Reasons for Judgement (Glendinning lawsuit)

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CanLII document

COURT FILE NO.:  33504

ONTARIO 

SUPERIOR COURT OF JUSTICE 

B E T W E E N: )  
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J. R. S., G. P. S., L. E. S., D. P. S., R. S. S. AND M. S. ))))) P. M. Ledroit & R. Talach, for the Plaintiff
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Plaintiffs )))  
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– and – )  
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BARRY DONALD GLENDINNING, THE ROMAN CATHOLIC EPISCOPAL CORPORATION OF THE DIOCESE OF LONDON IN ONTARIO, THE ROMAN CATHOLIC CHURCH, THE LONDON DISTRICT CATHOLIC SCHOOL BOARD )))))))))))) J. M. Banfill, for the Defendant Barry Donald GlendinningPeter D. Lauwers & Mark F. Frederick, for the Defendant The Roman Catholic Episcopal Corporation of the Diocese of London in OntarioGordon Cudmore for the Defendant by Counterclaim J. S.
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Defendants ))  
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  ))))) HEARD: June 9, 10, 11, 12, 13, 16, 17, 18, 19, 23, 24, 25, September 8, 9, 10, 11, 12, 16, 17, 18, 19, 22, 23, 24, 25, 26, October 20, 21, 27, 28, 29, December 16, 17, 2003.

 

J. G. KERR, J.

Introduction 

[1]          In the late sixties the Plaintiffs were part of a loving, deeply religious family who were devout members of the Roman Catholic Church (herein referred to as the “Church)”.  D. S., who was raised as a Roman Catholic, married her husband B., a Protestant, in 1958.  As agreed between them prior to their marriage, their six children were raised as Roman Catholics, and were educated in Church schools.

[2]          J. was born on November 25, 1958, and his brothers G. and E. were born on November 6, 1960, and August 28, 1962 respectively.  Their sister M. was born on March 3, 1965.  The family struggled financially, and occasionally would get behind in paying the bills.  There was no money available for movies or vacations.  However, notwithstanding the occasional financial straights, and the normal family arguments, it was a happy family.

[3]          Counsel for the Diocese alleges that D. S. “overstated” the reverence she had for the Church.  I do not share that view.  The fact that she may have taken “the pill” after having five children does not persuade me that she had no hesitation in standing up to religious authority.  That submission has no merit.  I am satisfied that she was a very devout Catholic, who had great respect for priests of the Church, and that she was delighted that a priest of Glendinning’s standing took an interest in her children. 

[4]          She believed that when she confessed her sins to the priest that she was in fact confessing to God who was listening and could forgive her for those sins.  She testified that she was taught that the priest was like Jesus Christ himself, and one should respect and love him; that one should do what a priest told you to do because that was what you would do if God told you to do something.   In short, she believed that a priest, and only a priest could show you the way to heaven.  

[5]          Mrs. S. was diligent in seeing that her children were schooled in the principles of the Church.  She ensured that they said their nightly prayers and grace before meals. She taught them about the concepts of heaven and hell.  She had installed crucifixes in various rooms in the home, and had placed a font containing holy water in the home.  She instilled in them a deep respect for the Church, and its priests.  Tab 2 of Exhibit #3 contains photocopies of several certificates received by J., G. and E. on religious milestones in their early years.  

[6]          J. S. testified that as a child he was taught that a priest of the Church was “God on earth”, a “spiritual creature”.  He testified that he believed that a priest was one of God’s chosen people, and that one became a priest because of destiny.  At the age of seven or eight he took his first communion, and believed that the priest could change the bread into the body of Christ.  He testified that the priests mesmerized him.  He had become an altar boy when he was in grade five at the age of ten, and was very interested in the Church.

[7]           In early 1969 he had seen Dr. J. DuBois, a medical doctor who was the Director of Madame Vanier Children’s Services in London, as well as Dr. Reinhold Reise, a psychologist.  A letter from each of these individuals was entered into the record in this case.  Exhibit 1, Tab 1 contains a letter dated February 18, 1969 concerning J. from Dr. Riese to the S.’ family doctor.  The letter describes the concern of J.’s parents about his anger and his rough treatment of his siblings.  Without going into great detail about this letter, it appears that he found J. to be very bright, with good relationship potential, and many assets, but he felt there was a possibility of a “mild brain dysfunction”.  He recommended a consultation with Dr. Dubois.  Subsequently, Dr. Dubois, whose report was filed as Tab 2 of Exhibit 1, saw him.  At that time J. was taking medication (amphetamine sulphate, a.k.a. Ritalin) and was described as being in better control of his temper.  Dr. Dubois did not feel his admission to the Vanier facility was called for.  A second and final note by Dr. Dubois dated July 9, 1969 indicated that J. had discontinued his medication, but that his mother had noted a considerable improvement. Although 20 years later J. reported to his doctor that he took Ritalin for two years, there appears to be no confirmation of that.  Counsel for the Diocese did not cross-examine J.’s mother on the point. It was also noted in Dubois’ final report that J. had attended a summer camp, and had met the Defendant Glendinning.  In summary, it appears that the behavioral problem that had concerned his mother had subsided prior to, or shortly after, J.’s association with Father Glendinning began in the early summer of 1969.  Clearly his mother had not sufficient concern to pursue further treatment for him from either Dr. Reise or Dr. Dubois after July 1969.

[8]          G. S., two years younger than J., recalls that his family was a close knit one in his early years.  He said that during his early years at home his father would say grace at dinner, and that the children would kneel and say their prayers before bedtime.  He started going to church before he started school.  Later, at school, religion was taught every other day.  He said that during his upbringing at home a very serious subject in his life was how you got to heaven.  He was eight years old when he was introduced to Glendinning in the summer of 1969.

[9]          E. S., a little under two years younger than G., was introduced to Glendinning when he was six years old in kindergarten. He had failed grade two, probably related to his heart problem.  He had suffered from a serious heart problem when he was a boy, and underwent surgery at the age of 14 to correct it.  Before that surgery his parents restricted his activities somewhat to accommodate his heart condition.

[10]      M. was only four years old when Glendinning began his association with her brothers and the family.  Her recollection of those early years was of a close-knit happy family that played games together.  She, too, learned religion from her mother, through bedtime stories and prayers, as well as through church attendances with her mother.  She met Glendinning at her home when he came to visit and recalls him talking with her mother.  He referred to her as “F. N.”, played with her and gave her piggyback rides.  She swore that she thought then that he was a magical, powerful person who could see if you were good or bad.  She said that one behaved when around a priest; that he had a connection with God.

[11]      It is fair to say that, apart from minor behavioral problems on the part of J., the family was a happy and devout one that functioned well in spite of strained economic circumstances.

Association With Glendinning

[12]      In the early summer of 1969, when J., G. and E. were respectively aged ten, eight and six years old, they were sent to a short-duration summer camp which was sponsored by St. Mary’s School and parish for the more underprivileged children attending that school.  There, they came into contact with Glendinning, who had been enlisted by the school to help at the camp, as he had a background of camping experience.

[13]      Although not specifically assigned to St. Mary’s Parish by his superiors at the seminary, Glendinning’s participation in the religious and social activities of that parish was undertaken by him as part of extracurricular activity expected of him by the Rector at St. Peter’s Seminary.  He had chosen to assist in the work of that parish to the knowledge of his superiors.  This was known by the community at the seminary, and apparently, fulfilled the expectation of his superiors.

[14]      Following that camp, J. brought Glendinning to his home and introduced him to Mrs. S..  She was asked by Glendinning if it were permissible for him to take J. to a movie from time to time, to which she assented.  She testified concerning her respect and her trust of priests of the Church, and that she had consented to Glendinning’s association with her children because he was a priest.  She swore that thereafter she saw Glendinning frequently, as he took her children to movies, fishing trips, and camping, often overnight.  As submitted by Plaintiffs’ counsel, I find that his role soon extended far beyond that of a “big brother” in the ensuing months, to one of quasi-parent, counselor, and of course, priest and mentor, a fact known and approved by their mother.

[15]      After that there followed a period of over four years, up to early 1974, during which J. S. and his brothers were entertained in various ways by Glendinning both in his rooms at the seminary and elsewhere.  It is their testimony that they visited him at the seminary on many occasions, sometimes remaining there overnight.  J. estimated that over the four-plus year period of his association with Glendinning he was in his apartment at least two times a month, and in total about 300 times, about 200 of which he stayed overnight.  His brother G. estimated the number of times he was in the apartment at “more than 50” times, and “up to 100”, 15 to 20 of which he stayed overnight.  E. testified he was there in excess of 50 times.

[16]      Unfortunately, the association with Glendinning had a sinister and damaging side to it. Glendinning introduced the boys to tobacco (cigars and cigarettes) and alcohol during the period between 1969 and 1974.  Although Glendinning downplayed the quantity and frequency of alcohol use in his quarters, Dr. Judson testified that even a small quantity of alcohol is capable of intoxicating a young child.  And it is undisputed that Glendinning was and is a pedophile, and was, at least between 1969 and 1974, a very promiscuous one.  Shortly after the summer camping trip of 1969 and meeting J. there, he began sexually assaulting him and introduced him to various forms of improper sexual behavior.   Having first started that activity with J., he went on to include G. and E. in these improper sexual activities.  Both in his rooms at the seminary and on the camping and other trips to which he treated the boys, he sexually assaulted them, and taught and encouraged them to engage in inappropriate sexual activity, including body oiling and painting, masturbation, genital fondling, and oral sex, including fellatio.  Such activity was carried on during almost each and every visit to his apartment and every camping trip.

[17]      J. was an apt student.  In the years that followed he emulated Glendinning, by sexually assaulting his siblings.  I shall deal with that behavior in more detail when dealing with the claim against him, which has been raised by the Diocese. 

[18]       As mentioned, E. was six years old, almost seven, when he met Glendinning.  His memory of events was challenged by defense counsel who made an issue of his description of the seminary building as “V-shaped”.  But counsel overlooked E.’s sketch of the building made during a pre-trial stage of these proceedings, which is found at Tab 5 of Exhibit. 4, and which clearly depicts a rectangular building.

[19]       In addition to the S. children, as hereafter mentioned, there were other children (identified by letter only) who visited Glendinning in his rooms at the seminary where similar sexual misbehavior as that described above took place.  As mentioned, to protect their identity they are not identified by name, but by letters of the alphabet. 

[20]      B. swore that between 1969 and 1974 he visited Glendinning at the seminary 300 to 400 times and stayed overnight at least 40 to 50 times.  He was often there in the company of his sister A, G. S. and another un-named young male.  While visiting there he participated in the same sort of sexual activity described by the S. brothers. Like the S., he too mentioned firing a .22 rifle from Glendinning’s rooms.  He also swore that at times Glendinning would leave him alone in the apartment while he spoke to people or conducted a seminar, clearly indicating the seminary was not vacant on those occasions.

[21]      A also testified at trial and swore that she accompanied her brothers B and C on visits to Glendinning’s quarters at St. Peter’s, in all totaling 300 to 400 times.  She also confirmed sexual activity there as attested to by her brother B and the S. brothers, activity in which she, too, was taught to engage.

[22]      B.B. echoed the testimony of the S., and A and B.  He, too, swore that he attended visits to Glendinning in his rooms at the seminary on numerous occasions during which the sexual activities described by the S. took place.  He said that M. H. and M. L. accompanied him.  He described sexual activity similar to that mentioned by the S. brothers.  He said he was there about one to two times a month between the years 1969 and 1971 before the death of his brother. He also testified that he slept overnight in those rooms with Glendinning about two dozen times during that period.  During his visits he swore that he saw other people in the hall at the seminary, apparently seminarians. Glendinning at no time told him to hide or to conceal his presence.  I shall deal with this issue in more detail below.

[23]      T.L. ‘s evidence of similar sexual activity in Glendinning’s rooms during the years 1967 to 1969 was unchallenged by his counsel, or by counsel for the Diocese. Defense counsel’s submission concerning the timing of the assaults by Glendinning on this witness is surprising given that there was no cross-examination of T.L. with respect that.  Certainly this witness left the impression that he had been assaulted several times over the two-year period of his association with Glendinning. This evidence also gives me grave reservation in accepting Glendinning’s testimony at trial that he remained celibate before his association with the S. children, as well as to his general credibility.  T.L.’s evidence is similar to that of the S. in that he swore that other residents of the seminary would see him at the seminary, and that on one occasion he was asked by one of them to keep quiet.

[24]      The frequency of the visits by the S. children to and with Glendinning at his quarters at St. Peter’s Seminary was the subject of extensive cross-examination of that Defendant, who swore that the children were rarely present in his rooms at St. Peter’s.  As well, although he does not deny sexually assaulting the S. boys, Glendinning does not entirely acknowledge their testimony concerning the nature, location, and frequency of the sexual activity.  I was not impressed with his evidence, which I found to be vague, and unconvincing in the extreme. Glendinning’s testimony, contrasted with the almost unchallenged testimony of the S. brothers, A, B, B.B. and T.L. relative to the seminary visits and the sexual activity there, lacked the ring of truth.

[25]      I am further reinforced in that view by the candid testimony of a defense witness, Father Dennis Noon.  He was a resident at the seminary between 1970 and 1974 except for the scholastic year 1972-1973 when he did an internship at Walkerton.  While at the seminary, he resided on the third floor, around a corner from Glendinning’s rooms.  The location of his rooms was marked on exhibit 19, as X-1 and X-2.   His evidence was that he frequently saw children in Glendinning’s company at the seminary.  He noted them laughing in the hallway, as well as in Glendinning’s rooms.  His estimate was that they were there at least once a month.  He denied knowledge of them staying overnight with Glendinning.  Nevertheless, the frequency of these visits was such that it aroused his curiosity, and he asked Gledinning what he did with them, who replied that he was being supportive of the children, and that he took them on outings. That answer apparently satisfied Noon’s curiosity, as he did not make further enquiry.  On cross-examination he said that it was generally known in the seminary that Glendinning had children in his rooms, and that it was a regular activity for him. He also said that it was against the rules for students to have children in their room, and that he saw no children visit other faculty members in their rooms.  I shall return to this subject below when I deal with the question of knowledge of Glendinning’s activities on the part of the Diocese.

[26]      J. S. confirmed that he saw Father Noon at the seminary during his visits there, as well as Richard Davison.  He also mentioned seeing the Rector, Father Carrigan, a number of times and being scolded for running, presumably in the corridor.  He also mentioned seeing other teachers there.

[27]      In the light of this testimony and that of Father Noon, I found the testimony of Father McNamara, another resident seminarian at St. Peter’s during the period between 1970 and 1975, to be unimpressive and lacking credibility.  Although resident on the third floor of the seminary a good portion of those years, he attested to seeing children on the third floor only five times at most.  He said that on one occasion he saw children in the basement lounge. He also said that when he saw children on the third floor he paid no particular attention, in part because he was concerned with his own life, and in part because they were with Glendinning and in “his home”.  In assessing this evidence I concluded that, to a certain extent, McNamara was willfully blind.

[28]      I shall discuss the seminary and the observations of some of the residents there during the relevant period in more detail below.

[29]      I agree with counsel for the Diocese that the testimony of Sister Caroline O’Connor does not assist me materially with the question of whether the S. went to the apartment at the seminary following her dropping them off at St. Peter’s.  However, contrary to the submission of defense counsel, it is clear that she identified her passengers that day as “3 or 4 S. boys” and B. B.

[30]      Under these circumstances, and considering the passage of time since the events took place, I have no hesitancy in accepting the testimony of the S. concerning the frequency of their visits to the seminary, in spite of what I consider to be minor inconsistencies from time to time. I accept the supporting evidence alluded to (as mentioned below when discussing the seminary) concerning the number and duration of the visits to Glendinning’s apartment made by the S. and the other children, as well as to the sexual activity carried on there during the years from mid 1969 to early winter 1974.  

Events following Glendinning’s Arrest 

[31]      In early 1974 D, who was the elder sister of A, was shocked when her young son, aged four, pulled his pants down and rubbed against her legs.  When asked what he was doing, he replied that he was doing what his aunt A had taught him.  D immediately confronted her sister A about the incident, who revealed that she had done to the child what Glendinning had done to her and her brothers.  D arranged to meet with her two young brothers B, C and A, who revealed the sexual activity they had participated in with Glendinning.

[32]      As a result of this disclosure D telephoned the London police, who began an investigation.  Two police officers, accompanied by D, attended on Glendinning at St. Peter’s Seminary, at which time he acknowledged his sexual activities with children at the seminary.  The police discovered and seized in excess of 250 photographs of young children, described by D as “disgusting”.  They were color photos of approximately thirty different young boys, undressed, and engaged in various sex acts, taken years ago.   Those photos have long since been destroyed, and were not available at trial.  Police also seized some artificial breasts, and a pellet gun. At trial D was able to identify E. S. as one of the boys whose photo was seized at that time.

[33]      On the 12th day of March 1974 Glendinning was arrested and charged with gross indecency with six children including the plaintiffs J., and E.S., and a fourth brother Darren, as well as with A, B, and BB. The Diocese (the Bishop) summarily removed Glendinning from the seminary, and for some reason assigned him temporarily to a London parish, St. J. the Divine before sending him away for treatment.. 

[34]      He pleaded guilty to the six counts two months later, was convicted, and on the 17th day of May and was given a suspended sentence and placed on probation for a period of three years.  Among the conditions imposed upon him by the Court were the following:  He was to reside at and be amenable to the routine and discipline of the Southdown convalescent home to which he had been sent by his superiors (the Bishop) shortly after his arrest, and upon his release from that institution he was to “submit to the discipline & authority & supervision his Bishop, subject to the authority of his probation officer, and accept his direction as to assignments which shall not include (illegible) dealing with adolescents, it being the intent of this Order that there be no opportunity for repetition of this type of offence with young persons” [punctuation and emphasis added].  I shall return to that Order later in these reasons.

[35]      Richard Davison, a young seminarian who had befriended J. after having met him at the seminary, tried to assist him as he was very upset following the exposure and arrest.  He did so at first with the knowledge and consent of his spiritual leader at the seminary Father Michael Prieur, but was later instructed by the Rector to discontinue his efforts, and was dismissed from the seminary when he persisted in his efforts.

The impact of these events on the S. family was devastating.  Mrs. S. received the news with disbelief at first, and then broke the news to her husband.  She said that she cried for months after, but that she told no one for fear of hurting her children.  She and her husband apparently kept it to themselves, and decided not to talk to the children about the abuse until the latter raised it with them.

 

J.’S LIFE AFTER GLENDINNING   

[36]      Although there is some evidence that he had experimented with marijuana as early as 1971 (over a year after his association with Glendinning began), drugs did not appear to be a serious problem for J. up to Glendinning’s departure.  Glendinning had, at J.’s mother’s request warned him about drug usage.  However, as I have said, it appears that drug usage by J. prior to the arrest was not a major problem.

 [37]      After Glendinning’s arrest J.’s behavior problems, which had been minimal prior thereto, became frequent and more serious.  J. was described as getting into more and more trouble in March, April and May of 1974, as well as “getting into drugs”.  He was arrested by the police for breaking into a golf club, and appeared in Court in respect to that incident, the first time he had encountered that kind of problem with the law.  He had left Thames Secondary School in January 1974, and enrolled in grade nine at South Secondary School but left school for good in April.  By late spring he was apparently dealing drugs, and the police conducted a search of his bedroom at his home looking for drugs.  He left home for the first time that summer, going to the Nova Scotia home of Richard Davison who had met J. during his first year as a seminarian in 1972-1973, and who was very concerned about his welfare after Glendinning’s arrest and conviction, and continued to try to help him notwithstanding he had been dismissed from the seminary for so doing. 

[38]      However, Davison’s efforts at helping J. were ineffective, as J. got into trouble in Nova Scotia. He had met an elderly man who gave him money and with whom he had sexual relations. J. said that at that point in his life he was stoned, drunk and running wild, that he resented the whole system.  He was sent back to his home in London where his mother found him difficult to handle. He used his own home as a drop-in center, and was doing drugs, including met amphetamines (speed), and intravenous drugs, as well as alcohol.  He practiced male prostitution, soliciting three to four customers on a weekend.  He did not stay at home for long. 

 [39]      He returned to Nova Scotia just prior to his sixteenth birthday and stayed there for approximately seven to eight months.  He worked for about two months, and then joined the local gay population at Amherst.  He supported himself on odd jobs, unemployment benefits, and the proceeds from his prostitution.  He was consuming drugs on a daily basis, including LSD, peyote, marijuana, and speed.  He also was stealing cars at this time.

 [40]      He returned home for a short time, but then went to Toronto where he resumed male prostitution, while continuing to abuse drugs.  He had a “sugar daddy” who paid him $300 to $400 a week for his sexual favors.   He stayed there for about a year, and then met his first wife Grace, while at the same time he came under suspicion by the police.  These two events led him to leave Toronto.  He lived with Grace at various places, eventually ending up in London.  Although they remained married for seventeen years, J. said they lived together for only about half of that time, as he would frequently leave for a few days, then return to resume co-habitation until the next separation.  During this period of seventeen years he worked only one-quarter of the time….  “No more than I had to”. He used drugs during this period and trafficked in drugs to pay for his habit as well as to provide for his family.  They had one daughter, V., who was born “in 1978 or 1979”.

 [41]      In spite of the fact that he was married to G. for that lengthy period, during that marriage he had sexual relations with “maybe fifty” other women.  He separated from G. when he was 28, somehow managed to borrow a small down payment, and purchased a home.  He drove a taxi for about four years, and supplemented his income by dabbling in drug deals.  He lived for a time with a woman named M., who abused alcohol.  While there J. was drinking 20 to 40 oz. of alcohol daily. M. was also drinking to excess during that period and she was introduced to Alcoholics Anonymous.  J. also attended sessions there with her, and he discontinued his alcohol consumption at age 33, about 12 years ago, and has been free of the habit since then.

 [42]      He no longer attends AA meetings, but has shifted to Narcotics Anonymous (NA).  He has participated in that program for ten years, and states that he has been drug free since then.  He acts as a sponsor in the NA program assisting other addicts.  He has contracted Hepatits C as a result of his intravenous drug use during his earlier years.

 [43]      At time of trial he was self-employed as an automotive mechanic, although he has had no formal training for that vocation.  He does not earn a great deal at that vocation, as disclosed by his income tax returns contained in Exhibit 5.  For example, in the three-year period ending in 2001 the most successful year financially was the last, when he earned a net income of  $15,000.

 G.’s Life After Glendinning 

[44]      G. was in his grade seven class at St. Martin’s School when he was called out of class by his teacher and told to go straight home, as his parents were waiting for him.  He was met by his brother Daren, who told him that the police were investigating “Father”.  He refused to talk to the detectives, as he felt they were there to hurt “Father”. They did not persist in their questioning. 

[45]      G. swore that after the arrest his family’s life changed.  His mother was always sad, and his brothers quiet.  The family ceased having fun together.  G. never discussed Glendinning with his parents.  He wrote a letter to Glendinning, but it was not answered. 

[46]      Although he had never been in trouble for fighting before that time, he became an angry person and he began to engage in fighting behavior.  He said that after J. left home he was worried about him, because he was doing drugs, drinking and not following the rules.  He did not accept a suggestion by counsel for the Diocese that J. introduced him to drugs, or to prostitution.  He said that, his own drug use started after Glendinning’s arrest, and that as a result he was smoking marijuana regularly at age 14.  He got into more serious drugs after that. He swore that at that point in his life he was angry and lost, but that when he was on drugs nothing seemed to matter.  He obtained drugs from “gays” that he slept with, and for whom he performed oral sex. 

[47]      At age 15 he left St. Martin’s School, and for about a month attended Beal Secondary School in London. He left that school after only two months when he was suspended because he was disruptive and constantly engaged in fighting at school.  He then left London to take up residence with his brother J. at Milton, and enrolled in school there.  There he continued prostitution, apparently in Toronto, and said that J. pimped for him.  Eventually, however, he was arrested for the theft of a motor vehicle, and the Court imposed a suspended sentence on him and ordered him to return to his parents’ home in London.  

[48]      He swore that at that time in his life he was “stoned” on drugs most of the time, as well as consuming a “mickey” of rum two or three times a week.  He drank even more on the weekends.  Close upon his 16th birthday he was introduced to speed and intravenous drugs.  Although the Diocese alleges that J. introduced G. to drug use, as mentioned, G. denies that his brother J. introduced him to it.  During his time at Milton he too had a “sugar daddy”, and was practicing male prostitution. 

[49]      For several years he got into difficulty with the law.  He was incarcerated “four or five times”.  In all he spent about two years behind bars in the years after Glendinning’s arrest for convictions in the years 1979, 1980, 1981 and 1983.  These convictions were mainly for various assaults, but also included drug offences and one conviction for breaking and entering (Exhibit 6 under “police records”).  He said that it would not take much to make him snap, and lose control.  He swore that there were additional offences committed by him during those years for which he was not charged. 

[50]      He has been married twice, but neither marriage lasted.  The first ended in 1979 after about a year because of his partying, and drug use. The second was terminated in the year 2000. He has a son about 15 or 16 that he has never seen from the first marriage, and a daughter, Nicole, aged 6 from the second.  He has access to his daughter and a reasonable relationship with her. 

[51]      From 1975 until 1986 he worked only sporadically at part-time jobs, supporting himself primarily from the illicit sale of drugs.  He estimates that he was gainfully employed only 25% -30% of the time during that period.  He was using intravenous and other drugs at that time.  He estimated the cost of his drug habit during those years at $5,000 per annum.  He also admitted to having both male and female sexual relationships during that period.

[52]      In 1986, he commenced working with his brother in law at A1 Mobile Power Wash and retains that employment to date. He has not used cocaine since that employment.  His earnings range between $17,000 and $20,000 per annum.

[53]      He has Hepatitis B stemming from his use of intravenous drugs, and suffers from asthma, a condition which he has endured since he was a child. 

E.’s Life after Glendinning 

[54]      E. describes the arrest as a landmark of change in the lives of himself and his family.   At school he was interviewed by the police, and said that he was terrified.  He said that he was expected to expose everything that Glendinning had told him to keep quiet about, and was afraid he’d go to hell if he did. 

[55]      He described his home of having a “funeral parlor air”, and being exceptionally quiet.  His mother’s eyes were red and swollen. There was no discussion at home about Glendinning or his activities. In fact, E. did not mention the abuse he suffered until the mid 1990s, and even at trial expressed difficulty discussing it. 

[56]      He was terrified when the police came to his school.  He said he was afraid to tell them about the abuse because he was afraid that he would go to hell.   He felt that all his schoolmates knew about the abuse.  He told Dr. Jaffe that he felt like there had been a death in the family.  He experienced grief.  He has no fond memories of his childhood, and sees only a dark cloud when remembering his past. 

[57]      He was in grade five at school.  There, he felt everyone knew about the situation and experienced an overwhelming feeling of shame.  He felt that he did not fit in. 

[58]      The Church had been their life, but now E. thought they were no longer part of the inner circle.  And he said that no one from the Church offered help.   His relationship with the Church ended.  He felt abandoned, and when J. left home in 1974, he suffered additional loss.

 [59]      He started drug use, and by the end of grade eight he was using marijuana weekly.  He had committed two break and entries before he left elementary school.  He went to grade nine at Beal Technical School, but left shortly after commencing his second year in that grade rather than face suspension because he got into a fistfight with a teacher.  He became involved in alcohol and drug abuse, prostitution, and anti-social activities. The drug sub-culture gave him a sense of belonging.  Eventually he was using drugs on a daily basis.  He has used mescaline, cocaine and acid, although he has not indulged in intravenous drugs.  Like his brothers he supported his drug habit in part by trafficking. 

[60]      The course of his life was similar to that of his brothers. After quitting school he obtained part-time employment, and trafficked illicit drugs for a while.  He left home at age 17, and had numerous mediocre jobs, and relationships that he is unable to keep in order.  However, before he was twenty he, too, was into drugs and male prostitution in a life style similar J.’s and G.’s.  He had three or four male relationships with men aged from 35 to 40, his motive in each case being economic gain.   

[61]      In those early years he lived in a “party home”, and used drugs and alcohol.  While at first he used marijuana, he later turned to cocaine on a daily basis.   He experienced concerns about his sexuality, and wondered whether he was homosexual, even though he associated with women throughout that period.  His problems with sexual orientation led him to multiple female partners in an effort to prove his manhood.  He became very promiscuous and has had sexual relations with both male and female partners. 

[62]      Overall, his pattern of behavior was similar to that of his brothers.  Since leaving school early he has had so many jobs and relationships that he says that he has difficulty keeping them all straight. From his mid-teens until his mid-twenties he was gainfully employed only half the time.   His longest period of employment during that period was one year.  

[63]      He impregnated a female when he was 16, and eventually fathered several children.  A “fiancée” friend named D. gave birth to his first child when E. was “19 or 20”.   That relationship ended temporarily when he met and married another woman, J.-A., with whom he stayed six months.  During that interval, he impregnated her as well.  Both women gave birth to children by E., born six months apart.  He left J.-A., and returned to D. impregnating her again.  He again left D. after the birth of that child, having fathered three children in the space of one-and-a-half to two years.  He supported those children sporadically.  Today, he sees the two children by D. about every two weeks, but has not seen the third child for several years.  He said that his three elder children see him as cold and heartless. 

[64]      He married again at age 29 to his present wife P..  They have remained together for the past 11 years, and have one child.  His present drug use is rare, but his wife would not agree that he has no addiction to alcohol, and she apparently monitors his consumption. 

[65]      E. suffered heart problems as a child, which continue, and which limit his job potential, and recreation.  As mentioned, he underwent an operation in 1976 to correct a valve problem in his heart, which apparently was successful.  However, in 2002 at his discovery he suffered “stroke-like symptoms”. He has a prescription for Adavin, which he says he takes to “slow me down”.  At time of trial was seeing Linda Fisher on a weekly basis for counseling due to the sexual abuse he has suffered.  

[66]      He currently operates an auto body shop out of his home, and in 2001, according to his income tax return for that year, earned a taxable income of $35,742.44.  He estimated that his income in 2002 was only $20,000 and described himself as a “borderline” bankrupt.  He testified that this lawsuit “has taken its toll”, and that he does not want to work on a daily basis. 

M.’s Claim 

[67]      Although Glendinning did not molest M. directly, she is one of the Plaintiffs in this action, alleging that Glendinning is responsible for sexual assaults committed by J. on her. She was in the apartment at St. Peter’s on only one occasion when she was eight years old.  I do not attach significance to her evidence concerning the presence of a VCR in his apartment.  Glendinning was not asked about that.  She may have been mistaken or not.  In the late spring of 1973 she had been playing with her brothers behind the seminary, and they all got muddy.  Glendinning took them to his rooms, told her to wash her feet, and to lie down on his bed and try to have a nap.  She followed his instruction.   Her brothers all went to the bathroom and had showers.  She heard her brother E. crying in the adjacent room and opened the door.  She saw her brothers and Glendinning in that room, all of them naked.  She said Glendinning was on his knees rubbing baby powder on E.. 

[68]      When Glendinning saw her, he became very angry.  He told her to return to his bedroom, that she was a bad girl, and that she could not return again.  She said she did not understand what she had done wrong and cried.  

[69]      As she was puzzled by Glendinning’s reaction, she raised the incident with a priest at her school, Father Hunter, shortly after the incident.  She said that he became furious, grabbed her arm, and escorted her from the room. Clearly, at least, that representative of the Diocese was told of the abusive behavior before the police were involved.  But he told her she was lying, and that she was a bad girl, and should not speak of that again or she would go to hell. 

[70]      She also mentioned an incident that occurred at Grand Bend during a visit with Glendinning and her brothers.  She said that her brother E. had been dancing naked at that cottage.  She related that incident to Davison, but he did nothing about it.  Davison confirmed that conversation, and that he did nothing as a consequence of that revelation.  However, he did not say that he did not believe her.  

[71]      She also repeated her allegations to her classmates but they teased her about her allegations, and sang a song about her brothers being faggots. 

[72]      After Glendinning’s arrest she began to drink to excess, often drinking until she was sick to her stomach.  She smokes to this day, having been introduced to that habit by E. when she was 12.  He also introduced her to marijuana, and in the past she has consumed hash oil, hashish, and “acid”, although she no longer does that. 

[73]      She said that at school, she felt that she didn’t fit in, and experienced problems with her sexuality.  She has been married twice, and has five children.  At time of trial she was separated from her second husband.  She said that she thinks religion is “a bunch of lies” and her eldest three children do not attend church.  Her two younger children go to a separate school, but she said the reason for that is that her husband is French-Canadian, and they can get French language training at that school. 

[74]      Although sexually assaulted by J., as mentioned below, she attributes her difficulties to Glendinning. 

The Sibling Abus

[75]      The Defendant Diocese has brought a counterclaim against the Plaintiff J. S. alleging that he is responsible in part for any harm that his siblings G., E. and M. suffered as children as a result of sexual assaults by J..   

[76]      The Diocese alleges that these assaults were particularly harmful as they were accompanied by violence, and involved acts of sodomy, oral sex, masturbation and other sexual activity. 

[77]      In addition, the Diocese alleges that the J. introduced his siblings to drug use, and his brother G. to male prostitution. 

[78]      There is no doubt on the evidence that J. did in fact assault his siblings at the S. home.  I shall describe briefly the evidence of these siblings in connection with that abuse.  However, at trial they denied that J. introduced them to drug use. 

[79]      G. S. testified that he and J. participated in sibling sexual activity “ten to twenty” times, and that about four or five times it involved oral sex or sodomy.  He couldn’t recall being held down, beaten or raped by J., but said his memory of the incidents was a blur.  He said that the abuse continued until he was “15 or 16”, but the evidence discloses that J. left home for the first time when he was only 15, when G. would be 13.  G. said that prior to him becoming 15 J. used violence and threats on him.  On his discovery he said that J. sometimes inflicted pain during the assaults.  He said at times J. was kind.  He testified that by the time he was 15 he could handle J., and apparently the assaults stopped after he threatened to kill J. if he continued them.      

[80]      J. also sexually assaulted E. S. at their home, once, when he was “eight or nine” (J. would then be 12 or 13).  In his testimony at trial, E. denied that J. inflicted violence during that occasion, although he said at his examination for discovery that violence was threatened, and that it frightened him.  Nevertheless, he said it wasn’t the most frightening event in his life.  He doesn’t blame J. for that assault, having decided that J.’s behavior was not his fault.  He blames Glendinning for J.’s assault, as he feels he molded J.. 

[81]      J. also assaulted M..  When she was “about nine” he sexually assaulted her for the first time, taking her to his bedroom where he performed oral sex on her, and stuck his finger into her vagina.  At that time J. would be about 15 or 16, so this must have occurred shortly before he left home for Nova Scotia, or shortly after his return home from there. She denied that she was physically threatened by J., but said that she had been afraid of him, and said she was “emotionally coerced”.  She said this activity was repeated on about one-half dozen subsequent occasions.  All of this activity apparently took place after Glendinning’s arrest and conviction. 

[82]      Although M. said she hated her brother for many years after for these attacks, she has come to the conclusion that the responsibility for his actions lies with Glendinning, and she faults the Church for its failure to assist J., herself and the family following the revelation of Glendinning’s abuse. 

[83]      There is no issue between the parties that J. assaulted these siblings. The issue to be decided is whether J. should share liability with Glendinning and/or the Diocese for any resultant harm to them.  That involves a determination of whether harm occurred and, if so, what proportion, if any, of their subsequent difficulties are related to J.’s assaults and what proportion should be attributed to the behavior of Glendinning.  I shall deal with this issue below, when discussing the impact of the abuse by Glendinning. 

The Claim By the Parents 

[84]      The Plaintiffs, including the R. S. and D. S., all sue for damages for loss of enjoyment of life, and ongoing pain and suffering.  They claim they have suffered physical, mental, psychological and emotional stress as a result of the actions of Glendinning and the Diocese. 

[85]      D. S. swore that after the disclosure of Glendinning’s conduct she cried for months.  Her relationship with the church ended, as she got no assistance from the Church and did not feel that it was there for her any longer.  She was definite that no one from the Church had offered help.  She said that the Rector at St. Peter’s, Father Carrigan, had paid her a visit about two days after the arrest, but that he offered no apology, nor did he ask what he could do for the boys, but interrogated her about her faith.  It upset her that he asked her how she behaved in church, and how she had brought up the boys. 

[86]       Unfortunately, Carrigan died before the trial and was not available to provide his first hand account of his conversation with Mrs. S..  However, I permitted Father Daniels, who reviewed events with Carrigan before the trial began to offer in evidence what Carrigan told him about various events occurring after Glendinning’s arrest.  I allowed that evidence to be admitted on the ground of necessity, but subject to the test of its reliability.  Daniels said Carrigan told him that he “believed” he had offered help to the family during that visit.  I view that statement to Daniels as vague, and clearly self-serving.  In my opinion, it is of questionable reliability.  What is clear is the fact that no help or counseling was actually given to the family following Glendinning’s exposure and conviction. 

[87]      Shortly after the arrest D. began to have stomach pain, which she said occurred when she thought about her boys.  Eventually, her doctor, who was not advised of the assaults, prescribed a drug, Stelazine, for her for “a nervous stomach” which she takes to this day. 

[88]      She said that she was outraged, angry and hurt when she learned of the counterclaim asserted against J. by the Diocese. 

[89]      R. S. described the meeting between the Rector and Mrs. S. in much the same manner as did she.  He said that at hearing the news he had felt terrible, and sick inside for the children.  However, he swore that Carrigan mainly discussed religion and his wife’s beliefs, and that no mention or offer of help for the boys was made.  His visit was of no value to the family, and then he was “out the door and gone”. 

[90]      He claims the same relief as does his wife. 

The Seminary 

[91]      Counsel for the seminary called in its defense numerous witnesses to demonstrate a lack of knowledge on the part of the Diocese as to the nature and extent of the criminal activity of Father Glendinning in his rooms at the seminary.  Their observations apparently cover a period from 1967 to 1974.  Accordingly, they would include the period of time that T.L. attested to having been in Glendinning’s rooms, as well as the period during which the S. children were there. 

[92]      They included Fathers McNamara, Noon, Talbot, Hinsperger, and Prieur.  I shall deal briefly with their evidence. 

[93]      I have already alluded to Father McNamara. He was a student seminarian at St. Peter’s from 1970 until his ordination in 1975.  Of that period, he was absent for one year, either from 1971 to 1972 or from 1972 to 1973, when he was assigned to a parish at Blessed Sacrament in Chatham.  During his time at St. Peter’s, Glendinning was his spiritual director and group leader.  He spoke highly of Glendinning, describing him as intelligent and a model.  McNamara lived on the third floor of the seminary, his room apparently being beside the student lounge at the end of the hall.   

[94]      As mentioned, he acknowledged seeing children on the third floor and in Glendinning’s apartment four to five times at most during his years there, either on a Friday afternoon, or on a weekend.  He said typically there were two, but on one occasion only one child, and once saw a boy and a girl in the lounge in the basement.  He said that he thought Glendinning was acting as a  “big brother” to the children, but didn’t explain how he came to that conclusion.  His lack of interest is somewhat surprising, considering the fact that he had been a trained social worker prior to becoming a seminarian. In any event he did not pay particular attention to the situation, as he said that he was concerned with his own life. However, he conceded that there were no other priests who had children in their rooms. 

[95]      As mentioned, Father Noon was a seminarian at St. Peter’s from 1970 to 1974.  He was ordained as a priest in 1975.  He was absent from the seminary during the academic year from 1972 to 1973 while assigned to a parish in Walkerton.  As mentioned above, he had two different rooms on the third floor while at St. Peter’s.  Those rooms were close to Glendinning’s, and he marked exhibit 19 to show their location.  He resided in the room marked “X1” for his first year, and in the room marked “X2” for last three. The room marked X2 was very close to Glendinning’s.  Glendinning was also his group leader and spiritual director.  He also spoke well of Glendinning, and said that prior to 1974 there was no reason to think anything negative about him. 

[96]      His observation of children was more detailed than that of Father McNamara’s.  At the risk of repeating myself, I shall deal briefly with that testimony again.  He saw children in Glendinning’s company much more frequently than did McNamara.  As mentioned, his estimate was that he saw them at least once a month, and that he often heard them laughing in the corridor.  On one occasion he went to Glendinning’s rooms and saw three children there with the TV on, and reading or chatting.  His curiosity was piqued, and he asked Glendinning who the children were and what he was doing with them.  When Glendinning replied that he was being supportive of them and their family, Noon was satisfied and enquired no further.   On cross-examination he said that it was generally known in the seminary that Glendinning had children in his rooms, that all the students knew, and that it was a regular activity for him to have them there.  He said it was not against the rules because Glendinning was not a seminarian, but lived there.  However, he admitted that no other staff member had children in their rooms. 

[97]           Father Talbot’s evidence was of marginal assistance to the court.  He was no longer a resident at the seminary after May 1969, having left before the S. children began their association with Glendinning.  He did not see TL in Glendinnings rooms notwithstanding the fact that TL swore he was there on several occasions between 1967 and 1969.  Talbot said it would be very unusual to see children in the seminary.  

[98]      Father Hinsberger was a seminarian at St. Peter’s from 1967 until 1971, and was also in a group led by Glendinning.  In the latter years of his stay there, his room was across the hall from Glendinning’s quarters. Nevertheless, he swore that he saw him there with children less than a half a dozen times.  He said that when he did see children there usually there were two to three at a time.  He spoke of (Archbishop) Gervais, who resided in the seminary at that time, complaining about children being in the hall.  Nevertheless, Hinsberger swore that he personally never saw them misbehave or be noisy. 

[99]      Father Michael Prieur has been a professor at St. Peter’s since 1969, having first studied there as a seminarian from 1958 to 1965.  He met Glendinning as a fellow student.  After becoming a priest in 1965, he went to Rome where he again encountered Glendinning and eventually they both returned to the seminary as staff members.   At St. Peter’s, Prieur lived on the second floor and at the opposite end of the building from Glendinning’s rooms.  But the professors ate all three meals together, had faculty meetings, and socialized in the faculty room at the seminary.  He would therefore encounter Glendinning on a daily basis. 

[100]       He swore that he saw Glendinning with children about five times in the summer engaged in preparations to go camping.  In addition, he said that on about five other occasions, he encountered children who knocked on the door of the seminary asking to see Glendinning.  When he saw Glendinning and the children together he said that they seemed to be having fun, and he, too, understood that Glendinning was acting as a big brother to them.  On one occasion he saw children at the pool table in the basement.  He said that he never saw them in Glendinning’s quarters at the seminary. 

[101]       He never heard of a homosexual incident involving Glendinning.  He said that at the seminary matters of sex were taboo. He said that he knew children were going to Glendinning’s rooms, but had no knowledge they were in his rooms.  He said it would be unusual to have children in your rooms alone.  He stated that no other teacher did that, and that it was just not done.  He said that if he saw the children four to five times, it would be fair to say other professors would have seen them equally as often. 

[102]       He was cross-examined on the action of the Rector in dismissing Davison for persisting in his efforts to help J..  He acknowledged that he had thought it was appropriate for Davison to do so, and that he had given encouragement to Davison in that effort.  He felt that possibly Rector had enjoined that effort because he wanted to distance the seminary from the abuse.  On cross-examination by Mr. Cudmore, he acknowledged that it was his view that the Church (Diocese) bore some responsibility for the abuse of the S. children.         

[103]       While these witnesses are not in agreement with respect to the frequency of their encounters with children on the third floor of the seminary, it is clear that all of them knew that they were present there from time to time in the company of Glendinning.  I have concluded, on the basis of this evidence, coupled with that of the S. and the other persons who were there as children, that it was common knowledge at the seminary over at least a seven-year period that Glendinning regularly saw children in his apartment.    

[104]       In addition, there is no doubt that the Rector knew that Glendinning saw children at the seminary. The Rector of the seminary at the time of Glendinning’s assaults was Father Carrigan, who, as I have said, died before this case reached trial.  As mentioned above, he was interviewed at length during the preparation for this trial by Father Daniels, who was charged by the Diocese with managing this lawsuit on behalf of the Diocese.  Daniels described Carrigan at the time of the interview as frail, but said he exhibited a good memory of events during Glendinning’s tenure at the seminary.  Daniels said that Carrigan acknowledged that on rare occasions he saw children in Glendinning’s company at the seminary, but said he didn’t think it was odd because he understood Glendinning was acting as a big brother to them.  He didn’t say how he learned that.  

[105]       Carrigan also reported seeing children seeking Glendinning at the door of the seminary on one occasion.  He wasn’t sure if the children he saw were from the S. family.  He also recalled Glendinning taking children on hikes.  He also recalled that the children he saw appeared to be happy.  He professed no knowledge of Glendinning doing body painting in his rooms.  

[106]       One other person who saw the children at the seminary was the Plaintiffs’ witness, Richard Davison.  He swore that during the school year of 1972-1973, his first year as a seminarian, he saw J. a number of times, as he would go from room to room on the third floor of the seminary.  On one occasion, J. stood at Davison’s door as he studied, and started asking questions.  Prior to that occasion, he had seen him at or in Glendinning’s rooms.   He swore that he saw J. fairly regularly that school year, saying it was about once a week.  He saw him there about “half dozen” times late in the evening, and again the next morning.  He said that J. once told him that he had stayed there overnight.  Davison saw him once at morning services.  During his second year as a seminarian he saw him there on a “fairly regular” basis, but that his visits “sort of petered out” in November of that year. 

[107]       He also confirmed the presence of other children from time to time, a brother of J. among them and, on one occasion, he saw a young girl. 

 [108]       A significant feature of this testimony is that Davison was describing events that took place while he was in residence as a seminarian; i.e. during the fall, winter and spring.  This testimony comes from a witness who has no obvious reason to prevaricate, and I accept it as an accurate account of what he observed while a seminarian. 

[109]       On cross-examination, Davison denied that he had no suspicions of Glendinning’s activity with these children, but said he did not have sufficient evidence to support them.  In that context, he mentioned M.’s tale about E. S. naked dance at Grand Bend while with Glendinning. 

[110]       Lastly, I have considered the vague and unsatisfactory evidence of Glendinning himself.  Significantly, in my view, he was not asked to provide detail about his routine with the children on those occasions when they were in his rooms at the seminary.  Since there appears to be an issue considered important by defense counsel — whether there was or was not any cooking implement present in the lounge at the end of the corridor at the seminary – one would have expected counsel to ask Glendinning if and how he fed the children. Certainly, defense counsel canvassed this subject when examining the other residents of the seminary. Other questions could have been put to this witness, but were not, which would have a bearing on the central issue of the knowledge of the seminary residents concerning his activities with the children.  

[111]       Suffice to say, Glendinning’s evidence left me unconvinced both as to the frequency and the location of his sexual activities with the children. 

[112]       I have considered all of this testimony, as well as that of the Plaintiffs’ witnesses, and have decided that there is ample support for the conclusion that the inmates of the seminary during the years 1969 to 1974 knew that Glendinning, and only Glendinning, regularly and frequently had young children in his rooms, and that on occasion they were there overnight, yet made no real enquiry concerning his activities with those children. 

Relevance of Homosexuality AND SECRECY

 [113]       The Plaintiff’s called Father Bagatto who was a fellow student of Glendinning at the seminary before their ordination as priests.  This witness testified about an incident he and a fellow seminarian observed, and which he reported to the Rector of the seminary.  It concerned Glendinning and another student kissing in the area behind the seminary. 

[114]       While this incident, even if it involved homosexual behavior, by and of itself, has little relevance to child molestation; it was apparently introduced to demonstrate the manner in which the seminary dealt with sexual issues.  No record of the complaint was found in Glendinning’s file, and it appears that there was no formal enquiry launched, notwithstanding both Bugatto and his friend reported the incident separately.  Counsel for the Diocese suggested in their written submission that counseling was given to Glendinning following that report, but that statement, in my view, is not justified by the evidence at trial. 

[115]       What makes this incident somewhat puzzling is the fact that Bishop Sherlock, in his testimony, swore that a suspicion of homosexuality in a seminarian could lead to expulsion from the seminary.  If that statement is true, it is surprising that there was such cursory treatment of Bagatto’s information. Father Daniels also said if the complaint was found to be valid Glendinning should not have been ordained.  Of course, such a disciplinary measure simply because of homosexuality, would not reflect today’s ethic. 

[116]       Certainly, no mention of this incident was found in Glendinning’s file, which was remarkable for the paucity of information it contained concerning him.  

[117]       In her testimony, Sister Caroline O’Connor, when asked by Mr. Cudmore about sexual abuse by the clergy, said that in those days (the 70’s) if you heard about it you didn’t talk about “those things”.  This testimony appears to be supported by the evidence of a Father Summers who was clearly not advised of the reason for Glendinning’s transfer to his parish in Windsor, and was not made aware of the terms of his probation. Under the circumstances that omission on the part of the Bishop of the Diocese and his disregard of the probation terms is surprising.   

[118]       The canon lawyer called by the Plaintiffs also confirmed the church’s policy of secrecy. That witness was Father Thomas Doyle whose CV was filed as Exhibit. 41.  He is a member of the Dominican Order, and holds a degree in Canon Law.  He produced a translation of a papal instruction to “all Patriarchs, Archbishops, Bishops and other Diocesan Ordinaries…”, which was filed as Exhibit. 35.  That document purports to instruct those officials on the manner in which certain offences of a sexual nature alleged against a priest are to be dealt with by those officials. 

[119]       Included in that instruction are offences falling under the heading of “The Worst Crime”.  Activity such as “any obscene, external act, gravely sinful, perpetrated in any way by a cleric or attempted by him with youths of either sex.” constitutes such a crime. 

 [120]       A procedure is directed by this instruction on the manner by which such offences by priests are to be dealt with.  Without going into a great deal of detail it suffices to say that offences of this nature when discovered were to be prosecuted by the officials of the particular Diocese with a great deal of secrecy, known as a “pontifical secret”. 

[121]       This secrecy, which is described as “perpetual secrecy”, is imposed upon not only the accuser of such offences, but also on any witnesses to such offences.  If such secret is broken, the punishment provided for is excommunication, which in such a case can only be lifted by the Pope. 

[122]       Doyle testified that this document demonstrated the common practice within the church of keeping these crimes secret from the outside world.  He also swore that in 1962, a homosexual act committed between two members of the clergy would be considered a serious crime.   

[123]       Clearly, however, even such a “crime” as the commission of a homosexual act was to be dealt with within the strict confines of the procedure provided for in Exhibit  35. 

[124]       Father Doyle’s testimony was not seriously challenged by the testimony of Father P. Cogan, also holding a degree in Canon law, who was called by the defense. 

[125]       When one considers this evidence, together with the testimony of the various residents of the seminary above referred to, the inescapable conclusion is that the Diocese encouraged secrecy, if not willful blindness on the part of its priests with respect to sexual deviance.  It was an environment in which one heard no evil, saw no evil, and spoke no evil.  The Diocese thus created and nurtured an environment in which Glendinning was free to carry on his sexual predation without fear of discovery. 

Effect of the Sexual Abuse

 [126]       As mentioned above, in the years following the arrest and conviction of Glendinning, the S. have not prospered.  It is the Plaintiffs’ claim that their past criminal conduct, drug and alcohol addiction, their unemployment and underemployment, their difficulties with peer and other relationships, and their present economic circumstances are all the consequence of Glendinning’s sexual predation.  In addition, they relate their present personality disorders to the years of abuse at his hands. 

[127]       In response, the Defendants plead that there are a variety of causes for the behavior and the career paths of the S. brothers since the arrest and conviction of Glendinning, and deny that there is a direct connection between his assaultive behavior and their “lost” years, their present economic circumstances or their present mental state.  With respect to the claims of G., E. and M., the Diocese claims that J.’s assaults on these three are, in part, the cause of their past and present difficulties. 

[128]       Both the Plaintiffs and the Defendants presented expert medical and psychiatric evidence to support their position concerning the causal connection between the “lost” years and the sexual assaults by Glendinning, and his introduction of alcohol and tobacco to them during their early years.  These experts also expressed their opinion on the effects of J.’s abuse of his siblings. 

[129]       The Plaintiffs called Dr. Martyn Judson, a medical doctor specializing in substance abuse treatment and addiction medicine.  His curriculum vitae (CV) was presented to the court and filed as Exhibit 17.  He has practiced his specialty in London since 1993.  In addition to his private practice, he is an Adjunct Professor of Psychiatry at the University of Western Ontario and is active at several hospitals in London.  He has extensive experience in the treatment of substance abuse, but is not qualified in psychiatry or in psychology.  

[130]       Although he had not personally interviewed any of the S. (children) he was asked to review the reports completed by three specialists called by the Plaintiffs who did, Dr. Pampe, Dr. Jaffe, and M. Poisson.  

[131]       He testified that exposure to alcohol and tobacco at an early age increases the risk of abuse of alcohol or other drugs at a later age, and the younger the age at exposure, the greater the risk becomes.  He said that the age of one’s first exposure to alcohol is more important than the frequency of consumption.  He described alcohol as a “gateway” drug.  On cross-examination by Mr. Cudmore, he said that it takes much less quantity of alcohol to intoxicate a young person than a person who is mature, and that the use of alcohol at an early age makes it more probable that one would abuse other substances. 

[132]       He said that close to 50 per cent of his patients who are drug dependent were sexually assaulted at an early age.  He acknowledged on cross-examination that hyperactivity is also associated with drug use. 

[133]       He also said that if the victim trusted the person introducing the drugs and committing the abuse, the abuse would have a more damaging effect. 

[134]       The Plaintiffs’counsel presented Dr. Peter Jaffe, a Clinical Psychologist, as an expert witness.  His detailed and extensive CV was filed as Exhibit 22.  I shall only briefly deal here with his qualifications.  He obtained his Doctorate in Clinical Psychology from the University of Western Ontario in 1974.  Since that time he has had extensive experience dealing with children in the justice system.  Over the past 30 years he has worked extensively with children who have been physically and sexually abused, having dealt with over 1,000 cases of child sexual abuse.  He said that he had dealt with over 200 cases of adults who had been abused as children where the issue was their life trajectory.  In 2001, he participated in the preparation of a preliminary survey of adult survivors of child abuse, and the economic costs and consequences thereof.  That survey was filed as Exhibit 23, Tabs 1 & 2.   After hearing submissions from counsel, I qualified him as an expert witness as a psychologist and, in particular, in the area of child sexual abuse, and the economic consequences and effects upon individuals of child sexual abuse. 

[135]       He testified that there were common features of the effects of child sexual abuse.  These included an inability to trust people, to develop relationships, distrust of authority, rebelliousness, anxiety and depression. He said that 50 per cent of child victims of sexual assault present with a history of alcohol and drug abuse.  Some of these turn to prostitution, while others avoid sexual relationships.  Frequent conflict with the law was also a common feature presented by victims.  In extreme cases of child sexual assault some victims present with post traumatic stress disorder (PTSD).  Some victims blame themselves for the abuse.  The effects are, according to this expert, exacerbated by factors such as the age of the child, and/or the nature of the perpetrator, and even the location of the abuse.  There is more impact to the abuse if the perpetrator violates the trust of the victim. 

[136]       Dr. Graham Glancy was called by the defense.  He is a Forensic Psychiatrist and an Assistant Professor in the Department of Psychiatry at the University of Toronto.  His CV was filed as Exhibit 51.  As mentioned below, Dr. Glancy has referred to a condition known as an attention deficit hyperactivity disorder (ADHD) in his reports on the S. children.  Dr. Jaffe was asked about that condition.  On cross-examination, he described it as a condition in which the individual has difficulty paying attention and controlling his activity level.  He said this condition is often associated with agitated, angry children. This, of course, is a difficult problem for a schoolteacher who has a student who may be disruptive because of this condition.  But Jaffe said that ADHD is poorly defined and is often misdiagnosed.  It is particularly difficult to diagnose if accompanied by a conduct disorder. 

[137]       Jaffe interviewed J., G. and E. S. and prepared separate reports with respect to each of them, which are contained in Exhibits 1, 10 and 11.  Dr. Glancy also interviewed these three Plaintiffs, and he, too, prepared reports concerning them, that were filed as Tabs 2, 3, and 4 of Exhibit 24.  He also prepared an additional short report that was filed as Exhibit 31.  I shall attempt to summarize the substance of these reports. 

[138]       Jaffe and Glancy agree on many things concerning the effects of sexual abuse on victims of it.  They agree that they suffer from a loss of trust of people, fear and depression.  They experience difficulty with relationships and loss of self-esteem.  Glancy agrees that early dropping out of school and prostitution are clearly associated with child sexual abuse.  But Glancy attributes other factors as having a substantial impact on the S. boys’ behavior, an opinion not shared by Jaffe. 

[139]       Both Jaffe and Glancy testified at considerable length with Jaffe’s testimony consuming five and one-half days, and that of Glancy one and one-half.  Glancy conceded he does not have the expertise possessed by Jaffe in the area of child sexual abuse, but nevertheless has an expertise in dealing with adults who have experienced sexual abuse as children. I do not propose to go into elaborate detail with respect to the testimony of these two witnesses.  Needless to say, I have carefully considered their evidence in reaching my decision concerning each of the victims of Glendinning’s assaults.  The following is my view of the important aspects of that testimony. 

J. 

[140]       Jaffe’s report concerning J. was filed with Exhibit 1 as Tab 5.  It notes that J. was hyperactive and inattentive at school but exhibited superior intelligence.  He met Glendinning in the summer of 1969, and he admired him.  This relationship at first was positive, but it became one of sexual exploitation and abuse by Glendinning.  Jaffe said that sexual abuse was normalized for J., part of games played in a normal context.  On cross-examination, he mentioned the significance of the cumulative effect of the assaults on J., and he disagreed with a suggestion that the impact of the assaults would decline as they continued over time. 

[141]       He sees the primary cause of J.’s 15 years of alienation from society as a result of the sexual abuse by Glendinning to which he was exposed from 1969 to 1974.   He discounts entirely any suggestion that the short absence from his mother during his second week of life has any causal connection with his behavior as an adolescent, and in his early adult life.  He also rejects and discounts the theory that a brain dysfunction has a causal connection with his alienation, or anti-social behavior. 

[142]        He was of the opinion that the main reason for J.’s abuse of his siblings was Glendinning’s abuse, which was “as severe as it gets”.  He is of the opinion that but for that abuse the sibling abuse by J. would not have occurred.  Even Dr. Glancy was of the view that Glendinning’s abuse of J. was a significant factor in J.’s abuse of his siblings. 

[143]       In Jaffe’s opinion, after Glendinng’s exposure and conviction J. used drugs and alcohol to cope with his depression, anxiety and stress that those events had created.  Since then, he has failed in jobs and in his relationships.  Jaffe said that J. is suspicious of people, and is always testing you, a direct result of the sexual abuse. 

[144]       There was considerable testimony concerning J., and his early life, and in particular whether he suffered from ADHD as a child.  While Dr. Glancy appears to support a diagnosis of that condition, he conceded that his symptoms wouldn’t satisfy today’s diagnostic criteria based upon the information before the Court.  It is my conclusion that although J. may have had some symptoms of ADHD, no reliable diagnosis of that condition was made when he was a child.  It is safe to conclude that any symptoms of ADHD he demonstrated were mild. 

[145]       Tests performed by Jaffe on J. show a high level of anxiety and intrusive thoughts. His I.Q. is in the top 6% of the population.  However, his high potential but low achievement may create stress.  His day-to-day functioning is poor with respect to relationships and is hampered by problems.  Jaffe feels this condition is more pervasive because of the abuse suffered in his formative years.  His employment does not match his skills.  Absent the abuse the witness believes that in all likelihood J. would have gone on to higher education.  In his opinion, the sexual abuse and J.’s dropping out of school are related. 

[146]       He agrees with Dr. Pollock, a defense psychologist that J. is functioning in the high average range (see report Exhibit 24, Tab 5) and that his responses are valid.  Jaffe’s findings also disclosed a similar personality structure to that revealed to Dr. Pollock.  He agrees that J. has symptoms of PTSD, but is of the view those symptoms fall short of that formal diagnosis.  He feels that recollecting the assaults by Glendinning may be traumatic to J..  He feels that personality disorders can be related to trauma.  Jaffe disagrees with Pollock that some of J.’s current difficulties can be related to genetic factors (see Exhibit 24, Tab 6, p.1, 3d para.), which in Jaffe’s view are “meaningless”.  I, too, have grave reservations concerning Pollock’s opinion about “genetic factors” having any significant effect on J.’s life path.  

[147]       Jaffe said that if one’s trust is violated, that could lead to distrust of people. 

[148]       Jaffe was asked his opinion of the report prepared by Dr. Glancy on behalf of the Defendant Diocese, and cited several views that differ from Clancy’s. He disagrees with Glancy’s conclusion that J. suffered “severe” behavioral problems as a child (presumably at the time of his visit to Dr. Riese), and preferred the adjective “serious”. I agree. 

[149]       Glancy’s reference to Dr. Riese’s reference to “minimal brain damage” in his report disturbed Jaffe, as he says there is no current evidence of organic brain problems.  Jaffe said that 30 years ago when psychiatrists or psychologists saw a boy with behavioral problems they used that term, but that it is not in current use. 

[150]       Jaffe agrees unequivocally with Glancy that the abuse at the hands of Glendinning had a significant contribution to his personality development and subsequent substance abuse, male prostitution and crime.  He feels that other factors are less likely to have relevance, likening the abuse by Glendinning to a “school for sexual abuse”. 

[151]       Dr. Jaffe feels that in his day-to-day functioning J. goes “up and down”, but that overall he is struggling with his life, past and present.  He feels that J. will have lifelong problems and crises.  He feels that J. is in need of long-term counseling.  He stated that J. is suffering added distress as a result of the litigation, including the counterclaim that has been made against him by the Diocese. 

G. 

[152]       Dr. Jaffe then described his findings with respect to G. S..  His report on G. was filed with Exhibit 10 at Tab 3.  His family history was generally the same as J.’s with the exception that G. suffered from asthma as a child and, as a consequence, his parents were more protective of him. 

[153]       As mentioned, Glendinning abused him from age nine to age twelve, the abuse taking the same form and in the same context as that of his brother J..  Jaffe said that the fact that J. was included in the activity normalized it for G..  And because it was at the hands of a priest, G. considered it to be appropriate behavior.  In Dr. Jaffe’s view the abuse he suffered at the hands of Glendinning was crucial because it occurred at a formative stage of G.’s life. 

[154]       Although he does not suffer from a stress disorder (PTSD) both Jaffe and Dr. Pollock, the defense psychologist, agree G. has symptoms thereof.  Jaffe said that he has a personality disorder with a significant impairment.   Dr. Clancy suggests in his report on G. that early records suggested that he too might have had symptoms of ADHD, coupled with anti-social behavior, which may have led to his drug abuse.  But Jaffe disagreed that there was a clear link between ADHD, the anti-social behavior, and his drug abuse. 

[155]       The effect on G. of the inter-sibling abuse was also the subject of differing views by the experts called by the parties to this action.   It was the view of Dr. Jaffe that the effect of the abuse suffered by G. at the hands of J. “paled into insignificance” when compared with that inflicted upon G. by Glendinning.  He was of the view that the dominant cause of G.’s abuse of drugs, and his anti-social behavior, including his prostitution, was Glendinning’s abuse.  Moreover, he opined that the abuse by Glendinning “schooled” J. to abuse his siblings.  

[156]       On the other hand, Glancy was of the view that the abuse at the hands of J. was as severe as or more severe than the abuse by Glendinning, as it involved violence, threats and bullying.  He viewed those assaults as significant contributing causes to G.’s subsequent life- style.   He also felt that his dropping out of school, his use of drugs and his male prostitution could be attributed to modeling after his elder brother. 

[157]       Jaffe noted that after Glendinning’s arrest, G.’s life took a path similar to J.’s, first by dropping out of school at grade 9. Thereafter, his life was one of alcohol and drug abuse, male prostitution, and other criminal behavior, and eventually incarceration.  He has had significant problems in the area of drug and alcohol addiction.  He did not settle down until around the age of 25, when he obtained employment with his brother-in-law, a job he still holds. 

[158]       He has difficulty forming intimate or trusting relationships.  He has problems with anger management, and frequent temper flare-ups. He is frequently depressed.  He has been married twice, but both marriages were of short duration and have ended in divorce.  Both Dr. Jaffe and Dr. Glancy agree that he has some anti-social traits.  He still abuses alcohol and drugs, and his personal relationships are poor.  His wives described him as being cold, aloof and distant.  He has a daughter he is reported to be close to, but with whom he is “stand offish”. 

[159]       Jaffe testified that he has a major impairment in day-to-day functioning in mood regulation and relationships.  He is not functioning at his potential.  Although only about one-third of persons with his IQ go to university, in Jaffe’s opinion he would more likely have had no problem finishing high school and a community college. 

[160]       G. has also seen Linda Fischer, a social worker employed by the Regional Sexual Assault and Domestic Violence Treatment Centre at St. Joseph’s Hospital in London.  She has seen G. on 29 occasions, starting in December of 1998.  She is treating him and his brother E. for the long-term impact of sexual abuse. She described the common symptoms of sexual abuse as difficulty with intimacy, drug and alcohol abuse, prostitution, and issues of trust with authority figures. 

[161]       Ms. Fischer said that abuse by a trusted and revered friend is more serious than abuse by a stranger.  Age at the onset of the abuse is a factor, as is the duration and location of the abuse.  She also said that sibling abuse is often behavior learned from a role model.  She felt that counseling has helped G., and that should be possible for him to have a normal female relationship. 

[162]       When asked about J.’s assaults Ms. Fischer described them as violent, involving penetration and having an impact on G..  But on cross-examination by Mr. Cudmore, she said that she would have expected inter-sibling assaults, and that any problems created by those assaults can be traced back to Glendinning.  I shall deal in more detail with the cause and effect of the inter-sibling abuse below.   

E. 

[163]       Exhibit 11 is the Plaintiffs’ medical brief on E. S.. Dr. Jaffe’s report concerning him is found at Tab 2 of that exhibit.  It was Dr. Jaffe’s view that because of E.’s young age at the onset of the assaults he would be more confused at that time whether such behavior was right or wrong.  And he said that the group sex in which he participated at that age would imply that such behavior was appropriate.  It modeled sexual deviance. 

[164]       He was seven years old when he came into contact with Glendinning.  He said he felt that the priest was like the Prime Minister.  In Jaffe’s view, because of age at the time, the effects of the abuse he suffered would be much more severe than those on his older brothers. 

[165]       To E., Glendinning’s arrest was like a death in the family.  Jaffe attributes his subsequent behavior in dropping out of school, drug abuse, and prostitution to the abuse he suffered at the hands of Glendinning.  He stated that E. has no great insight into what went on in his early years, and no real sense of his own personality.  He suffers from anxiety and depression, and at times views death as a relief from his unhappy life. 

[166]       Jaffe said that a Trauma Symptom Inventory (TSI) of E. indicated a number of trauma symptoms, but that in his interviews with Jaffe, E. referred to the abuse he endured at the hands of Glendinning, rather than that offered by J..  Jaffe is of the opinion that the effect of J.’s assault on E. is insignificant in comparison. 

[167]       E. related problems with sexual function, and sexual intimacy, which Jaffe said was a hallmark the effects of child sexual abuse.  In general he found that E. suffered from marked distress, severe impairment in day-to-day functioning, had problems with substance abuse, had a personality disorder with anti-social dimensions, had problems with trust and inter-personal relationships, and suffers from anxiety and depression, occasionally tranquilizing himself to avoid reality.     

[168]       Since August 1998, he has been seeing Linda Fischer.  He has had 52 sessions with her, and continues to see her.  As is the case with G., she is treating him for the long-term impact of the sexual abuse he has suffered in the past. The impact of that abuse is similar to that experienced by G..  Jaffe feels E. will require two more years of intensive therapy with Ms. Fischer and will need support after that for future crises.  It is noted by Fischer that E. is two years younger than G., and that the impact of the assaults in view of his age at the time would be greater. 

[169]       She sees room for more improvement in his behavior but is unable to say that he will make a 100% recovery.  She acknowledges that the sibling assaults by J. were traumatic, but said that she would expect inter-sibling assaults and said that they can be traced back to Glendinning’s assaults.  As she does with G., she attributes E.’s distress to Glendinning’s abuse. 

[170]       Dr. Glancy agrees that Glendinning’s assaults on E. would play a major role in his psychology but refers to other factors that may have a contribution.  He referred to E.’s health problems as a child, and the single incident of abuse by J. as being of significance. Although E. told Glancy that the incident was more threatening than Glendinning’s assaults, it appears that it did not have the severe impact that Glancy seems to feel it had. And Ms. Fischer noted that E. was upset and angry at the Diocese for counterclaiming against J..  

[171]       Moreover, in spite of his view of the significance of the sibling abuse and its effect on E., Glancy agreed with a suggestion by Plaintiffs’ counsel that but for Glendinning’s abuse none of the S. boys would have become involved in male prostitution. 

[172]       He and Jaffe agree that there is no support for a diagnosis of PTSD, although there are some trauma symptoms. At present E. takes a drug, Adavin, daily to “slow me down” which helps him to sleep.  In addition, his congenital heart problem limits his recreation as well as his job potential.

SIBLING ABUSE 

[173]       Counsel disagreed as to the responsibility for the inter-sibling abuse on J.’s siblings. The experts called by the Plaintiff, and in particular Dr. Jaffe, are of the opinion that the inter-sibling abuse was caused by Glendinning’s abuse of J..  Jaffe saw it as “modeling” behavior. Dr. Glancy, on the other hand, views that abuse as having a significant impact on J.’s siblings, for which J. ought to be held responsible independent of Glendinning. 

[174]       Dr. Glancy said that “only” 20% to 30% of childhood victims of sexual abuse go on to become sex offenders and he appeared to downplay the effect of such abuse.  On the other hand, a study by James Worling found a much higher correlation (Exhibit 56).  Counsel on both sides submitted extensive argument concerning this issue. What is clear is that the co-relation phenomenon is not unusual, but frequent. 

[175]       My conclusion is that Glancy‘s testimony was not helpful with respect to the causal connection between Glendinning’s abuse of J. and J.’s abuse of his siblings. In chief, he downplayed the significance of the role played by the assaults on J..  However, during his cross-examination he was confronted with an excerpt of his own testimony in Regina v. R.D.R.J., [1994] O.J. No. 4113, @ para. 26, in which he said that there seems to be an association between persons who have been abused in their childhood and later themselves become abusers. 

[176]       Glancy also admitted under cross-examination, familiarity with the paper by Dr. James Worling previously referred to(filed as Exhibit 56) that indicated that significantly more than 20% to 30% of adolescent sibling-incest offenders reported a history of childhood sexual abuse, but said that the sampling by the author was small.  Counsel for the defense argues that it was for that reason Glancy did not mention this study in his testimony.   

[177]       During an early stage of his cross-examination at trial, he conceded only that it was “more probable than not” that Glendinning’s abuse of J. was responsible for J.’s conduct.  Remarkably, Glancy later agreed, after extensive cross-examination, that J.’s abuse of his siblings would not have occurred had it not been for the abuse he underwent at the hands of Glendinning. 

[178]       Notwithstanding that admission by Glancy, counsel for the Diocese urged that I ought find J. 20% to 30% responsible for adverse effects of the sexual assaults on G., and 5% responsible for the effects of the single assault on E..  In my view, this submission does not have merit in the light of the frequency of Glendinning’s assaults, the age of the victims when first assaulted, the lengthy period of time over which they took place, and Glancy’s above-noted concession.   

[179]       After considering the submissions, both oral and written, on both sides of this issue, I find that I am persuaded that Jaffe’s opinion ought to be accepted rather than that of Dr. Glancy.  As I have remarked during defense counsel’s submission on this point, blaming J. for his assaults on his siblings would be similar to blaming Frankenstein’s monster for his actions, rather than attributing its behavior to the scientist who created it.  

[180]       After a careful review of the opposing submissions, I am of the view that responsibility for J.’s actions is properly attributable to Glendinning.   But for Glendinning’s training of J. in sexual perversion, I have no reason to believe that he would have sexually assaulted his siblings.  

CONCLUSION CONCERNING EFFECT OF ABUSE

 [181]       In my opinion, the two expert witnesses Jaffe and Glancy are, in reality, in substantial agreement that the effects of the early sexual assaults on the S. children were a substantial cause of their subsequent drug abuse, and anti-social behavior.  However, Glancy, while he concedes that that abuse is a major contributing factor to that behavior, expressed the view that the other factors above-mentioned had a contribution.  Jaffe disagrees with that proposition, and is of the firm view that, absent the abuse by Glendinning, there is no reason to conclude that the S. boys would have engaged in alcohol and drug abuse, or criminal behavior. 

[182]       I noted that on cross-examination Dr. Glancy was frequently obliged to amend or soften his testimony in chief.  From my observation, on many occasions he expressed opinions favoring the defense that were not well defended on cross-examination. 

[183]       One early notable example of this tendency was his testimony concerning the victims of child sexual abuse.  At the opening of his cross-examination, he denied there was a “strong cyclical connection” of a victim of child sexual abuse turning into a sexual abuser.  Counsel then confronted him with presented his own paper entitled “Clinical Review – Psychiatry and the Law in Canada: A Proposal for Subspecialization”, which was filed as Exhibit 52, in which he stated: “Sexual abuse has a strong cyclical pattern, with victims growing into perpetrators”. 

[184]        His response to counsel question about his inconsistent testimony was of interest.  I have noted defense counsel’s attempt to justify this language, but have serious reservations in accepting counsel’s submission. Glancy, in response to counsel’s question replied that when he was making that statement in his article, he was advocating for services for forensic psychiatry.  Presumably he meant by that remark that he had exaggerated in his submission because he was advocating on that occasion.  It is difficult for the trier of fact to distinguish when a witness is “advocating” for a cause, and when he is not. 

[185]        I have considered the evidence of the two experts carefully, and have concluded that I prefer the opinion of Dr. Jaffe in preference to that of Dr. Glancy, not only with respect to the effect of the inter-sibling abuse, but also with respect to the causal connection between Glendinning’s sexual abuse of the S. children and their subsequent career paths. 

LIMITATIONS ACT 

[186]        Although there was a suggestion early on in this litigation that there would be a defense to the action raised on the basis of the Limitations Act, it was not raised in argument by defense counsel.  It appears that defense counsel concede that there is no defense available to the Diocese on that basis. 

[187]       Accordingly, I do not deal with that issue in these reasons.  However, I do note that, on the evidence at trial, it seems clear that the S. boys in particular and the family generally did not appreciate the cause of their social alienation and the effect of the abuse on their lives until 1995.  Accordingly, action appears to have been initiated well within any relevant limitation period.   

Liability 

(1)  Father Glendinning 

[188]       There is no doubt that the sexual predation by Glendinning resulted in serious harm to the S. children.  As I have mentioned, I have concluded that his assaults were the cause of their alienation from society following Glendinning’s arrest and conviction in 1974. As mentioned above, I do not accept defense counsel’s submission that liability with respect to damages relating to G. and E. ought to be shared by J. and the Defendants.     

[189]       In my view, Glendinning assumed a quasi-parental role with respect to J., G., and E. S. during the interval between the fall of 1969 and early winter of 1974.  To a lesser extent that role extended to M..  

[190]       While he was exercising that role he physically and sexually assaulted the S. boys, and, as well, exposed M. to his sexual misconduct, and he bears the responsibility for J.’s assaults on her.  With respect to these children, I have no hesitation in concluding that he is liable in tort for any resulting damage as a result of his behavior in exposing them to sexual assaults. 

[191]       I am further of the view that, having assumed a quasi-parental role with respect to the children, including M., he had a fiduciary obligation towards all of them.  Wilson J. described what she felt were the essential hallmarks of a fiduciary obligation in Frame v. Smith 1987 CanLII 74 (S.C.C.), [1987] 2 S.C.R. 99, @ p. 136 as follows: 

(1)   The fiduciary has scope for the exercise of some discretion or power. 

(2)   The fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary’s legal or practical interests. 

(3)   The beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power. 

[192]       Counsel for the Plaintiffs submitted that there is precedent for a finding of such an obligation in the cases of clergy and penitent, guardian and ward, parent and child and teacher and student: Lac Minerals Ltd. v. International Corona Resources Ltd., 1989 CanLII 34 (S.C.C.), [1989] 2 S.C.R. 574 @ p. 631, K.(W.) v. Pornbacher 1997 CanLII 12565 (BC S.C.), (1987), 32 B.C.L.R. (3d) 360, Delwick  v.  Frid,  [1991] O.J. No. 1803 (Gen. Div.), M(FS) v. Clarke, 1999 CanLII 9405 (BC S.C.), [1999] 11 W.W.R. 301 (B.C.S.C.)  I can see no valid distinction between those relationships and that which existed between Glendinning and the S. children.  At times, he assumed a parental role with them, during his camping trips with them, as well as at the seminary where, on occasion, they slept in his rooms overnight. At times he assumed a “big brother” role, while at other times he appears to have acted as priest and spiritual advisor, or as a parental figure, for example, when advising J. against drug use. 

[193]       Mr. And Mrs. S. were flattered and proud that Glendinning, a highly regarded priest from St. Peter’s Seminary, had taken an interest in their children.  They entrusted them to him, something they would not have done had he not been a priest.  Mrs. S. likened priests to Jesus Christ.  In her view, a priest could do no wrong, nor would he tell someone to do something wrong.  Her faith in priests was absolute. 

[194]       In my opinion, he, having assumed those various roles, be it one of parent, big brother or priest, he put himself into a fiduciary relationship with them.  The sexual abuse of the children and the exposure of M. to that activity while in his care was clearly a breach of his obligations to those children arising out of that fiduciary relationship with them.  

[195]       As a consequence, Glendinning is clearly liable for any result damages that flow from the breach of his fiduciary obligation to J., G., E. and M.. 

(2)  The Diocese  

[196]       There is no doubt that the Diocese did not assign to Glendinning a duty to associate with the S. children or to assist the S. family in any way.   Clearly, he had no duty to them as their parish priest.  That is not an issue between the parties. 

[197]       It is admitted, however, that the seminary expected its staff members to engage in various community or parish activities outside of the seminary, in addition to their assigned duties at the seminary, and encouraged them to do so. 

[198]       It was common knowledge that Glendinning had assumed a role assisting at St. Mary’s Parish, not only with mass on occasion, but also working with youth at the parish.  It was also common knowledge that Glendinning’s activities with those young people included camping trips when he was alone with the children. 

[199]       As I have previously mentioned, various residents at the seminary encountered young children at the door of, or within the seminary, either seeking Glendinning, or in his company.  Even if one were to discount the evidence of the S. (children) and the other witnesses who attended at Glendinning’s rooms between 1967 and 1974 concerning the frequency of the children’s attendances there, it is my judgment that there is still ample evidence of visits there by the S. at least twice a month.  If one concludes, as I do, that some of those visits involved overnight stays in the apartment, the number of days they attended there multiplies.   

[200]        I also accept the evidence of those parties and witnesses that no special effort was made by Glendinning to ensure that the presence of children went undetected.  As a consequence, I have no hesitation in concluding that it was general knowledge over that period of several years, that Glendinning, and only him among all others in the seminary, associated regularly with young children, mostly young boys, and that they visited alone with him in his rooms. 

[201]       Nevertheless, the Diocese submits that it is not liable for the damages suffered by the S. children as a result of Glendinning’s conduct either in negligence, or by reason of a breach of a fiduciary duty owed to the Plaintiffs.  In addition, the Diocese submits that it is not vicariously liable for any damages as is alleged by the S..    

[202]       I shall deal with each of these grounds of possible liability in turn. 

NEGLIGENCE 

[203]       It is alleged by the Plaintiffs that the Diocese owed a duty of care to them since the Bishop (the Diocese) has a primary responsibility for the faithful. They allege that the standard of care imposed upon the Diocese is one of high vigilance when one of its priests is involved in intimate interaction with children, and in this case, owed an additional duty to the S. children not to expose them to potential danger. 

[204]       The Diocese acknowledges that it has a duty to prevent the abuse of a parishioner by a member of the clergy.  But the Diocese denies that it had a special duty of care to the Plaintiffs, or that it failed in its general duty in this case, pleading that screening procedures for would-be priests in place in 1963 were appropriate for the times, and that it was not negligent in supervising its professors at the seminary. 

[205]       The Plaintiffs assert several particulars of negligence on the part of the Diocese resulting in harm to the S.. Those particulars are set forth in paras. 28 to 36 of the Statement of Claim.  In their factum they elaborate on those particulars.  In support of these allegations, counsel for the Plaintiff points to the fact that no action was taken to protect the children from possible harm notwithstanding the following facts:  

(a)  the frequency of the visits by children

(b)  the numbers of children involved

(c)  the fact that the visits were year round

(d)  the fact that many visits were overnight

(e)  the length of the visits

(f)  that predominantly the visitors were young males

(g)  the fact that the visits were predominately private

(h)  the fact that no other priests were involved

(i)    that while camping with the children Glendinning assumed a quasi-parental role

(j)    the evidence of body paint etc. which would be evident in his apartment

(k)  the use of alcohol, and tobacco in Glendinning’s rooms

(l)    the free rein the children were given to wander in the seminary and grounds

(m)   the use of firearms from Glendinning’s rooms

(n)  the inaction of the Rector in response to the complaint by Father Gervais

(o)  the Rector’s personal knowledge that children attended to visit Glendinning

(p)  the presence of a child at the student mass

(q)  the presence of children in the student group cafeteria, recreation room, and gym

(r)   the fact that the seminary was a small intimate community. 

[206]       Plaintiffs’ counsel submits that in the light of all of these facts Glendinning’s activities should have given a reasonable person cause to enquire into his conduct, and that even a rudimentary investigation would have revealed the improper sexual activities carried on by him in his quarters. 

[207]        Defense counsel argues that the relationship between the Diocese and the Plaintiffs must be of sufficient proximity that it gives rise to a duty of care on the part of the Diocese.  I accept that as a correct statement of the law.  As mentioned, counsel admits that the Diocese has a general duty to prevent the abuse of a parishioner by a member of the clergy, but denies that such duty was breached in this case, as appropriate screening steps were taken in this case [my emphasis].  

[208]       As well, the Diocese alleges that it was not negligent in the supervision of its professors at the seminary, as there was no reasonable expectation of a risk of harm to the children visiting Glendinning. I accept defense counsel’s submission that that risk must be assessed using the standard of care prevailing at the date of the alleged negligence; N.C. v. Blank, [1998] O.J. No. 2544 at para. 74: Professional Liability in Canada, (Carswell, 1994) at pp. 1-5.  But I am not satisfied that the focus should be only on the screening of candidates for priesthood.  That is only one aspect of the factual situation in this case. 

[209]       I am not convinced that the mere fact that Glendinning was not the parish priest of the S.’ parish in London absolves the Diocese of its duty to take all reasonable steps to prevent the abuse of the S. and other children while Glendinning had them in his care and custody, especially while in his rooms at the seminary. 

[210]       It was expected of the priests at the seminary that they involve themselves in activity in the outside community.  In discharge of that obligation Glendinning had participated in masses and other activities of the parish and school at St. Mary’s to the general knowledge of those at the seminary. As I have mentioned, I have concluded that it was common knowledge that children visited him at his apartment at the seminary on a frequent basis.  There is no reasonable room for doubt that he was known to entertain young boys in his rooms alone.  Nor is there any doubt that this was unusual conduct by resident priests at the seminary, and was carried on uniquely and only by Glendinning of all other residents there. 

[211]       Counsel for the Plaintiffs submits that under these circumstances it was foreseeable that there was risk of harm to the children, as great as, if not more serious than, the risk of abuse to a parishioner by a parish priest. In support of the submission that the Diocese was acting in accordance with the standard of the day, its counsel made reference to an excerpt from a text on the law of torts by Professor J. Fleming in which he discusses the basis for applying the standard.  In that excerpt the following statement appears:

Conformity with general practice….usually dispels negligence”(my emphasis). 

[212]       But it is clear from the evidence at trial that having children alone in his chambers at the seminary was not in conformity to the general practice. On the contrary such behavior was an exception to the general practice, and was a notable exception.  In my view, that  departure from the norm should have raised questions in the minds of Glendinning’s superiors, and his colleagues as well.  It was conduct that ought to have caused the Rector or a reasonable fellow resident at the seminary to appreciate the risk of wrongdoing on the part of Glendinning and make inquiries. 

[213]       In fact, Davison, whose stay at the seminary was relatively short, testified that he harbored some misgivings about Glendinning’s activities, but he did not raise the matter to anyone.  However, it is obvious that his position at the seminary was subordinate to the majority of the residents there, and his reluctance to pursue the issue is understandable. 

[214]       The factual situation presented to the Court in this case is substantially different than that which existed in the reported decision in Doe v. O’Dell, [2003] O.J. No. 3546, where the perpetrator resided in a small, rather isolated community in circumstances that clearly differ substantially from those presented in this case.  On the facts in that case there was nothing to cause anyone on the part of the Diocese to have any suspicion of the criminal behavior of Father O’Dell prior to the disclosure by Victim One.   

[215]       It is my view that under the circumstances that are presented in this case, the potential for improper behavior on the part of Glendinning was or should have been obvious to his fellow residents in such a closely-knit community as the seminary.  A duty of care thus arose which the Diocese failed to discharge. 

[216]       I consider the following particulars of the negligence of the Diocese alleged by the Plaintiffs to be especially apt to the facts as I find them.  After a consideration of the evidence, and all the facts including those referred to in para. [209] supra,  it is my view that the Diocese was negligent in several particulars.  They are as follows:   

(a)  It failed to appreciate that Glendinning had children in his apartment overnight when it ought to have known such was the case.                  

(b)   It ignored the high frequency of children’s visits and Glendinning’s unusual conduct in bringing children to his rooms. 

(c)  It took no notice of the fact that Glendinning alone of all other residents of the seminary entertained children alone in his rooms.

(d)       It was willfully blind to the fact that on occasion the children stayed with Glendinning overnight at the seminary. 

(e)      No official at the seminary made any enquiry concerning those activities when one ought to have been made under the circumstances. 

(f)   It disregarded the fact that he took young boys on overnight camping trips where he was the only adult. 

(g)   It failed to keep proper records of Glendinning’s past conduct 

(h)   It treated the issue of sex as taboo, resulting in inappropriate and unusual behavior going unchecked. 

(i)     It failed to provide education or counseling on sexual matters 

(j)     Rector Carrigan failed to interview any of the visiting children personally, or make any enquiry as to their activities, and as a result failed to learn about their activities with Glendinning. 

(k)  It failed to render assistance to the Plaintiffs after Glendinning was exposed, and        failed to take steps to reduce the impact of his assaultive behavior. 

[217]       Accordingly, I find the Diocese liable to the Plaintiffs for any damages, which arise by virtue of its negligence.  

VICARIOUS LIABILITY                                                                                     

[218]       The Plaintiffs submit that a second ground of liability on the part of the Diocese exists on the basis of vicarious liability of the Diocese as the employer of Glendinning.  It is submitted that an employer is vicariously liable for the actions of an employee which amount to an unauthorized mode of performing an authorized act. 

[219]       On the other hand, defense counsel submit that the employer is not liable for an employee’s act that is committed outside the scope of his employment.  It is their submission that Glendinning was not acting within the scope of his employment by the Diocese when he sexually assaulted the S. children.

[220]       Counsel for both sides have referred to the decision of the Supreme Court of Canada in Bazley v. Curry, 1999 CanLII 692 (S.C.C.), [1999] 2 S.C.R. 534 which contains an analysis of the test to be applied in determining the answer to the question as to whether certain conduct was or was not done within the scope of the perpetrator’s employment.[221]       In this case, as in Bazley, both parties agree that the Salmond test is first to be applied in order to determine whether the employee’s acts were authorized by the employer, or, if not so authorized, they were so connected with authorized acts that they may be regarded as modes (albeit improper modes) of doing an authorized act.  As might seem obvious, the difficulty arises with respect to the second branch of this test. Clearly, his assaults were not authorized acts. So I turn to the second part of the test..   

[222]       The Court has said that if, in applying the second part of the test, a review of prior cases does not disclose an unambiguous determination on which side of the line between vicarious liability and no liability the case falls, the Court should then go on to determine whether vicarious liability should be imposed the light of the broader policy rationales behind strict liability.  

[223]       One must examine the facts to determine if there is a connection and the sufficiency of that connection between the employment and the wrong that justifies the imposition of vicarious liability.  In determining the sufficiency of the connection between the employer’s creation or enhancement of the risk of the wrong complained of the court at para. 41 enumerated several factors that might be considered. 

[224]       Those factors are:

(a)      the opportunity that the enterprise afforded the employee to abuse his or her power; 

(b)     the extent to which the wrongful act may have furthered the employer’s aims (and hence be more likely to have been committed by the employee); 

(c)      the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s enterprise; 

(d)     the extent of power conferred on the employee in relation to the victim; 

(e)      the vulnerability of potential victims to wrongful exercise of the employee’s power.  

[225]       Counsel for the Diocese submits that in this case there was no job created opportunity for Glendinning to commit the sexual assaults on the S. children, and that there must exist a sufficient connection between the Glendinning’s duties and his wrongful acts.  In support of that proposition, it is submitted that he was not assigned supervisory or child care duties over the students at St. Mary’s School, and in fact his duties did not require him to be in contact with those students at all.  Therefore, they submit that the connection between his job and the abuse was insufficient to support a finding of liability on the part of the Diocese. 

[226]       Counsel for the Plaintiffs, however, submits that at all times Glendinning was not only a professor at the seminary, but also a Roman Catholic priest.  In addition to his duties as professor of liturgy, and group leader at the seminary, it was expected of him that he participate in priestly activities in the community.  While apparently he was free to choose the form that those activities would take, his choice of activity was clearly subject to the approval of his superiors, either expressed or tacit.  

[227]       It was in this way that Glendinning became associated with St. Mary’s Parish.  Occasionally, he participated in the conduct of mass there, and, as related earlier, he came into contact with the S. at the summer camp operated by the parish.  It was as a priest that he was introduced to the S. family, not simply as a person resident at the seminary.  And it was partly due to the fact that he was an eminent priest who had been resident in Rome, and taught students at the seminary that led to his unqualified acceptance by the S. family.      

[228]       The extracurricular role he undertook at St. Marys, as I have said, fulfilled the expectations of his superiors at the seminary. His participation in religious services there and at the summer camp sponsored by St. Mary’s was thus known and encouraged by those in authority at the seminary.  And clearly, his superiors were aware of his contact with young boys in that role, and he was permitted to have that contact as a priest of the Diocese.  Similarly, the Diocese was aware of his lone camping trips with the children.  As McLachlin J. (as she then was) said in Bazley at para. 43, “If an employee is permitted or required to be alone with a child for extended periods of time, the opportunity for abuse may be greater”. [emphasis mine].   

[229]       The factual situation presented in this case differs substantially from that before the Supreme Court in Jacobi v. Griffiths, 1999 CanLII 693 (S.C.C.), [1999] 2 S.C.R. 570.   In that case, there was no parental role bestowed upon Griffiths by his employer.  The club that employed him simply offered group recreational activities for children, which were to be enjoyed in a public setting. Griffiths simply met the children through his employment, but committed his acts upon them in a private setting that had no connection with his employment. 

[230]       Nor is the instant case factually similar to that before the court in K.G. v. B.W., [2000] O.J. No. 2155, referred to by defense counsel.  In that case, there was no evidence that the school board was aware of the contact between the student and the teacher after hours.  Contact between the student and teacher, who was considered a family friend, was outside the scope of the teacher’s employment by the school board.  Under those circumstances, the court held that there was an insufficient nexus between the employment of the teacher and the wrong. 

[231]       Counsel for the Diocese referred to the test for vicarious liability outlined by McLaughlin J. at para. 46 of the Bazley decision.  There she outlined the test in summary as follows:

In summary, the test for vicarious liability for an employee’s sexual abuse of a client should focus on whether the employer’s enterprise and environment of the of the employee materially increased the risk of the sexual assault and hence the harm.  The test must not be applied mechanically, but with a sensitive view to the policy considerations that justify the imposition of vicarious liability—fair and efficient compensation for wrong and deterrence.  This requires the trial judge to investigate the employee’s specific duties and determine whether they gave rise to special opportunities for wrongdoing.  Because of the peculiar exercise of power and trust that pervade cases such as child abuse, special attention should be paid to the exercise of a power or dependency relationship, which on its own often creates a considerable risk of wrongdoing. 

[232]        I have had regard to that test in reaching my decision in this case. After having given careful consideration of the facts as find them, it is my view that four of the five factors enumerated at para. 41 of Bazley supra, were clearly present. 

[233]       Glendinning’s superiors at the seminary permitted him to entertain young boys in his rooms, and to take them on frequent camping trips alone, sometimes overnight, thereby affording him the opportunity to carry out his predation on them. The opportunity thus afforded to Glendinning by his superiors clearly led to intimacy between him and the boys he invited there.  There is no question that as a priest he was in a position of power over the children, a power that was normally exercised by priests for the good of their parishioners.  Lastly, there can be no doubt that the children invited to his rooms and/or on overnight camping trips were vulnerable to the wrongful exercise of that power. 

[234]       That leads me to the conclusion that there was a sufficient connection between the job-created or job-enhanced risk of harm and the assaults by Glendinning to render the Diocese vicariously liable for his behavior.

FIDUCIARY RELATIONSHIP 

[235]       Quite apart from the issues of negligence and vicarious liability, the Plaintiffs allege that the Defendant Diocese is also liable for the damage suffered by them as a result of its breach of an obligation to protect them due to a fiduciary relationship that they allege existed between it and the Plaintiffs.   

[236]       Counsel for the Plaintiffs asserts that because there existed a special relationship between the Diocese and the Plaintiffs it was under a fiduciary duty to them, and was in breach of that duty.  They plead that a fiduciary relationship is distinguished by the special elements of trust, loyalty and confidentiality that are its hallmarks. 

[237]       As mentioned in Frame v Smith, supra Wilson J. set out the distinguishing hallmarks or elements of a fiduciary relationship.  I repeat them here:                        

(1)   The fiduciary has scope for the exercise of some discretion or power; 

(2)   The fiduciary can unilaterally exercise that power or discretion so as to   affect the beneficiary’s legal or practical interest; 

(3)   The beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power. 

[238]       Wilson J discussed the first of the above-mentioned three elements and the process one should follow when trying to determine whether a particular relationship gave rise to a fiduciary obligation.  In that approach to the solution of that question she said the following: 

The focus is on the identification of relationships in which, because of their inherent purpose or their presumed factual or legal incidents the court will impose a fiduciary obligation on one party to act or refrain from acting in a certain way.

And she added:

It is only in relation to breaches of specific obligations imposed because the relationship is one characterized as fiduciary that a claim for breach of fiduciary duty can be founded. 

[239]       Counsel for the Diocese asserts that in this case none of the three criteria alluded to, supra, are found.  Reference was made to the decision of the Court of Appeal of Nova Scotia in F.W.M. v. Mombourquette, [1996] N.S.J. No. 260, in which the Court reversed a finding that a fiduciary relationship existed between a young parishioner, who was sexually assaulted by his parish priest on perhaps two occasions, and the Diocese of the church.  That decision is helpful in that it applies the test in Frame but does little to assist me on the facts in this case. 

[240]        In Mombourquette, the factual circumstances leading to the conviction of the priest were substantially different from the facts presented to me.  Indeed, the difficulty facing a trial judge, on reviewing the case law and attempting to sort out the principles of law applicable to the facts before him, is that the decisions are based largely on the particular factual situation presented.  For that reason, Mombourquette is, in my view, of marginal assistance to me in this case because of that difference. 

[241]       But, in my view, it is an academic exercise to determine in this case whether some fiduciary relation ship existed between the Diocese and the S..  There may have been such a fiduciary relationship in the sense that the above three elements were present in the relationship between the Diocese and the S..  But the question which must be answered in this case is whether the fiduciary relationship that may have existed rendered the Diocese liable on the facts proven at trial.      

[242]       In C.A. v. Crichley, [1998] B.C.J. No. 2587, the British Columbia Court of Appeal allowed an appeal against a finding of the existence of a fiduciary relationship between the Crown, represented by the provincial Ministry of Human Resources and inmates of a wilderness group home for troubled youth operated by Crichley under a contract with the Crown.  However, in that report McEachern C.J.B.C. attempted to provide some guidance to judges faced with this question of whether there existed a fiduciary relationship sufficient to support liability in a particular case.  

[243]       After reviewing a number of decisions of the Supreme Court of Canada in which there was a finding that a fiduciary relationship existed, McEachern C.J.B.C., at para. 85, concluded that it would be a principled approach to the issue to confine recovery based upon finding fiduciary duties to cases of the kind where, in addition to the other usual requirements such as vulnerability and the exercise of a discretion, the defendant personally takes advantage of a relationship of trust or confidence for his or her direct or indirect personal advantage.  

[244]       This aspect of the duty of a fiduciary not to take advantage of a trust relationship for the fiduciary’s own benefit is referred to in K.L.B. v. British Columbia, [2003] S.C.J. No. 51 as an essential element of that relationship, and liability lies for breach of that duty.  It was said there that a key factor in determining whether there was a breach of a fiduciary duty is a finding that  the fiduciary acted disloyally in placing its interests ahead of the beneficiary’s.  Counsel for the Plaintiffs have not pointed to any action taken by the Diocese in relation to the S. family that could or did result in advantage to the Diocese.   

[245]       As was said in Mombourquette, when identifying the relationship one is obliged to examine all aspects of the relationship between the parties.  As I have mentioned, the facts in this case are substantially different than in that case.  In this case, Glendinning was resident in a facility owned, operated and staffed by the Diocese.  A substantial proportion of his depredations took place in his rooms at the seminary in close proximity to other staff members and seminarians.  Extracurricular activity was an expectation of the seminary, and his was known to his superiors.  It was, I find, generally known and condoned that children visited him from time to time in his chambers, a notable exception to general practice.  Lastly, it was generally known that he took the children alone with him on overnight camping trips, with the accompanying intimate contact that they would entail. 

[246]       Nevertheless, in my view, all of those factors have more relevance to the issue of negligence on the part of the Diocese than to the issue of the existence or otherwise of a fiduciary duty owed by the Diocese to the Plaintiffs.  Liability on the part of the Diocese in this case is properly resolved on the basis of negligence or vicarious liability, rather than on an alleged breach of fiduciary duty.  It cannot be said that the Diocese took any action, or failed to take any action to further its direct or indirect advantage, thus fulfilling the first criterion for liability on the basis of breach of fiduciary duty.  

[247]       On the facts presented at trial, I am unable to find any evidence that the Diocese took any action by which it secured an advantage for itself, either direct or indirect.  Indeed, the opposite is true.  Its inaction in properly supervising Glendinning was a major contributing factor to the injury to the Plaintiffs.  That allowed the assaults to continue over a period of several years undetected thus exposing it to liability for damages for its negligence. 

DAMAGES 

[248]       The Plaintiffs claim damages under three headings: non-pecuniary, pecuniary and aggravated/punitive.  I shall deal with each of these elements of damages below, but for the sake of convenience I shall deal with non-pecuniary damages and aggravated damages first. 

NON-PECUNIARY AND AGGRAVATED DAMAGES 

[249]       In many of the reported decisions awarding damages for sexual assault the non-pecuniary or general damage award includes an award for aggravated damages. As was mentioned in Doe v. O’Dell, [2003] O.J. No. 3546, the Supreme Court of Canada in Norberg v. Wynrib, 1992 CanLII 65 (S.C.C.), [1992] 2 S.C.R. 226 at p. 263 remarked that these damages are awarded if a battery has occurred in humiliating or undignified circumstances.  They are not awarded in addition to general damages.  Rather, general damages are assessed “taking into account any aggravating features of the case and to that extent increasing the amount awarded”. 

[250]       As in Doe v. O’Dell, as I find that the Diocese is vicariously liable for the assaults on the S., that liability extends to all elements of non-pecuniary damages caused by his assaults.    

[251]       The parties are ad idem that a basic principle in awarding both pecuniary and non-pecuniary damages is to place the victim in the position he would have been had it not been for the tortfeasor’s wrongdoing.  As well, it is not necessary that a plaintiff establish that the defendant’s action was the sole cause of the injury. But the plaintiff is not to be placed in a position better than he would have been in in the absence of the tort: Athey v. Leonati, 1996 CanLII 183 (S.C.C.), [1996] 3 S.C.R. 458, at paras. 17 & 20 

[252]       Counsel for the Plaintiffs points out that in cases of sexual abuse it is difficult to separate the physical harm, which is often less significant, from the harm caused by the humiliation, continued mental suffering, and social and vocational disability associated with the abuse, as we have seen here: see C. A. v. Critchley, [1997] B.C.J. No. 1020 at para. 251. 

[253]       Assessment of reasonable compensation for that harm is difficult.  Counsel referred to a passage in the decision of the British Columbia Court of Appeal in S.Y. v. F.C.G., [1996] B.C.J. No. 1956 (B.C.C.A.) in which the Court stated the following: 

The foregoing cases present a variety of circumstances and describe differing degrees of harm caused by sexual abuse. They exemplify the difficulty of giving solace or satisfaction to a person who has been abused by one he or she was entitled to trust, and who may suffer from the psychological impact of that abuse for years to come.  What amount of money is sufficient as a substitute for lost pleasures and amenities, and as compensation for what yet remains to be suffered?  

[254]       Counsel have attempted to assist me in this assessment by referring me to various precedents.  Not surprisingly, the cases cited by defense counsel reflect a range lower than those cited by counsel for the Plaintiffs.  Defense counsel’s submission is that the appropriate range of non-pecuniary damage awards is between $75,000 and $150,000, for J., $50,000 and $75,000 for G., and $25,000 and $50,000 for E..  Presumably, those figures are intended to include any amount awarded for aggravated damages. 

[255]       Counsel for the Plaintiffs in his submission on quantum seeks the sum of $250,000 for each of J., G. and E., which he submits is “near to the top of the potential range.” Recently in Doe v. O’Dell,  Swinton J. briefly alluded to several of these cases at para. 280 of her reasons.  The majority of the decisions cited in that case appear result in awards between $150,000 and $200,000.   

[256]       In only one of the various cases referred to by counsel was $250,000 awarded.  In that case, Critchley, cited supra, the court in assessing quantum, reduced a jury award of $350,000 to $250,000 for general and aggravated damages. The court noted that there were aggravating circumstances, including the relationship between the parties, the number of assaults, the ages at which those assaults occurred, the frequency and duration of the abuse, the degree of violence and coercion, the nature of the abuse, and the physical pain and mental suffering associated with it. 

[257]       At para. 55, MacFarland J.A. said the following: 

What is fair and reasonable compensation for general damages, including aggravated damages, in this case is not easy to say.  This is an evolving area of the law.  We are just beginning to understand the horrendous impact of sexual abuse. To assess damages for the psychological impact of sexual abuse on a particular person is like trying to estimate the depth of the ocean by looking at the surface of the water.  The possible consequences of such abuse presently are not capable of critical measurement. 

[258]       In that case, there was an element of violence to the sexual interference with the plaintiffs that is not present in this case.  The S. children, in fact, looked upon Glendinning as a friend.  He offered no violence to them on any occasion.  Nevertheless, as I have mentioned, Dr. Jaffe felt that the abuse of the children by Glendinning was “as bad as it gets”.  In spite of that statement, I am satisfied that the absence of threats or violence to the S. boys is a factor that ought to be reflected in the assessment of the general and aggravated damages.  However, notwithstanding that, I am of the opinion that the abuse inflicted justifies awards at the upper end of the scale.  

[259]       In addition, I am of the view that the lower range for general damages, including aggravated damages, suggested by Mr. Banfield does not reflect the present day level of awards for compensation for the effects of sexual assault on individuals in their formative years.  One must also consider inflationary factors when having regard to the precedents cited by counsel.  For the most part the cases cited on behalf of the Plaintiffs were reported between 1998 and 2001.  I am of the view that at present the appropriate range is between  $125,000 and $250,000.

[260]       As mentioned, notwithstanding that I do not accept the submission of counsel for the Plaintiffs that the abuses in this case was of the most severe kind, nevertheless in view of the prolonged period over which all of the brothers were abused by Glendinning, the frequency of that abuse, the relationship between the abuser and his victims, and the devastating effect it had on them as noted by Dr. Jaffe, an award at the higher end of the scale is warranted. 

[261]       There is very little in the factual situation to cause me to differentiate between J. and G. S. when considering the appropriate award of damages to each, as their career paths are practically identical following Glendinning’s arrest and conviction.  Although Glendinning did not abuse G. for as long a period as he abused J., nevertheless G. also suffered abuse by J. as well, whose conduct I consider to be the direct result of Glendinning’s “schooling”. 

[262]       E. suffered abuse by Glendinning for a shorter period of time than his brothers.  Nevertheless, the abuse he suffered was substantial, and had the same devastating effects as those experienced by his two brothers.  However, I am of the view that the award of general damages to him should reflect that shorter period of abuse. 

[263]       Counsel for the Plaintiffs also seeks, as part of an award of general damages, aggravated damages.  As mentioned, an award under this heading was made in many of the cases cited by counsel for both sides during argument.  It appears that such an award is made in cases of sexual assault where there are aggravating factors in order to compensate a plaintiff fully for the loss sustained as result of that misconduct.  Those aggravating factors were mentioned in case of Y.(S.) v. C. (F.G.) 1996 CanLII 6597 (BC C.A.), (1996), 26 B.C.L.R. (3d) 155 at paras. 57 through 59.

 [264]       These factors were said to include considerations such as whether the defendant was in a position of trust, whether the defendant’s response was characterized by remorse, the age of the plaintiffs at the time of the assaults, the nature, number and duration of the assaults, and the physical pain and mental suffering associated with the assaults. 

[265]       In T.W.N.A, supra at para. 348 it is noted that the award of aggravated damages must not be so small that it fails to make the point, but being compensatory, it must not cross the line to an amount that is punitive.  The difficulty that is presented to the trial judge seeking guidance from precedent is that most frequently it appears that judges awarding aggravating damages simply award them as a component part of the non-pecuniary damages. 

[266]       In this case, it is my view that the assaults on J. and G. merit an identical award of both general and aggravated damages, as in both cases the assaultive behavior was similar and of long duration.  The life course of both following Glendinning’s exposure was almost identical. There appears to be no reason to vary the award of damages as between these two Plaintiffs.  As already noted, in addition to Glendinning’s assaults, G. underwent assaults by J., the cause of which I have attributed to Glendinning’s schooling.  Having regard to the precedents above-mentioned, I assess the general damages of J. and G. at $200,000, $25,000 of which is awarded as aggravated damages. 

[267]       With respect to E., while the assaultive behavior took place over less time than that experienced by his brothers, and while Glendinning’s abuse of E. was not as frequent as that on his brothers, it was repeated over a prolonged period.  And because of his younger age at the time, the consequences of it resulted in the alienation and life lasting effects described by Dr. Jaffe and Ms. Fischer. As mentioned above, the responsibility for single assault on him by J. I attribute to Glendinning’s schooling. I assess his general damages at $175,000 including aggravated damages of $25,000.  

[268]        M. S. had minimal exposure to Glendinning’s perversion, that being on the one occasion she mentioned in her testimony, occurring when she was eight years old, when she observed her brothers naked in his rooms and Glendinning rubbing baby powder on E..  However, she suffered embarrassment and derision when she reported that to Father Hunter. 

[269]       More significant was the abuse she suffered at the hands of her brother J. when she was nine, which would be around the time of Glendinning’s arrest.  As above mentioned, I attribute those assaults to the schooling of J. by Glendinning.  Notwithstanding J.’s depredations, after years of despising him for his assaults on her, she now has forgiven him for his assaults on her and she, too, now attributes his behavior to the abuse he suffered at the hands of Glendinning.       

[270]       As I have said, it is my view, in the light of the testimony of Dr. Jaffe and Ms Fischer, that the responsibility for J.’s assaults on his sibling is properly attributable to Glendinning, and his schooling of J., for which the Diocese is liable both in negligence and on the basis of vicarious liability. 

[271]       It is the evidence that M.’s excessive drinking began sometime after Glendinning’s arrest and conviction, although it is not clear exactly how long after.  She described the depressing environment at home following the arrest that took place when she was nine.  She felt she didn’t fit in at school, and experienced problems with sexuality.  As mentioned above, her brother E. introduced her to tobacco and other drug use when she was 12 as well as hash oil, hashish and “acid”.   I have already reviewed her evidence with respect to these events.

 [272]       There is no doubt that M.’s life has not been a particularly happy one, which may not be due entirely to her treatment by the Church and J.’s assaults.  M. has experienced two unsuccessful marriages, but that is certainly not uncommon in this day and age.  Nevertheless, I have no doubt that the effects of the abuse she suffered at the hands of her brother J. had devastating effects similar to those suffered by J., G. and E..  I am satisfied that she deserves compensation for the effects upon her of those serious and disturbing assaults.  I assess her general damages at $50,000. 

[273]       As has been pointed out by counsel for Glendinning, all claims asserted in this action pursuant to s. 61 of The Family Law Act R.S.O. 1990, c. F.3 were struck out prior to trial by the Order of Browne J. of December 24, 2002.  As a result, any claim by the D. and R. S. must be based upon a direct injury or loss they have suffered as a result of Glendinning’s depredations. 

[274]       It is apparent from the testimony of both D. and R. that their life before and after Glendinning was dramatically different.  The family struggled financially but apparently was relatively happy before Glendinning came on the scene, and before his exposure as a child molester.  Thereafter life for them changed.  They both testified as to the tremendous impact upon them of the revelation concerning the abuse of their children.  The harmony in their home was totally destroyed.  Mrs. S.’ relations with the Church, which had been extremely important to her, were destroyed.  She has attested to the chronic stomach pain she attributes to upset following Glendinning’s exposure. Both she and her husband shed tears “for months”. 

[275]       While the basis for liability was not clearly set out by the Plaintiffs, as noted by the Defendants, nevertheless it is my view that both Defendants are liable to these Plaintiffs.  The basis for liability on the part of Glendinning is that his assaults on their children caused severe distress, the effects of which last to this day, especially in the case of Mrs. S..  Such a result was foreseeable.  

[276]       The Diocese is vicariously liable for the injury inflicted for the reasons articulated above in the case of the S. children.  As well, the failure of the Diocese to take any steps to mitigate the effects of Glendinning’s depredations results in direct liability for the foreseeable consequences of that failure. 

[277]       Under these circumstance, I am of the view that there should be an award of damages to both D. and R. S. to compensate them for the pain and suffering they endured as a result of Glendinning’s assaults on their children and his betrayal of the trust they bestowed upon him.   I assess those damages at $15,000 for D. S. and $5,000 for R. S..  

 

PECUNIARY DAMAGES 

[278]       Counsel for the Diocese made no oral submission on the issue of pecuniary damages, but indicated their adoption of the submission and argument presented by counsel for Glendinning. Counsel did indicate that the Diocese was prepared to provide funding for counselling “to an appropriate degree”, and filed written material in support of Mr. Banfill’s submissions on quantum.  These submissions were helpful, as were those of Plaintiff’s counsel, and they afforded the court a variety of scenarios and options with respect to the assessment of pecuniary losses.  

[279]       I have described in the foregoing passages of this judgment the lives and career paths of the three S. children (boys) following the exposure of Glendinning’s depredations.  These Plaintiffs claim that the result of the sexual assaults upon them was their alienation from society, and failure to achieve their potential. The shock and disillusion following his exposure, arrest and conviction resulted in them dropping out of school early, their increased drug abuse, and their anti-social behavior. Each of them alleges that they have suffered economic loss of earnings as a result, and two of them are still undergoing counseling.

 [280]       With respect to that loss there are two elements — past and future loss of earnings to be considered.  Both are difficult to assess in this case.  Past loss is a question of fact to be determined on the sparse evidence presented to me of their past fiscal performance.  Their future loss of income is somewhat more difficult to assess.  But with respect to both the past and future, as was said in Andrews v. Grand & Toy, 1978 CanLII 1 (S.C.C.), [1978] 2 S.C.R. 229 at p. 251, I must gaze into a crystal ball to determine that loss.  What sort of career would they have had but for the abuse?  What were their prospects and potential prior to being subjected to Glendinning’s assaults? 

 [281]       As counsel for the Plaintiffs has submitted, the answer to these questions need not be answered or proven on a balance of probabilities. In Athey v. Leonati, 1996 CanLII 183 (S.C.C.), [1996] 3 S.C.R. 458, at para. 27, Major J. described the onus of proof of such a plaintiff this way: 

Hypothetical events (such as how the plaintiff’s life would have proceeded without the tortuous injury) or future events need not be proven on a balance of probabilities.  Instead they are simply given weight according to their relative likelihood…a future hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility and not mere speculation. 

And he added: 

But in assessing damages which depend upon its view as to what will happen in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages it awards. 

[282]       Defense counsel submit that “lifestyle choices” made by the S. boys with respect to drugs and alcohol must be considered when determining responsibility for their career success or failure. He submits that although Glendinning’s abuse “may have” created socialization problems for them he was not the agent that caused them to make the life choices that they did.  This submission overlooks the fact that the evidence before the Court disclosed that it was Glendinning that introduced the boys to both alcohol and tobacco in his rooms at the seminary.  This introduction to those drugs occurred before they reached their teens.  There is no evidence that they consumed alcohol or experimented with any drug prior to their involvement with him. And he opened the path to their subsequent delinquency. 

[283]       Counsel for the Diocese argues that all three of the S. boys made lifestyle choices that are the primary cause of their current reduced income earning ability. And, curiously, although they do not attribute Glendinning’s assaults on J. as having any causal connection to his career path, with respect to G. and E. they assert J.’s abuse has such a connection to the career paths of his brothers.  That submission lacks consistency.  

[284]       Moreover, it is my view that the evidence has demonstrated a direct causal connection between the abuse suffered by the S. boys and their behavior subsequent to his exposure as a pedophile.  This is clearly seen in the history of all three of them, especially so, temporally, in the case of J. and G..  As a result of their alienation from their family and their peers resulting from Glendinning’s misconduct and exposure, all three left school prematurely, became seriously involved in drugs and alcohol, and engaged in anti-social behavior.  All three engaged in prostitution, and anti-social, including criminal, behavior.  As a result, to varying degrees, they have all suffered years of lost opportunity.  This, in turn, has resulted in lost earnings in the past, as well as in the future. 

[285]         Counsel have presented and discussed through their witnesses four scenarios in respect to each of J., G. and E. S. for consideration by the Court when assessing the pecuniary damages suffered by each of them.  Scenario 1 represents the estimated loss of income of a male Canadian based upon the premise that he would have completed a high school education.  Scenario 2 represents the estimated earnings of a male Canadian who has graduated from high school and has attended two years of post secondary schooling, but with less than a community college diploma.  Scenario 3 represents the estimated earnings of a male Canadian university graduate. All of these three scenarios overlook the fact that Ontario males earn approximately five per cent more that the average. Lastly, scenario 4 is the estimated loss of earnings based upon the premise that a sexually abused male would experience a reduction in annual earnings of $6,000 based upon 1963 dollars. 

[286]       The difficulty confronting me as the trier of fact when assessing the past and future loss of earnings of the three Plaintiffs is that there are so many uncertainties that present themselves.  How can one say that these gentlemen would have finished high school or a community college, let alone university? There appears to be no family tradition of higher education.  On the other hand, it is entirely possible that one or more of them would have completed at least a high school education.  Unfortunately, there is no evidence of an expressed early desire on the part of any one of the three relating to career plans that would assist me on this issue. 

[287]       In addition, if I were to utilize one of the first three scenarios presented, as defense counsel has pointed out, I would be obliged to take into account several contingencies which are conveniently overlooked by Plaintiff’s counsel, such as participation and unemployment rates, unreported income, retirement, life expectancy etc. 

[288]       Unfortunately, the course of the lives of the three men following their departure from the family home is not well documented.  They all, to varying degrees, lived by their wits, and participated in criminal activities, including drug trafficking.  Clearly they earned an income from these illicit activities.  Equally clearly, their drug habits created financial demands.  In view of the disordered lives they led, it is not surprising that there is virtually no record of their actual earnings during their “lost years”.   

[289]       J.’s evidence was that for about 15 years he was employed for only 25% of the time.  He also received money from the sale of drugs, unemployment insurance, and welfare. G.’s employment record is similar to that of J.. For a period of about 11 years he was employed only 25% to 30% of his time.  And E.’s record of unemployment is similar, but less severe than his brothers.  However, all survived somehow, and managed to feed and house themselves, have relationships, and have children. Under these circumstances, it is virtually impossible to reach any reasonable conclusion as to what loss of earnings they sustained.  Moreover, in order to assess their loss on the basis of one of these scenarios one must assume that, but for the assaults upon them, they would have achieved one of those three levels of education.

 [290]       That problem is compounded when one regards the substantially different results of scenarios 1, 2 and 3 reached by the opposing experts.  Counsel through their forensic accountants, James Hoare for the Plaintiffs, and Ian Wallach for the Diocese, presented these results. Exhibits 25, 28 and 29 graphically show the substantially different conclusions reached by the two accountants.  The difference is most pronounced in the scenarios relating to J. and G. in Exhibits 25 and 28, due for the most part to difference in the estimated actual income they earned in the “lost years”. It would be nothing but wild, perhaps optimistic, perhaps pessimistic guesswork on my part to resolve the problem of lost earnings based on any of these three scenarios for that reason. 

[291]       Consequently, it is my view that a preferable course is to apply the fourth scenario presented to me by counsel.  That scenario is based upon a research paper authored by Dr. Ross MacMillan, an Assistant Professor in the Department of Sociology at the University of Minnesota.  That paper was filed at trial as Exhibit 30.  In that article Professor MacMillan was expounding on a methodology that provides an estimate of the monetary costs of criminal violence to victims thereof.  It takes a life course approach to that estimate.

 [292]       In that paper, he reviewed data from two principal sources, one American and one Canadian.  The latter source was the Canadian General Social Survey, 1993 (CGSS). Both studies sought to measure the long-term costs of violent victimization, including sexual assault.  The analyses in the Canadian study include measures of educational attainment and occupational status. Estimates of the long-term costs of criminal violence are derived from the regression effects of violent victimization on annual personal income. 

[293]       Given the difficulty above-mentioned in what career paths the S. boys would have taken but for the sexual molestation, I have concluded that Professor MacMillan’s approach in measuring those long-term effects on earnings is preferable to the other three presented by counsel.  As Mr. Banfill points out, this approach also has the advantage of dispensing with the need to consider the various contingencies outlined by defense counsel when using one of the other three scenarios, the necessity of assessing the actual but undeclared earnings of each Plaintiff, and whether they have mitigated their losses. 

[294]       There remains one issue to be dealt with, even accepting, as I do, McMillan’s methodology as a means of determining past and future loss of earnings.  That is whether to calculate the loss on the basis of the Hoare Dalton scenario of normal mortality and employment to age 65, or on Mr. Wallachs’ scenario of a rated mortality and retirement at age 62.  Dr. Pampe’s letter of September 16, 2002, which was contained in Exhibit 26 at Tab 6, indicated that in his opinion J.’s life expectancy was substantially reduced by virtue of his Hepatitis C.  With respect to J.’s brothers he noted no serious reduction in their life expectancy noted by Dr. Pampe. 

[295]       However, Dr. Pampe appears not to have seen J., and it is unclear from his letter exactly what medical information he had in his possession pertaining to J. and his brothers prior to preparing it.  No other medical evidence was presented to support the proposition that I should attribute a reduced life expectancy to him or his brothers.  Moreover, given the late entry of the S. brothers into the job market, and their consequent failure to provide for retirement, it is more likely than not that they will be obliged to continue to work beyond the average of retirement in Canada, said to be age 62 

[296]       Under these circumstances, it is my judgment that the loss of earnings of J., G. and E. ought to be assessed in accordance with the revised calculations contained in Exhibit 48 as projected by Hoare Dalton, namely: for                                                                       

J.:      Past loss to June 9, 2003…..$138,350

Future loss…………………$108,564

               Total……………………… $246,914

G.:      Past loss to June 9, 2003….$132,260

            Future loss ……………….$116,751

            Total: …………………… $249,012

E.:      Past loss to June 9, 2003…$128,054

            Future loss ……………….$123,443

           Total:…………………….. $251,489

PUNITIVE DAMAGES 

[297]       I have considered the Plaintiffs claim for punitive damages.  I am not satisfied that the Plaintiffs have made out a case for punitive damages against the Diocese.  I have already awarded the Plaintiffs aggravated damages for the reasons set forth above.  The claim for punitive damages appears to be made partly because the Diocese did not respond to the needs of the children in 1974.  While this is true, in my view, that alone does not justify an award of punitive damages.  The consequences of that failure may well have contributed to the subsequent alienation of the boys from society.  The foregoing damage awards include compensation for that.   

[298]       Nor do I believe that the fact that the Diocese saw fit to initiate a counterclaim against J. S. is a valid ground for an allegation that the Diocese was attempting to intimidate the Plaintiffs.  The Diocese had the right to defend itself by all legal means to the best of its ability.  Simply because I have not found that defense to be tenable on the facts as I find them does not thereby render their defense abusive of the Plaintiffs. 

[299]       Moreover, as was said in Whiten v. Pilot Insurance Co., [2003] S.C.J. No. 19 at para. 116:

Aggravated damages are the proper vehicle to take into account the additional harm caused to the plaintiff’s feelings by reprehensible or outrageous conduct on the part of the defendant. Otherwise there is a danger of “double recovery” for the plaintiff’s emotional stress, once under the heading of compensation and secondly under the heading of punishment.

 [300]       Moreover, at para. 113 of that report the court lists numerous factors that might be taken into account when deciding that an award of punitive damages is justified or called for.  None of those elements are present in this case. 

FUTURE CARE 

[301]       While it is true that in the opinion of Dr. Jaffe that J. will likely require intensive treatment in the future for a significant time period no plan was put forward to the Court for such treatment.  Prior to his assessment by Dr. Jaffe in 2001 he had been seeing a psychiatrist for approximately two years.  However, in view of the fact that there was no indication at trial that he had continued those sessions or that he intended to do, so I make no award to him under that heading. 

[302]       The same cannot be said in the case of his brothers G. and E., both of whom have been counseled by Linda Fischer, E. having had almost twice as many sessions with her than G..  It was Dr. Jaffe’s opinion that both of these men require continued therapy. Unfortunately, the cost of such therapy was not well presented at trial, leaving the Court to its own devices in this regard.  Ms. Fischer indicated during her testimony that the sessions with her are covered by OHIP.  That being the case, and there being no claim asserted on behalf of OHIP, I make no provision for the future cost of counseling or therapy. 

JUDGMENT 

[303]       For the above reasons judgment for the Plaintiffs will issue as follows: 

(a)      for the Plaintiff J. S., non-pecuniary damages of $200,000 together with pecuniary damages of $246,914 for a total of $446,914. 

(b)   for the Plaintiff G. S., non-pecuniary damages of $200,000 together with pecuniary damage of $249,012 for a total of $449,012. 

(c)   for the Plaintiff E. S., non-pecuniary damages of $175,000 together with pecuniary damages of $251,489 for a total of $426,489. 

(d)   for the Plaintiff M. S. non-pecuniary damages of $50,000. 

(e)   for the Plaintiff D. S. non-pecuniary damages of $15,000. 

(f)     for the  Plaintiff R. S. non-pecuniary damages of $5,000. 

[308]      Pre-judgment interest will be allowed on those amounts in accordance with the Rules unless counsel wish to make representations otherwise. Counsel may make written submissions to me with respect to costs within the next thirty days. 

[309]      As mentioned, I see no merit in the submission that J. should be held responsible for his assaults on his siblings.  Consequently, the counterclaim will be dismissed with costs to J. S., but limited to counsel fee at trial. 

“Justice J. G. Kerr”

            ________________________

Justice J. G. Kerr    

Released:   February 2 , 2004

COURT FILE NO:  33504  

ONTARIO   

SUPERIOR COURT OF JUSTICE 

          

BETWEEN: 

J. R. S., G. P. S., L. E. S., D. P. S., R. S. S. AND M. S. 

Plaintiffs 

– and – 

BARRY DONALD GLENDINNING, THE ROMAN CATHOLIC EPISCOPAL CORPORATION OF THE DIOCESE OF LONDON IN ONTARIO, THE ROMAN CATHOLIC CHURCH, THE LONDON DISTRICT CATHOLIC SCHOOL BOARD 

Defendants

 

_________________________________ 

        REASONS FOR JUDGMENT 

­­­­­­___________________________________

 

KERR  J.

Released:   February 2, 2004

One Response to Reasons for Judgement (Glendinning lawsuit)

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