Dr. Camargo, who acknowledges that she requires a broad spectrum of clinical care, concludes that her life was too steeped in life stress and low academic motivation for her to have succeeded much more than she did, independent of the abuse.
[43] The tests administered by both psychologists indicate that the plaintiff is suffering from post-traumatic stress disorder to at least some degree. She appears to have the tendency to disassociate which is not directed exclusively to the trauma. She has no suicidal tendencies. She only tests in the moderate range of hopelessness/despair and mostly interestingly, in the minimal level for depression. Her excessive anxiety is accompanied by excessive rumination and self-doubt. She presented as having a high degree of negative emotionality and a strong tendency to be pessimistic. Interestingly enough, in testing by both psychologists, anger was noted. She apparently indicated anxious distrust in relationships. Both psychologists found her IQ or intelligence quotient to be in the 108 to 118 level placing her in the high average range and close to the top 10% of the population.
[44] The observations the court draws from these reports are as follows:
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(a) she appeared from the testing administered by each psychologist to be genuine in her efforts to answer the tests honestly;
(b) she experiences considerable personality adjustment difficulties requiring treatment.
[45] The plaintiff’s expert attributes these difficulties, at least to some considerable extent, to the sexual abuse. The defendants’ expert attributes them to the life stresses the plaintiff has experienced beyond the abuse. Those life stresses are her sexuality, adoption and subsequent location of her birth mother, interpersonal family relationships with her present partner and their children and her unrelated low academic motivation.
[46] Both of the experts called upon to examine the plaintiff and test her were of considerable assistance to the court. While their opinions as to the impact of the sexual assault differ, it is the court’s view that this difference arose mainly from the interaction they had with the plaintiff and their own subjective assessment, rather than from the testing results.
[47] The court fully acknowledges that both the adoption and sexual orientation issues would have caused stress to the plaintiff absent any sexual abuse. It is my view, however, that the plaintiffs innate strength of personality and underlying initial resistance to stressful situations was impacted dramatically by the abuse.
Causes of Action
Vicarious Liability
[48] The Diocese admits that it is vicariously liable for the actions of Sylvestre. Negligence
[49] The Diocese denies that it is liable in negligence to the plaintiff. I disagree.
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[50] One must consider some historical facts in order to reach this inevitable conclusion.
(a) R.W. was in grade 5 in Hamilton (outside the Diocese) in 1951 when she was sexually assaulted by Sylvestre. She complained to Fr. Murphy and was advised “Don’t tell anyone. I’ll take care of it.” Sylvestre was returned to the Diocese. It would stretch one’s imagination to believe that the Diocese was not aware of this complaint.
(b) C.D. was a student at Sacred Heart in Windsor in the 1953/54 school year when she was sexually assaulted by Sylvestre. She advised Monsignor Dillon who advised her that he would “take care of it.” Sylvestre was subsequently moved to LaSalle.
(c) D.G. and I.W. were in the St. Thomas Aquinas Parish in Bluewater (Sarnia) in 1962 when they were sexually assaulted by Sylvestre. They reported the matter to the police and Sylvestre was immediately removed from the parish and sent for treatment in Roxboro, a suburb north of Montreal, thereby avoiding arrest.
[51] These are only some of the facts.
[52] The hierarchy of the Diocese had to know about Sylvestre’s propensities and was negligent in taking no, or inadequate steps, before appointing him Pastor as St. Ursula’s in Chatham in 1968. Such negligence resulted in the damages sustained by the plaintiff.
The Negligence of Bishop Sherlock Personally
[53] Bishop Sherlock was the auxiliary Bishop of the Diocese from 1974 to 1978 and the Bishop from 1978 until 2002. The plaintiff seeks a finding of negligence against him personally. The plaintiff called both R.M. the plaintiff’s father, and Fr. John Betkowski as witnesses.
[54] R.M. testified that upon being told that Sylvestre had fondled his daughter, he called his friend, Fr. Betkowski, and told him to get ahold of the Bishop and get this stopped right away.
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[55] He testified that while he received no confirming phone call from Fr. Betkowski, Sylvestre was moved from St. Ursula’s Parish shortly thereafter: R.M. felt the problem was solved. He stated the reason he didn’t go to the police was because he didn’t want to “give the church a black eye.”
[56] Father John Hubert Betkowski, now 73 years old, made an impressive witness. He appeared to be very straightforward and reliable. He also appeared to be uncomfortable about being required to testify in this matter. He has been a long time friend of the plaintiffs s family.
[57] His recollection was that sometime around 1979 he received a phone call from R.M. advising him that R.M.’s daughter had been improperly touched by Sylvestre.
[58] He advised R.M. he would take the message to Bishop Sherlock, and he did.
[59] He testified that he arranged an appointment and drove from Chatham to London soon after R.M.’s call and attended a meeting at the Bishop’s office with Bishop Sherlock.
[60] He testified that he did not use the plaintiff’s name, but told Bishop Sherlock that Sylvestre had improperly touched a girl.
[61] He was unable to recall the Bishop’s reaction, nor could he pinpoint the exact time of the meeting. He further testified, contrary to the evidence of R.M., that he called R.M. and advised him he had seen the Bishop.
[62] Bishop Sherlock gave evidence. He became the. Bishop of the Diocese in 1978 and he testified that:
(a) he had no recollection of being advised by Bishop Carter, his predecessor, of any disciplinary matters relating to Sylvestre;
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(b) he thinks he would have remembered had such a conversation taken place;
(c) he first heard about issues relating to Sylvestre in 1989 when Mr. Paul Belanger, the school principal in Paincourt, called him about Sylvestre. He took action at that time;
(d) he has absolutely no recollection of any discussion with Fr. John Betkowski, nor does he recall any reason out of the ordinary for moving Sylvestre from St. Ursula’s in 1980.
[63] Portions of Bishop Sherlock’s diary were entered in evidence (Exhibit 60). The diary does not show any meetings with Fr. Betkowski during the relevant time period.
[64] The passage of time affects memories. Fr. Betkowski is 73 and Bishop Sherlock is 84. The timing of the meeting cannot be pinpointed but I find as a fact that it did happen. 1 believe Fr. Betkowski. I reject the suggestion that he is covering up the fact that he failed to act on R.M.’s complaint. He distinctly recalls driving to London and telling the Bishop of the problem, and I accept that he did.
[65] However, as far as making Bishop Sherlock liable in negligence to the plaintiff, do not think it matters whether or not such a meeting did take place.
[66] I am not satisfied that Bishop Sherlock was aware of Sylvestre’s pedophilia prior to the meeting with Fr. Betkowski. There is no evidence that Sylvestre’s abuse of the plaintiff continued after that meeting between Fr. Betkowski and the Bishop resulting in any damages to the plaintiff.
[67] No negligence has been proven against Bishop Sherlock for any damage caused to the plaintiff. The plaintiffs allegation that Bishop Sherlock was negligent in failing to contact the plaintiff family and attend to the needs of their daughter victim is without
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foundation considering the lack of understanding and knowledge that existed at that time as to the degree of damage sexual abuse might have on a victim.
[68] As a result, there is no finding of negligence against Bishop Sherlock. General Damages
[69] There can be no doubt that the fact of adoption, the reaction to locating and establishing a relationship with her birth mother, and the realization and eventual acceptance of the fact that she is gay, were all stressful issues in the plaintiff’s life that she would have had to confront in any event. But even the defendants’ expert, Dr. Camargo, placed great emphasis upon the plaintiffs apparent “ego strength”, as he called it, or her “considerable strength of character and determination…”. I take this to mean her fighting spirit. Some of this “ego strength” has survived in spite of the abuse.
[70] In my view, her fighting spirit would in all likelihood have been able to minimize
the stressful nature of these, other factors so as to have permitted the plaintiff to enjoy a full, happy adult life with minimal negative impact, instead of the doubt-filled, insecure, angered existence she has experienced.
[71] The plaintiff is entitled to be put into the position she would have been in but for the defendants’ actions. However, she is only entitled to be compensated for the loss caused by those actions alone)
[72] Aggravated damages for personal injury, such as those in. this case, are not separable from general damages.2
[73] The nature of the reported sexual assaults in this case is serious. While the assaults did not involve intercourse, oral or anal sex, they did involve digital penetration, Sylvestre’s ejaculation and penis exposure, all with a very young girl. The abuse was
Athey v. Leonati, [1996] 3 S.C.R. 458 at para. 32. 2 Doe v. O’Dell, 230 D.L.R. (4th) 383 (Out. S.C.J.).
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flagrant. It occurred occasionally in public, in front of others, both in the schoolroom and in the schoolyard. It was repeated frequently. It has had a long term, serious effect on the plaintiff.
[74] In my view, it has affected the plaintiff to an extent even greater than she herself appreciates. Both her friend, Dawn Byrnes and her partner, Tamara McAllister testified as to the plaintiff’s recently increased introversion, painting a picture much worse than that drawn by the plaintiff herself.
[75] White the bulimia, weight fluctuations, nightmares, migraines, academic and employment failures cannot all be sourced solely in the sexual abuse, it is my view that her lack of self-esteem, inability to trust others, depressive, passive reaction to life, unhappiness and her suppressed anger were all caused by the abuse.
[76] The abuse also contributed to her reduced desire for sexual activity. In this case, I am not able to conclude that Sylvestre’s actions had anything to do with the plaintiff doubting the nature of her sexuality. However, it may have had much to do with her reduced desire to be involved in sexual activity with either sex.
[77] Nor do I think that the abuse was connected in any way with her divorce.
[78] The impact of the abuse, however, has made her less capable of dealing with the acknowledged stressful incidents relating to her adoption and realization that she is gay.
[79] I am convinced that the sexual abuse had a serious impact upon her level of satisfaction and performance in both her educational and employment endeavours.
[80] The plaintiff was a person with issues ‘elating to her sexuality and adoption, and probably capable of handling them with a minimum of stress had her “ego strength” not been compromised by the abuse. It has resulted in her having a serious inability to confront the stresses of life she would otherwise have been able to adequately manage.
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[81] Finding her birth mother was an occasion of joy to the plaintiff, who also experienced anger at “having been abandoned.” While it necessitated “adoption counselling” for both the plaintiff and her mother with Ms. Diane Mathes, this was the first time that the plaintiff sought counselling for any reason whatsoever.
Anger
[82] The level of anger experienced by the plaintiff was no doubt elevated and the anger less controlled as a result of the abuse that she experienced in her youth.
[83] It was another form of anger layered upon the anger the plaintiff experiences as a result of her inability to stop the abuse when it occurred. Why that anger exists is a question that has no justifiable answer.
[84] The plaintiff tried as best she could to cope with the abuse when it was happening. She wore clothing that was less accessible, even endeavoured to gain weight and make herself less pretty and appealing to Sylvestre who indicated to her that she was “special”.
[85] Further, after all of these years, and with the revelation that she was but one of an army of victims of the pedophile and in no way responsible herself, one would think it evident to the plaintiff that she is not blameworthy. However, it appears to be too late! The damage is done! While not impossible, it will be difficult to undo.
Quantum
[86] A raft of cases have been submitted to me by counsel for both sides suggesting figures which should be considered in making the general damage award. This case, as were the others, is unique and depends upon its specific fact findings.
[87] How badly was the plaintiff damaged by the abuse? In my view, the result of the abuse was to create a material change in the plaintiff’s personality.
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[88] She became less able to properly manage the adoption and sexual preference issues when they surfaced. I attribute all of her nightmares, migraines and lack of trust directly to the abuse. The mere fact that she threw up when seeing a CBC program on Sylvestre is, in my view, telling.
[S9] She is now 41 years old and still suffers to such a degree that even the defendants’ expert recommends she obtain psychiatric help rather than the present counselling she is taking, which counselling is paid for by the Diocese, but appears to be going nowhere.
[90] Taking everything into account in determining the damages for which the Diocese is liable flowing from Sylvestre’s actions, and its own, I award the plaintiff general and aggravated damages fixed in the amount of $190,000.00.
Past Loss of Income
[91] The plaintiffs school marks at Queen Elizabeth and McGregor were negatively impacted by the abuse. However, even if they had been higher, I do not believe that she would have pursued a different career course initially.
[92] Her father indicated that he felt she could “do better” than hairdressing as a career. That would be a natural reaction of any concerned parent.
[93] The plaintiff, herself, testified that when she was in high school she had no career aspirations, enjoyed her courses in cosmetology and later enjoyed working in that field until she was obliged to quit due to her allergy to the chemicals she used.
[94] In my view, even if she had been in the academic stream in high school she would likely have pursued a similar employment course initially, considering her upbringing, the fact that she had a boyfriend and did not want to appear to be different from the others. She appeared to be programmed to get a job, get have a family and
obtain some immediate stability. It was not until later on when she effectively came out of her shell, to some degree at least, that she decided to advance her educational career.
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[95] I fund that her work career would have remained exactly the same or similar until after she “found a spine”, as she indicated, around the year 2000. That was when she met her birth mother, terminated her marriage, acknowledged her sexuality, and decided to improve her education.
[96] I do find, however, that in spite of the fact that she was an unemployed, single mother having to travel to Windsor to university, she would have achieved better marks in her undergraduate years and thereafter obtained an Honour’s Degree or whatever necessary requirements there were to become a social worker which was her then desire.
[97] While no expert scenarios have been presented to me, premised upon these findings, I believe she would have found employment as a social worker in the Chatham area but at a somewhat lower income than referred to in Schedule A of Mr. Hoare’s report (Exhibit 17).
[98] I find she would have earned $45,000.00 per year as a mean average over the past five years for a total of some $225,000.00.
[99] I deduct from that figure the amount she could have earned, rather than the amount she actually earned, during the period of time from 2007 to date.
[100] She was dismissed from the Academy of Learning in 2006 for falsifying documents. At that time, she was earning approximately $30,000.00 per year. Subsequently, she held other jobs on a sporadic basis which earned less than that. She was employed on one occasion in 2009 for Goodwill earning an annual figure of approximately $40,000.00 per year. Her contract at Goodwill was not renewed after three months, allegedly due to a personality conflict. I have no way of determining if the abuse, and its subsequent sequelae, in any way, impacted upon this personality conflict.
[101] She has worked for the past number of months with Telus at a job that has an annualized income of approximately $30,000.00 per year.
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[102] I conclude that she was capable, in her present state, of earning some figure less than $30,000.00 per year rather than the $45,000.00 she would earned as a social worker. In doing so, I take into account her restrictions caused by the abuse.
[103] I award her the sum of $100,000.00 for past loss of income together with interest. This sum represents the difference between the $225,000.00 she would have earned as a social worker, less the approximate $120,000.00 she should have earned, together with interest.
Special Damages
[104] The parties have agreed to an award of special damages to the plaintiff in the amount of $20,000.00.
Loss of Future Earnings
[105] The plaintiff need only show a real and substantial risk of future pecuniary loss. In this case, determining the quantum of that loss presents the difficulty.
[106] What is the present day value of the difference between what the plaintiff would have earned during her future working career but for the sexual abuse and what she will actually earn?
[107] To answer that question, one must consider that there is a possibility the plaintiff will achieve her potential earning capacity at some date in the future. It is not a probability, but certainly a possibility. Even now she appears to be able to function in the workplace but at a reduced level. This might improve!
[108] She is presently undergoing counselling with Connie Coatsworth. This counselling is paid for by the Diocese and appears to be of some limited value as she is experiencing repeated relapses. Obtaining a psychiatric assessment and perhaps treatment for anxiety, as recommended by Dr. Camargo, and perhaps even obtaining
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treatment for anger issues which came to light as a result of the psychological testing will benefit the plaintiff. It is impossible to determine the likelihood of the plaintiff s improvement.
[109] I accept the statement of Dr. Jaffe’s committee that the extent and nature of the sexual abuse impacts upon the probable length of treatment required. I appreciate that the abuse itself has had a profound impact upon the plaintiff.
[110] The distress, betrayal, shame, guilt and humiliation caused by the abuse has, in my view,’ been the major factor in rendering the plaintiff bed-bound from time to time and lethargic, as reported by her friend, Dawn Byrnes and her partner, Tamara.
[111] On the other hand, the plaintiff has shown an undercurrent of strength in many of her actions. She has been capable of sending her children to school at St. Ursula’s, the very school she attended when she was abused; she has maintained some reasonably solid friendships; she has acknowledged her sexuality and altered her lifestyle accordingly; she has obtained a Bachelor of Arts Degree; and she has, to some extent, as she refers to it, “grown a spine”. These are examples of what Dr. Camargo referred to as “ego strength”.
[112] The reason I mention all this is to indicate that there is hope the plaintiff will achieve her maximum earning potential at some time in the future between now and retirement age.
[113] This hope is buttressed by the fact that the plaintiff has been so angered at (a) herself for permitting the abuse, (b) Sylvestre for performing it, and (c) the Diocese for its reaction thereto, that she has been unable to accept the Diocese’s apology and has pursued this stress-enhancing lawsuit.
[114] The conclusion of this lawsuit may well make the plaintiff more amenable to treatment.
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[115] The likelihood of improvement renders a forensic accounting basis for calculation of future lost wages less than completely reliable. However, it does generally assist the court with ballpark calculations. The alternatives are to either award a lump’ p sum amount for loss of earning capacity, or endeavour to calculate a sum premised upon the loss of competitive advantage. I prefer the lump sum approach. It may not be very scientific, but it permits me to award damages in this category premised upon, to some extent, my observations of the plaintiff and my determination of the extent to which the sexual abuse will impact upon that income.
[116] I disagree with Dr. Camargo’s observation that the abuse was “not likely a primary cause” of the plaintiff’s problems,
[117] Further, 1. disagree with his finding that her “vocational achievements were not significantly impacted” by the abuse.
[118] They will no doubt continue to be significantly impacted for some considerable period of time in the future and to some probable varying degree.
[119] While there are negative contingencies I might wish to build into this calculation, they are, in my view, offset by other positive contingencies which are at least as likely to occur.
[120] She does require treatment in the future however. This treatment will no doubt impact upon her future income stream and must be taken into consideration.
[121] Keeping all of the above in mind, I award the plaintiff a lump sum of $300,000.00 for her loss of future earnings.
Punitive Damages
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[123] The Diocese was involved in what the plaintiff refers to as the “silent shuffle”. This involved merely relocating Sylvestre to a different parish each time a complaint was received relating to his sexual behaviour.
[124] The plaintiff points out that the only occasions when Sylvestre was sent for any type of treatment at all was when the complaints were made public.
[125] The plaintiff relies upon the following factors in determining the level of blameworthiness of the defendant which may influence the award of punitive damages. These factors were outlined by Binnie J. in his judgment in Whiten v. Pilot Insurance Co.:3
1. whether the misconduct was planned and deliberate;
2. the intent and motive of the defendant;
3. whether the defendant persisted in the outrageous conduct over a lengthy period of time;
4. whether the defendant concealed or attempted to cover-up its misconduct;
5. the defendant’s awareness that what it was doing was wrong;
6. whether the defendant profited from its misconduct; and
7. whether the interest violated by the misconduct was known to be deeply personal to the plaintiff.
[126] The plaintiff alleges that the Diocese:
(a) failed to take proper action to remove Sylvestre as a priest when it knew of his activities;
3 (2002] 1 S.C.R. 595 at 651.
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(b) continually shuffled him to another parish with the intent of protecting the church’s reputation at the expense of the welfare of past and potential future victims;
(c) failed to produce all documents upon initially being served with a warrant by the police;
(d) produced no documents relating to Sylvestre during relevant periods of time;
(e) removed Sylvestre to Roxboro, Quebec to avoid arrest;
(f) delayed any acknowledgement as to what has become a very public matter of pedophilia amongst the Roman Catholic Clergy;
(g) sacrificed the victim’s welfare for the purpose of maintaining influence and power;
(h) generally were reticent and delayed in cooperating with victims and public authorities and rectifying the Diocese’s internal problems;
(i) delayed in making a formal apology
[127] Basically, the plaintiff seeks punitive damages against the church for what it alleges has been a “cover-up”.
[128] The defendant Diocese has endeavoured to minimize this cover-up by showing that the plaintiff has failed to prove that the Bishop at the time various sexual assaults by Sylvestre were reported, knew of these assaults. And further, the Diocese indicated that most of the transfers of Sylvestre to various parishes were likely in the ordinary course.
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[129] Without delving further into this issue, I find that it is acknowledged by the Diocese itself, and in particular by a letter circulated by Bishop Sherlock in 1989,4 that priests were simply moved when complaints such as those against Sylvestre arose and that such actions had to stop.
[130] There was a cover-up by the Diocese. There was a cover-up by the Roman Catholic Church itself. The cover-up was for the benefit of the Diocese and church and at the expense of the victims.
[131] Many cases have been cited to me relating to punitive damages having been awarded against not only individuals but also corporations and employers. However, in spite of the large number of cases that have been reported with regard to sexual abuse by Roman Catholic priests, only one Ontario case has been provided to me indicating that punitive damages have been awarded against the church.5
[132] I suspect it is because of the following:
1 The serious nature of the negative impact upon the victims has only recently and gradually become known as studies such as those in which Dr. Jaffe and his cohorts have participated are published; and
2. One of the purposes for awarding punitive damages is to act as, a deterrent. Since the London Diocese has taken substantial steps to address the issue of sexual abuse, which steps include adopting a sexual abuse policy in 1989, incorporating it into the personal policy manual in 1993, establishing an alternate dispute resolution process to resolve settlements in civil cases in 1996 and apologies by the Diocese by Bishop Sherlock in 2002, and at St. Ursula’s Parish by Bishop Fabbro in 2006, it would appear that numerous
4 See Exhibit 5, Tab 8
3 MT v. Poirier (1994), 47 A.C.W.S. (3d) 1110 (Ont. Gen. Div.), in which the abuse occurred in 1989.
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positive steps have been taken to rectify the problem so that at least the Diocese itself need no longer be punished for failing to act appropriately.
[133] Another factor is that an award of compensatory damages, enhanced by an “aggravated damages” factor has in itself a deterrent effect obviating the necessity for further punishment. In the award of general damages, I have built in an aggravation factor compensating the plaintiff for the inaction and/or wilful blindness of Diocese.
[134] Considering the detrimental effect the Diocese’s passive, protective approach over the years to the actions of its pedophile clergy has had upon the Diocese itself, and considering the fact that deterring the Diocese from similar repeated conduct is no longer necessary, and considering the fact that the Diocese is a unique institution, no further punishment is required.
[135] In a similar case of sexual assault by a priest, Doe v. O’Dell, Swinton J. relied on the rule of proportionality as discussed in Whiten, supra and determined that punitive damages were not appropriate:6
The Supreme Court in Whiten also observed that the governing rule is proportionality. Therefore, a trial judge should consider how the combination of compensatory damages, punitive damages, and any other punishment related to the same misconduct contributes to achieving the objectives of retribution, deterrence, and denunciation.
[136] It is my firm belief that the Diocese’s inaction or wilful blindness stemmed from its desire to protect its own image at the expense of any problems which might be inflicted upon the victims. However, while the church was reticent and reluctant to acknowledge its responsibility, I do not believe that society at large, or the Diocese, or
6 (2003), 230 D.L.R. (4th) 383 at para. 352.
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the church, were able to fully appreciate or comprehend the incurability of the pedophile, the high likelihood of reoffending, or the damage the abuse caused to the victim.
[137] As a result, there will be no award of punitive damages. Conclusion
[138] The action as against Bishop Sherlock is dismissed. The plaintiffs award as against the Diocese is as follows:
(a) General Damages $190,000.00
(b) Special Damages $ 20,000.00
(c) Past Loss of Income $100,000.00
Loss of Future Income $300,000.00
[139] I may be spoken to on this issue if costs cannot be agreed upon.
JUSTICE 1J LITTLE
Date: April 20, 2011